Whipp v R

Court of Criminal Appeal (NSW)|2024-03-27|Before: Davies J, Button J, Sweeney J

HEADNOTE [This headnote is not to be read as part of the judgment] On 5 December 2021, three men entered a small, family-owned grocery store in Buxton. They each looked around the store for a few minutes, with one man purchasing some items, and then left. Approximately two and a half hours later, the owners, having closed and locked the store, began walking out to their vehicle in the carpark. The same three men then ambushed the owners. They were threatened with a long knife, and a black object believed by the owners to be a gun. The owners handed over some $1500 in a grey bag, as well as some other valuables, and the three men fled the scene. On 2 October 2022, Mr Peter Whipp (the applicant) pleaded guilty to one count of armed robbery with an offensive weapon (contrary to s 97(1) Crimes Act 1900 (NSW)) and one count of using an offensive weapon with intent to commit an assault in company (contrary to s 33B(2) Crimes Act 1900). Two co-offenders also pleaded guilty to identical charges. The applicant was sentenced on 12 December 2022. After a 25% discount was applied, Judge English imposed a term of imprisonment for 5 years 3 months, with a non-parole period of 3 years 3 months. The two co-offenders were given identical sentences. The applicant sought leave to appeal against the sentence imposed, relying on four proposed grounds of appeal: Ground 1: Her Honour erred with respect to the applicant's subjective case, including by: (a) Failing to find that the applicant's background reduced his moral culpability; and (b) Failing to correctly apply the principles in Bugmy v R (2013) 249 CLR 571. Ground 2: The sentencing judge erred in finding that the applicant's mental health did not reduce his moral culpability. Ground 3: The sentencing judge erred in failing to account for the effect of the applicant's mental health on other aspects of the sentencing exercise, specifically: (a) The weight to be given to general deterrence, and (b) The extent to which it would make a full time custodial sentence more onerous. Ground 4: The sentence is manifestly excessive. The Court held, allowing the appeal, and resentencing the applicant to imprisonment for 4 years 6 months (with a non-parole period of 2 year 9 months): As to ground 3(b) (Button J, with Davies and Sweeney JJ agreeing): 1. Though written submissions on sentence did not refer to whether the applicant's mental health would make any full time custodial sentence more difficult, quite a bit was said on this topic at the proceedings on sentence: at [53]-[55]. 1. It was stated that the applicant suffered from complex post-traumatic stress disorder as a result of the continuous offending that he endured during his time in juvenile detention. He was said to be experiencing great hardship in custody, suffering "trauma-related flashbacks" triggered by, among other things, interactions with other inmates and Correctives staff: at [54]. 1. Though the remarks on sentence did outline the allegations of offending committed against the applicant, and noted that the issues raised in the psychological report tendered for the applicant were "a very significant part of the overall subjective mix to be taken into account", it was necessary for the sentencing judge to explicitly engage with the specific submission, in the circumstances of this case, bearing in mind its importance to the plea in mitigation as a whole: at [60]-[63]. 2. The process of sentencing has not been reduced to a mere "tick a box" procedure whereby sentencing judges are called upon to refer mechanistically to every single submission made, without discrimination as to those made in passing and those significantly addressed: at [62]. 3. In this case, a significant portion of the oral submissions at the sentence were dedicated to the specific submission regarding the onerousness of custody. It was thereby insufficient for the sentencing judge to refer only to the effect of the applicant's hardships on his periods of full time incarceration in the past, without explicitly referring to the matter - even if only briefly - and how it might or might not play a mitigatory role regarding the sentence to be imposed: at [63].

JUDGMENT

DAVIES J: I agree with Button J.
BUTTON J:

Introduction Mr Peter Whipp (the applicant) has sought leave to appeal against sentences imposed upon him on 12 December 2022 by Judge English in the District Court sitting at Campbelltown.

On 2 October 2022, the applicant had pleaded guilty to one count of armed robbery with an offensive weapon, contrary to s 97(1) Crimes Act 1900 (NSW), and one count of using an offensive weapon with intent to commit an assault in company, contrary to s 33B(2) of the same Act. The maximum penalty for the first count was imprisonment for 20 years, and for the second imprisonment for 15 years. Neither offence bore a standard non-parole period.
The applicant received uncontroversial 25% discounts for his early pleas of guilty. He was ultimately sentenced to imprisonment for 5 years 3 months, with a non-parole period of 3 years 3 months, for the armed robbery, to commence on 5 March 2022. For the offensive weapon offence, he was sentenced to a fixed term of 2 years, to commence on the same date, with the result that that sentence is wholly concurrent with that earlier described. The applicant is therefore eligible for possible release to parole on 4 June 2025.
The co-offenders Mr Scott Chandler and Mr Sean Charnley were sentenced to the same periods of imprisonment for the same offences as the applicant. Because no argument based on erroneous disparity is made by the applicant, their personal circumstances need not be discussed further.

Grounds

The applicant sought to rely on the following grounds of appeal: Ground 1: Her Honour erred with respect to the applicant's subjective case, including by: 1. Failing to find that the applicant's background reduced his moral culpability; and 2. Failing to correctly apply the principles in Bugmy v R (2013) 249 CLR 571. Ground 2: The sentencing judge erred in finding that the applicant's mental health did not reduce his moral culpability. Ground 3: The sentencing judge erred in failing to account for the effect of the applicant's mental health on other aspects of the sentencing exercise, specifically: 1. The weight to be given to general deterrence, and 2. The extent to which it would make a full time custodial sentence more onerous. Ground 4: The sentence in manifestly excessive.

Objective features

The following sketch is derived largely from undisputed parts of the remarks on sentence.
The victims (Mr and Mrs Zhao) owned and operated a grocery store in Buxton, a small town in the Macarthur region of New South Wales.
On 5 December 2021 at 6:15pm, Mr Chandler and the applicant went into the store. A few minutes later Mr Charnley also entered the store.
The three men walked around the store looking at various items. This was recorded on CCTV.
Mr Charnley approached the counter and asked whether the store had any black face masks. Mrs Zhao said they did not, but provided him with a blue surgical mask, which he took and left around 6:22pm.
Mr Chandler approached Mrs Zhao and asked where the orange juice was. He paid for the bottle of juice and a face mask in cash. He and the applicant then left the store.
The three men entered a white Toyota RAV4 hire car and left the car park. Between 6:23pm and 8:00pm the applicant and his two co-offenders drove around the Buxton area.
The three men returned and parked outside the exit of the carpark to the grocery store. They smoked cigarettes.
Residents of Buxton took note of the vehicle and its occupants.
At around 7:30pm Mr and Mr Zhao started to close the store. Mr Zhao counted the money from the register and placed: $1,145 into the cigarette cabinet (and locked it); $1500 into a grey bag; and $200 in his wallet.
At around 8:00pm, one of the residents who had previously noticed the applicant and his companions, saw them again, standing in the car park; he thought them "sus".
At 8:41pm, an unknown person called triple 0 and reported the vehicle parked in the car park with three or four men.
Turning to the offending itself, at 8:54pm Mr Zhao locked the store. He and his wife walked through the darkness towards their vehicle in the car park.
Mrs Zhao was carrying her handbag and a box with juice and hand sanitizer. Mr Zhao was carrying the grey bag with the cash in it.
The applicant and his co-offenders jumped out from behind their vehicle. One of them pointed a black object towards Mrs Zhao, which was approximately half a metre long. She and Mr Zhao believed this was a gun (this constituted the offensive weapon offence). She fell to the ground in fear.
The same man approached Mr Zhao and pointed the object towards his head, about 40-50cm from his face and yelled at him. Another of the offenders approached Mr Zhao, pointed a long knife at him, and said: "Give me the bag".
Mr Zhao said he would give them the bag and the money and handed the bag over. While handing over the bag he sustained some small lacerations to his fingers from the knife held by the man. All of this constituted the armed robbery.
The three men then ran away before getting into the vehicle and leaving the scene.
At 9:53pm police on the Hume Highway were alerted to the number plate of the white Toyota RAV4. They located the vehicle and followed it, causing the driver to pull over. Mr Charnley was the driver, the applicant was in the front passenger seat, and Mr Chandler was in the backseat. The police cautioned them and searched the vehicle.
The police found a black handled hunting-style knife; Mr Zhao's registered mobile phone; Mr Zhao's cards; and $114 in cash.
Inside a bum bag that was being worn by the applicant the police located $900.
Mr Charnley had $700 cash on him. Mr Chandler was searched at the police station and found to have $1,695 concealed in his anus, which he said he had won on poker machines.
All three men were arrested. The applicant exercised his right to silence. He was charged, and incarcerated from then on.
To provide my own summary of the above: this was offending that featured the threat of significant violence; that was no doubt terrifying; that pertained to a significant sum; that was attended by simplistic and obvious planning and preparation; and the perpetrators of which were quite easily subsequently detected, due to their notable lack of professionalism.

Subjective features

Again, the following is derived from uncontroversial findings in the remarks on sentence.
The applicant was 40 years of age when sentence was imposed. He has a very lengthy criminal history. He has spent much of his life in detention or gaol, with numerous convictions for dishonesty, violence, and offences to do with prohibited drugs. At the time of the armed robbery, the applicant was subject to conditional liberty by way of parole and a community correction order.
The applicant endured a very difficult childhood. His father was a violent alcoholic, and abused the applicant's mother. When the applicant was a child, he was abandoned by his mother and placed into the care of his paternal grandparents. He suffered learning difficulties throughout his schooling, was placed in a special needs stream, and became the victim of targeted bullying by his peers. There is an unconfirmed suggestion of intellectual disability as a result of his educational placements.
The applicant left school in year 7, and never returned to his education. He commenced living with his father and working in a sawmill, until that employer became bankrupt. At this time, the applicant was introduced to illicit drugs.
The applicant first began interacting with the criminal justice system at the age of 14. He spent many years in Keelong Juvenile Justice Centre, where (to speak elliptically), he was subject to grave offending that was psychologically and indeed physically extremely damaging. The applicant attempted to escape Keelong, but his attempt was thwarted by police and he was returned to the facility.
The applicant's substance abuse escalated once he was released from juvenile detention, as did his offending.
The applicant suffers from nightmares and flashbacks pertaining to the offences that he suffered in custody as a child. He often has difficulty developing intimate relationships in his personal life, and relationships with fellow prisoners and correctional staff in custody. A report from Associate Professor Robertson, tendered for the applicant - and in fact predating the armed robbery and prepared for litigation arising from the wrongs done to the applicant - notes that he presented with symptoms of complex post-traumatic stress disorder, and a substance abuse disorder. An underlying intellectual disability was also presumed, based on his educational history. Though the applicant had been diagnosed previously with bipolar disorder, Associate Professor Robertson's opinion was that the applicant's dysregulation in affect could rather be explained by his post-traumatic stress disorder.
The sentencing judge was not satisfied that remorse was established, above and beyond any that may arise from the pleas of guilty themselves.
A concession on his behalf that his prospects of rehabilitation were "extremely guarded" was accepted. His likelihood of reoffending was found to be high.
Finally, special circumstances were found, seemingly based only upon the degree of accumulation upon balance of parole. Ground 3: The sentencing judge erred in failing to account for the effect of the Applicant's mental health on other aspects of the sentencing exercise, specifically: … (b) The extent to which it would make a full time custodial sentence more onerous.
It is convenient to discuss this sub-ground first.

Submissions of applicant

The written submissions for the applicant provide little discrimination between grounds 2 and 3 as a whole. Even so, I shall try to discuss them with a focus on the sub-ground under discussion.
The sentencing judge had accepted what had been said in the psychological report, including the diagnosis of complex PTSD, along with resultant symptoms, including disassociation.
In considering the background and the mental health of the applicant, the sentencing judge had given them "siloed consideration", which may have led to the errors asserted, which in turn may be thought of as particulars only of a "broader failure" to give the subjective case of the applicant "requisite mitigatory effect" in the instinctive synthesis of sentencing.
Her Honour had, at least to some degree, considered the effect of the mental health of the applicant on his moral culpability. But the remarks on sentence do not demonstrate consideration of any other impacts that his mental health may have had on the appropriate sentence. Specifically, nothing was said about the role that PTSD may have in making incarceration more difficult for the applicant. That was said to give rise to an inference that it had not been taken into account at all. And that was despite the fact that it had been specifically raised in oral submissions, and was "plainly a live issue" in light of the references in the report to nightmares, flashbacks, and panic attacks whilst incarcerated.
The PTSD suffered by the applicant arose precisely from the very damaging things that had been done to him in juvenile detention. And it was the extra onerousness of adult gaol that was the subject of specific oral submissions at first instance. And yet, nothing having been said about it in the remarks on sentence, one could infer that it was either not properly taken into account, or perhaps not taken into account at all.
In oral submissions, it was said that the topic of custody being more onerous because of PTSD, itself arising from prior custody, had simply not been addressed in the remarks on sentence. It was said that the psychological evidence had shown that the applicant was suffering from severe symptoms as a result of his mental condition. The simple submission was made that it must be an error for the sentencing judge not to have at least referred to that significant fact.

Submissions of the Crown

In written submissions for the Crown, it was conceded that this topic was the subject of specific submissions. But it was said that her Honour had referred to aspects of the report in the remarks on sentence, when her Honour said that "he suffers from nightmares and flashbacks of the [offending]. It has created problems for him in personal intimate relationships and with fellow prisoners and in particular, correctional staff".
Whilst accepting that the sentencing judge had not referred specifically to the question of extra hardship in custody as a result of the sentence to be imposed, it was said that her Honour had referred to the issues raised in the report as a whole as having been "a very significant part of the overall subjective mix" to be taken into account in sentencing. The submission was that one could infer without difficulty that, although acceptance of the factor had not been enunciated specifically, it was indeed an aspect of the psychological state of the applicant that was not only accepted, but also taken into account.
Orally, it was accepted that there was no "particular reference" in the remarks on sentence to the submission about the onerousness of a prison sentence. But it was emphasised that her Honour had specifically referred to the effects of the damage done to the applicant, and the problems that it had presented during periods of incarceration in the past. Finally, the point was repeated that her Honour had stated that all of the matters raised in the report had been taken into account as part of instinctive synthesis.

Determination of ground

it is first necessary to set out precisely what was and was not said on behalf of the applicant about this topic at first instance.
In written submissions of 31 October 2022, nothing was said about any degree to which the psychological difficulties of the applicant would make a sentence of imprisonment more difficult than otherwise.
In oral submissions, however, quite a bit was said. The plea in mitigation in its entirety extends over nine paragraphs of transcript, of which almost three paragraphs were as follows: I would also like to address your Honour briefly in relation to any hardship that Mr Whipp's experienced in custody. I note again in the report at paras 29 to 30 Dr Robertson has addressed Mr Whipp experiencing trauma-related flashbacks, sometimes triggered by interactions with other inmates and Correctives staff. I note at para 20 references to the effect that his experience had on his physical health, and at para 27 his mental health, noting diagnoses of complex post-traumatic stress disorder and substance use disorder, as well as a suspected, although I concede not diagnosed, intellectual disability. I'd submit that even though an intellectual disability hasn't been officially diagnosed, the report establishes Mr Whipp's literacy and numeracy skills are so low that they have impaired his ability to engage in and maintain education and employment. It is, I would submit, a mitigating factor. I also note in the report that the doctor has reviewed the treatment Mr Whipp has received in the past and determined it to be inadequate given the conditions he's now been diagnosed with. Certainly that is no criticism, given Mr Whipp only relatively recently made these disclosures and has only relatively recently been assessed and diagnosed with these conditions. But we would submit that that is relevant to the hardship he's experienced in custody, in addition to COVID lockdowns and additional time in isolation that all inmates have been subject to in the last couple of years.
And the submission was not just "quantitatively significant" in that way: it was also surely important that a man who was suffering from PTSD as a result of experiences in custodial settings would be held as a result of the inevitable further custodial sentence in the exact same setting from which that psychological condition arose.
