Yucebasoglu v R

Court of Criminal Appeal (NSW)|2015-08-03|Before: Gleeson JA, Adams J, Fagan J

Judgment

GLEESON JA: I agree with Fagan J.
ADAMS J: I agree with Fagan J.
FAGAN J: The Applicant seeks leave to appeal against sentence passed on him in the District Court at Parramatta on 11 April 2014 for the offence of causing damage by fire to property with the intention thereby to cause bodily injury to another person, contrary to s 196(1)(b), Crimes Act 1900 (NSW). The offence was committed on 1 November 2012 when the offender doused the front verandah of a weatherboard dwelling house at Auburn with petrol and ignited it. The house was at the time occupied by four people, a husband and wife and their two children.
The sentence proceedings followed a plea of guilty. The maximum penalty under s 196(1)(b) is 14 years. There is no standard non-parole period. After allowing a discount of 15% for the plea of guilty and a further 10% for some assistance to authorities which the Appellant had provided, the learned sentencing judge imposed a sentence of 5 years 3 months imprisonment. This comprised a non-parole period of 3 years 11 months and 7 days with the balance of the term being 1 year 3 months and 24 days. The ratio of the balance period to the non-parole period conformed to s 44(2), Crimes (Sentencing Procedure) Act 1999 (NSW). The Applicant had been in custody from his arrest on 3 November 2012. The non-parole period was ordered to commence from that date.
The grounds of appeal are: 1. His Honour erred in finding that the Applicant's mental illness did not reduce the Applicant's moral culpability. 2. The sentence was manifestly excessive.

Applicant's psychiatric history

The Applicant's date of birth is 21 May 1972. He was born in Australia to parents of Turkish origin. He was 40 years old and was living with his mother at the time of the offence. His history of mental illness and use of illegal drugs is summarised chronologically in the following paragraphs.
Early 1990s: The onset of the Applicant's mental illness was in his early 20's. As he related his history to Dr Furst, his symptoms in those years included him screaming to himself and having "rages". This was prior to any diagnosis of a mental illness or any treatment with medication. At this time he was also using cannabis on a daily basis. The cannabis use continued right up to the time of his arrest in November 2012, generally about 1g per day.
1996: In this year at the age of 24 years the Applicant was first admitted to Cumberland Hospital with apparent psychotic symptoms including "weird thoughts" and "voices" speaking to him and telling him to do things. He was paranoid and depressed. His admission was for three months during which he was treated with antipsychotic medication.
1996 to 2006: Between the ages of 24 and 34 the Applicant was admitted to Cumberland Hospital on three or four further occasions. During this period, whilst in custody for various offences (related below) he was treated with antipsychotic medications. Apparent schizophrenia was diagnosed in 2002, at age 30.
2006: Prior to the commission of the subject offence, his last admission to hospital was in 2006, aged 34 years. On that occasion he was treated with antipsychotic drugs. He was experiencing paranoid thoughts and auditory hallucinations.
2006 to 2012: In this period he was treated (with what frequency is not clear) by a consultant psychiatrist in Westmead. He was prescribed the antipsychotic drug Olanzapine and the anxiolytic Xanax during this time. He was also prescribed Methadone in connection with opiate dependency.
Early 2012: The Applicant attended the Auburn Community Mental Health Team in early 2012, experiencing auditory hallucinations and depression. At that time he suffered sleeplessness, loss of appetite and loss of motivation. He reported to Dr Furst that for a period (of unspecified duration) up to the commission of the offence he was taking benzodiazepines (at times daily, at the rate of 2 to 5 pills per day) to induce relaxation. He was also using amphetamines, methylamphetamine ("ice"), cocaine and heroin approximately monthly. The benzodiazepine Xanax was prescribed for the Applicant. It does not appear how his rate of consumption compared with the amounts prescribed.
5 November 2012: On this date, within a few days after the offence, he was reviewed by the "Consultation Liaison Psychiatry Team and Drug and Alcohol Team" at Concord Hospital. He told them that he had used heroin on a daily basis from 2000 to 2004 and had been maintained on methadone over more recent years. He exhibited insomnia and high level anxiety which the Concord Hospital medical staff attributed to benzodiazepine withdrawal. He described "low mood over the previous six months" but "minimal voices". He was diagnosed with opiate dependence and benzodiazepine withdrawal, on a background of schizophrenia and possible depression. Dr Maharaj, a psychiatrist who examined him at this time recorded this: "His thought form was logical and goal directed, with vague ideas about paranoid themes thought not to be of delusional intensity."
Dr Furst's diagnosis of his psychiatric status in May 2012, six months after the commission of the offence was: "- schizophrenia, paranoid type - substance use disorder (opiate, cannabis and benzodiazepine dependence) - likely personality disorder (antisocial traits)."

Criminal history

The Applicant's offending commenced in 1991 at age 19. From then he has had frequent convictions across a wide spectrum of unlawful activity: receiving stolen goods, possession and supply of prohibited drugs, driving whilst licence cancelled on numerous occasions, other driving offences including driving in a manner dangerous and driving under the influence of drugs, motor vehicle theft, obtaining financial advantage by deception, stealing, assault, resisting police and robbery in company. The most serious offences, as measured by penalties imposed, have been as follows:

1996 (age 24): a series of offences involving stealing a motor vehicle, driving whilst disqualified and driving in a manner dangerous and under the influence of drugs: 6 months imprisonment.
1998 (age 25): driving a motor vehicle taken without consent of owner and while disqualified: 16 months imprisonment with 10 months non-parole period.
2000 (age 28): driving while disqualified: 9 months imprisonment with non-parole period of 3 months.
2005 (age 32): (a) assault occasioning actual bodily harm in company: 21 months with a non-parole period of 15 months; (b) robbery in company: 4 years with a non-parole period of 2 years and 6 months (concurrent).

Since 2007 the Applicant has continued to be brought before the courts frequently on charges of supplying prohibited drugs, shoplifting, driving whilst disqualified, driving under the influence of alcohol or other drugs. Over the course of his criminal history, including in the 5 years preceding this offence, he has from time to time been dealt with by way of suspended sentences and bonds, often upon terms that he accept the guidance of a psychiatrist or psychologist, that he take medication as prescribed and that he undertake counselling for drug rehabilitation and educational development. Judging by the ongoing criminal record and the history of substance abuse recounted to Dr Furst, constructive orders of this nature have not achieved their objectives. They have not secured cooperation of the Applicant by way of abstaining from substance abuse and taking medication as prescribed, which would appear to be highly desirable for the optimal management of his psychiatric condition.

Conclusions of Dr Furst

Dr Furst noted that the Applicant had fled the scene of the fire and had subsequently given a variety of accounts of what happened. These included him telling police that he burned himself on a barbecue, telling his psychiatrist at Westmead, Dr Maharaj, on 5 November 2012 that he was "sleepwalking … the whole thing was like a mission". He told Dr Maharaj "there was just a small fire" and denied having had a plan, stating "I can't explain it". To Dr Furst on 22 May 2013 he said that he was driven by auditory hallucinations.
With reference to these varying accounts Dr Furst opined: "There was a history of dishonesty offences and likely secondary gain by exaggerating the symptoms he may have been experiencing on the night in question. I note he was not thought to be acutely psychotic on reviews by the Drug and Alcohol Team and Psychiatrists at Concord Hospital in the days following his arrest. In my opinion he was aware of his actions and their wrongfulness at the time in question before the court, notwithstanding his probable underlying mental illness. I did not think that he has the mental illness defence available to him."
On page 9 of his report, after referring to uncertainty regarding the true nature of the dispute between the Applicant and Mr Zabun, Dr Furst drew the following conclusions: "In any case the conflict between the two parties was probably the main motive behind the alleged actions of the accused when lighting the fire in question, rather than a psychotic drive. In my opinion the presence of his apparent schizophrenia mitigates the seriousness of his actions, as schizophrenia often leads to impairment of the higher centres in the brain responsible for emotional control, planning and sound judgement."

Ground 1 - mental illness and moral culpability

At pp 12-13 of the Remarks his Honour referred to authorities which establish that an offender's mental illness may have the effect of reducing his or her moral culpability and may bear upon whether such considerations as general deterrence, retribution and denunciation should be given less weight in determining an appropriate sentence: Muldrock v R (2011) 244 CLR 120 at [53], [54]; R v Israil [2002] NSWCCA 255 at [23]; Director of Public Prosecutions for the Commonwealth v De La Rosa (2010) 79 NSWLR 1 at [177]. His Honour also cited Veen v R [No. 2] (1988) 164 CLR 465 at 488 where it was recognised that the sentencing objective of protecting the community (which is now a statutory objective in New South Wales: s 3A(c), Crimes (Sentencing Procedure) Act) may point towards a longer sentence for an offender affected by a psychiatric condition, whereas the diminished weight of objectives such as deterrence, retribution and denunciation may point in the opposite direction.
Having cited the above authorities as apposite to the case, his Honour concluded: "In the present case, the offender was a person who, whilst having a strong history of mental illness, did know what he was doing and he knew that it was wrong." That finding was open to his Honour on the basis of Dr Furst's evidence quoted at [27] and [28] above.
His Honour then quoted the last of the paragraphs which I have set out from Dr Furst's report at [28] and held as follows: "So in that respect, Dr Furst's opinion limits the impact of the mental illness to the exercise of judgment. There is no suggestion, for instance, that the offender was directed to light the fire for delusionary reasons. I do accept Dr Furst's opinion in particular as to the matter of compromised judgment. I also accept it is more probable than not that the offender was, to some extent, impacted upon in his judgment and self-control by his illness. That said, the effect was not of such a degree as to reduce the offender's moral culpability for what was a wilful and dangerous act approached with a considerable degree of deliberation and preparation." (Emphasis added).
These findings were open to his Honour on the basis of Dr Furst's report. The last of the paragraphs of that report which I have quoted at [28] spoke of the effects of schizophrenia upon centres of the brain "responsible for emotional control, planning and sound judgement" in terms of a generalisation about the disease. The doctor said: "schizophrenia often leads to impairment … etc". Whilst identifying this commonly seen effect of the illness, the doctor did not purport to have detected that an impairment of "emotional control, planning and sound judgement" had actually occurred in the Applicant to any particular extent. Following upon his recognition that the Applicant's conflict with Mr Zabun was "probably the main motive behind the alleged actions of the accused when lighting the fire in question, rather than a psychotic drive", Dr Furst's opinion that the "apparent schizophrenia mitigates against the seriousness of his actions" is very non-specific and guarded.
This guardedness is consistent with Dr Furst's other conclusions on p 8, quoted at [27] above. Namely, that the Applicant was "not thought to be acutely psychotic" when reviewed by specialists at Concord Hospital in the days following his arrest and that, in Dr Furst's opinion "he was aware of his actions and their wrongfulness at the time in question".
I consider that this caution in the specialist's opinion justified the learned sentencing judge in recognising that whether or not the Applicant's moral culpability was lessened because of the effects of his psychiatric illness was a question of the degree of those effects. His Honour's acceptance that the Applicant was "to some extent impacted upon in his judgment and self-control by his illness" but that "the effect was not of such a degree as to reduce [his] moral culpability" was a finding reasonably open on the basis of the limited conclusions of Dr Furst as discussed above.
I do not consider that the primary judge erred in making the finding which is impugned in Ground 1.

Ground 2 - manifestly excessive sentence

Having found that mental illness did not reduce the Applicant's moral culpability his Honour correctly acted upon that conclusion in determining how much weight and effect he should give to considerations of deterrence, retribution and denunciation. His Honour listed the purposes of sentencing as set out in s 3A, Crimes (Sentencing Procedure) Act and continued as follows: "I find that notwithstanding the offender's mental illness and its impact in reducing his powers of judgment in particular, each of these concerns [ie the purposes of sentencing] remains with an important part to play in the resolution of the sentencing discretion required. [His Honour referred to the serious and dangerous nature of the offence and to the community's abhorrence of arson]. There is a strong need to deter both the offender and others from commission of a crime that can be carried out with relative ease and with potential for devastating outcomes. This is related to the protection of the community and does require that the offender be accountable for his actions and be subjected to a degree of denunciation, albeit not as much as would be the case but for the impact of his mental illness." (Emphasis added).
On a fair reading of this passage taken in the context of the Remarks as a whole, his Honour's reference to "a strong need to deter both the offender and others" does not indicate that the learned judge was declining altogether to ameliorate the influence of general and specific deterrence on account of the mental illness. Earlier his Honour had quoted from Muldrock v R (supra) at [ 54]: "The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and the needs of the community."
In view of his Honour's citation and recognition of that principle, the passage from the Remarks, quoted at [36] above, (particularly the final words, "albeit … etc") merely indicates that, given Dr Furst's limited and circumspect conclusions, the high importance of deterrence, retribution and denunciation for the crime of setting fire to a dwelling house occupied by family, in the small hours of the morning, would not be much reduced in this case.
In Veen v R [No. 2] (supra) Mason CJ, Brennan, Dawson and Toohey JJ said (at 476-477): "The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions. And so mental abnormality which makes an offender a danger to society when he is at large but which diminishes his moral culpability for a particular crime is a factor which has two countervailing effects: one which tends towards a longer custodial sentence, the other towards a shorter. These effects may balance out, but consideration of the danger to society cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality."
In the same case Wilson J said (at 487): "The difficulty arises in determining the effect that the element of protection of the community may properly have in arriving at a particular sentence. In my view, it should not have the effect of increasing a sentence beyond the longest sentence that the actual offence charged, when viewed objectively, would justify. In the case of a mentally deranged offender whose release would represent a potential danger to the community, the necessity to protect the community would be likely to outweigh any other considerations personal to the offender which may have led to a reduction in the sentence, with the consequence that the maximum sentence appropriate to the offence would be imposed. What is not permissible, in my opinion, is that the maximum appropriate sentence be increased to some longer sentence solely because of the imperative to protect the community."
In the present case such reduction in weight for factors of deterrence and denunciation as the learned sentencing judge may have considered appropriate was evidently offset, in his Honour's assessment, by the increased importance attaching to protection of the community. This consideration clearly assumed importance where the Applicant had a long history of offending, escalating through offences of violence (the assault occasioning actual bodily harm and the robbery in company in 2005) to the present very serious event - all on a foundation of ongoing psychiatric illness and misuse of drugs.
The gravity of this offence is considerable. The elements necessarily accepted in the Applicant's plea of guilty include an intention to cause bodily injury to another person. The Applicant told Dr Furst that he had seen Mr Zabun through the window before fetching the petrol and dousing the verandah with it. It is clear that his Honour took as his starting point a total sentence before discount of 7 years. Taking into account the objective seriousness of the crime and all of the Applicant's subjective factors, his Honour's adoption of half of the maximum penalty, before discount, was not excessive.
The Applicant has made no criticism of his Honour's allowance of a discount of 25% for the plea and assistance. This resulted in a discounted total sentence of 5 years 3 months which, again, therefore, was not excessive. The non-parole period and additional term by which this total sentence is to be served, as set out at [4], in my opinion should not be disturbed. Ground 2 should be dismissed.
I propose the following as the orders of the Court: 1. Leave to appeal granted. 2. Appeal dismissed.

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