Suttle v R

Courtney v Regina [2007] NSWCCA 195 R v AN [2005] NSWCCA 239 R v Engert (1995) 84 A Crim R 67 R v Hemsley [2004] NSWCCA 228 R v Henry (1999) 46 NSWLR 346 CASES CITED: R v Israil [2002] NSWCCA 255 R v Lesi [2005] NSWCCA 63 R v Letteri (NSWCCA), unreported, 18 March 1992 R v Murchie (1999) 108 A Crim R 482 R v Poihipi [2001] NSWCCA 306 R v Thomson and Houlton (2000) 49 NSWLR 383 The Queen v Verdins [2007] VSCA 102

PARTIES: Maria Katrina Suttle (Applicant) Regina (Respondent)

COUNSEL: S. Corish (Applicant) N. Adams (Crown)

SOLICITORS: B. Dowe (LAC) D. Kelly (ODPP)

IN THE COURT OF CRIMINAL APPEAL 2007/3297

BASTEN JA LATHAM J ROTHMAN J

14 SEPTEMBER 2007 Maria Katrina SUTTLE v REGINA Judgment 1 BASTEN JA: This is an application for leave to appeal against sentence. While the applicant has significant mental health problems, it is not suggested that her conviction was inappropriate. No issue of criminal responsibility under the law arises. 2 The general range of penalties for a particular offence may be identified and guidance obtained from cases such as, relevantly for present purposes, R v Henry (1999) 46 NSWLR 346. However, there are risks in seeking to identify an appropriate sentence absent mental illness and then 'adjusting' that result. Mental illness can, in varied respects, colour the whole sentencing process. The ways in which this can occur are discussed by Rothman J, particularly in reliance upon R v Hemsley [2004] NSWCCA 228. The principles were helpfully discussed, by the Victorian Court of Appeal in The Queen v Verdins [2007] VSCA 102 (Maxwell P, Buchanan and Vincent JJA) and referred to in Courtney v Regina [2007] NSWCCA 195 at [14]-[18]. 3 As Rothman J explains below, the trial judge gave entirely appropriate consideration to the various matters requiring to be addressed. There is no reason to find the penalty imposed to be manifestly excessive, or excessive at all. I agree that leave should be granted: such cases will often attract anxious consideration. Nevertheless, the appeal must be dismissed. 4 LATHAM J: I agree with Rothman J and with Basten JA. 5 ROTHMAN J: The applicant seeks leave to appeal and, if granted, appeals the sentence imposed on her by his Honour Judge Knight on 31 August 2006. The applicant had pleaded guilty to the offence of robbery in company, a contravention of section 97(1) of the Crimes Act 1900 (NSW), for which the maximum penalty is 20 years' imprisonment. She was sentenced, by Knight DCJ, to imprisonment for a non-parole period of 1 year and 3 months, which commenced on 31 August 2006 and will expire on 30 November 2007 with a remainder of term of a further 1 year and 3 months expiring on 28 February 2009. 6 His Honour made an order that the applicant be released on parole on 30 November 2007 on certain conditions. 7 The applicant appeals on two bases: (1) the head sentence and non-parole period are manifestly excessive; and (2) the sentencing judge failed to give adequate consideration to the mental health condition of the applicant. Facts 8 At about 5.15pm on Tuesday 24 May 2005 the victim Ms Belinda Cervonaro was a passenger on a train approaching Mount Druitt Railway Station. She was sitting in a carriage near the door and talking on her mobile phone. 9 The victim noticed two women standing in the aisle directly next to her and blocking the exit from her seat. One of them was the applicant, the other the co-offender.

10 The two women were looking at the victim and she returned their gaze waiting for them to say something. Whereupon, the applicant punched the victim in the face with her fist. The victim then saw the co-offender also punch her to her face. 11 The victim rolled up her body and sought to protect her head and felt a further 8 to 10 punches to her face and the top of her head. At that point, the victim felt her mobile phone being taken out of her hand and she noticed that the applicant had the phone in her possession. The victim's hair was pulled really hard (she felt like her hair was being pulled out) and she was then dragged onto the floor of the aisle. The victim saw the applicant walking away further up the aisle of the carriage. 12 The applicant's co-offender then kicked the victim about 3 times to her knee and to her back. The co-offender grabbed the victim's handbag and tried to take the handbag from her. The victim, still holding on to her handbag, was dragged down the aisle by the co-offender. 13 The victim cried out and eventually three male passengers came to her assistance by pulling the co-offender off the victim. The co-offender then ran off. One of the male passengers telephoned the police using his mobile phone and a train guard approached and spoke to the victim shortly thereafter. The victim was taken to the guard compartment until the train arrived at Blacktown Station. 14 One or more of the males who came to the aid of the victim saw the applicant and the co-offender on the train or at the train station. After this person spoke to a train guard, two transit officers approached the applicant. Eventually the applicant was apprehended, given the opportunity to be interviewed, which opportunity she declined, and was then charged. 15 The victim suffered bruising to both of her cheeks, her right knee, left lower back and pain to her face and the top of her head.

