R v Sivyer

• 8 -IN THE COURT OF CRIMINAL APPEAL 60034/02

WOOD CJ at CL HOWIE J

Tuesday 10 September 2002 Regina v Christopher Sivyer Judgment 1 WOOD CJ at CL: The applicant seeks leave to appeal against the severity of the sentences imposed upon him by his Honour Judge Nield, in the District Court, on 18 January 2002. The sentences were imposed following pleas of guilty, which were accepted as having been offered at the earliest appropriate opportunity, to two counts of break, enter and steal; one count of entering a dwelling with intent to steal; and one count of stealing from a dwelling. 2 In chronological order the short facts were as follows: Count 4 3 On 16 July 2001, the applicant stole a Cannon camera from a dwelling, namely a room in the Bunkhouse Backpackers Hostel in Byron Bay, which he then attempted to pawn at the Byron Bay Loan Office. For this offence of stealing from a dwelling, he was sentenced to a fixed term of nine months to date from 24 August 2001, that being the date upon which he went into custody. Count 2 4 On 18 August 2001 between the hours of 1pm and 5pm, the applicant broke into a locked room at the Crossroads Backpackers Hostel at Potts Point, and stole an Olympus camera and lens, which he pawned at the Alpha Loan Office in Kings Cross for $50. For this offence of break, enter and steal he was sentenced to a fixed term of one year and four months to date from 24 October 2001. Count 3 5 On 18 August 2001 at about 5pm the applicant was observed trying to open a door in the Sydney Central Backpackers Hostel, Kings Cross. Although pursued by residents and later handed over to police, he was released after questioning. For this offence of enter with intent he was sentenced to a fixed term of 12 months, to commence on 24 February 2002.

Count 1 6 On 23 August 2001, the applicant broke into an apartment at Edgecliff and stole a laptop computer which he then attempted to pawn. For this offence of break, enter and steal he was sentenced to imprisonment for three years commencing on 24 February 2003, and expiring on 23 February 2006, with a non-parole period of one year commencing also on 24 February 2003, and expiring on 23 February 2004. 7 The overall sentence, as a result of the accumulation of the sentences, was accordingly one of imprisonment for four and a half years, with a non-parole period of two and a half years. The sentence for count 4 has now expired. 8 At the time of these offences the applicant was on parole for an offence of take and drive conveyance. By reason of subsequent offences including, but not confined to the offences dealt with by his Honour Judge Nield, that parole was revoked on 12 February 2002, and the applicant was required to serve the balance of parole between 24 August 2001 and 30 November 2001. 9 The applicant submits that error was disclosed in six specific respects, which I will deal with in turn.

Ground 1 - Failure to take into account the applicant's mental condition as affecting general and personal deterrence.

10 The presentence report, and a report prepared in May 2000 by a psychiatrist, Doctor Rosalie Wilcox, were tendered in evidence. They showed that, since the age of 19 years, the applicant had been diagnosed as suffering from various forms of mental ill-health including bipolar disorder, schizophrenia, and narcissistic personality disorder. The preferred diagnosis, Doctor Wilcox's report suggested, is that of bipolar disorder. 11 He has had a number of admissions to psychiatric hospitals in New South Wales and other states, as well as in the United Kingdom. 12 The history noted in these reports made specific reference to the fact that he had been treated with psychoactive medication, but had been generally resistant to accepting that he had a mental illness, and was unwilling to take medication for his condition, preferring to treat himself by the use of heroin. 13 On the day after the last of the current offences he was admitted to the Long Bay Prison Hospital and medicated pursuant to a treatment order. By the time he appeared for sentence, however, he was assessed as not requiring medication. 14 The material placed before his Honour did not include any additional expert evidence concerning his current medical status. 15 Doctor Wilcox had diagnosed the applicant in May 2000, at a time when he was due for sentence in relation to other matters, as suffering from bipolar disorder, poly-substance abuse, and antisocial personality traits. She was of the opinion that, unmedicated, his disorder made it probable that he suffered from impaired judgment. Although she noted at the time that the applicant was "gradually coming to accept that he may have a mental illness that requires treatment", it is obvious that he had not done anything to address that problem during his period of release on parole, from 15 April 2001 until his arrest on the present charge. 16 Regrettably, that report had not been updated so as to deal more specifically with his mental state at the time of the present offences. 17 When giving evidence, however, the applicant confirmed that he found it difficult to accept that he was mentally ill; expressed concern that the long-term effects of medication were quite horrific; and indicated that, when bailed to go to a psychiatric unit on an earlier occasion, he had absconded from it. He made it clear that he had been using illicit drugs to suppress his moods. He did indicate a willingness to undergo counselling for both the drug issues and the mental health issues, adding that he had not from past experience, however, benefited from medication. 18 When dealing with the applicant's mental health issues in a particularly comprehensive judgment, his Honour said:

"He has rejected the diagnosis of the doctors who have examined him and he has refused the medication prescribed for him by doctors. Having regard to what happened to him during his giving of evidence, it is clear that he finds difficulty in both understanding and accepting that he has a mental disorder which needs treatment. It is to be hoped that he will accept such treatment as might be available to him in prison." 19 While accepting that his Honour did not ignore the issue of mental health, it was submitted that his finding was not entirely correct, having regard to the fact that he had taken medication in the past, and having regard additionally to Doctor Wilcox's observation that he was gradually accepting the mental disorder. 20 Additionally it was submitted that his Honour, in not referring to the well recognised principle expressed in decisions such as Regina v Scognamiglio (1991) 51 A Crim R 81; Regina v Letteri NSWCCA 18 March 1992; and Regina v Engert (1995) 84 A Crim R 62, failed to appreciate that the need for personal and general deterrence, which he saw as relevant to the sentencing exercise, should be mitigated by the applicant's mental disorder. 21 Where an offender's ability to make a reasoned or ordered judgment is reduced by the presence of a mental disorder, then it is proper that specific consideration be given to that factor for the reasons explained by me in Regina v Henry [1999] 46 NSWLR 346 at para 254. 22 Moreover, as the decisions earlier cited demonstrate, both personal and general deterrence have less relevance, in the case of an offender who suffers from an on-going condition, since the community will understand both the reason for his behaviour, and the fact that the constraints of a sentence will have less impact upon a person who, through illness, has a compromised ability to moderate his behaviour. 23 However, this has to be balanced against the community interest, in the case of an offender such as the present applicant, who does not accept that he has a condition requiring treatment, particularly if the offender is accustomed to resorting to measures such as the use of illicit drugs to deal with it. The need for a proper balance was expressly recognised by this Court in its judgment in Regina v Engert at pages 68 and 71, and it is also implicit in a decision in Veen v The Queen (No 2) (1988) 164 CLR 465, so far as that decision recognises the community interest in relation to repetitive offenders who are unable to moderate their behaviour or who are unwilling to do so. 24 While it would have been preferable for his Honour to have made express reference to the decisions mentioned, when dealing with the applicant's mental health, and with the relevance of deterrence, his comments otherwise do need to be considered in the context of the particular case. Relevant in that regard was the lengthy criminal history of the applicant, which included some 88 convictions for offences in NSW, Queensland and Tasmania extending over 14 years, mostly involving dishonesty, particularly stealing, but also involving prohibited drugs and an offence of escape. The constraints of imprisonment, release on recognizance, probation and community service, appear to have had little impact upon him and the present offences were a repetition of similar conduct in recent years which had seen him imprisoned. 25 Also relevant was the applicant's assertions to Doctor Wilcox that he did not see himself as requiring any form of rehabilitation; that he did not like taking medication and that he had ceased using it previously when released; as well as his evidence that the principal reason for committing the present offences was the need to feed his drug habit. 26 I am not persuaded, in the circumstances outlined, that his Honour's assessment was inappropriate, or that the interests of deterrence, whether general or specific, were of significantly reduced relevance. On the contrary, balancing the relevant interests, I am unpersuaded of any error in this respect.

Ground 2 - The sentence does not reflect sentencing judges' findings, that the break and enter offence fell "towards the bottom range of seriousness" and that the other offences were of "less seriousness". 27 It is the fact that the offences were of a fairly routine kind; the goods taken being of no great monetary or sentimental value; the property involved being unoccupied at the time so that no person was put in fear; and the actual loss of the victim being insignificant since the property taken was recovered, although subject in one case to a monetary payment by the victim of the amount of the pledge. 28 In this regard it was submitted that while there were present circumstances of aggravation, in that there were four offences committed by an offender on parole, who had a multiplicity of convictions, nevertheless the fact of his mental disorder and drug dependency outweighed these considerations with the consequence that the sentences individually, and in accumulation, were excessive. 29 Some reference was made to the observations in Regina v Henry by Spigelman CJ (at para 174) and by myself (at para 273), concerning the relevance of drug dependency for the assessment of an offender's objective criminality. The observations cited need to be understood in the context of those reasons, which make it plain that, while a drug dependency may explain the commission of an offence, they do not excuse it. In particular, the observations in my judgment were directed to the exceptional case where an extreme state of withdrawal may lead to a frank disorder of the offender's thought processes, or to the act being other than a willing act. There is no evidence to suggest that the present case fell into that category of cases. 30 The choice by the applicant of using heroin for the treatment of his moods, in circumstances where he had rejected the medical alternative, despite being given considerable encouragement to turn to that option, in the form of advice, as well as coercion by reason of his repeated imprisonments, cannot be called in aid by him to reduce his objective criminality. 31 I am not persuaded, having regard to the applicant's bad prior record, and the circumstance that the offences were committed while on parole, that subject to the question of accumulation, the sentences held to be appropriate were excessive. Offences involving the breaking and entering of, and theft from private premises remain serious offences, and the fact that these offences were drug related does not make them any less so. 32 It was submitted additionally, in support of this ground, that when determining appropriate sentences, his Honour had fallen into error in not taking into account the pleas of guilty. 33 It may be accepted, that it was necessary, consistent with the decision in Pearce v The Queen (1998) 194 CLR 610, for his Honour to have determined an appropriate sentence for each offence, without reference to the other offences for which the applicant was to be sentenced, that is, untainted by reference to them: see Regina v Hammoud (2000) 118 A Crim R 66 and Regina v Myers [2002] NSWCCA 162. 34 As I read his Honour's reasons for judgment at page 9, this is precisely the way in which he approached this case, having earlier indicated, "I intend to reduce the sentences that I intend to impose upon the applicant by 25 percent on account of his guilty pleas". 35 Again, having regard to the prior record, the repetitive nature of his offences, and the applicant's state of unwillingness in the past to address his problem, I am not persuaded this ground has been made good.

Ground 4 - The learned trial judge erred in failing to take into account that these offences could have been dealt with to finality in the Local Court.

36 It was submitted that, by failing to advert to this fact, or to the possibility that the matter could have been dealt with in the Local Court under S 32 of the Mental Health (Criminal Procedure) Act, his Honour must have overlooked this consideration. However, as I pointed out in Regina v Crombie [1999] NSWCCA 297, there is no absolute principle of law that a sentencing judge must proceed upon the basis that the maximum sentence available in such a situation (here, imprisonment for three years) should be that which could have been imposed in the Local Court. The facts in Crombie are markedly different from those in the present case, where the applicant had multiple convictions for similar offences; had served several terms of imprisonment and has re-offended while on parole. The simple fact is that the applicant chose to plead not guilty in the Local Court, and the DPP had every right to elect to proceed upon indictment in view of the prior record. 37 The ultimate question remains that referred to otherwise in these reasons for judgment, namely as to whether some other sentence than that imposed was warranted. To that I will return when I come to the question of accumulation. Otherwise I am not persuaded that there is any merit in this ground.

Ground 5 - The learned sentencing judge erred in failing to take into account that the applicant would serve his sentence in maximum security. 38 It is evident that this fact was placed before his Honour and it may be assumed that as an experienced trial judge, it was not overlooked by him. In a busy sentencing court where there is pressure to proceed to sentence on the day the matter is listed, it can be understood that there may not always be express reference to every single matter which is taken into account or raised in the course of argument. 39 As I have observed, his Honour gave extensive reasons for sentence in this matter, which falls to be reviewed in the light of the criterion set forth in S 6(3) of the Criminal Appeal Act 1912. 40 So far as the immediate submission is concerned, it is the fact that the applicant had a history of escape and as a consequence, he could expect that any further sentence imposed upon him would lead to additional constraints on his progression through the normal classification processes. He cannot expect to escape punishment or to have a full term reduced by reason of that self-inflicted circumstance. 41 It was obviously open to his Honour to take the matter identified into account as a special circumstance. Against an overall sentence of four and a half years, a non-parole period of two and a half years was generous. In my view, it was sufficient to cater for this consideration, along with the desirability of providing an extended period of release on parole during which the applicant might demonstrate some interest in addressing his drug dependency and his mental issues. Otherwise, the present is not a case of the kind involving informers or police officers, or offenders who have provided assistance, whose imprisonment is, as a consequence, more dangerous, such that some moderation of sentence is called for. Nor is it a case where, upon the evidence available to the sentencing court or to us, the mental disorder of the applicant has been shown to be of such a degree or nature as to make his imprisonment more onerous to the point where the head sentences should be reduced.

Ground 6 - In all the circumstances of both objective and subjective features in the applicant's case, the sentences imposed are manifestly excessive. 42 So far as this is a catchall ground, relying upon the various grounds which I have dealt with so far, none of them has been shown to have merit. This ground accordingly fares no better, that is, subject to the matter to which I will next turn, namely the accumulation of sentence.

Ground 3 - The learned sentencing judge erred in passing consecutive sentences in his assessment of totality and in his application of Pearce v The Queen. 43 One basis for this submission was, in substance, the same as that for ground 2, and rests upon the proposition that the sentences individually selected were too high. That is not a proposition which I accept, it being open to his Honour to have had regard to the applicant's antecedents, and in particular to the repetitive nature of his re-offending, when selecting an appropriate sentence for each offence. 44 Whether or not there should be an accumulation of sentences in order to reflect the overall totality involved, is very much a matter of discretion. In a case where the offender consistently resorts to stealing, in order to feed a drug habit and does so while on parole, and where he has been persistent with this conduct, even though he had been spoken to by police while caught in the act some days previously, it is difficult to understand why some accumulation of sentences was not appropriate. 45 It appears that his Honour took the course of first determining appropriate sentences for the individual counts, namely two years for count 4, four years for each of counts 1 and 2, and three years for count 3; of then fixing upon an accumulated head sentence of six years, which he discounted by 25 percent, for the pleas, to one of four years and six months, which was then distributed between the various counts, to come up with the individual sentences. 46 With respect, this was a somewhat cumbersome and inappropriate way of dealing with the matter, which could just as easily and preferably have been approached by determining appropriate sentences individually for each count, after applying a discount for the relevant subjective factors, including the pleas, and by then turning to questions of accumulation. 47 When reviewed on appeal, it is the task of this Court to examine whether any sentence, including the overall sentence, other than imposed, is warranted by law and should have been imposed: see S 6(3) of the Criminal Appeal Act 1912 and Regina v Simpson [2001] NSWCCA 534 at paras 74-80, 90 and 100. 48 In this regard, I have come to the conclusion that the extent of the accumulation, which was involved in the sentencing exercise undertaken was excessive in the light of the total criminality involved, particularly when regard is given to the somewhat confined time span which the offences encompassed. 49 I would, for this reason, grant leave to appeal and I would allow the appeal so as to adjust the commencement dates for the various sentences. I would propose, in this regard, that the sentences be varied so as to make the sentences for counts 4, 2 and 3 concurrent and that for count 1, cumulative upon that for count 4. 50 Upon that basis I would propose that the following sentencing order be substituted for that made by his Honour:

In relation to count 4, I would propose a fixed term of nine months imprisonment to commence on 24 August 2001 and to expire on 23 May 2002. For count 2, I would propose a fixed term of 16 months similarly to commence on 24 August 2001 and to expire on 23 December 2002. For count 3, I would propose a fixed term of 12 months, similarly to commence on 24 August 2001 and to expire on 23 August 2002. For count 1, I would propose that the sentence of three years imposed by his Honour be preserved, but that such sentence commence at the expiry of the sentence for count 4, that is, on 24 May 2002 and expire on 23 May 2005. In relation to that sentence I would propose that there be a non-parole period of one year to commence on 24 May 2002 and to expire on 23 May 2003. 51 The total sentence so adjusted would accordingly be one of three years and nine months with an effective non-parole period of one year and nine months.

52 On that basis I would make an order that the applicant be released to parole under the supervision of the Probation and Parole Service on 23 May 2003. 53 HOWIE J: I agree. 54 WOOD CJ AT CL: The orders of the Court will be as I proposed.

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