REGINA v. HUGHES [2005] NSWCCA 117

2 HALL, J: The applicant, by way of application for leave to appeal dated 9 December 2004, seeks the leave of this Court to appeal a sentence of four years and six months with a non-parole period of three years imposed in the District Court of New South Wales by His Honour Judge McGuire on 4 June 2004. 3 The applicant entered pleas of guilty in respect of two offences described as follows:- Firstly, that on 7 February 2003 at Pyrmont he did break and enter the dwelling house of one Frederick Collachi, situated at 20 Union Street and committed the serious indictable offence of larceny in circumstances of aggravation, namely that he was armed with an offensive weapon. Secondly, assault on a constable of police in the execution of his duty. 4 The first offence attracted a maximum penalty of 20 years and the second offence a maximum penalty of five years. 5 The applicant supported the application by contending that the sentences were manifestly excessive in the light of his mental disorder and his plea of guilty. 6 The applicant was born on 1 September 1975 and his criminal history reveals that his first conviction was for an offence of common assault in 1997. His record contains entries for violence, the contravention of an Apprehended Violence Orders and the offence of entering a building with intent to commit an indictable offence for which he was sentenced to imprisonment for 20 months. 7 On Friday 7 February 2003 he had consumed an amount of alcohol and on that date at 5.45 pm, after banging on the door of a dwelling house and shouting, "I'm going to kill you, you're dead" he commenced to kick the side passage door and in due course he gained entry to the premises. By this time the victim had run to the back section of the premises and climbed onto a roof in fear for his safety. He contacted the police. 8 Whilst inside the premises the applicant stole property consisting of 56 compact discs in a carry case that had a value of approximately $880. He damaged various household items whilst in the premises including a computer system. 9 A uniformed constable attended the backyard of the premises and saw the applicant hiding in the rear of the backyard. He appeared to have something in his hands, namely a metallic object. The constable called upon him to get his hands up but the applicant refused. The applicant grabbed hold of the constable by the throat until he was eventually restrained by other police who arrived on site. 10 There were two medical reports placed before the sentencing judge; firstly, a report of Dr. Westmore which revealed the applicant had consumed alcohol and cocaine. He told Dr. Westmore that he had been out every night since his release from Goulburn Gaol some weeks before. He had consulted a psychiatrist and a psychologist whilst in prison and he apparently had a lengthy history of drug taking from the age of 14 years. 11 The medical evidence before the court also included a report of Dr. Allnutt and this report dealt with the applicant's medical conditions. Dr. Allnutt is a visiting senior forensic psychiatrist. Dr. Westmore noted a history of suggested auditory hallucinations in the past and a history of some paranoid feeling when using amphetamines. He presented as of dull to dull-average intelligence and Dr. Westmore observed that "he may suffer from drug induced psychosis" and qualified for the diagnosis of "poly substance and episodic alcoholic abuse". 12 The applicant had exhibited bizarre behaviour on Gladesville Bridge not long before, which resulted in police taking him to a psychiatric hospital. However, he decamped before he could be assessed. 13 Dr. Allnutt considered that he was labouring under delusional beliefs of persecution and that at the time had felt justified in his actions based on the delusions. He considered that he had been compromised in his capacity to rationalise his circumstances and considered that he had an underlying predisposition and an internal vulnerability, as he termed it, to develop mental illness independent of substances. 14 Dr. Allnutt considered that should the applicant be released into the community he should be admitted on the basis that he be admitted directly to a psychiatric hospital under a Schedule 2. The sentencing judge observed that having regard to Dr. Allnutt's opinions it appeared to him, the sentencing judge, that the prisoner, the applicant now, may well have been able to successfully raise a mental health defence. However, at pages eight and nine of the remarks on sentence it is reported that counsel then appearing for the applicant stated that she had no instructions to raise such a defence. 15 The sentencing judge considered that he could not regard the applicant's conduct as other than attracting what he referred to as the appropriate standard non-parole period of five years, referring to Section 54B(1), (2) and (3) of the Crimes (Sentencing Procedure) Act 1999. 