[2010] NSWCCA 194
House v The King (1936) 55 CLR 499
[1936] HCA 40
Yang v R [2012] NSWCCA 49
Source
Original judgment source is linked above.
Catchwords
[2010] NSWCCA 194
House v The King (1936) 55 CLR 499[1936] HCA 40
Yang v R [2012] NSWCCA 49
Judgment (8 paragraphs)
[1]
Judgment
BATHURST CJ: I agree.
JOHNSON J: I also agree.
PRICE J: William John Toman ("the applicant") seeks leave to appeal against an aggregate sentence imposed upon him by Judge Colefax SC ("the judge") in the District Court at Parramatta on 13 March 2017.
The applicant had pleaded guilty in the Local Court to the following offences:
1. Sequence 1: On 30 July 2015, have face disguised with intent to commit an indictable offence, namely, break, enter and steal contrary to s 114(1)(c) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is imprisonment for 7 years.
2. Sequence 6: On 30 July 2015, break, enter and steal contrary to s 112(1)(a) of the Crimes Act. The maximum penalty for this offence is imprisonment for 14 years.
3. Sequence 9: On 31 July 2015, break, enter and steal contrary to s 112(1)(a) of the Crimes Act. The maximum penalty for this offence is imprisonment for 14 years.
The applicant adhered to his pleas of guilty in the District Court and asked, in relation to Sequence 9, that the offences of furnishing a false statement to a licensee and disposing of property be taken into account on a Form 1.
The judge imposed an aggregate term of imprisonment of 5 years, with a non-parole period of 3 years 9 months.
Before imposing the aggregate sentence, his Honour stated the following indicative sentences:
1. Sequence 1: 3 years minus a discount of 25% for the plea of guilty, that is 2 years 3 months.
2. Sequence 6: 4 years minus 25% for the plea of guilty, that is 3 years.
3. Sequence 9 (and Form 1): 4 years 6 months minus 25% for the plea of guilty, that is 3 years 4 months.
His Honour noted that the first two offences would have been served totally concurrently and there would have been partial accumulation between those sentences and the third.
[2]
Facts
The agreed facts on sentence, which were tendered to the judge, may be shortly stated.
[3]
Sequence 1
On the morning of 30 July 2015, the applicant parked a vehicle with registration XXX XXX outside a home on Latona Crescent, Ropes Crossing. The applicant exited the vehicle and approached the front door of the premises. He was dressed in a black niqab that covered his entire head and face, a blue jacket, black leggings, and blue joggers, and he carried a red shoulder bag. The applicant approached the front door of the house and remained there for a short period of time, during which he called his co-offender. The applicant attempted to manipulate the side gate lock but on sighting two guard dogs he left the premises. The applicant's movements were captured on CCTV footage.
[4]
Sequence 6
The applicant then returned to his vehicle and parked it outside another home further down Latona Crescent. The applicant entered the rear yard and opened the window to the dining room, entering the premises and activating the alarm. The applicant stole an iPad 2, iPad mini, and some jewellery, to a total value of approximately $3000 from the property. A fingerprint was obtained by police from the rear window which was matched to the applicant.
[5]
Sequence 9
On the morning of 31 July 2015, the applicant parked his vehicle outside a home on Bluebell Crescent, Ropes Crossing. The applicant removed the fly screen secured to a ground floor window and then entered the premises, from which he stole a mobile phone, four watches, and some jewellery. The applicant was observed and recorded by a witness exiting the home dressed in the niqab and holding the red shoulder bag.
[6]
Form 1 offences
On 1 August 2015, the applicant attended "Xtra Cash Loans" in Blacktown and pawned some of the items stolen from the Bluebell Crescent home.
The applicant was arrested by police on 8 August 2015. Police recovered some of the items that had been stolen and found text messages on the co-offender's phone relating to the sourcing of the niqab, which the applicant had collected from a mosque in Marsden Park. When the applicant attended the mosque, he was shown three "burqas". He picked the largest one and paid the agreed amount of $50.
When spoken to by police, the registered owner of vehicle XXX XXX initially reported the vehicle as stolen and told police that she had taken the applicant for driving lessons. She later told police that her original statement was not entirely true. In her later statement, she confirmed that she lent the vehicle's keys to the applicant and to the co-offender. She recounted that she had been told by the co-offender to report the vehicle as being stolen. She was then told by the applicant: "If they ask you who else has been in or driven the car, tell them you've given me a couple of driving lessons".
The applicant has an extensive prior criminal history. The judge observed that, "[a]mongst [the applicant's] very many offences are 40 previous breaks and enters". [1]
[7]
The appeal
The sole ground of appeal is the applicant's contention that the judge erred by rejecting the unchallenged opinions of Dr Nielssen and Dr Furst that the applicant's mental condition impeded his capacity to make logical decisions.
The applicant did not give evidence during the proceedings on sentence, however, three psychiatric reports were tendered in his case. Two were from Dr Richard Furst dated 1 May 2013 and 1 March 2017, respectively, and one from Dr Olav Nielssen dated 9 February 2016. No objection was taken by the Crown nor was either psychiatrist required for cross-examination.
The first report from Dr Furst related to a series of break and enter offences committed by the applicant in 2012. Dr Furst noted that the applicant had been diagnosed with schizophrenia about six years previously. He had related a history of hearing "voices" and there were named episodes of severe high mood and protracted depression that had lead clinicians to suspect he may also have bipolar disorder. Dr Furst reported that the applicant had been treated with anti-depressants and anti-psychotic medications and had a history of past admissions to psychiatric hospitals. Dr Furst's diagnosis was Chronic Schizophrenia, paranoid type, and Substance Use Disorder. In Dr Furst's opinion, the applicant's schizophrenic illness contributed to the applicant's "poor decision-making and poor judgment" that he apparently displayed at the time of his offending. Dr Furst considered that the applicant's illness "may have made it more difficult for him to think clearly about his actions and the consequences of his actions".
In his report, Dr Nielssen diagnosed the applicant as suffering "schizophrenia, partly treatment resistant" and "substance use disorder, in remission". Dr Nielssen concluded that the applicant had a disabling form of mental illness that affected the applicant's ability to think in a logical way about the long term consequences of his actions. It was Dr Nielssen's opinion that the applicant's disorganised thinking was associated with an exacerbation of mental illness and the distressing nature of the acute symptoms of mental illness was also likely to have affected his decision-making.
In his second report, Dr Furst confirmed his earlier diagnosis of Chronic Schizophrenia and Substance Use Disorder. He opined that the applicant's schizophrenic illness of psychosis contributed to the applicant's poor decision making and poor judgment he apparently displayed at the time of the offences in question before the District Court. Dr Furst considered that the applicant's thought disorder and paranoid thinking "probably made it difficult to weigh up the long-term consequences of his actions".
During his ex-tempore sentencing remarks, the judge accepted the "overwhelming probability" that the diagnoses of schizophrenia were correct, however, his Honour went on to say:
"Curiously each of them concludes that the condition of schizophrenia would impede in some way the offender's capacity to make logical decisions. That conclusion is odd given the clear planning involved in both of the robberies which included the obtaining of a disguise some seven days beforehand, the engaging of a co-offender, the use of two vehicles in the offending and the capacity to dispose of the ill-gotten gains… I am prepared to accept the diagnosis of schizophrenia. In the absence of any explanation I am not, however, persuaded that there was a dysfunction in relation to decision-making and of course the diagnosis of schizophrenia in 2008 must be taken in the context of a very long criminal history going back to 1994." [2]
The applicant submits that the unchallenged evidence of the psychiatrists was all one way and his Honour erred in rejecting the joint opinion of the psychiatrists who had expressed the view that the applicant's mental condition impeded his capacity to make logical decisions. The applicant argues that the judge's preference for his own consideration of the statement of facts and the inferences drawn from the applicant's conduct over the psychiatrists' opinions was erroneous and not open to the judge.
