New South Wales Court of Criminal Appeal CITATION : Regina v Leonard [2000] NSWCCA 318 FILE NUMBER(S) : CCA 60213/1999 HEARING DATE(S) : 14 July 2000 JUDGMENT DATE : 23 October 2000 PARTIES : Crown Kenneth Ronald Leonard JUDGMENT OF : Adams J at 1; Bell J at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/61/0220 LOWER COURT JUDICIAL Taylor DCJ OFFICER : COUNSEL : W G Dawe C - Crown J S Stratton - Applicant SOLICITORS : S E O'Connor - Crown T A Murphy - Applicant CATCHWORDS : Criminal law - appeal against severity of sentence - sentencing of Aboriginal offenders. Crimes Act 1900 LEGISLATION CITED : Sentencing Act 1989 Crimes (Sentencing Procedure) Act 1999 R v Fernando (1992) 76 A Crim R 58 CASES CITED: R v Henry (1999) 46 NSWLR 346 R v Bloomfield (1998) 44 NSWLR 734 DECISION : Grant leave to appeal; appeal allowed. IN THE COURT OF CRIMINAL APPEAL 60213/99 ADAMS J BELL J 23 October, 2000 REGINA v Kenneth Ronald LEONARD JUDGMENT 1 The Court: On 14 July 2000 we made orders granting Kenneth Ronald Leonard ("the applicant") leave to appeal against the severity of a sentence imposed upon him in the District Court and allowing his appeal. We quashed the sentence and in lieu thereof we sentenced him to a term of four years imprisonment to date from 15 April 1999. We specified a non parole period of two years. We now give our reasons for making those orders. 2 The applicant was convicted of one count of robbery contrary to s 94 of the Crimes Act 1900. His trial commenced in the District Court at Dubbo on 12 April, 1999. The jury returned a verdict of guilty on 15 April 1999. The following day the applicant was sentenced to a minimum term of three years penal servitude to date from 15 April 1999. That term was expressed to conclude on 14 April 2002. An additional term of twelve months to commence on 15 April 2002 was specified. 3 By Notice of Appeal dated 5 May 1999 the applicant appealed against his conviction and sought leave to appeal against the severity of the sentence imposed upon him. By an undated notice received in the registry of the Court of Criminal Appeal on 10 April 2000 the applicant abandoned his appeal against conviction. He stated his intention to proceed with his application for leave to appeal against the severity of the sentence. 4 The facts of the offence are briefly set out at the commencement of his Honour's reasons for sentence; "The Crown case was that on 4 September 1996 an elderly lady Mrs Broome was walking towards her home in Coonamble. She was approached by the accused, he struggled with her and took her purse, about $80, a newspaper and groceries. At that time Mrs Broome was about 86 and photographs of her taken shortly after the incident depict a frail, elderly lady. She was too infirm to be brought to court." 5 Upon the hearing of the application Mr Stratton, who appeared for the applicant, sought to lead additional evidence in the form of an affidavit sworn by his instructing solicitor who annexed a report prepared by Dr Hugh Jolly, psychiatrist, dated 16 June 2000. In the light of the contents of the report the Crown Prosecutor took no objection to the reception by the Court of this additional evidence. It is appropriate to return to this report after dealing with a number of other matters which were raised in the course of the hearing. 6 Mr Stratton developed several challenges to the correctness of the sentence imposed by the learned judge. A principal submission was that his Honour had failed to give sufficient weight to the principles applicable to the sentencing of Aboriginal offenders as explained in R v Fernando (1992) 76 A Crim R 58. The applicant is an Aboriginal man. He was aged thirty six at the date of sentence. A pre-sentence report relating to another matter, dated 18 February 1998, was tendered in the applicant's case before the sentencing judge. That showed that the applicant was assessed as having poor literacy skills and that he left school at the age of sixteen years. Thereafter he had only been in employment for a total of two years. He had significant problems with alcohol and associated psychiatric difficulties. 7 In the course of his reasons for sentence his Honour said:- "There are three factors advanced by the prisoner's counsel. The first is the prisoner's aboriginality. The principles to be applied are enunciated in Fernando's case where the now Chief Judge at Common Law carefully identified the criteria for sentencing of indigenous people. His Honour cautioned against the Courts being patronising. Here is a case in which the prisoner from the information available lived within the town of Coonamble or Gulargambone in poor circumstances. He received a basic education, he does not seem to have been affected by the other tragic circumstances that are referred to in Justice Woods judgment. His background was deprived in the sense that he may well have not realised his potential because of the social circumstances in which he was brought up. However none of the criteria in Fernando's case are advanced by the prisoner's counsel as being applicable. The offender's aboriginality is a subjective factor that the court takes into account." 8 It is to be noted that trial counsel did not seek to persuade the sentencing judge that the considerations addressed by Wood J (as he then was) in Fernando applied in the circumstances of the present case. Nonetheless Mr Stratton submitted that his Honour erred by failing to take into account the matters set out in paragraphs (E) and (G) at p 62 of the report: (E) While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. This involves the realistic recognition by the court of the endemic presence of alcohol within Aboriginal communities, and the grave social difficulties faced by those communities where poor self image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects. (G) That in sentencing an Aborigine who has come from a deprived background or is otherwise disadvantaged by reason of social or economic factors or who has little experience of European ways, a lengthy term of imprisonment may be particularly, even unduly, harsh when served in an environment which is foreign to him and which is dominated by inmates and prison officers of European background with little understanding of his culture and society or his own personality. 9 Mr Stratton submitted that his Honour must be taken to have concluded that the principles enunciated in Fernando have no place save in the sentencing of Aboriginal persons living in remote communities. In the instant case the applicant had been raised in a reasonably isolated rural Aboriginal community where alcohol abuse was endemic. He came from a background involving the absence of work opportunity and education tending to reinforce the resort to alcohol to which Wood J had referred. 