16 He considered he was obliged to consider whether the standard non-parole period of five years should be varied, having regard to the provisions of s.21A of the Act, 17 Whilst observing that the applicant's threats of violence or the implied threat to use a weapon and his previous criminal history were matters of aggravation, the sentencing judge also had regard to the mitigating factors including those referred to in s.21A(3)(j) of the Act. 18 The sentencing judge proceeded upon the basis that the applicant was suffering a major intellectual disability when he committed the break and enter accompanied by larceny and that his conduct towards the police officer was "totally bizarre" and was demonstrative of a person acting in a senseless and irrational manner. 19 In sentencing the applicant the sentencing judge assessed the discount for the pleas of guilty at 25%. He stated that it was difficult to determine the question of his prospects for rehabilitation and was simply unable to conclude what his rehabilitation prospects were for the future. That is an observation Ms. Burgess of counsel has placed considerable emphasis upon in her submissions before this Court for it goes, so the submission went, to the question of prognostication or future possibility as to whether or not the applicant would in fact present as a danger to the community if released on a shorter non-parole period. 20 Whilst personal and general deterrence were major considerations in fixing a sentence for such offences, the sentencing judge did not believe, or at least he did not proceeded upon the basis that it was significant in the circumstances of this offence, at least so far as the risk presented by the applicant was one arising from his medical condition. 21 In determining whether or not the sentence of four and a half years imprisonment and a non-parole period of three years commencing 7 February 2003 for the first offence and a concurrent term of eighteen months was excessive, the approach taken by Mr. Justice Sperling in Regina v. Hemsley [2004] NSWCCA 228 is instructive for His Honour there considered the significance of mental illness in the sentencing context. 22 I should also add that offences set out in the Form 1 were offences of resisting an officer in the execution of his duty contrary to s.58 which called for a maximum penalty of five years and the further offence of maliciously damaging property of another contrary to s.195(a) of the Act. That offence also carries a maximum penalty of five years. 23 I return to consider Hemsley's case and how it assists. In exercising his sentencing discretion, the sentencing judge appropriately had regard to both the applicant's prior criminal history and the nature and circumstances of each offence. In the latter respect, the sentencing judge had regard to the objective seriousness of the break and enter offence involving threats of violence or the implied threat to use a weapon and the assault on the police officer. 24 The extent to which a disabling mental condition operates as a mitigating factor is, of course, a matter of significance in the exercise of the sentencing discretion. However, this is not a case in which the judge omitted to make a finding in respect of the mental condition as, for example, had occurred in Hemsley (supra). I have earlier recorded findings made in respect of the applicant's mental condition at the time of the offences and the significance of that medical condition. The important point is, however, that within the sentencing context these matters were the subject of specific attention by the sentencing judge. The real question seems to me whether or not the approach taken to evaluating it as a mitigating factor, particularly having regard to future risk, resulted in an appropriate exercise of the sentencing discretion. 25 In this respect it is important to note that, having allowed a discount of 25% as earlier indicated, the sentencing judge considered the question of the prospects of rehabilitation, although no conclusion could be reached in respect of it. However, the sentencing judge addressed the question of deterrence and, in my view, appropriately stated that he did not believe that the element of deterrence was "a significant matter to be taken into account" and in so saying his Honour was referring to the fact that, insofar as general deterrence was concerned, on the facts of the case , such deterrence was not to be evaluated as a countervailing risk factor in the circumstances of the case. 26 In Hemsley (supra), Sperling, J. addressed the question of the relevance of mental illness in the sentencing context. He stated and I quote:- "Mental illness may be relevant - and was relevant in the present case - in three ways. First, where mental illness contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced; there may not then be the same call for denunciation and the punishment warranted may accordingly be reduced: Henry at 254; Jiminez (1999) NSWCCA 7 at 23; Tsiaras (1999) 1 VR 398 AT 400; Lauritsen (2000) 114 A. Crim. R. 333 at 51; Israil [2002] NSWCCA 255 at 23; Pearson [2004] NSWCCA 129 at 43. Secondly, mental illness may render the offender an inappropriate vehicle for general deterrence and moderate that consideration: Pearce (NSWCCA, 1 November 1996, unreported) … Thirdly, a custodial sentence may weigh more heavily on a mentally ill person: Tsiaras at 400; Jiminez at 25; Israil at 26. A fourth, and countervailing, consideration may arise, namely, the level of danger which the offender presents to the community. That may sound in special deterrence; Israil at 24." 