R v Petrie [2003] NSWCCA 208 | Case summary

WEDNESDAY 23 JULY 2003 REGINA v Thomas Moncrief PETRIE Judgment 1 HOWIE J: This is an application for leave to appeal against the asserted severity of a sentence imposed in the District Court by Judge English. The applicant came to be sentenced by her Honour after he pleaded guilty before a magistrate to an offence of break, enter and commit a serious indictable offence in circumstances of aggravation. The serious indictable offence alleged was an assault occasioning actual bodily harm and the circumstance of aggravation was that he was armed with an offensive instrument, a jemmy. The offence to which the applicant pleaded guilty is contrary to s 112(2) of the Crimes Act and carries a maximum penalty of 20 years imprisonment. 2 The applicant was committed for sentence to the District Court and adhered to his plea of guilty before her Honour. In addition the applicant asked the sentencing judge to take into account two matters on a Form 1 under the provisions of the Crimes (Sentencing Procedure) Act. These matters, both assaults, arose from the same incident that gave rise to the offence to which the applicant had pleaded guilty. Judge English sentenced the applicant to imprisonment for 5 years to commence on 27 May 2002 and to expire on 26 May 2007 and specified a non-parole period of 3 years to expire on 26 May 2005. 3 There are three grounds of appeal that have been filed in respect of the application. They are as follows: 1. The learned sentencing Judge's assessment of objective criminality commenced at too high a level in the circumstances. 2. Her Honour erred in law in having regard to the strength of the Crown case in determining the appropriate level of allowance due for the utilitarian value of the guilty plea. 3. The sentence is manifestly excessive in the circumstances. 4 There is no dispute as to the facts upon which her Honour was to sentence the applicant and which were set out in the remarks on sentence. They were as follows: "The facts and circumstances giving rise to the offences were that on 27 May 2002 the victims, Ronald Heffernan and Susan Morgan, were at their home at 13 Nelson Street, Umina. At the time Mr Heffernan, who is aged sixty-one and is disabled, was seated on a lounge watching television. The victim, Susan Morgan, acts as his carer, she was preparing dinner for them. They heard a knock on the front door and Miss Morgan walked to the front door to enquire who was there. A male at the door said, "It's Ron, it's Ron." She continued to ask who it was and the male kept repeating the same name. She partially opened the front door and looked around to see who was there. At that moment the offender opened the security screen door which was closed, but not locked, and pushed past Miss Morgan and entered the premises. The offender was wearing a black balaclava and was in possession of a steel jemmy bar. The offender walked straight up to Mr Heffernan and struck him about the head and upper part of the body with the steel jemmy bar. Miss Morgan screamed out and went to Mr Heffernan's assistance. She too was struck over the head with the jemmy bar. The offender continued to strike Mr Heffernan and Miss Morgan called to David Manders, who was at the rear of the premises, to come and assist. He ran into the premises and fought with the offender. During the struggle Mr Manders was struck on the forearm with the jemmy bar, but Mr Manders managed to wrest the jemmy bar from the offender and forced him into the toilet where he remained until police arrived. Whilst the offender was being kept in the toilet Miss Morgan removed the black balaclava from his head and recognised him as looking like Tom who used to live across the road some time ago. Police enquiries revealed that the offender in fact lived at 14 Nelson Street, Umina, a property across the road from Mr Heffernan's property. At the time of the incident the offender informed Mr Manders that he had been paid $500 to bash a Les Stevenson because he owed money. Police were unable to locate any evidence to support the assertion. Police arrested the offender and seized the jemmy bar and black balaclava. They also found rigger type gloves with what appeared to be blood stains on them behind the toilet where the offender had been detained. When spoken to at the police station the offender informed police that he was walking past the premises, saw the door was opened and dropped in to see Ron. The offender stated he was set upon and attacked. Whilst speaking to police it was apparent that he was affected by alcohol and/or drugs. He informed police he had consumed four large bottles of beer that afternoon and was also taking medication for depression. Police described him as being extremely vague and incoherent. He told police he caught the bus to Nelson Street and walked to the premises. However, police later located his motor vehicle parked in Springwood Avenue, Umina, a short distance away from the victim's residence." 5 It should be apparent that the offence for which the applicant was sentenced related to the attack upon Mr Hefferman and that the two matters on the Form 1 related to the assaults upon Miss Morgan and Mr Manders. Fortunately for all concerned none of the victims of the attacks suffered serious or permanent injury before Mr Manders was able to subdue the applicant. 6 The applicant, who was aged 51 years at the time of the offences, gave evidence in the sentencing proceedings. He said that he had little memory of the incident and could not explain his conduct. He was asked about a statement he made to Mr Manders just after he was disarmed to the effect that he had been paid $500 to bash a person named Les Stevenson. The applicant was unable to explain why he had said this but denied that he had been paid to assault anybody. The applicant admitted knowing both Mr Hefferman and Miss Morgan but said that he had not come into conflict with them. He could not explain his conduct and remembered it only in flashes. 7 The applicant gave evidence that he had consumed four or five long neck bottles of beer and had also taken painkillers and anti-depressant tablets shortly before committing the offence. He admitted being an alcoholic but said that he had undertaken a course to overcome his drinking problems. He stated that he had not consumed alcohol for the six years prior to a period shortly before the commission of the offence. The applicant said that he had resumed drinking alcohol because of emotional turmoil over his relationship with his de facto. 8 The applicant has a long history of criminal offences commencing in 1966 and continuing to 1996. They are mainly what can be described as street offences, minor property offences and offences of driving with the prescribed concentration of alcohol. In 1993 he was sentenced to gaol terms for assaults and dishonesty offences. He served three months of those sentences before they were quashed on appeal in the District Court when non-custodial penalties were imposed. It is clear that his history of offences has been related to his use of alcohol and various courts, before which he has appeared, have attempted to assist in his rehabilitation. It is noteworthy that prior to the commission of the offence with which this Court is concerned he had been free of any criminal convictions for six years. This is consistent with the applicant's evidence that over that period he had not consumed alcohol. 9 In evidence before her Honour was a psychological report in relation to the applicant. The report set out the applicant's somewhat disturbed and dysfunctional family background. The applicant was abusing alcohol by the age of 23. From the age of 28 years, when his marriage broke up because of his alcoholism, the applicant had been living mainly in accommodation provided by welfare agencies. He has participated in rehabilitation and detoxification programmes and at times has been able to abstain from alcohol for lengthy periods. The applicant had been regularly employed until 1991 when he entered a rehabilitation unit to address his alcohol addiction. He has attempted to undertake courses in Alcohol and Drug Abuse at TAFE but since 1995 has been in receipt of a Disability Support Pension as a result of injuries he suffered in a motor vehicle accident. He entered into a relationship with his current partner in 1996 and she remains supportive of him. The psychologist believed that the applicant needs further counselling for his use of alcohol and in relation to anger management. 10 A pre-sentence report indicated that from 1995 the applicant's response to supervision improved because of his effort to remain sober and deal with issues in his life without the use of alcohol. In November 1996 the decision was made to terminate his supervision because of his stability. The applicant abstained from alcohol until March 2002. However, his return to alcohol use brought about difficulties in his relationship with his de facto partner because of his moodiness and depression. The probation officer described the applicant as a person having some insight into his problems but whose dependence on alcohol is a result of underlying emotional anxieties that overwhelm him at times. 11 The only patent error asserted in her Honour's remarks on sentence relates to the percentage discount given in recognition of the applicant's plea of guilty and his contrition. Her Honour accepted that the applicant was "clearly mortified at what he has done and the injuries he inflicted upon the elderly victim and his two other victims". The sentencing judge also found that the applicant's expressions of remorse and contrition to be genuine. Her Honour then stated: "I have taken into consideration his plea of guilty as showing contrition and as having public utility. I have allowed an 18 per cent discount on sentence and have had regard to the strength of the Crown case against him in arriving at that discount. 12 Mr Craigie SC who appears for the applicant has submitted that her Honour was in error in reducing the discount to which the applicant was entitled by his plea of guilty by reason of the strength of the Crown case. The applicant had pleaded guilty before the magistrate and adhered to that plea before her Honour. It was argued that the applicant was, therefore, entitled to a discount of at least 25 per cent, see R v Thomson and Houlton (2000) 49 NSWLR 385. 13 As I pointed out in Parkinson (2001) 125 A Crim R 1, in a judgment with which Barr J agreed, the discount for the utilitarian benefit of an early plea of guilty has nothing to do with the strength of the Crown case, see also R v NP [2003] NSWCCA 195 particularly per Simpson J at [38]. The quantum of the discount depends principally upon the timing of the plea. The strength of the Crown case is relevant in regard to the benefit, if any, to be given for contrition, so that a plea of guilty in recognition of the inevitability of conviction qualifies the extent of genuine contrition but not the utility of the plea, see Thomson and Houlton at [138]. 14 The Crown has argued that her Honour's remarks, which I have quoted above, are not without a degree of ambiguity, and that they do not necessarily indicate that her Honour erred in the way the applicant asserts. The Crown notes that her Honour was considering a discount based upon both the plea and contrition and, therefore, the strength of the Crown case was not irrelevant. 15 In my view the applicant was entitled to the full measure of discount for the plea of guilty at the earliest opportunity without consideration of the strength of the Crown case. He may also have been entitled to the benefit of expressed remorse and contrition, which her Honour found to be genuine in addition to the discount for the plea. There is no basis upon which her Honour could have determined that both contrition and the plea should result in a discount less than that justified by the plea itself. The applicant was entitled to a reduction of the appropriate sentence by 25 per cent and this ground is made out. 16 Her Honour must have chosen a starting sentence of 6 years before applying the discount of 18 per cent. It is contended that such a sentence was excessive having regard to the applicant's subjective material. Particular emphasis is rightly placed upon the applicant's ability to rehabilitate himself. It was submitted that her Honour was in error in referring to the offence as involving "a degree of pre-planning" because there was no rational motive available to explain the commission of the offence. In this regard reliance is placed upon the absence of any serious offence of violence in the applicant's record and that the offence can be considered as an aberration brought on by alcohol. It is submitted that the sentence fails to reflect the reduced culpability of the applicant and his prospects for rehabilitation. 17 On the basis that this Court might have found error in the sentencing discretion exercised by Judge English, further material has been tendered relating to the subjective circumstances of the applicant. The first is an affidavit of the applicant to the effect that while in custody he suffered what he understands to be disc lesion in his back. He is being treated in the gaol but is suffering pain and the injury is interfering with his ability to obtain employment in prison. He is also receiving anti-depressant medication and counselling from a psychiatrist. He has still the support of his partner although she has difficulty travelling to see him. The applicant has been undertaking rehabilitation courses. 18 The Court also received a psychological report prepared by Mr Fathers. The report contains additional material by way of psychological testing that was contained in the report placed before her Honour. It seems that much of the applicant's physical and psychological difficulties are a result of anxiety and depression leading to his substance abuse. He has underlying personality and emotional disturbance. The applicant acknowledged that he can become aggressive when frustrated. Some of the accounts given to the psychologist of the offence is inconsistent with the facts presented to the Court. In particular the psychologist believed that the applicant did not know the persons whom he attacked but the applicant knew both Mr Hefferman and Ms Morgan. However, the psychologist believes that at the time of the offence, the applicant was clinically psychologically disturbed as a result of his ingestion of alcohol and drugs. 19 In my view notwithstanding the further material there is no error in the sentence of 6 years considered by her Honour as an appropriate starting point for the sentence. The offence was clearly not an instantaneous reaction to some imagined slight or injury inflicted upon the applicant The applicant went to these premises armed with a jemmy, while disguising his face with a balaclava and wearing gloves. It may be that the reason for him acting in this way is to be found in the effect upon him of his ingestion of drugs and alcohol. It may also be accepted that he no longer understands why he behaved in this way. But the offence clearly involved a degree of pre-meditation for whatever reason the applicant was motivated to do what he did. The fact that the applicant may have on other occasions carried the jemmy for self-protection or worn a balaclava to protect him from the cold, does not account for him going to this particular house with the jemmy, the balaclava pulled over his face and wearing gloves. The applicant's motor vehicle was found nearby and it appears he drove to the premises even though he lived but a short walk away. 20 Nor does the fact that the applicant was intoxicated reduce to any great extent his criminal culpability. The applicant knew that, if he drank alcohol, there was the risk that he would commit further offences including violence. He had sufficient insight and knew the means to address his problem once he felt the need to drink alcohol again. He knew he ran the risk of further breaches of the law but recommenced his reliance upon alcohol and was drinking for about two months before the commission of the offences. While because of his prior period of abstinence, I would not consider intoxication to be a matter of aggravation in the present case, it has more relevance to the fixing of the non-parole period than to the head sentence. The fact that there is no apparent motive for what he did indicates that as at the date of the offence at least the applicant had the potential to act in a dangerously violent way when affected by alcohol and drugs. The attack upon the elderly victim was determined notwithstanding the attempts of Miss Morgan to prevent him. Serious injury was avoided only because of the presence of Mr Manders. The sentence had to encompass the matters on the Form 1 notwithstanding that they were assaults arising in the same incident. 21 Although because this Court has found error, it can exercise the judge's sentencing discretion afresh, I do not believe that any lesser sentence than that chosen by the sentencing judge is appropriate to reflect the objective seriousness of the applicant's conduct and the need for general and in particular personal deterrence. The 6 years, however, should be reduced by 25 per cent and result in a head sentence of 4 years and 6 months. There are clearly special circumstances and the applicant's prospects of rehabilitation are good notwithstanding his lengthy involvement with alcohol and his history of criminal offences. He described his current situation as a "wake up call" and the community in general must hope that this is so. 22 I have given anxious consideration to what should be the length of the non-parole, having regard to the applicant's age, his previous efforts at rehabilitation and the need for continuing assistance once he is released from prison. The applicant must be given credit for the period of abstinence and good citizenship over the six years leading up to the commission of the offence in light of his earlier history of re-offending. Mr Fathers believes that the applicant should be monitored in respect of his treatment by prescribed substances to ensure that he does not abuse them. But notwithstanding his need for psychological intervention and the difficulties the applicant is experiencing in gaol, the offence is of such seriousness and the need for deterrence so substantial that he must serve a significant period of incarceration before being eligible to be released to parole. In my view the least sentence he can be called upon to serve is one of 2 years. 23 I propose that the application be granted the appeal allowed and the sentences imposed by her Honour be quashed. The applicant should be sentenced to imprisonment of 4 years 6 months to date from 27 May 2002. There is to be a non-parole period of 2 years to expire on 26 May 2004, the date upon which the applicant is eligible to be released to parole. 24 TOBIAS JA: I agree with the orders proposed by Howie J for the reasons his Honour has given. 25 JAMES J: I agree. 26 TOBIAS J: The orders of the Court will be as indicated by Howie J.

R v Petrie

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