16 The above facts are taken from the agreed facts that were tendered before the sentencing judge. 17 At the sentencing proceedings the sentencing judge had available a pre-sentence report compiled by the Probation and Parole Service and a report provided by Dr Bruce Westmore. Dr Westmore is a forensic psychiatrist who, in the circumstances of this case, gave evidence of some importance. The importance of the psychiatrist's report is that the applicant has a past medical history which discloses a psychiatric disorder. 18 Dr Westmore recites a history which involves psychiatric treatment from 9 years of age and which included admission to hospital for psychiatric problems on 10 or 12 occasions in the last 6 years. The applicant has significant mood swings and suggests that she has been diagnosed as "bipolar, schizophrenic and psychotic". 19 The applicant has significant drug and alcohol issues. She disclosed to Dr Westmore that, at the time of the offending behaviour, she was "on everything" including "heroin, coke, speed, pills, everything". It should be noted that the applicant says that since the offending behaviour she has "touched nothing except psychiatric medication". 20 At the time of the examination by Dr Westmore, the applicant was consuming anti-psychotic medication (Zyprexa, 10mg per day). She also took 2 Valium tablets each night. The report of Dr Westmore recites that the applicant "acknowledges continuing psychotic experiences in the form of auditory hallucinations and possibly ideas of reference". 21 After reciting the applicant's personal history Dr Westmore recites her history of hospitalisation and it includes records from Cumberland Hospital indicating that she was admitted on 9 May 2005 and discharged on 18 May 2005 having been diagnosed on that occasion as suffering from suicidal ideation, schizophrenia, and anti-social and borderline personality disorders and methadone dependence. Dr Westmore's summary of other clinical notes was to the effect that they described "her mood as being unpredictable and that she complained of persecutory delusions and auditory hallucinations. She has stated that if she watches television she believes that her mind is being read." 22 Given the grounds of appeal it is relevant to set out the terms of the report of Dr Westmore insofar as it deals with the psychiatric diagnostic issues and relevant parts of the opinion that he formed. The report is relevantly in the following terms: " PSYCHIATRIC DIAGNOSTIC ISSUES AXIS I - Polysubstance abuse - this diagnosis is based on her self reported drug abuse history. - Depression - she has a personal history and documented history of suffering depression. In the past she has been diagnosed as having had major depressive episodes. She was not suffering from that condition at the time I examined her although her mood state was subdued and depressed but I thought it was more of a reactive mood state disturbance than a major depressive illness. - Psychotic illness - she has been diagnosed as having schizophrenia in the past and she reports the presence of auditory hallucinations, ideas of reference and probably delusional thoughts of a paranoid type. My preferred diagnosis is that she suffers from a paranoid schizophrenic illness although a drug induced psychosis needs to be considered. AXIS II Personality dysfunction has been diagnosed by others with borderline and antisocial qualities described. AXIS III I presume she has been fully investigated to exclude any organic causes for her psychotic symptoms and depressed mood. AXIS IV This woman probably suffers a number of chronic life stressors including dysfunctional relationships, social isolation, financial problems and numerous issues which are likely to have arisen from her substance abuse problems and her mental illness. AXIS V It is probable Ms Suttle functions in the lower range due to a combination of her various difficulties." 23 Under the heading 'Opinion' Dr Westmore reports: "Her first relationship which lasted four years resulted in the birth of four children. Those children were raised by her mother because Ms Suttle was abusing drugs. She has not had any regular contact with her children now for six or seven years and I understand that her mother is continuing to try to prevent her children having access with her.

Her second relationship lasted nineteen years. She alleges that her ex husband was abusive towards her and that on one occasion he attempted to burn her. She said he also punched her in the face causing her to lose two teeth. This alleged assault occurred she thought around April 2005. She was scheduled to the Cumberland Hospital on 9 May 2005 and she remained as an inpatient until she absconded on 17 May 2005.

She said after leaving hospital she precipitously stopped her methadone and her psychiatric medication. She reports that she was abusing a wide range of illicit drugs. She has pleaded guilty to the charge of robbery in company although her memory of the incident was she said, patchy. Of her mental state she said that she was 'spinning out.'

She is not a very good historian in terms of providing detail about her thought processes at the time of the offending behaviour but it is likely she was intoxicated with drugs when the offending behaviour occurred . That might account for her reported memory difficulties. I cannot identify any clear psychotic symptoms as having relevance to the offending behaviour she [sic] was possibly depressed and the admission records indicate that she suffered depression leading up to absconding from hospital. It is probable she was experiencing financial difficulties at the time the offending behaviour occurred and while I cannot identify any specific psychiatric defence to the charges, the court might consider her range of complex but inter related psychological, psychiatric and social problems which were no doubt impacting on her life at the time the offending behaviour occurred .

She indicated she has not used illicit drugs since the offence and that is obviously a very positive prognostic indicator. She has moved to Albury in an attempt to get away form her ex husband and from the drug subculture she no doubt socialised in. She is still maintaining some contact with her ex husband despite her allegations about that man's violence and abuse of her. This suggests continuing dependency on that man and possibly reflects her personality difficulties, limited life skills and her social isolation.

Her prognosis should be considered very cautiously due to the nature and extent of her various difficulties. She is a woman who is extremely vulnerable and she will require a lot of thought based community support." The Proceedings Below 24 The proceedings came before his Honour Judge Knight on 31 August 2006 and the matter proceeded before his Honour on that date. At the conclusion of the hearing on that date his Honour issued ex tempore Remarks on Sentence. The Remarks on Sentence recite as does this judgment the agreed facts. His Honour describes (ROS 4) the criminal offence as "a very significant robbery in company". In this regard he refers to the fact that there were two persons; not merely threats of violence, but actual violence; and "not a single punch but repeated occasioning of violence against the victim". 25 The sentencing judge also recites the personal history of the applicant and refers at some length to the report of Dr Bruce Westmore, the forensic psychiatrist. On a number of occasions the sentencing judge refers to the existence of and extent of the psychiatric problems suffered by the applicant. His Honour refers to the lengthy history of psychiatric problems; the extent to which those psychiatric problems have been caused by or contributed to by the use of illegal drugs; the long-standing problem with the use of illegal drugs; the axes to which Dr Westmore refers and which are recited above; the admission to Cumberland Hospital and the scheduling, including the fact that the applicant suffered from suicidal ideation, schizophrenia and anti-social and borderline personality disorder. His Honour the sentencing judge spends some time on the principles of sentencing as they relate to the treatment of significant psychiatric problems. He cites and relies upon R v Hemsley [2004] NSWCCA 228. 26 His Honour remarks (ROS 6-7) to the applicant: "It is perfectly plain that you do suffer from some form of psychosis and whether it is properly described as paranoid schizophrenia or whether it is simply a drug-induced psychosis seems to me not to matter very much for the purpose of sentencing." 27 The applicant submits that the above passage evidences error in his Honour's approach. There is often a very different approach taken in sentencing to psychoses caused by self-induced drug abuse and those arising from a pre-existing medical condition. However, this is not how his Honour was approaching the issue. Nor, in the context of his Honour's remarks, can it be reasonably understood in that way. 28 His Honour made it clear that he treated the psychosis in a manner consistent with the appropriate approach to a pre-existing medical problem. The comment quoted above was, it should be remembered, made in the context of an ex tempore judgment. 29 His Honour, shortly after the above quoted words, said: "I think the probabilities are that you were continuing to suffer from that mental illness, although I note, and accept, Dr Westmore's opinion that he was unable to identify any specific psychiatric defence to the charges. Nevertheless, I consider that there was in your case a limited appreciation of the wrongfulness of the act and its moral culpability which, although falling short of avoiding criminal responsibility, does justify special consideration upon sentencing. [See R v Henry (1999) 46 NSWLR 346 per the then Chief Judge at Common Law Wood J at page 394]. Similarly, I am satisfied that your mental illness renders you a less appropriate vehicle for general deterrence and therefore moderates that consideration. And thirdly I am satisfied that any custodial sentence will weigh more heavily on you as a mentally ill person. So in my view all three of the matters mentioned in Hemsley are relevant here and I take them into account. As far as the fourth factor mentioned in Hemsley , namely the level of danger which you present to the community, I consider that there is comparatively little danger to the community at the present time, having regard to your criminal history which shows that you have never previously committed an offence of violence to the person and you have committed no offences other than the one that brings you before the Court since 1998." 