R v Lee

The applicant had a history of mental illness, induced or exacerbated by drug use and alcohol. He was, as mentioned, 31 years old. He was the youngest of six children. He was described by Dr Nielssen as genetically predisposed towards mental illness. His family had a history of mental illness. His brother had been diagnosed with schizophrenia. He suffered sexual abuse as a child, at the hands of a neighbour. At an early age he began drinking and taking drugs. He was considered an uncontrollable child, and given permission to leave school early. At the age of 19 he began using heroin, which he continued to use for some years. He was intermittently employed. 24 In 1996 he was admitted to the James Fletcher Psychiatric Hospital at Newcastle. He presented as a voluntary patient, reporting a loss of control. His brother had recently died in a road accident, and his relationship with his girlfriend had terminated soon thereafter. 25 However, his past was not altogether bleak. He managed, without the aid of methadone, to give up heroin, although he substituted other drugs, and especially amphetamines, cannabis and alcohol. He had several long relationships. He had been able to work more or less continuously for five years before an accident on 19 April 2000, when he injured his knee. 26 Mr Lee was given worker's compensation as a result of his knee injury. He ultimately received two substantial payments in respect of the disability which remained. Together they totalled approximately $96,000. The first payment was made in June 2001, and the second in November that year. These payments appear to have been Mr Lee's undoing. In the months that followed, before February 2002, Mr Lee spent the entire amount. When asked how he had spent the money he said, "drugs, sluts and gambling". 27 Once the money was gone, Mr Lee, not surprisingly, became depressed. He again resorted to alcohol and various drugs. He was again unemployed. 28 As mentioned, the incident giving rise to the charges occurred on 9 April 2002. One month before (10 March 2002), Mr Lee was admitted once more to the James Fletcher Hospital at Newcastle as a voluntary patient. He remained at that hospital for ten days. He was diagnosed as having an adjustment disorder, suffering from polysubstance abuse and having borderline personality traits. He was discharged after a dispute with the treating doctor. 29 On 22 March 2002, that is after only one day, Mr Lee was again admitted to hospital as a voluntary patient, this time at the Banksia Mental Health Unit at the Tamworth Hospital. He was discharged on 2 April 2002. He was again admitted on 6 April 2002. Whilst at hospital, he climbed onto the roof, holding a scalpel to his throat and threatening to commit suicide unless he received help in respect of the difficulties he was experiencing. He was discharged from hospital on 8 April 2002, that is, the day before the offence. He said he was angry about his discharge. He made the following statement to Dr Olav Nielssen, psychiatrist: "He said that 'I was extremely displeased about being kicked out ... I thought I still needed help'. He said 'they told me I was not mentally ill and they weren't going to keep me in hospital ... I thought I wasn't in control ... I was worried I was going to lash out and hurt myself'." 30 Mr Lee was asked by Dr Nielssen what he meant when, in the course of the incident at the school, he had said that he wished to "negotiate his demands with a higher authority". Mr Lee said he could not remember, but he wanted to be taken back to the hospital. 31 His Honour described Mr Lee's behaviour in the course of the incident as "bizarre". It certainly was. Instead of quietly leaving the classroom, as might be expected of a rational person, he hatched a plan which can only be described as extraordinary and pointless. Once under arrest, the police, as mentioned, arranged to have him examined by a mental health team. Once brought before the Court, the Magistrate directed that Mr Lee be returned to the Banksia Mental Health Unit. 32 Unquestionably his Honour was conscious of all these matters. The psychiatric evidence was placed before him. He summarised the competing contentions of counsel. The Crown emphasised the objective seriousness of the offences. Counsel for Mr Lee pointed to the impulsive nature of the act and the nature of the act itself. The actions of Mr Lee, it was suggested, were the product of a "disorganised and confused state of mind". Counsel for Mr Lee urged that he be dealt with more leniently than might otherwise be the case. 33 Mr Lee had a criminal history. It included Childrens' Court offences and a number of relatively minor offences since becoming an adult. In 1994 he had been placed on a recognisance once in 1994 for break, enter and steal, and in 1998 he had been fined for assaulting a police officer. He had, however, never previously been in custody. Dr Nielssen made the following observation in September 2002: "Mr Lee appeared to have improved considerably after several months institutional care, free from drugs and alcohol and with consistent treatment with antidepressant medication. He would probably receive some benefit from completing the programme offered at the Kevin Waller Unit, a six month group therapy based programme for prisoners with self defeating personality traits considered at risk of self harm. He should also complete a long term residential drug and alcohol rehabilitation programme before his release to the community." 34 Mr Lee also saw a psychologist. He was assessed as having a high average intelligence. It was submitted by Mr Lee's Counsel to the sentencing Judge that Mr Lee's prospects of rehabilitation were reasonably good, a view shared by the Crown. His Honour did not expressly adopt that finding, although he appeared to accept that the prospects of rehabilitation were reasonable, provided Mr Lee maintained his resolve to seek professional help. 35 In the course of his remarks on sentence, his Honour said this: "While the concepts of general and specific deterrence ordinarily play a significant role in determining what sentence to subject an offender to for his objective criminality this case is to my mind an extraordinary case in this regard particularly in light of the offender's bizarre behaviour during the incident, his explanation during the course of the Record of Interview as to how the situation developed and the material contained in the Pre Sentence Report Psychiatric and Psychological Reports which constitute Exhibits C, D, 1 and 2 herein." 