Tilyard v Regina

Court of Criminal Appeal (NSW)|2007-01-29|Before: Adams J, Howie J, Price J

CITATION: Tilyard v Regina [2007] NSWCCA 7 This decision has been amended. Please see the end of the judgment for a list of the amendments.

JUDGMENT OF: Adams J at 1; Howie J at 2; Price J at 33

DECISION: Application for leave to appeal granted but the appeal is dismissed.

CATCHWORDS: Criminal Law - Sentence - Robbery with a dangerous weapon - relevance of alcohol addiction - whether sentence manifestly excessive - whether error in finding no special circumstances.

LEGISLATION CITED: Crimes Act 1900 - s 97(2) Crimes (Sentencing Procedure) Act 1999 - s 3A

CASES CITED: R v Henry (1999) 46 NSWLR 346 R v Israil [2002] NSWCCA 255

PARTIES: Douglas Malcolm Tilyard v Regina

COUNSEL: P. Ingram - Crown J. Manuell - Applicant

SOLICITORS: S. Kavanagh - Crown S. O'Connor - Applicant

IN THE COURT OF CRIMINAL APPEAL 2006/2352

ADAMS J HOWIE J PRICE J

MONDAY 29 JANUARY 2007 Douglas Malcolm TILYARD v REGINA Judgment 1 ADAMS J: I agree with Howie J 2 HOWIE J: The applicant was convicted by a jury of a charge of robbery with a dangerous weapon contrary to s 97(2) of the Crimes Act 1900. This is an offence that carries a maximum penalty of imprisonment for 25 years. On 25 November 2005 Hughes DCJ (the Judge) sentenced him to a term of imprisonment made up of a non-parole period of four and a half years and an additional term of one and a half years. The sentence was to commence on 3 February 2004 and the applicant is eligible for release to parole on 2 August 2008. The applicant seeks leave to appeal against this sentence. 3 The Judge recited the following facts during his sentencing remarks. On 3 February 2004 in the early evening the applicant entered a chemist shop in Liverpool armed with a loaded revolver. The applicant approached the counter and asked the owner of the shop whether he kept morphine. He was told that they did not stock the drug and that it had to be ordered. The applicant claimed that he had a prescription for the drug but then produced the revolver from behind his back and pointed it in the direction of the storeowner. He demanded money. The owner opened the till and threw cash onto the counter. The applicant demanded more money but was informed that it was kept in a time delay safe. The applicant took the money from the counter, about thirty dollars, and walked out of the shop. He was arrested a short time later with the revolver tucked into his pants in the small of his back. There were five rounds in the revolver. 4 The applicant stood trial on the basis that he could not recall committing the offence. However, the Crown case was very strong as there was video footage that clearly showed the applicant committing the robbery. The applicant gave evidence that he remembered receiving the weapon from a person he knew as "Sam" although he was not sure when that occurred. He said that he did not know where the chemist shop was and had never seen it before. In cross-examination he admitted that, when the revolver was handed to him, he opened it up and saw five cartridges inside. He said that after that time he had no further recollection of what happened. 5 The applicant was born on 17 January 1949. He has a criminal record dating from 1980 when he was convicted in South Australia of being in possession of a dangerous weapon. In 1993 he was sentenced for offences of armed robbery, possessing a shortened firearm and discharging a firearm to avoid lawful apprehension. He received an overall sentence of a minimum term of 6 years and an additional term of 4 years. That sentence commenced on 3 May 1993 and he was released to parole on 6 May 1999. 6 He gave evidence on the sentencing proceedings. That evidence was to some extent inconsistent with the evidence he gave at trial because he said that the persons who came to the flat with the gun told him that there was morphine at the chemist shop and they wanted it. 7 There was in evidence a psychologist report dated 30 September 2004 that contains some relevant history of the applicant. He was single at the time of his arrest but had been married twice. He had limited contact with the children born of the first marriage. He was living in housing commission accommodation. He had not been in employment since his release from his first prison sentence and was in receipt of a pension. The applicant was in the Fire Brigade in New Zealand, and a member of the Australian Federal Police from September 1972 to October 1973 and he served as a member of the police force in the Northern Territory. He also worked in the mining industry. 8 As to the offence, the applicant told the psychologist that "three young blokes" came to his home and gave him the gun. He could not recall going to the chemist shop and assumed he had been drinking alcohol during the day. He told the psychologist he had been consuming alcohol since he was 18 or 19. He used to purchase ten casks of wine on each pension day before his arrest. He would also drink beer and scotch if he had funds to do so. He had unsuccessfully attended AA meetings at some time in the past. He was admitted to the Alcohol Related Brain Damage Unit at Cumberland Hospital between 7 May and 5 August 1992. He had reported a history of alcohol consumption for 30 years apparently drinking up to 6 litres of wine and a carton of beer daily before his admission. He was diagnosed with a number of alcohol related injuries including "minimal frontal lobe damage". He complained to the psychologist of seizures, blackouts, head injuries and headaches. He had been diagnosed with Post Traumatic Stress Disorder as a result of his experiences in the Police and Fire Services. 9 The psychological report contained the following assessment:

In practical terms, Mr Tilyard's neuropsychological profile indicates his functional capacity will be greatly undermined by cognitive impairment affecting his ability to attend to, remember and operate on full and accurate information, particularly in busy or stressful situations. Problems with attention, memory and executive capacities would be expected to variably limit application of intact verbal reasoning skills, particularly, once again, in more demanding or stressful situations. Mr Tilyard reports difficulty with problem solving and decision making. I find no reason to doubt this and expect the evident difficulty on testing in respect of generation of ideas and response inhibition (together with probable impaired mental flexibility as documented in 1992) would adversely undermine capacity for reasoning, judgement and sound decision making. Deficits in cognitive functioning would be expected to be exacerbated under the influence of alcohol. 10 There was a further short report from the psychologist dated 9 May 2005 that contained the following additional information:

I find Mr Tilyard's ability to operate independently and to problem solve and make decisions based on full and accurate processing of information, enabling well rounded reasoning and in turn sound judgement is defective. He is vulnerable to acting on faulty information due to poor attention and very unreliable memory both in respect to what he can recall and the accuracy of that recall. He has difficulty generating novel ideas and/or inhibiting more obvious responses. I do not expect he can think quickly, clearly or effectively in many situations, particularly busy or stressful ones. He may reasonably be expected to become readily confused in the face of stress, novel problems and the unexpected or unfamiliar. I fully anticipate he is thereby more vulnerable to the influences of others around him at any one time, be they in his best interests or not.

In short, I believe Mr Tilyard is susceptible to suffering duress as a result of diminished cognitive capacity due to brain damage. 11 There were also in evidence hospital notes from the Liverpool Hospital. These record that the applicant was admitted into the hospital on 29 January 2004 after he had been found wandering the streets in a confused state. He was intoxicated at the time and could not remember the events of the day. He remained in hospital as an in-patient until 3 February the date of the offence. His behaviour while in the hospital was unpredictable and he often wandered out of the ward. On 3 February he complained that he had no money and was given ten dollars to obtain milk and bread until he could attend Centrelink. 12 There was before the Judge a number of reports by a psychiatrist, Dr Carne. The first was dated 9 June 2004. He had assessed the applicant in 1994 and again in June 2004. The report contains a lengthy background of the applicant. He had been admitted to treatment programmes for alcoholism in 1991 and 1992. The report indicates that, when he was released from custody in 2000, the applicant spent a period in a drug and rehabilitation centre before moving to the accommodation provided for him by the Housing Department. 13 The applicant told Dr Carne that he had been told by one of the persons who came to his home that he could purchase the gun for $800. He said that he could not afford it. He was told that a robbery had been arranged at a chemist shop where he could obtain morphine and money and his participation in the "feigned" robbery would be accepted as payment for the weapon. He said that he felt intimidated by the visitors. His memory thereafter was a blank until he could recall being in the chemist shop asking for morphine and then money. He felt it unsafe to return home and was arrested shortly after. Dr Carne thought that the presence of alcohol-related brain damage could have led to "recklessness and poor judgment that could have contributed to his behaviour". His memory was also severely impaired at the time of the offences. 14 There was also tendered on the applicant's behalf a report of a psychologist, Dr Westmore, dated 14 June 2005. The applicant gave the psychiatrist an account of the incidents leading up to the offence. He said that three young fellows came to his home and wanted him to purchase the pistol. He checked the weapon and noted that it had five rounds in it. He was told that one of the men had used it the day before. They told him that there was a stack of morphine in the chemist shop and they wanted it. He had some recollection of being in the shop and assumed he was there to rob it. He thought they wanted to get rid of the weapon because he later learned it had been used to shoot someone. He did not remember how much alcohol he had consumed that day. 15 The applicant told Dr Westmore that he had been drinking two to three litres of wine a day up to his arrest. He said that he had been to detoxification centres in the past, the last being in the late 1980s. The psychiatrist reports that the applicant has suffered many of the acute and chronic illnesses associated with long-term alcohol abuse. He stated:

From a psychiatric perspective he needs long term community based rehabilitation. This man needs to be in sobriety and if he cannot achieve that state then his prognosis from a psychiatric and general medical perspective is extremely poor. His risks of being influenced by others and acting in a behaviourally disturbed way will also be greatly reduced if he can enter into sobriety.

Dr Westmore believed that the applicant had been discharged from the hospital too early. 16 The Judge, on the basis of the material before him, concluded that it was more likely than not that the applicant was suffering the effect of brain damage due to his excessive intake of alcohol. Although the Judge did not think that the offence was "the most serious case" he was of the view that only a gaol sentence was appropriate. His Honour referred to a number of considerations in R v Henry (1999) 46 NSWLR 346, the guideline judgment on armed robbery offences. The Judge was not satisfied that the applicant was unlikely to re-offend, being of the opinion that any prospect of rehabilitation was speculative. He found that the applicant was not fully aware of the consequences of his actions and that the offence was at the lower end of offences coming within the section. He was not satisfied that there were special circumstances to vary the proportional relationship between the non-parole period and the term of the sentence. 17 There are two grounds of appeal, the first that the sentence is manifestly excessive and secondly that the Judge erred in not finding special circumstances. 18 In my opinion on the face of it a sentence of six years for an armed robbery with a loaded weapon by a person previously convicted for a similar offence is very lenient indeed. The applicant had no benefit of a plea of guilty and clearly displayed no contrition for the offence. Although he may have had some confused thinking at the time as a result of a brain injury or otherwise, he clearly was aware that he was committing an armed robbery with a weapon that he knew was loaded. Just how he came to go the chemist shop was unclear and his accounts were somewhat conflicting as to what he recalled about the surrounding circumstances. 19 There is little analysis of the relevant sentencing principles during the course of the sentencing remarks. This is not to suggest that a sentencing judge should deliver a treatise on sentencing, but the applicant's legal representative raised a number of issues during his address and by written submissions to which there is no reference in the sentencing remarks. For example, a significant matter raised was the effect, if any, of the applicant's mental state on issues such as specific and general deterrence. The Judge referred to it at one stage as "some affectation in his mental capacity due to his ingestion of too much alcohol over the years" but he did not in his remarks consider how this finding impacted upon the applicant's culpability or the purposes of sentencing as set out in s 3A of the Crimes (Sentencing Procedure) Act. Similarly the Judge referred to the applicant's epilepsy and acknowledged that it was relevant fact whatever its cause. How it was relevant and what impact it should have on sentencing the applicant was left apparently unconsidered. 20 Many of the submissions made to his Honour and to this Court concerned the relevance of the Henry guideline. The Judge addressed this to some degree during the course of the sentencing remarks by considering similarities between the applicant's offence and what was considered to be the usual case in the guideline judgment. With respect I do not believe that there is any particular assistance to be gleaned from Henry. The facts and circumstances of the applicant's offence were very different from those being considered in Henry to the applicant's disadvantage. Further, the applicant's offence was more serious: the maximum penalty for the offence considered in Henry was 20 years imprisonment, whereas the maximum in the present case was 25 years. In effect the sentence imposed is marginally outside the Henry guideline, which seems to indicate to me that the sentence was a lenient one. 21 I accept that a relevant consideration to sentencing the applicant was the applicant's mental state at the time of the offence as this may reduce the moral culpability of the offender, reduce the need for general deterrence and indicate that there would be a more severe impact of imprisonment upon the offender: R v Israil [2002] NSWCCA 255. Further, it was a relevant matter that the applicant had issues related to his physical health that might impact upon his sentence. I accept that none of these considerations seems to have been addressed by his Honour and this amounts to an error in the exercise of his discretion by an apparent failure to take into account relevant facts and circumstances. 22 The Judge said nothing at all about the relevance or otherwise of general deterrence. In fact that topic gets no mention whatsoever despite it being a matter of considerable significance in sentencing for this type of offence because of its prevalence. It was submitted on behalf of the applicant that, by reason of the length of sentence, the Judge should be taken to have placed considerable weight on general deterrence and this was an error in light of the applicant's mental condition. In the absence of any reference to deterrence at all in the sentencing remarks, I am not prepared to accept that the Judge even took general deterrence into account. His Honour was concerned about the objective seriousness of the offence and it was this, as against the maximum penalty prescribed, that seemed to be the major consideration in determining the sentence. 23 Nor did the Judge mention personal deterrence. It is argued that such a consideration should not apply because of the applicant's mental condition. Again in the absence of any reference to that topic I am not prepared to find that he gave it any weight. It is argued that the applicant had no apparent insight into the effects of alcohol upon him and, therefore, it was not appropriate to consider personal deterrence. But it does not follow that personal deterrence should not operate in the applicant's case. He should be made aware by the sentence imposed upon him that, if he continues to abuse alcohol, he runs the risk of committing a serious offence that will result in a significant gaol sentence. 24 In any event, notwithstanding his confused state, there is no suggestion that the applicant did not appreciate that he was committing an armed robbery offence with a loaded weapon by threatening the victims in order to obtain money. His explanations for being in that situation are inconsistent and he was unreliable in his account. I see no reason why, in light of his earlier offence, he was not a proper subject of a sentence that had an element of specific deterrence in relation to his possession and use of loaded firearms. It is the fact that, because of his mental condition he was a potential danger to the community if he came into possession of a loaded firearm. If he lacks insight and the ability to control his use of intoxicating liquor, as was submitted on his behalf, then it is appropriate to have regard to the protection of the community from him provided that the sentence imposed is not disproportionate to the objective seriousness of the offence. 25 At the end of the day I do not believe that any lesser sentence than that imposed is warranted even if appropriate regard is given to those issues that the Judge did not apparently address. It cannot be overlooked that this was the second time that the applicant had intentionally used a loaded weapon to commit an armed robbery offence so that the conduct cannot be considered as an aberration attributable to his mental state at the time. In my opinion the Judge arrived at a lenient sentence even though not through a sufficient and reasoned consideration of all relevant factors. 26 This ground has not been made out. 27 The second ground of appeal is that the Judge failed to find special circumstances. The Judge found that the applicant's prospects of rehabilitation were not good. He was entitled to come to that view because of what is conceded to be the applicant's lack of insight into his abuse of alcohol. The Judge seemed to have a view that a person in the position of the applicant had little assistance in rehabilitation. He said:

I am not satisfied that the offender is unlikely to re-offend. Mr Corrish argues that if appropriate rehabilitation is provided than he is unlikely to re-offend. I think that is speculative. Mr Corrish submits the offender has good prospects of rehabilitation. That is the sad part of this whole matter. It seems people with brain damage or mental illness have very little help. 28 It is submitted that this passage should be seen as evidencing his Honour's view that there were inadequate recourses available to assist the applicant. The evidence of Dr Westmore was that the applicant needed long-term community based rehabilitation to maintain sobriety. He says nothing about the likelihood of that succeeding in light of the applicant's brain damage. The psychologist says nothing at all about the prospects of rehabilitation or what might be offered to the applicant by way of assistance. Nor did the report from Dr Carne deal with the possible treatment of the applicant or the likelihood of his rehabilitation. 29 In my opinion it was open to the Judge to conclude that there were no special circumstances in this case warranting a reduction in the non-parole period. This is a question of fact for the sentencing Judge and this Court should only interfere if the decision was one that was not reasonably open to the Judge upon the material available. 30 It seems to me not to be irrelevant that the applicant had a prior offence and had been placed under parole for a lengthy period yet had re-offended in a similar way shortly after the parole had expired. He had been given numerous opportunities to address his alcoholism in the past and there was little to show that he would benefit from an extended parole period if he were provided with that opportunity. 31 This ground of appeal does not succeed. 32 I propose that the application for leave to appeal be granted but that the appeal be dismissed. 33 PRICE J: I agree. **********

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