Regina v Basilious [1999] NSWCCA 219

New South Wales Court of Criminal Appeal CITATION : Regina v Basilious [1999] NSWCCA 219 FILE NUMBER(S) : CCA 60050/99 HEARING DATE(S) : 2 August 1999 JUDGMENT DATE : 2 August 1999

PARTIES : Regina v David Basilious JUDGMENT OF : Levine J; Smart AJ

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/11/0223 LOWER COURT JUDICIAL OFFICER : Howie DCJ

COUNSEL : B M Niven for the Appellant C K Maxwell QC for the Crown SOLICITORS : S E O'Connor for the Crown CATCHWORDS : Criminal Law; sentencing steal from person, robbery and break, enter and steal; on probation and on bail; minimum term of 12 months not excessive. ACTS CITED : -Nil- CASES CITED: -Nil- DECISION : Leave to appeal against sentence granted.; Appeal dismissed.

- 6 - IN THE COURT OF CRIMINAL APPEAL 60050/99 LEVINE J SMART AJ

MONDAY, 2 AUGUST, 1999 REGINA v DAVID BASILIOUS

JUDGMENT 1 SMART AJ : David Basilious seeks leave to appeal against the severity of the sentences imposed, amounting in all to a minimum term of twelve months and an additional term of eighteen months for the offences of steal from the person, robbery, and break, enter and steal. For the offence of steal from the person he received a fixed term of six months; for that of robbery a concurrent minimum term of nine months and an additional term of twelve months; for that of break, enter and steal, a cumulative sentence comprising a minimum term of three months and an additional term of eighteen months. 2 The applicant was born on 12 April 1978. As to the stealing from the person, on 27 November 1996 the applicant went to the home of the victim whom he had met the previous day, having been introduced by a mutual friend. An argument developed between them and the applicant demanded that he be given the victim's mobile telephone. The victim was a slightly built young man and was too frightened to resist. The judge described the applicant as a young man of powerful physique who used his size and aggressive nature to bully the victim into handing over his telephone. It was lost to the victim. 3 Five days later, namely on 2 December 1996, the applicant observed the young victim, a sixteen year old male, visiting the toilets at the Chatswood railway station interchange shopping complex. As the victim left the toilet cubicle the applicant confronted him, grappled with him and stole items of his property. This constituted the robbery. 4 At the time of these offences the applicant was on probation in respect of two sets of previous offences. On 9 July 1996 he was dealt with for two drug offences and placed on probation for twelve months. On 9 October 1996 he was dealt with for six offences, including three dishonesty offences, one of failing to appear, one of malicious damage and one of possess prohibited drug. He was required to render community service and placed on probation for twelve months. 5 Thus, in less than two months after being before the Court, he committed the offences of steal from the person and robbery. On 2 January 1997 the applicant was arrested on these latter offences. Bail was refused. On 6 January 1997 he was granted conditional bail. 6 On 3 March 1997 the applicant broke into the home of a lady at Chatswood, having first ascertained that there was nobody at home. He stole sixty of her compact discs. As he left the home the applicant was startled by a neighbour. The applicant dropped the discs on the nature strip and fled. They were returned to the lady. When the applicant became aware that the police were going to arrest him he attended voluntarily at the Chatswood police station. He was charged and bail was refused. He remained in custody from 3 to 20 March 1997, when he was again released on bail. The judge stated that he took into account that the applicant had spent twenty-one days in custody. 7 At the time of committing the offences the applicant was using cannabis daily. At the sentence hearing the applicant's case was that the offences were serious but they were explained in part by the injuries he had suffered in a motor vehicle accident in May 1994. Further, and perhaps most importantly, he had changed. A significant factor was the medication which he had been given. The judge accepted that the applicant had changed significantly. He had obtained employment and was highly valued by his employer. The noticeable changes were all for the good, and these, coupled with the applicant's youth, made the judge reluctant to send him to gaol. It was the objective gravity of the offences, coupled with offences while on parole and the last offence being committed while on bail that led to the judge imposing the sentences mentioned, notwithstanding the subjective features to which he paid careful regard. One unhappy feature of the 1996 offences was the bully-boy tactics used by the applicant. 8 The judge was not persuaded that the applicant's mental condition was a significant factor in the commission of the offences. The judge had before him the medical reports of Dr J A Roberts, Dr B Westmore and M Girgis, and the treatment notes of the Royal North Shore Hospital relating to the motor vehicle accident. 9 The judge in his reasons referred in some detail to the reports of Dr Westmore and Dr Roberts. He did not discuss expressly the report of Dr Girgis, although he did refer to the treatment which the applicant was being given. Dr Girgis was the treating doctor. 10 Dr Westmore was unsure as to what significance any head injury might have had in giving rise to the behavioural changes which were noticed after the accident. He thought that there would be some benefit in having the matter further investigated. Dr Westmore believed that the applicant was suffering from an adjustment disorder with a predominantly anxious but also, perhaps, a depressed mood state. It was a mental condition which was treatable. 11 Dr Roberts formed the view that there may be some organic cerebral impairment, that is some brain damage, but was unsure as to its cause. If there was such damage he considered that it may be the result of his use of cannabis over a lengthy period of time or the result of the motor vehicle accident. A further sophisticated test was required. Then an assessment would have to be made as to the existence of brain damage and, if any, its cause. 12 The judge was confronted with a dilemma. There was material which suggested that the mental condition may be due to the use of illegal drugs, and other material which suggested that it may be due to injuries sustained in the accident. The judge was not persuaded that the mental condition was due to the injuries sustained in the accident. He did not rule it out but he was not persuaded on that point. 13 Both Dr Westmore and Dr Roberts referred to the need for further investigation. On the hearing in this Court the applicant has sought to adduce in evidence a report from Dr Girgis of 2 March 1999, and a report from the Royal North Shore Hospital dated 4 February 1999. Initially, the sentence proceedings had been adjourned so that the further investigations, which included a specialised scan, could be undertaken prior to sentence. It seems from what we have been told from the bar table, that the applicant's legal advisers were aware of the test at Royal North Shore Hospital on 4 February 1999. We were told that some contact had been made by the applicant's solicitor with Dr Roberts and that he would have required a period of about six weeks with which to deal with the matter. No further report from Dr Roberts has been provided. 14 Dr Girgis, in his report of 2 March 1999, expresses the view based on the results of the MRI scan at Royal North Shore Hospital that the applicant's mental disorders and subsequent anti-social behaviour are definitely due to his head injury. The report of the Royal North Shore Hospital states: " There is prominence of the cortical sulci over the superior cerebral convexities, more marked than usually seen in someone of this age. The CSF spaces around the brain stem are also prominent. No abnormal area of high signal intensity or other focal intra-cranial abnormality detected. Conclusion: Prominent cortical sulci and basal cisterns is most likely on the basis of atrophic change of undetermined cause. No focal intra-cranial abnormality detected."