10 It is to be noted that there was no evidence that the assault upon Mrs Broome took place at a time when the applicant was affected by alcohol. We were informed by Mr Stratton, without demur from the Crown Prosecutor, that the evidence did disclose that the applicant had spent a portion of the day on which the offence was committed drinking at the river bank. 11 We did not consider that Mr Stratton made good his challenge based upon the decision in Fernando. The sentencing judge observed that there were what he characterised as "strong subjective factors in the case". He went on to refer to the applicant's aboriginality noting that he had lived in central western New South Wales all his life. He commented on the applicant's school record and associated poor literacy skills and his lengthy period of unemployment. He noted that in 1998 the applicant had suffered a stroke attributed to his alcohol and cannabis use and that he had been on a disability support pension since that time. It is difficult to see how his Honour might have taken the applicant's aboriginality into account as a strong subjective circumstance save by recognising that he belonged to a group recognised as subject to the entrenched social and economic difficulties to which Justice Wood referred in Fernando. 12 Mr Stratton next challenged the sentence upon the basis that it was manifestly excessive. We were referred to statistics prepared by the Judicial Commission of New South Wales ("the Commission") for the period January 1990 to July 1999. Those showed that out of a sample of 647 offenders only eleven percent received a total sentence in excess of the four years imposed upon the applicant. When one refined the sample by including the following limiting criteria; (i) single count (ii) no matters on a Form 1 (iii) criminal record for offences of a different character & (iv) subject to a bond at the date of the offence, only one offender had received a longer sentence than the applicant and only two had received longer minimum terms. 13 Mr Stratton observed that the sentence imposed upon the applicant was within the range of sentences proposed by this court in R v Henry (1999) 46 NSWLR 346 for the offence of armed robbery. The guidelines promulgated in Henry, to which Mr Stratton referred, related to that category of case in which the offender is a young offender with little or no criminal history and in which, inter alia, the offender pleads guilty. 14 The applicant has a lengthy criminal history dating back to 1979. He is a man of mature years whose criminal record does not entitle him to any claim for leniency. There was no question of a discount for a plea of guilty in this case. We were not persuaded that there was utility in looking to the Henry guideline judgment as a basis for contending that a four year sentence for a serious offence of robbery was excessive. In dealing with the submission that the sentence is manifestly excessive, it is appropriate to have regard to the statutory maximum which is a sentence of fourteen years penal servitude (now imprisonment). It may also be appropriate to have regard to the pattern of sentencing for this offence revealed by the statistics maintained by the Commission; Regina v Bloomfield (1998) 44 NSWLR 734. The latter shows that the sentence imposed in the instant case was towards the top of the range. We did not consider that it could be characterised as manifestly excessive. Objectively, this was a most serious case of robbery involving a violent assault upon a frail eighty six year old lady. 15 The sentence was also challenged upon the basis that the judge had erred in law in failing to find special circumstances for the purposes of s 5(2) of the Sentencing Act, 1989. We did not think that the sentencing judge erred in the approach he took in this respect upon the material before him. The additional material contained in the report of Dr Jolly may well have led the sentencing judge to take a different view with respect to the question of special circumstances. So much was acknowledged by the Crown Prosecutor. 16 It is to be noted that in the pre-sentence report reference was made to the applicant as having suffered from a long term depressive illness in respect of which he had been prescribed anti-depressant medication. In 1995 a visiting psychiatrist at the Bathurst Correctional Centre had reported that the applicant exhibited suicidal tendencies. This report also referred to the applicant as suffering from depression. The only other material before the sentencing judge relating to the applicant's mental state was a short report prepared by Mr Lyons, a mental health nurse with the Macquarie Area Health Service. In that report Mr Lyons said that he had twice seen the applicant (for depression and poor coping skills) at the Coonamble Health Centre. Mr Lyons went on to recommend a complete psychiatric and psychological assessment be undertaken with respect to the applicant. No such assessment was before the sentencing judge. This was a matter to which his Honour made specific reference towards the conclusion of his remarks on sentence. His Honour directed that the prisoner be psychiatrically assessed as soon as practicable. 17 The applicant was interviewed by Dr Hugh Jolly, forensic psychiatrist, on 7 June 2000. Dr Jolly noted that the applicant presented pleasantly and that he related warmly and co-operatively although he complained of poor memory. He was described as being a bit bemused and inarticulate during the course of his interview with the doctor. In the 1998 pre-sentence report there was a passing reference to the applicant's report that he had earlier been assaulted while in gaol. In the course of the interview conducted by Dr Jolly, the applicant gave an account of a sexual assault committed upon him by three fellow prisoners when he was in custody in 1981. He would then have been around eighteen years of age. There is no need to recount such details of the assault as the applicant provided to Dr Jolly. It is sufficient to note that if it occurred as the applicant said (and Dr Jolly was disposed to believe him) it was a very ugly incident. In Dr Jolly's opinion the applicant suffered chronic post traumatic stress disorder as the result of this assault. That condition had, in turn, played a substantial part in fuelling the applicant's alcohol consumption and depression. Dr Jolly characterised the latter as a major co-morbid depression. 18 In the light of the additional evidence led on the hearing of this application we were of the view that the applicant had made good his submission that special circumstances within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 had been made out. Principally the special circumstances derive from the applicant's psychiatric condition for which he will require ongoing treatment. However we also considered that there was merit to Mr Stratton's submission that the experience of incarceration will sit more harshly upon this applicant in the light of the assault to which he was subject during the earlier period of incarceration. 19 For these reasons we were of the opinion that leave to appeal should be granted and the appeal be allowed. ***** 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.