Although the applicant acknowledges that a sentencing judge is not obliged to accept the conclusion of experts, the applicant contends in the present case there is no reasoned basis for rejecting the experts' opinions. The applicant contends that there was no inconsistency between the expert opinions and the facts found by the judge, which were the agreed facts. The applicant points out that the expert opinions were based on the same facts and took the form of a medical opinion about the way the applicant's particular illness operated in the circumstances of the case which was a matter squarely within their expertise.
Another argument is that the judge's finding of "clear planning" is not inconsistent with a mental condition that affects logical thinking and the ability to anticipate long term consequences of actions. It is submitted that impaired logical thinking would include poor decision making and disorganised thinking, for example a failure to recognise the inevitability of detection.
An assessment of whether a person's mental illness contributes to the commission of an offence and the extent of that contribution is a discretionary decision to be made by a sentencing judge in light of the particular facts and circumstances of the case. Such a decision is only reviewable by this Court in accordance with the principles of House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505. [3]
It is plain that the judge gave careful consideration to the reports of Dr Furst and Dr Nielssen. However, his Honour concluded that the planning involved in both of the break and enters did not sit happily with the opinions of the psychiatrists. Such a conclusion was open to the judge as the agreed facts revealed a high degree of preparation and planning which included:
1. The steps taken by the applicant and co-offender to acquire a black niqab that covered the applicant's head, face, and body;
2. The applicant used the niqab as a disguise whilst committing the break and enters;
3. The offences were committed in concert with the co-offender;
4. The offences involved the use of two motor vehicles, one of which (registration no XXX XXX) was borrowed;
5. As to the borrowed vehicle, the co-offender told the owner to report it as stolen, and the applicant then said to the owner that if she was questioned by police as to who else had been in or driven the vehicle she was to tell them that she had given the applicant a couple of driving lessons, and;
6. The applicant pawned some of the stolen items at Xtra Cash Loans.
The applicant's clarity of long term thinking is reflected by his anticipation of possible detection by police as he encouraged the owner of the borrowed vehicle to lie about his presence in the vehicle.
The difficulty in reconciling the opinions of the psychiatrists that the applicant's mental illness impacted on his capacity to make logical decisions with the high degree of preparation and planning in the commission of the offences was acknowledged by Mr Devine, the applicant's counsel, in submissions before the judge. Mr Devine said:
"Your Honour, I start by assessing the seriousness of the offences for which your Honour is dealing with the offender, specifically looking at the seriousness of those offences and commenting on the apparent level of sophistication that's brought to bear. I think the submission that I want to make on my feet is that there seems to be some real tension between the conduct described in the facts, which would suggest this is an offence of some greater than normal sophistication - for example, the acquiring of the disguise some seven days ahead of the offence, and so on, and the use of two cars, the use of a co-offender - all those things, and the other things which I haven't referred to explicitly would all point towards a high level of sophistication, but that doesn't sit comfortably, in my opinion, with the medical evidence." [4]
True it is that Mr Devine then urged his Honour to accept the opinions of the psychiatrists, but the fact remains that there was a legitimate basis for the judge to reject the conclusions in the experts' reports.
His Honour's findings on the applicant's mental illness included that he was not "a suitable vehicle for the full application of the notion of general deterrence and it minimises to an extent considerations of specific deterrence". [5] These findings were favourable to the applicant and consistent with the well-known principles referred to in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194.
The findings made by the judge were open on the material before him. I am not persuaded that his Honour erred.
Accordingly, I propose the following orders:
1. Leave to appeal granted.
2. Appeal dismissed.
[8]
Endnotes
Judgment, 13 March 2017, p 4.
Judgment, 13 March 2017, pp 5-6.
See also Yang v R [2012] NSWCCA 49; (2012) 219 A Crim R 550 at [53]; Barbieri v R [2016] NSWCCA 295 at [144].
Tcpt, 13 March 2017, p 3 (10-20).
Judgment, 13 March 2017, p 6.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 22 March 2018