Turning now to the legal principles to be applied, in Sypher v R [2020] NSWCCA 336, Davies J said, with the agreement of Johnson J, at [61]: It is not enough for factual matters to be set out with a statement towards the end of the judge's remarks saying "I have taken into account all of the matters that I have referred to". Where significant matters are raised both by the evidence and in the submissions, a lack of any analysis of those matters or any conclusion about how they impact on the applicant's moral culpability leads to the view that the judge has overlooked the matter.
In my opinion, that statement regarding the issue of moral culpability applies just as much to any other significant matter relied upon in mitigation or aggravation on sentence.
At [2] of the judgment of Basten JA in the same appeal, it was said: In some cases it will be possible readily to infer that the setting out in reasons for judgment of mitigatory circumstances will permit the court to be satisfied that those factors were properly taken into account - See, eg, Wood v R [2019] NSWCCA 309 at [121]-[123]. However, whether such an inference should be drawn in a particular case does not depend upon precedent, but on a proper analysis of the circumstances of the case and the judge's reasons.
As somewhat earlier judgments of this Court such as Egan v R [2017] NSWCCA 206; Prince v R [2020] NSWCCA 268 at [29] and [46]-[47]; Wood v R [2019] NSWCCA 309 at [122]-[123]; Dellow v R [2020] NSWCCA 301 at [47] - [52] demonstrate, and in accordance with the analysis of Basten JA, the success or failure of such a ground will call for consideration of the evidence, the written and oral submissions, and the remarks on sentence, along with the application of a measure of judgment, not simply looking mechanistically as to whether a submission had been explicitly mentioned or not.
Applying that kind of analysis to this matter, it is true that in the remarks on sentence it was said that the issues raised in the psychological report tendered for the applicant "are a very significant part of the overall subjective mix to be taken into account in the instinctive synthesis process of determining the appropriate sentence".
It is also true, as the Crown submitted in this Court, that her Honour made reference to some of the difficulties caused by the wrongs done to the applicant, including in custody in the periods prior to the preparation of that report, which, to repeat, predated the offending by a couple of months, and predated the imposition of sentence by well over a year.
Finally, in considering more broadly the forensic context of this ground, I do not believe that sentencing has devolved to the point where a sentencing judge is required to deal ritualistically, by way of a "tick a box" process or rote recitation, with every single written and oral submission - without discrimination as to its significance or triviality - made on behalf of an offender or the Crown, for fear of an appeal by one party or the other. That would be a victory of form over substance. It would also be an intellectual debasement of what should be a process of considered reflection. It would also impose an intolerable, unworkable burden on sentencing judges. That would be especially so in the District Court, bearing in mind its combination of extreme busyness with error-based appeals from that court in criminal matters.
Even so, in my respectful opinion, it was incumbent upon the sentencing judge to engage explicitly with this submission. As I have shown, it was a significant proportion of the oral submissions on behalf the applicant as a whole. It was also, I think, an important point: that a man who had been psychologically and indeed physically damaged in a particular setting was to be punished by being placed yet again in the very setting from which the damage arose. I respectfully think that it was insufficient simply to state the effect on periods of incarceration of the applicant in the past, and then to state that all such factors had been taken into account as a matter of instinctive synthesis. I think it was incumbent upon the sentencing judge - perhaps only very briefly - to refer to the matter, and to either accept it as playing some mitigatory role regarding the sentence to be served in the future, or to explain why it had been rejected.
I would uphold this ground.

Consideration of resentence

In my opinion, this ground having been established, it is not necessary to deal with the other grounds, because one must move to consider resentence in any event.
I will however shortly sketch the submissions of the parties regarding asserted manifest excess, in discussing whether a lesser sentence is warranted in law.
At the hearing of the application, some evidence was tendered on resentence by the applicant on the usual contingent basis, without objection by the Crown. But some evidence that post-dated the proceedings on sentence was the subject of an objection by the latter: a psychological report of Dr McSwiggan of 19 February 2024. That objection must be upheld, on the straightforward basis that it did not deal only with events since the imposition of sentence, but also traversed many matters that had occurred before December 2022. Clearly enough, evidence could have been given of such matters in the proceedings on sentence, but it was not. Absent most unusual circumstances, such evidence is inadmissible on resentence: see central decision of Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25. There are no unusual circumstances here: indeed, the conceded position is that a considered decision was taken not to lead evidence of such matters by way of an updated psychological or psychiatric report before the sentencing judge: see Betts v The Queen at [14].
Quite a deal of material was tendered without objection about progress of the applicant in custody since December 2022. At the hearing in this Court, counsel for the applicant accepted that it could be summarised as showing that the applicant has settled down in prison, is behaving himself (in contrast to his custodial discipline record in the past), is getting help from opioid replacement therapy, and indeed informs the authorities when he feels that it may not be sufficiently effective to stop him trying to obtain drugs illicitly in prison. He is also trying to deal with his very poor state of dental health. I understood the submission to be that, on resentence, one might feel that something of a turning point may have been reached in the life of the applicant, now a little over 40 years of age.
In support of the ground asserting manifest excess, counsel for the applicant submitted that, given his early plea and significant mitigating circumstances, the severity of the sentence imposed could not be justified. Submissions for the applicant focused on the sentencing statistics on the Judicial Institute Research System (JIRS), which indicated that the non-parole period imposed by her Honour was in the top 10-15% of those given for armed robbery as the principal offence. Counsel for the applicant also drew attention to the Public Defenders' Sentencing Tables, again arguing that an unreasonable discordance could be observed between the sentence imposed on the applicant, and those imposed on other offenders.
In written submissions for the Crown, it was argued that a sentence of 5 years and 3 months, and a 3 years 3 months non-parole period, was not one that could be described as "unreasonable" or "plainly wrong", considering the maximum penalty for the offence is imprisonment for 20 years. Though it was accepted during the oral hearing that the starting point of the applicant's sentence sat "towards the top of the range", the degree of planning on the part of the three co-offenders was emphasised, as well as the presence of the offensive weapon and the fact that the applicant was subject to conditional liberty at the time of the offending.
The Crown maintained that, though his subjective case was undoubtedly tragic, it was significant that sentencing judge did not find that any casual nexus could be drawn between the applicant's background, mental health struggles, and the commission of the offence (although I hasten to add that this finding was the subject of one of the grounds that I have not resolved).
Reflecting now on resentence, and synthesising the most salient objective and subjective features of the matter: this was serious offending, that engendered terror, and, as all robberies do, combined dishonesty and the threat of violence. The belief of the victims was that they were being threatened with a firearm. The offence was committed on parole by a mature offender who had "an atrociously long offending and custody record" (to use the words of his own barrister on the appeal).
On the other hand, it was committed by a man who had endured a very deprived background that I consider was obviously criminogenic, that should be given full weight, and that reduces his moral culpability for the offences under consideration. It was also committed by a man suffering from various psychological problems quite apart from his entrenched drug addiction, one of which problems would make time in custody very difficult indeed. In the past year or so, there have been signs of a more constructive approach being taken by him in custody, central of which is the seeming efficacy of opioid replacement therapy, and his commitment to it. At this stage, however, one can feel nothing more than a very guarded optimism about his future.
As for the length of the sentences, I would replicate all aspects of the (ineffectual) fixed term for the offensive weapon offence: its head sentence starting point of 2 years 8 months; the discount of 25%; the resultant length after discount of imprisonment for 2 years; its status as a fixed term; and its starting date.
For the armed robbery, I would adopt a starting point head sentence of imprisonment for 6 years. Applying the same 25% discount, one arrives at a head sentence of 4 years 6 months. Replicating the first instance ratio between non-parole period and head sentence of 62% (which I regard as appropriate, not least because of the measure of cumulation on the pre-existing balance of parole), one arrives (with a little rounding down) at a non-parole period of 2 years 9 months, with the same starting date.
Because that sentence is a lesser than the one imposed at first instance, the appeal should be allowed.

Proposed orders

I propose the following orders: 1. Leave to appeal granted, and appeal against sentence upheld. 2. Sentences imposed at first instance quashed. 3. For the first count of armed robbery, the applicant is sentenced to a non-parole period of 2 years 9 months, to commence on 5 March 2022 and concluded on 4 December 2024, to be followed by a parole period of 1 year 9 months, to conclude on 4 September 2026. 4. For the second count of using an offensive weapon with intent to assault in company, the applicant is sentenced to a fixed term of imprisonment for 2 years, to commence on 5 March 2022 and that expired on 4 March 2024. 5. The first date upon which it appears that the applicant is eligible for possible release to parole is 4 December 2024.
SWEENEY J: I agree with Button J.

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: 24 May 2024

Crimes Act 1900(NSW)ss 33B, 97(1)

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