New South Wales Court of Criminal Appeal CITATION : Regina v AB [2000] NSWCCA 306 revised - 15/08/2000 FILE NUMBER(S) : CCA 60346/99 HEARING DATE(S) : 4 August 2000 JUDGMENT DATE : 18 August 2000 PARTIES : Regina v AB JUDGMENT OF : Newman J at 1; Sperling J at 2-35 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/41/0279 LOWER COURT JUDICIAL Garling DCJ OFFICER : M Ierace SC (Applicant) COUNSEL : R D Ellis (Crown) D J Humphreys (Applicant) SOLICITORS : S E O'Connor (Crown) CATCHWORDS : Criminal law - sentence appeal - no question of principle. CASES CITED: Regina v Henry (1999) 46 NSWLR 346; Regina v Pyritz (Unreported) NSWCCA 23 Novmber 1998; Regina v McKenna (Unreported) NSWCCA 16 October 1992. DECISION : Appeal allowed and orders made see paragraph 35. IN THE COURT OF CRIMINAL APPEAL 603467/99 NEWMAN J SPERLING J Thursday, 17 August 2000 REGINA v AB JUDGMENT 1 NEWMAN J : I have had the advantage of reading in draft form the judgment of Sperling J and I agree with both the reasons and the orders he proposes. 2 SPERLING J : On 17 March 1999, the applicant pleaded guilty to two charges: firstly, that on 2 August 1998 at Nowra he broke and entered a dwelling house and there committed a felony, namely stealing, being armed with an offensive weapon, namely, a 20 cm knife; secondly, kidnapping which consisted of taking away Joan Fletcher with intent to hold her for advantage. 3 The maximum penalty for the first offence is 20 years penal servitude and for the second offence 14 years penal servitude. 4 For the first offence, the applicant was sentenced to penal servitude for six years including a minimum term of four years and six months. For the second offence the applicant was sentenced to a fixed term of penal servitude for one and a half years, to be served concurrently. The sentences commenced on 18 September 1998, being the date on which the applicant was taken into custody. 5 The applicant was born on 20 February 1975. At the time of these offences he was 22 years of age. 6 The applicant was drug dependant. His criminal history was characteristic. It included convictions for property offences and for possession and supply of a prohibited drug. At the time of the sentence imposed on 3 June 1999, the heaviest sentence the applicant had received was in 1997, being a community service order of 50 hours for supplying a prohibited drug. 7 The facts of the matter may be summarised as follows. At about 2am on Sunday 2 August 1998, the victim, Joan Lesley Fletcher, who was then 69 years of age, woke to find the applicant standing over her with a knife at her throat. He demanded money. She got out of bed and handed him her purse. The application forced the victim to follow him around the house while he removed a large amount of property from different rooms, taking household items such as a TV set and a video and stereo unit. He then forced Ms Fletcher to assist him to put the property into her car. Ms Fletcher was ordered to drive to a service station where she was required to purchase cigarettes for him. She was then required to telephone an elderly friend at 5.30am for money. The two went to the friend's home and collected $60. The applicant then dropped Ms Fletcher close to her home, drove away, transferred her property to his own vehicle and returned Ms Fletcher's car to her. 8 The applicant had gained entry to the house by forcing a rear window. 9 The applicant was arrested on 18 September 1998. Items stolen from Ms Fletcher's home were located in the applicant's possession and in the possession of the applicant's girlfriend. Jewellery, stolen from Ms Fletcher, was recovered from a pawn broker, having been pawned by the applicant and his girlfriend. 10 Ms Fletcher was not physically injured. She was, however, terrified during the episode. 11 The amount of property that was stolen exceeded $10,000 in value, according to the police statement of facts. 12 In her statement made on 2 August 1998, which was tendered as part of the Crown evidence on the sentencing hearing, Ms Fletcher said that the applicant had a 7" or 8" butcher's knife held to her throat when she awoke and that he kept the knife in her sight all the time he was there. It is unnecessary for me to review her account of events. However, it contained the following details. The applicant said he did not want to hurt her. He said no-one was ever nice to him. He said he would not have broken into the house if he had known how old she was. He kept saying he did not want to do this. He seemed to be agitated. She objected to him taking her new iron and gave him her old one which he accepted. She objected to him taking some figurines which had belonged to a dead family member. He said he did not want to take anything of sentimental value. He allowed her to take the figurines back. She objected to him taking a concrete garden ornament which was in the lounge room and he left that. As they were carrying things to her car he enquired whether they were too heavy for her. He left a wooden model when she said that it had been given to her by her son. He was complimentary about the way her husband looked after his tools in the garage. While they were at the service station the applicant was sucking his thumb like a baby. The applicant said they had to decide what they were going to do with the car. She told him to take the car and let her out, that she would walk home. He said she was not walking home in the dark. He let her out of the car near her house. The applicant came back to the house and they went off again in the car. She told him that he should try and get himself out of this and join the methadone programme. He replied that he could not promise anything. He said he felt bad about this, that he would try and get her stuff back but it might take a while. They drove to where he had left his vehicle. Ms Fletcher said that the only time he raised his voice was when he first woke her up. At one stage he had pulled up his sleeve and had shown her some scars on his right forearm. 13 The applicant tendered a report by Dr Westmore dated 16 February 1999. The history taken by Dr Westmore included the following At the age of 16 he was admitted to Odyssey House for two years. He was taking heroin and cannabis at that time. He then remained drug free for six to twelve months. He then started using illicit drugs again at the age of 21, heroin and amphetamines. In 1992 he had sought treatment for depression and was under the care of the Bondi Mental Health Service for nine to ten months, receiving drug therapy. As at 2 August 1998 he was on the methadone programme but was using amphetamines. In the past he had been treated by his general practitioner with anti-depressants, commencing about three and a half years previously. As at 2 August 1998 he was off the anti-depressants temporarily for a change in medication. There had been an attempted suicide four years previously. 14 There was a family background of illicit drug usage. At the age of 11 the applicant had overdosed on cannabis, following which he was placed in an institution. His step-father died from a drug over dose. The applicant was placed in foster care from the age of 11. He was taking amphetamines intermittently from the age of 13 or 14. He started smoking heroin at the age of 14, intravenously from the age of 14 and a half. From the age of 19 he was using cocaine intermittently. He had also used Rohypnol and Serepax in the 12 months prior to August 1998. 15 The applicants childhood was disrupted by the separation of his parents at the age of two followed by frequent changes in where he lived and with whom. He was beaten by his step-mother and by his step-father. His step-sisters, who were older, forced him to have sexual relations with them. 16 He had worked as a hospital cleaner. He was then a male prostitute for 18 months from the age of 19. He then started dealing in cocaine at Kings Cross. On being barred from Kings Cross by the local police, he went to live in Nowra with a paternal uncle. There he acquired a girlfriend. He had not worked otherwise. 17 Dr Westmore described the applicant as a very damaged young man. His early life history had been a disaster. He had suffered emotional abuse and deprivation and been the victim of physical and sexual abuse. He had poor role models as a child, being exposed to drug use and violence. There was an extensive history of illicit drug usage. He had suffered episodes of depression in the past, probably more on some occasions than others. He was a chronic thumb sucker. That was extremely regressive behaviour which reflected his level of insecurity. There had been previous attempts at drug rehabilitation without long term success. Dr Westmore was of the view that the applicant was in need of further extended periods of drug rehabilitation. Optimally, he required long term community based rehabilitation. His prognosis was uncertain in view of the long duration of drug use, the extent of it and the nature of the applicant's personality difficulties. 18 Dr Westmore thought the applicant was probably chronically depressed and in need of psychiatric assistance. 19 Dr Westmore said the applicant was aware of the impact his behaviour had had on the victim in this matter and that his expressions of regret and remorse in that regard were probably genuine. 20 A report dated 13 July 1998 by Dr N.M. Wilton, psychiatrist, from the Illawarra Health Service at Shoalhaven, was tendered and also a psychiatrist assessment by Odyssey House dated 21 May 1993. I need not review these documents. 21 The applicant gave evidence at the sentencing hearing. The applicant said he had taken a number of Rohypnol tablets prior to committing this offence. He did not recall leaving home that night. He said that, when he broke into the house, he thought it was unoccupied. He said he thought the knife he had with him was a butter knife. (That was not correct). He remembered loading up Ms Fletcher's car with objects from the house. He remembered going to the service stations. He said he left the things which Ms Fletcher said were of sentimental value and that she cuddled him just before they left in her car. The applicant said that he did not feel very good about what he had done, or about the hurt and stress under which he had put the person under which, he said, he did not mean to do. 22 The applicant said he had been seeing a psychiatrist once every week or two in prison and was being trialed on Prozac instead of another anti-depressant. He also saw the welfare officer and the drug and alcohol counsellor every week. He was on the methadone programme and was reducing his methadone. He was trying to get his methadone level down to what was required for acceptance into a Salvation Army programme at Endeavour Farm. He hoped to participate in that programme at some stage. 23 The applicant said that he was in protective custody at his own request because, being young, he was in fear of being attacked. 24 In cross examination, the applicant at first denied that he had a 7" to 8" butcher's knife, but then said that Ms Fletcher might be right in saying that he did. The applicant said he had been on Speed and had not slept for days. He said he had intended to break into a house to obtain money to buy cigarettes. He said that the idea of taking things from the house arose when he found that Ms Fletcher had a car. 25 In his remarks on sentence, the sentencing judge said that some of Ms Fletcher's conduct had been strange. I do not agree. She was obviously terrified that the applicant would use the knife. The applicant also said he had a gun and she was frightened he would use that. She did everything she could to keep him calm because she feared for her own physical safety. 26 It is also apparent that, after waking Ms Fletcher and threatening her with the knife at close quarters, the applicant showed a good deal of courtesy and consideration. That does not excuse what he did but it does say something about the sort of person he is underneath. 27 At the time of these offences, the applicant was drug dependent. He was also unemployed and presumably in need of money. It can be assumed that the motivating factor behind what occurred was the need for money to support the applicant's drug habit. That does not qualify as a matter of mitigation. In Henry , (1999) 46 NSWLR 346. the Chief Justice said At [202]. that there is no warrant to assess a crime induced by a need for funds to feed a drug addiction as being lower on the scale of moral culpability than other perceived requirements for money. Wood CJ at CL said, in the same case, at [257-9], that the causal relationship between a drug habit and a commission of an offence, should not, as a matter of general principle, automatically lead to a lesser sentence. The way in which the need to acquire funds to support a drug habit could be relevant, although not a matter of mitigation in itself, was, however, explained by Wood CJ at CL at [273]. His Honour said that the fact that an offence is motivated by such a need may be taken into account as a factor relevant to the objective criminality of the offence insofar as it may throw light on a variety of matters including the impulsivity of the offence. His Honour said it may also be relevant as a subjective circumstance insofar as the addiction might have occurred at a very young age so that the ability to exercise appropriate judgment or choice was incomplete. These observations are relevant to the present case. There was in an element of impulsivity about this stealing episode and there is the fact that the applicant became dependent on drugs at a very early age. 28 On 21 June 1996 the applicant was at Kings Cross. He witnessed a man being chased along the street, being caught and being kicked viciously in the head. He rang for an ambulance. He was interviewed by the police and made a full statement about what he had observed. This was not without its hazards for the applicant; he was, at that time, selling drugs at Kings Cross. When the applicant came up for sentence in the present matter, he did not mention the assistance he had given the police in relation to the earlier matter because he did not think it was relevant. At that stage, he had not been asked to give evidence. Subsequent to sentence, he was asked to give evidence at the trial of the offender. He was brought to court from gaol and did so. 29 This court has power to receive evidence that was not, but could have been, placed before the sentencing judge: Pyritz . Unreported, NSWCCA, 23 November 1998. Very substantial reasons and a grave risk of injustice must be shown before such evidence is admitted: McKenna . Unreported, NSWCCA, 16 October 1992. The Crown concedes that this is an appropriate case in which to admit the evidence and that the consequence is that the sentence should be quashed and the applicant re-sentenced. The concession is a proper one and I agree that that is the appropriate course. 30 The assistance to the authorities given in this case is towards the lower end of the range. 31 I have regard to the objective circumstances of the case and to subjective considerations relative to the applicant. The offences are serious offences in themselves. This case is, however, far from the worst category of cases involving armed robbery and kidnapping. The applicant was affected by drugs at the time. This is not a matter in mitigation but, in view of the history of drug dependency extending back to childhood, that goes to the objective circumstances of the offending behaviour. 32 The applicant's history of mental illness renders him an unsuitable vehicle for general deterrence. 33 Absent assistance to the authorities, which the sentencing judge did not know about, I agree with his Honour's view that a total sentence of six years would be appropriate. Discounting for assistance to the authorities, I would impose a total sentence of five years penal servitude. 34 In view of the applicant's history of mental illness and drug dependency, I think a full two years under intensive supervision is required for rehabilitation purposes when the applicant is released from prison. Accordingly, I find special circumstances and would fix a non-parole period of three years. 35 The orders I propose are as follows:- 1. Grant leave to appeal against sentence. 2. Allow the appeal. 3. Quash the sentence imposed on 3 June 1999. 4. Substitute a sentence of five years' penal servitude, commencing on 18 September 1998, with a non-parole period of three years expiring on 17 September 2001, that being the date on which the applicant will be eligible to be released on parole. 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.