27 I note in passing that his Honour quashed the sentence in that matter and re-sentenced to imprisonment for three years with a non-parole period of two years. 28 Unlike in Hemsley (supra), the sentencing judge did not, as pointed out by counsel for the applicant expressly make a finding in respect of community risk as a countervailing factor. The sentencing judge did, at least implicitly, have regard to the issue of moral culpability. 29 There was no specific consideration as to whether a custodial sentence would weigh more heavily on the applicant as a mentally ill person being one of the factors referred to by Sperling, J. in Hemsley (supra) and I will return to that aspect shortly. 30 As to the question of the level of danger to the community posed by the applicant, there was little said on the question, although, I believe, there is an indication in the comments that the judge had that matter well in mind. At page 11 of the remarks on sentence he stated:- "I am simply unable to conclude, on the material before me, as to whether there are such prospects (that is, prospects for rehabilitation). I will, however, find special circumstances as I consider it in the interests of the community and the prisoner that he be subjected to an extended period of supervision." 31 The trial judge ultimately made a recommendation that the applicant continue to be afforded psychiatric treatment whilst in custody and that his release be considered only after a review and a determination by the Mental Health Review Tribunal. 32 Having addressed the applicant's mental condition and its significance as a mitigating factor along with issues of deterrence and rehabilitation, the question for this Court is whether the sentence was excessive, having regard, firstly, to the effect a custodial sentence may have on the applicant as a mentally ill person and, secondly, the absence of an express finding that the applicant was a continuing danger to the community and whether there was sufficient evidence for such a finding. 33 As to the first of these two matters no argument has been presented in printed or oral submissions to indicate the effect or relevance of the sentence to this applicant in the Hemsley (supra) sense. 34 In these circumstances, the real question is whether or not the length of the sentence imposed can be justified upon the basis of an established and continuing danger to the community by reason of the applicant's mental condition. In Regina v. Lauritsen (2000) 114 A. Crim. R. 333, Malcolm, CJ. said at page 48:- "Hence mental illness is not only relevant to assessing culpability, in which case it must be shown to have contributed to the offence, but is also relevant to assessing the level of danger the offender presents and the appropriate way in which the offender is to be rehabilitated." 35 It is conceded in the Crown submissions that there was no express finding that the applicant was a continuing danger to the community. It, however, is pointed out that his Honour was unable to find that he would not re-offend in the future, that Dr. Allnutt had referred to his past failure in drug and alcohol counselling and the fact that he had walked out of a psychiatric hospital after having been taken there following the incident on Gladesville Bridge. 36 Furthermore, the report of Dr. Allnutt does provide evidence of potential danger to the community. Dr. Allnutt considers the applicant had an underlying predisposition and internal vulnerability to develop a mental illness independent of substances taken. He stated that should the Court consider releasing him into the community he should be admitted directly to a psychiatric hospital under a Schedule 2. 37 Dr. Allnutt went on to recommend psychiatric treatment whilst in custody. This evidence, along with the applicant's past history is sufficient, I believe, to establish that the applicant, at least as last assessed by Dr. Allnutt, presented as a continuing danger to the community and there is no evidence to indicate that there is no future prospect of a threat to the community in that respect. 38 The question remains then whether in the light of all of the evidence (including previous history of violence offences) the sentences were manifestly excessive in light of the applicant's mental disorder and plea of guilty. I am unable to so conclude. 39 I would accordingly dismiss the application. 40 HUNT, AJA: I agree with the orders proposed by Justice Hall and the reasons. 41 GROVE, J: I also agree. 42 HUNT, AJA: The orders are as proposed by Justice Hall. **********

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