30 The sentencing judge refers to the fact of the plea of guilty, its timing and the benefit that ought be provided to the applicant for such a plea. He refers to the judgment of the Court of Criminal Appeal in R v Thomson and Houlton (2000) 49 NSWLR 383 and allowed a discount of 15 percent for the utilitarian value of the plea. Given the nature of the offence the sentencing judge also referred, for comparison purposes, to the guideline judgment in R v Henry (1999) 46 NSWLR 346 at 394. His Honour then proceeds to consider each of the elements in section 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) and, ultimately, arrives at the sentence already recited. Ground 1: Manifest Inadequacy 31 As already stated the overall sentence imposed was a non-parole period of 1 year and 3 months concluding on 30 November 2007 with a remainder of sentence that would conclude on 28 February 2009. This sentence is imposed in the context where the maximum sentence for an offence of this kind is 20 years' imprisonment. Further, while the factual situation faced by Knight DCJ was not the typical robbery case identified in R v Henry, the guidelines for sentencing for breach of section 97 of the Crimes Act described in Henry is a factor to be taken into account in the determination of this sentence. 32 Guideline judgments are not a matrix for the mechanical application of a sentence based upon the combination of parameters within that matrix. Henry was concerned with an offence by a young offender with little or no criminal history and using a weapon like a knife, capable of killing or inflicting serious injury. However the Court has stated that the guideline in Henry, if otherwise applicable, is equally applicable to robbery in company: R v Murchie (1999) 108 A Crim R 482 per Simpson J; R v Poihipi [2001] NSWCCA 306 per Mason P; R v Lesi [2005] NSWCCA 63. 33 In this case there are a number of factors which would take the offender and the offence outside the guideline. As earlier stated the offender is not young; it is not a situation where there was limited actual violence; and it is not a situation where the plea of guilty has limited significance. Nevertheless the guideline is a factor that may be utilised for comparison purposes. The maximum sentence, as already stated, for a penalty under section 97(1) of the Crimes Act is 20 years' imprisonment. This is clearly not a worst case and must be measured against the comparison with the factual circumstances that gave rise to the standards set in R v Henry. In R v Henry, which allowed for a 10 percent discount for the plea of guilty, the head sentence was 5 years' imprisonment. 34 In this case, the victim was particularly vulnerable. She was entitled to utilise public transport (or the public streets) without being robbed by two persons and assaulted in the process. The assault is not an element of robbery in company and is an aggravating feature of the offence in question. 35 Putting aside for the time being the question of the mental health problems of the applicant, this sentence could not be regarded as above the range available to the sentencing judge and, on any view, it would be at the lower end of that range if not below it. I bear in mind, in that regard, the fact that offences of violence have not hitherto been part of the conduct of this applicant. Ground 2: Mental Health Consideration 36 I left aside in dealing with the first ground of appeal the question of the mental health condition of the applicant. It is alleged that the sentencing judge failed to give adequate consideration to that condition. 37 The principles in dealing with a person suffering from a mental health condition were dealt with at length by this Court in R v AN [2005] NSWCCA 239. In that matter Howie J, with whom James J and I agreed, summarised the principles that are applicable. That summary took account of the judgment of this Court in R v Engert (1995) 84 A Crim R 67; R v Letteri (NSWCCA), unreported, 18 March 1992; R v Israil [2002] NSWCCA 255. 38 There are two aspects to the issue. The first is that a mental disorder that affects a person's criminal responsibility necessarily impacts upon the purpose of the exercise of the sentencing discretion and the protection of the public. In the present circumstances, there is no evidence that the mental health issues suffered by the applicant affected her criminal responsibility. It is not said that the criminal conduct in question was a result of either delusions or an inability to control an aggressive response. Thus, in the present circumstances, the mental health condition of the applicant is not a factor that lessens the criminal culpability of the applicant. 39 Nevertheless mental health condition considerations are not confined to the issue of criminal culpability. A mental health condition is a factor that requires a sentencing judge to consider the balance between deterrence (general and specific), rehabilitation and retribution. While retribution may be of significantly less impact, as may general deterrence, specific deterrence may be of greater importance as might the protection of society: see R v Engert, supra, per Gleeson CJ. While the exercise of every sentencing discretion requires the balance of a number of competing, and sometimes inconsistent, goals, the balancing exercise becomes even more problematic when one is dealing with a person with a mental health condition. 40 I have already referred to the manner in which his Honour treated the mental illness and the submission of the applicant on the lack of due differentiation on the causes of that illness. (See paragraph 27 of this judgment.) 41 In the present circumstances, it cannot be said that the sentencing judge did not take into account that condition appropriately. Apart from the fact that his Honour mentioned the condition on a number of occasions and gave it some pre-eminence in his remarks, the sentence that has been imposed reflects a significant departure from the mid-range head sentence in R v Henry, which departure cannot be related solely to the discount for an early plea of guilty. There can be little doubt that his Honour, in sentencing the applicant, gave considerable weight to her mental health condition. Further, it is clear that the sentencing judge was entitled and did take the view that there was not, as there may be in some instances, any elevated risk of the applicant being a danger to society. 42 It cannot be said that the applicant has established an insufficient regard by the sentencing judge to the issues of her mental health. Further, even when taking into account the mental health condition, this sentence is not manifestly excessive. In those circumstances I would propose the following orders:

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