Taylor v The Queen [2000] FCA 1749

FEDERAL COURT OF AUSTRALIA

Taylor v The Queen [2000] FCA 1749 DALE THOMAS TAYLOR v THE QUEEN A 31 of 2000 MILES, O'LOUGHLIN & MATHEWS JJ 16 NOVEMBER 2000 CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 31 OF 2000

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: DALE THOMAS TAYLOR

APPELLANT

AND: THE QUEEN

RESPONDENT

JUDGE: MILES, O'LOUGHLIN & MATHEWS JJ

DATE OF ORDER: 16 NOVEMBER 2000

WHERE MADE: CANBERRA

THE COURT ORDERS THAT:

1 The appeal is dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A31 OF 2000

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: DALE THOMAS TAYLOR

APPELLANT

AND: THE QUEEN

RESPONDENT

JUDGE: MILES, O'LOUGHLIN & MATHEWS JJ

DATE: 16 NOVEMBER 2000

PLACE: CANBERRA

REASONS FOR JUDGMENT THE COURT: 1 This is an appeal against the severity of a sentence imposed by Crispin J of the ACT Supreme Court on 14 April 2000. The appellant had previously pleaded guilty to one count of armed robbery. His Honour sentenced him to imprisonment for 7˝ years from the date of sentence with a non-parole period of three years. 2 The circumstances of the offence were set out in a Statement of Agreed Facts tendered to his Honour. They showed that at approximately 5.00 pm on 7 March 1999 the appellant entered the Arygle General Store at Reid. The store is owned and operated by a male and female proprietor, both of whom were on the premises at the time. The appellant entered the shop and asked the male proprietor, for two bottles of beer. He then briefly left and returned carrying a knife in each hand. One was similar to a butcher's knife, with a blade approximately fifteen centimetres long. The second knife was similar to a kitchen knife with a blade approximately twenty-five centimetres long. The appellant stood approximately one metre from the male proprietor and held the knives so that their blades faced him. At one point the proprietor took the appellant's wrist and tried to steer him towards the door of the shop. However he became apprehensive about what the appellant might do with the knives and let go of him. The appellant then approached both the male proprietor and his wife with the knives pointing towards them. The male proprietor opened the till and took out a twenty-dollar note and eight ten-dollar notes which he handed to the appellant. During all of this time the appellant was apologising saying: "I am sorry about this but I am desperate". After the proprietor had handed the appellant the money, he said to him "Aren't you going to leave me with anything?" to which the appellant handed back a ten-dollar note. As the appellant walked towards the door he said "I'm really sorry about this. If you knew my missus … I'll give it all to you back, I promise." He then left. 3 The proprietor of the shop then called the police. They conducted a search of the area and shortly afterwards located the appellant. They also found the two knives in bushes a short distance from the shop. The police formed the opinion that the appellant was intoxicated and did not seek to question him. He was subsequently declared to be medically unfit to take part in an interview. 4 As the sentencing judge observed, the appellant has what can only be described as an "appalling" criminal record. He was born on 7 September 1964. His first offence was committed in 1979. Between 1982 and 1993 he sustained convictions of many charges including eight offences which were directly drug-related, four offences involving assault, one being assault with intent to steal, approximately five house breaking offences and various other offences involving unruly behaviour, hindering the police and failure to abide by probation or bail conditions. Commencing in 1989 he sustained numerous sentences of imprisonment. 5 In March 1994 the appellant was sentenced to a total of eighteen months imprisonment, with a minimum period of six months, for break, enter and steal and assault with intent to rob by striking. Later that year he was sentenced in the Brisbane District Court to two years' imprisonment for break and enter with intent. In August 1996 he was sentenced to two years' imprisonment, suspended for a period of five years, for numerous charges including break and enter with intent, assaulting a police officer and false pretences. 6 On 17 July 1997, during the currency of this sentence, the appellant committed an armed robbery of a service station in circumstances which were very similar to those of the present offence. On 17 December 1997 he was sentenced in relation to this offence in the ACT Supreme Court. A sentence of three years' imprisonment was imposed, dating from 17 July 1997, with a non-parole period of eighteen months. 7 The appellant was released to parole from this sentence on 25 February 1999. The present offence was committed only ten days later on 7 March. He was taken into custody on the same day. On 17 March 1999 his parole was revoked for reasons unconnected with the present offence. The appellant has been in custody ever since. The sentence imposed by Gallop J was due to expire on 17 July 2000. 8 An unusual feature of the appellant's case is that he has a memory and cognitive deficit apparently sustained as a result of head injuries, and probably aggravated by a long history of alcohol and drug abuse. The sentencing judge had before him two lengthy reports, one from a psychiatrist, Dr William Lucas and one from a clinical psychologist, Dr Ann Delahunty. Dr Delahunty's reports showed the appellant's intellectual ability to be rated at borderline levels. His capacity for visual and verbal abstraction was borderline as was his immediate memory for most matters. His verbal learning ability was assessed as impaired. His planning was slow and was also rated as impaired. There was plentiful evidence of impulsivity, perseveration and disorganised behaviour. 9 Dr Lucas also noted the appellant's problems with memory and attention deficit. He commented that the appellant's cognitive impairment was of concern for a number of reasons. His judgment is likely to be impaired, particularly if he is intoxicated. In addition, his ability to adjust to life outside a structured situation such as prison is probably affected together with his ability to fully participate in or benefit from a rehabilitation program. Dr Lucas considered it likely that the appellant suffers from a personality disorder but commented that the picture is clouded by the appellant's drug and alcohol abuse and by his cognitive impairment, from whatever cause. 10 The sentencing judge described the findings of Dr Lucas and Dr Delahunty and commented that one must have "real sympathy for someone who has suffered head injuries and as a result has a significant cognitive disability, accompanied by a significant problem with his memory". However, his Honour noted that in sentencing the offender he was not able to act solely on the basis of sympathy. He proceeded to make the following observations: