REGINA v. KELLY [2003] NSWCCA 317

1 GREG JAMES, J: Mr. Kelly seeks leave to appeal against a sentence imposed upon him by his Honour Judge Ducker in the District Court of New South Wales following his plea of guilty to one count of assault with intend to rob whilst armed with a dangerous weapon, an offence under s.97(2) of the Crimes Act 1900 punishable by a maximum penalty of 25 years imprisonment. His Honour sentenced the applicant to imprisonment for four years to commence on 27 September 2002. His Honour imposed a non-parole period of two years. 2 The applicant had been arrested on the date of the offence, 7 April 2001, but had been granted bail the following day on reporting conditions. His Honour had finally passed sentence on 27 September 2002, having heard evidence and oral submissions on 12 and 24 September 2002. 3 His Honour had commenced his remarks on sentence on 24 September 2002 but proceedings were interrupted during his Honour's delivery of those remarks by counsel for the applicant indicating that the applicant wished there to be an enquiry to substantiate his claim that he had been stood over to commit the crime. Notwithstanding that his Honour had already proceeded to make relevant findings, his Honour adjourned at that point to permit counsel for the applicant and the Crown to consider relevant authorities on the issue of whether the proceedings, having gone so far, should be interrupted for the purpose sought. 4 Upon the matter being resumed on the Friday, his Honour was informed that the applicant did not wish the matter of his being stood over to be investigated any further. He still adhered to his plea. Other than referring his Honour to the material on which special circumstances might be found, the applicant's counsel was content for the matter to go forward for sentence as it had stood before his Honour on 24 September 2002. Thus, his Honour's remarks on sentence extended over the two days, the Tuesday and the Friday. 5 His Honour found that the objective facts relating to the offence were within a relatively simple compass. The offender, armed with an extendable baton, attempted to rob Mr. Prior, an employee of the Byron Bay Services Club of the monies contained in a money drawer on the staff side of a counter at the front desk of the Club. His Honour referred to those circumstances as follows:- "On the evening of Saturday 7 April 2001, the victim Garry Prior, an employee of the Byron Bay Services Club, was on duty when at about 6.45 pm, he took note of a male person (the present offender) who was dressed in a white shirt, dark trousers and wearing a pair of prescription glasses in the foyer area of the Club. This man was walking around and appeared as though he was waiting for somebody. At one stage, Mr. Prior had the impression that the offender was leaving and in fact said to him words to the effect of 'see you later'. The offender looked at him but did not say anything, just continued to walk around the same area. Between 7 and 8 pm, Mr. Prior was on his meal break. After that he returned to working behind the front desk, which has two counters, one where people, particularly visitors, can sign and be signed into the Club, the other counter dispensed change. The victim, Mr. Prior, was again aware of the presence of the offender, who was leaning against a wall in the foyer. At about 8.30 pm, Mr. Prior was providing change to a female at the change counter. After he had finished serving the woman, he turned around with his back to the sign in counter. As he did so, the offender came behind the staff side of the counter, about a metre and a half away. He turned to face the offender, and was struck on the left side of his head, with an implement that was later identified as an extendable baton. He managed to push the offender away, causing the offender's spectacles to fall off. The offender leant over and put his hand on the money drawer, but Mr. Prior was able to push him away from that drawer. These drawers sit on a shelf under the change counter, and were turned sideways during the scuffle. The offender then ran from the Club. As the offender left the Club, Mr. Prior called for assistance on the PA system. Mr. Snow, a supervisor, and a Club patron, a Mr. Bayard Martin, who had witnessed part of the assault upon him, left the Club through the front door. Mr. Martin mounted a bicycle and gave chase after the offender. Mr. Snow followed. The offender hid behind a fence in the front yard of premises in Ruskin Street. When Mr. Snow ran towards where he was hiding, the offender jumped the fence and attempted to run further up Ruskin Street. Mr. Snow called on him to stop and, probably to Mr. Snow's surprise, he did. He then accompanied Mr. Snow and some other persons back to the Club, where the police were by that time present. The offender was arrested, cautioned, taken to Byron Bay Police Station and later interviewed electronically on audio tape by the police." 6 In the interview with the police, the offender put forward a reason for his behaviour. He said that he had, in response to a request from a friend of his father, agreed, for the sum of $200, to assault the person who had assaulted that friend's son. He told the police that his friend had met him outside the Club and indicated that it was Mr. Prior who had assaulted his son. He said that he had intended to confront Mr. Prior and was holding the baton at the time; that Mr. Prior came at him but he had struck Mr. Prior on the head with a baton. He denied making any attempt to take money from the cash drawer and denied any intent to commit a robbery. He declined to provide the police with information which would have enabled the identification of that friend. Later, by his plea of guilty to robbery and his evidence on the plea, the applicant accepted this account was not true. His accounts to his wife and to a psychiatrist were radically different to that given to the police. 7 To the forensic psychiatrist whose report was tendered in evidence, he gave an account which was set out in his Honour's remarks on sentence. In essence, that was an account in which the offender said he was in debt to a physically giant man who had reportedly spent 20 years in prison. Since he could not repay the money within the agreed time, he agreed instead to steal money from the Byron Bay Services Club at the creditor's instigation. He had, he told the forensic psychiatrist, used amphetamines and antidepressants prior to going to the Club. He asserted the same giant told him to go and get the money, notwithstanding that the woman who it was expected would be in the Club was not there and a man was instead. 8 He was asked about this by the psychiatrist who, noting the applicant had substantial martial arts skills, asked why with those skills he needed to use a baton on the man. He said he did not mean to hit the man with the baton but had taken it because he thought he might have to use it against the man directing him to obtain money illegally from the Club, that is, the giant. He asserted to the psychiatrist he had merely defended himself when the man at the Club came at him when he attempted to obtain money from the Club. His account to the psychiatrist referred to his being frightened of the man who was "super well connected" and knew where Mr. Kelly's wife and children lived. He told the psychiatrist that he was concerned that the man might find out that Mr. Kelly had talked about him and had sought to conceal for that reason the true reason for his going to the Club but had reverted to the truth on the advice of his lawyer that honesty was best. 9 In the account given to the psychiatrist, there are many bizarre features, in particular, referring to Mr. Kelly's involvement with the police, fears of criminals and, in particular, his fears of being involved with police as a police informant and referring to his conduct when at another club in August 2001. 10 The report contained a long history of the offender of a confused and bizarre nature which included reference to a friend of the offender having been charged with murder, a matter which became complicated because of an asserted involvement of the National Crime Authority, the charged man having made a deal to give information about bikies and an assertion that Mr. Kelly had colluded with the police or being an informer, as a result of which he had bikies and well known criminals engaging in threatening behaviour towards his family and himself. Mr. Kelly told the psychiatrist he did not wish to go into witness protection because of his wife's then pregnancy and that the offer for protection was not extended to her. 11 The offender had told the psychiatrist there were threats to kill the person charged with a murder who had become an informant for the National Crime Authority; that one of his family was tortured and shot. It was asserted by the offender that he had been set up to appear responsible for the death. He referred to Queensland police having told him to get out of the State and that he had, when confronted by bikies, had to pay them $500 to avoid them assaulting him and was told not to attend court in a case involving a stolen vehicle in which a dead body had been found. 12 The report referred to, by January 2001, the offender as having completely lost control, having depressive symptoms, uncontrollable crying, depressed mood, loss of interest and pleasure, insomnia, reduced energy, difficulty concentrating and suicidal ideation. In June 2001, he said he had taken an overdose of sleeping tablets intending to kill himself. He had sought psychiatric assistance. The trial judge described material in this report as follows:- "The whole of the history given to Dr. Delaforce contains a whole series of most strange, even bizarre happenings. The descriptions given by the offender have a strangely florid quality and have him at centre stage most of the time." 13 Both he and his wife gave evidence before the trial judge on the plea. When Mrs. Kelly gave evidence, by consent her statement, Exhibit 2, was admitted into evidence. She gave evidence that she was scared for herself and her children, that the man that her husband had named had threatened herself and her kids if she said who he was, although her husband had told her that man's name. She had had contact with the man through her husband's mobile phone number when somebody else had answered the telephone when she had rung it; that the man had come to her place at Kingscliff and she had seen that man at the courthouse. In her statement she had referred to her husband's initial account of having been asked to assault the man working at the RSL by way of reprisal for the assault on the friend's 16 year old son. She referred to the man as having come to the premises at Kingscliff with a pistol sticking out of his pants. She referred also to the bizarre occasion in which her husband attended the Cudgen Leagues Club apparently with a knife seeking to be arrested. She specifically referred to the threat made to her by that man. 14 In cross-examination she confirmed the history as given by her husband to Dr. Delaforce and pointed out that she had known her husband for over 25 years, having been married to him for 15 years. She believed that he was a good man, a great father who had a breakdown due to stress. She confirmed his medication and his bizarre behaviour. She confirmed that she was very scared by the activities of this man who had threatened her for her own safety and that of her children. 15 The applicant's statement was admitted and marked Exhibit 4. In that statement, the applicant asserted the account in which he was threatened by the violent creditor who required him to steal from the Byron Bay Services Club and that he had taken the extendable baton with him to protect himself against the creditor. He referred to what took place between himself and the man at the Club as "there was a scuffle". He asserted that the man had threatened him if he said anything about that man to the police and that he knew that if he'd told the true story to the police his family would have been in danger. He referred to that man as having turned up at his wife's place at Kingscliff and to his bizarre conduct taking the knife down to the Cudgen Leagues Club which he said he had done in order to be arrested. He asserted that he had received five to 10 other death threats over the phone made in a voice other than that of the man who lent him money; that his wife had received death threats also. 16 In his oral evidence, he referred to the man as being a giant of a man but declined to give details of the man when asked in cross-examination. During cross-examination, his counsel sought an adjournment once again to counsel him in favour of revealing the identification of the man. Reference was made to his psychiatric problems and particularly his depression as militating against his willingness to provide such an identification where he was, as he asserted he was, in terror of the man. 17 Some material was eventually forthcoming after the matter had been stood down but it was not possible to assess at that time the value of the material. On resumption, it was not possible to identify any person who might come within the description given. His Honour, thereafter, entertained extensive factual submissions by counsel appearing for the applicant, particularly concerning the applicant's mental state and his bizarre behaviour. 18 When considering the alleged events preceding the commission of the crime, his Honour was unable to conclude on a balance of probabilities that the offender's claim to have been stood over was true. His Honour expressed considerable dissatisfaction with the evidence of both the offender and his wife. He concluded that he was unable to accept with any confidence the offender's version of events. In particular, he noted that the offender was, at the time this offence was committed, very short of money, his tree cutting business had been discontinued and he had a number of debts. 19 Concerning the claim that the offender had been stood over, which his Honour had concluded he was not able, on the balance of probabilities, to find true, he said:- "It is just possible it could be true, but unfortunately there is such an atmosphere of untruths surrounding his evidence that I am unable to believe what he says or, given the situation of his wife, what she says. She is more credible than he, but that is not saying much." 20 It was at this point that his Honour's reasons were interrupted as I have referred to for the purpose of considering whether some further enquiry should be undertaken. 21 When the matter resumed on the Friday, his Honour continued with his remarks on sentence, expressing the view that whatever may have been the source of the pressure upon the offender, his Honour did accept that the offender was under some form of pressure at the time the offence was committed. He said;- "Unfortunately, he has surrounded himself in a web of fabrication that has made it impossible for this court to determine with any confidence what that pressure was. I cannot totally discard the version of events which he now relies upon, nor do I have very much confidence as to the likelihood of that version being correct. Perhaps this confusion in some ways, mirrors the confusion that seems to have taken hold of the offender around the time of the commission of this crime." 22 When his Honour turned again to the psychiatrist, Dr. Delaforce's report, he concluded that he accepted Dr. Delaforce as a competent and objective source of information, although he did not accept that the facts and events related by the offender to Dr. Delaforce had necessarily occurred. His Honour analysed the various bizarre matters the offender had related to Dr. Delaforce and said:- "There seems to me to be something of an aura of paranoid thinking pervading the versions of events to which I have just referred, which I find rather troubling. It is difficult to know what to make of them." 23 His Honour then referred to various of the events as consistent with possible scenarios that could be true and Dr. Delaforce's history of substance abuse by the offender. His Honour said:- "There is some information provided by his wife, indicating some rather strange behaviour witnessed by her, which, in my view, is very suggestive of the abuse of amphetamines." 24 His Honour noted that Dr. Delaforce apparently found the same difficulties as the court in some respects and, in particular, concerning the information provided by the offender's association with various criminal elements. 25 Dr. Delaforce had diagnosed the offender as having suffered from a major depressive disorder, a single episode, in partial remission and amphetamine dependence with physiological dependence; that the major depressive disorder had continued since the onset for the first time in January 2001 but that the amphetamine dependence has been present for some time since the initial use in 1996. His Honour quoted a passage from Dr. Delaforce's report which included the following passage:- "What currently appears to be well substantiated is a history of significant stress from 1999 at the latest, with marked deterioration in his mental health and onset in about January 2001 of a major depressive disorder that continued to after the April 2001 offence." 26 He referred to Dr. Delaforce's complaint that he had a lack of sufficient information about police matters. His Honour said:- "I have a strong intuition that some of the more florid allegations and claims made by this offender, could be more due to an imagination excited by the overuse of amphetamines than actual fact. There is an almost nightmarish tone to much of what he claims happened to him." 27 His Honour also referred to much of what the offender had said as suggesting his having had a lot of contact with the criminal element, but concluded there were really no relevant convictions, although the offender had reached the age of 34 and thus the offender was to be treated as having a clean record. His Honour determined that that lack of prior record and the plea of guilty made at the earliest stage of arraignment were matters which must be taken into account in the offender's favour. He referred to the various matters set out in the guideline judgment in Regina v. Henry & Ors (1999) 46 NSWLR 346 and the range of sentences referred to in that decision. He referred to the use of the extendable police baton, some degree of vulnerability of the victim, the absence of prior threat to use the baton, that although the victim had sustained a lump on his head, bruising, soreness and bleeding to the left side of his head so that his injuries were nasty and painful, they were not permanent. 28 His Honour concluded that the offender did have a genuine mental illness which might not be intractable, in that, the offender might respond to proper treatment. His Honour referred to the offender probably having to be kept in protection throughout the term of his imprisonment, that his mental illness would make his period in custody more onerous and that a perception that the offender was an informer might also add to his discomfort whilst in custody. His Honour concluded that he could only give limited weight to the degree to which the mental illness contributed to the offence because of the undoubted premeditation, notwithstanding that the offender's thinking appeared to be not very clear and this could have been due to mental illness. His Honour was quite satisfied that the offender knew well that he was intending to commit a serious crime and took with him the baton in order to commit that crime. 29 It was for those reasons that his Honour imposed the sentence that he did. His Honour was of the view that the mental illness, the fact that it was the first time in custody and that upon release an extended period of supervision might be required were such as to amount to special circumstances and set therefore the two year non-parole period. He also recommended that the applicant be permitted to serve his term in an institution as near as possible to the State of Queensland. 30 On the hearing of the appeal, it was sought that there be admitted into evidence on the merits of the appeal certain material said to show that the matters to which his Honour had adverted as possibly requiring the appellant to undergo a period of imprisonment more onerous than that of others would possibly occur had in fact occurred. For the reasons given in the judgment delivered that day, the court concluded that the evidence was not admissible for that purpose. It was rejected. 31 Certain other material was also provided to the court in various affidavits to which the court's attention was invited in the event that the court had determined that it was appropriate to re-sentence. 32 Three grounds were asserted on the application for leave to appeal against sentence. They were:- "1. It is submitted that his Honour erred by having insufficient regard to the applicant's mental illness leading up to and at the time of the commission of the offence. 2. It is submitted that in the absence of any reference, in the reasons for sentence, to the well known decisions concerning the proper approach to questions of deterrence, in the case of offenders with a mental disability, that his Honour had overlooked the principles for which they stand, and in that respect fell into error. 3. In the circumstances of this case, the sentence is manifestly excessive and a lesser sentence is warranted in law s.6(3) Criminal Appeal Act (1912)." 33 In her written submissions, the applicant's counsel submitted that his Honour's conclusion that there was premeditation was one that did not militate against the importance of the evidence of the applicant's mental illness. It was submitted that the mental illness, emotional and psychological deterioration distinguishes the applicant's case from those referred to in Henry (supra), even given that the maximum penalty for the crime to which he had pleaded guilty exceeds that applicable to the crime which was considered by the court in the guideline judgment. 34 The submissions referred to Regina v. Israil [2002] NSWCCA 255 in which a Crown appeal against the inadequacy of a two year suspended sentence for offences of armed robbery imposed upon an offender suffering from mental illness was dismissed. In particular, our attention was drawn to the remarks of the Chief Justice at paragraph 21:- "The significance of mental illness of an offender in the sentencing exercised (sic) has long been accepted. The relevant authorities have been reviewed in this court, the Victorian Court of Appeal and the Western Australian full Court. See R. v. Fahda [1999] NSWCCA 267 at [40]-[48] per Simpson, J.; R. v. Harb [2001] NSWCCA 249 at [35]-[45] per Smart, AJ; see also R. v. Lauritsen (2000) 114 A. Crim. R. 333, esp. [43]-[51] per Malcolm, CJ.; R. v. Tsiaras [1996] 1 VR 398 at 400; see also Potas, Sentencing Manual: Law Principles and Practice in New South Wales 2001 at 285-286; Fox and Freiberg, Sentencing State and Federal Law in Victoria (2nd ed.), 1999 at 293-294." 35 In that case, the Chief Justice went on to point out that mitigation on the basis of giving less weight to the issue of general deterrence can be given where the offender suffers from mental illness. He continued:- "However, that is not the only way in which mental illness impinges on the exercise of the sentencing discretion. 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. As Wood, CJ. at CL. put it in Henry (supra) at [254]:- '… 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. I agree with the observations of Malcolm, CJ. in Lauritsen at [48]:- '… mental illness is not only relevant to assessing culpability, in which case it must be shown to have contributed to the offence, but it is also relevant to assessing the level of danger the offender presents and the appropriate way in which the offender is to be rehabilitated. The mental illness should be taken into account in sentencing whether or not it played a part in the commission of the offence, but not with the consequence of the imposition of a sentence which exceeds the seriousness of the offence.' Furthermore, mental illness may also lead to the conclusion in a particular case that the element of personal deterrence, not just general deterrence, is also entitled to less weight in the sentencing exercise than it may otherwise have because, as the Victorian Court of Appeal put it:- '… specific deterrence may be more difficult to achieve and is often not worth pursuing as such." ( Tsiaras , supra, at 400)." 36 It was submitted of this applicant:- "The fact of his psychiatric disorder remains a matter of significance in the sentencing process, notwithstanding that it is not shown that the mental disorder itself caused the commission of the offence: Regina v. Engert (1995) 84 A. Crim. R. 67. It may not, in those circumstances, reduce the moral culpability of the offence, but it does warrant consideration of the extent to which general deterrence and specific deterrence should be taken into account." 37 Reference was made to Regina v. Letteri (NSWCCA, unreported 18 March 1992), a judgment of Badgery-Parker, J., with which Gleeson, CJ. and Sheller, JA. agreed, where his Honour said:- "The principle then is clear enough. It is correctly stated as follows - that whereas general deterrence is a relevant consideration in every sentencing exercise, it is a consideration to which less weight should be given in the case of an offender suffering from a mental disorder or severe intellectual handicap. In an extreme case, the proper application of this principle may produce the result that considerations of general deterrence are totally outweighed by other factors. In every case it is a matter of balancing the relevant factors in a manner no different from that which is involved in every sentencing exercise." 38 It was contended that since the sentencing judge here had not referred expressly to the well known decisions concerning the proper approach to considering mental illness as bearing on questions of deterrence nor expressly to the principles referred to in such cases as Israil (supra), it could be taken that his Honour had overlooked or wrongly applied them. Our attention was drawn to Regina v. Nelson [2002] NSWCCA 463 and in particular to the reference at paragraph 31 in the judgment of his Honour the Chief Judge at Common Law:- "The approach which his Honour took in relation to general deterrence, in the special circumstances of this case, involving as it does somewhat bizarre behaviour by an offender of an otherwise unblemished record, but with an underlying mental state, does raise a concern as to whether that aspect was given undue weight. That concern, in my view, is sufficient for leave to be given to the applicant to appeal." 39 It was submitted that general deterrence should have been given very little weight nor should personal deterrence have been given the usual weight. It was submitted in support of the third ground that assuming a discount in the order of 15 to 20% for the utilitarian value of the plea (see Regina v. Thomson and Houlton (2000) 49 NSWLR 383) his Honour's sentence translated to a sentence which reflected a starting point near or above the top of an appropriate range and for all those reasons a lesser sentence was both warranted in law and should have been passed: s.6(3) of the Criminal Appeal Act 1912. 40 Further, in her oral submissions, counsel drew attention to the fact that it was the offender who provided the information to the police that the weapon he used was a dangerous weapon, thus escalating his offence from that under s.95(1) which involved corporal violence, but a maximum of only 20 years to the offence under s.97(2) by reason of the extendable baton being a dangerous weapon, an offence punishable by the maximum of 25 years and submitted that circumstance mitigated against such regard being had to the statutory maximum as to take the matter out of the range to which a judge is guided by Henry (supra). 41 In her oral submissions, counsel referred to the affidavit material on the issue of re-sentencing in a way that evoked a possible basis on which it might have been used to consider whether some other sentence warranted in law should have been passed. In particular, whether matters that were before his Honour had not in fact been fully revealed in their potential for imposing a proper sentence at the time at which the matter was before his Honour, that is to say that his Honour did not have a full appreciation of the material that would have been in existence at the time. It was, however, submitted by the Crown that the material really concerned events which had later occurred. For my own part, I would agree. I would conclude that this is not material that was fairly available to the court to consider absent the finding of other error which might warrant the court proceeding to re-sentence. 42 Even given the breadth of the discretion available to this court to take into account material which might not strictly accord with the rule of fresh evidence but which in justice should be received, I am unable to conclude that the material contained in these affidavits was such that I would be able to fairly accept it was material which should have been before the trial judge or which gave proper complexion to that which was before the trial judge. That notwithstanding that the doctrines concerning the limits on the evidence being taken into account on appeal may have been framed at a time in which licences might have been granted in respect of matters arising subsequent to sentence under the then in force provisions of the Crimes Act 1900. 43 I am not persuaded that some other lesser sentence or non-parole period was warranted in law and should have been passed. 44 In my view, the sentence passed by his Honour was such as not only to have taken into account fully the mental illness to which he referred but also the applicant's plea of guilty and prior lack of record. His Honour expressly referred to these matters. The course taken at the hearing and the summary I have set out here of his Honour's consideration of the applicant's mental condition shows how deeply and correctly he considered the effect on the sentence of that matter. 45 The sentence, on its face appears to be, having regard to the objective culpability of the offence, remarkably lenient. That leniency is only explicable in the light of his Honour having given to the applicant not only the benefit of the early plea but of findings dramatically in his favour on the issue of mental illness as well as according to him the full value of the early plea. Suffice it to say that in my view, there appears to be no error in his Honour not expressing precisely the principles which he applied or referring expressly to the case law. It is apparent to me from the very sentence itself that his Honour properly had regard to the matter of mental illness as well as to the other matters he expressly identified. The submission that his Honour failed to give them sufficient weight, particularly having regard to the sentence that was imposed, in my view, fails. 46 In this regard, I particularly note that questions of credibility were for his Honour to evaluate and in doing so he afforded every opportunity, including by way of adjournment, to enable material to be put before him which might further assist the applicant's case. 47 As I have said, I am unable to conclude that some other sentence warranted in law should have been passed. I see no error in his Honour's exercise of the sentencing discretion. 48 Since the matter has been argued fully, in my view, leave to appeal should be granted but the appeal dismissed. 49 HOWIE, J: I agree with Greg James, J. 50 SMART, AJ: I agree with Greg James, J. **********

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Judgment (9 paragraphs)

Cases Cited (6)