36 His Honour made the following observations upon the offence: "On the objective facts of the case this is a most serious offence and in my opinion notwithstanding the subjective material herein falls within the 0 to 65 percentile band of criminality so far as that crime is concerned because it involved the terrorising and traumatising of not less than 10 primary school children and their teacher in circumstances where they were all entitled to feel free and protected and in a safe environment. In these circumstances I (cannot) agree with Mr Parker's contention that the offender's criminality falls in the lower range of criminality for this offence. The trauma that the Principal of the school, the children's teacher and the young children affected by this incident underwent because of the offender's conduct on this occasion cannot be assessed at this time but I have no doubt it will impact on them for some undetermined time into the future." 37 His Honour therefore concluded that the following sentence was appropriate: "In all the circumstances of this case the objective criminality displayed by the offender in committing this offence when viewed in the light firstly of the subjective material placed before me in these proceedings, secondly the fact that he is entitled to a discount on sentence approximating 20%, and thirdly that he will probably have to serve any sentence imposed on him in protective custody, it seems to me that the community's abhorrence to this type of criminal behaviour can only be appeased by my subjecting the offender to a custodial sentence of 6 1/2 years and fixing a non parole period in relation thereto of 3 1/2 years." 38 Now it must be accepted that at the time of committing the offence Mr Lee was not insane. Nonetheless, his history in the months preceding the offence, and especially his admission to psychiatric institutions immediately before the offence, together with his behaviour at the time of the offence, certainly suggested that he was afflicted by mental illness falling short of insanity. 39 The sentencing principle, when dealing with an offender in such circumstances, was stated by Young CJ at and Jenkinson J (with whom Murphy J agreed) in R v Anderson [1981] VR 155 in these terms: (at 160) "General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others. The mental condition of an offender may be taken into account when passing sentence, but whether the evidence establishes legal insanity or mental illness stopping short of legal insanity, the question to be answered is whether the interests of society permit or the interests of the offender require that the sentence to be passed be reduced from what would otherwise be appropriate rather than whether the offender's responsibility for the offence should be regarded as having been reduced." 40 That principle was reaffirmed in R v Scognamiglio (1991) 56 A Crim R 81 at 86 (Clarke JA, Grove and Newman JJ) and Engert (1995) 84 A Crim R 67 at 71 (Gleeson CJ, Allen and Sully JJ agreeing at 72). 41 Hunt CJ at CL and Hidden J (with whom Gleeson CJ expressed his general agreement) said much the same thing in R v Wright (1997) 93 A Crim R 48 at 50/51: "Considerations of general (or even personal) deterrence are not rendered completely irrelevant, and the significance of the offender's mental incapacity is to be weighed and evaluated in the light of the particular facts and circumstances of the individual case. The reason for the principle is that the interests of society do not require such persons to be punished as severely as persons without that disability because such severity is inappropriate to their circumstances. The full understanding of the authority and requirements of the law which is attributed to the ordinary individual of adult intellectual capacities cannot be expected of a person whose intellectual function is insufficient to have that understanding. The means by which the courts give effect to that principle (as an instrument of social administration) is to moderate the consideration of general deterrence to the circumstances of the particular case. But if the offender acts with knowledge of what he is doing and with knowledge of the gravity of his actions, the moderation need not be great." 42 In R v Henry (1999) 46 NSWLR 346, Wood CJ at CL said this: (at 394) "... the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing." 43 In R v Israil [2002] NSWCCA 255 Spigelman CJ, applying these principles on a Crown appeal (where a person had pleaded guilty to armed robbery with a blood filled syringe, and had been given a suspended sentence by the sentencing Judge), said this: "23. To the extent that mental illness explains the offence - as her Honour found to be the position in the present case - then an offender's inability to understand the wrongfulness of his actions, or to make reasonable judgments, or to control his or her faculties and emotions, will impact on the level of culpability of the offender, even where the illness does not amount to an excuse at law." (emphasis added) 44 Here his Honour's remarks, in the passage quoted (supra para 34), advert to this principle. I do not doubt that his Honour was conscious of it. The issue is whether there was latent error, as revealed by the length of the sentence. Mr Lee had pleaded guilty. His Honour had allowed a 20% discount, so that his starting point was 8.125 years for an offence in respect of which the maximum was 14 years. On these facts, no valid objection could be made if there were no issue of mental illness. Was it too high, taking account of Mr Lee's mental state at the time, and his capacity to make rational judgments, and taking account of the other aspects of his case, his contrition, his good prospects of rehabilitation, the fact that he had not previously been to gaol and would serve his sentence in protection (because of the nature of the offence)? 45 There is, of course, no doubt that the offence was serious, and the trauma to the children and the teacher was serious, although no-one was physically harmed. I am persuaded, however, that the learned sentencing Judge did err in failing to give proper weight to the mental state of the applicant, such that the sentence imposed was manifestly excessive. I believe therefore that error has been shown. 46 When resentencing, I would, as I have said, allow 25% for the early plea. I also believe that, with appropriate counselling and arrangements such as those proposed by his Honour, the prospects of Mr Lee's rehabilitation are reasonable. I would, for the same reasons as his Honour, find special circumstances. Mr Lee will benefit from a longer period of supervision than usual.