New South Wales Court of Criminal Appeal CITATION : REGINA v R [2000] NSWCCA 212 revised - 20/07/2000 FILE NUMBER(S) : CCA 60168/99 HEARING DATE(S) : 31 May 2000 JUDGMENT DATE : 31 May 2000 Regina PARTIES : v R JUDGMENT OF : Sully J at 1; Adams J at 2 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/11/0454 LOWER COURT JUDICIAL Phelan DCJ OFFICER : COUNSEL : Mr M C Marien (Crown) Mr A P Cook (Applicant) SOLICITORS : S E O'Connor (Crown) T A Murphy (Applicant) CATCHWORDS : Sentence appeal - armed robbery - causing danger with firearm - severe depression - effective sentence six years with a minimum of four years - not manifestly excessive DECISION : Leave to appeal against sentence is granted; The appeal against sentence is dismissed. IN THE COURT OF CRIMINAL APPEAL 60168/99 SULLY J ADAMS J WEDNESDAY 31 MAY 2000 REGINA v R JUDGMENT 1 SULLY J: The court is in a position to deal with this matter. Adams J will give the first judgment. 2 ADAMS J: The applicant who is 35 years of age was indicted for aggravated robbery and associated crimes, in the result being convicted of aggravated robbery being armed, a crime carrying a maximum penalty of 25 years imprisonment, discharging a firearm in a manner likely to endanger life, carrying a maximum penalty of 10 years imprisonment and common assault, having a maximum penalty of 2 years imprisonment. 3 These convictions were recorded following a plea of guilty in discharge of an indictment referring to more serious charges. He was charged and sentenced in respect of a charge of supplying a prohibited drug, but that matter is not the subject of these proceedings. 4 The applicant was sentenced as follows: in respect of the charge of armed robbery and causing danger with a firearm he was sentenced to concurrent terms of imprisonment comprising a minimum term of four years to commence on 7 September 1997 and expiring on 6 September 2001 with an additional term of two years to expire on 6 September 2003; and, in respect of the charge of common assault, he was sentenced to a fixed term of 12 months imprisonment to commence on 7 September 1997 and expiring on 6 September 1998. 5 The facts of the matter are as follows. About 5pm on Sunday, 7 September 1997, the applicant went to a nursery shop in Thirroul, armed with a .44 calibre magnum revolver which was loaded, and wearing a balaclava. He demanded money from the victim, Ms Renata Englert, who was then aged 57 years. She turned to run. The applicant grabbed hold of her and threw her to the ground demanding money once more. He struck her on the top of her head with the butt of the revolver causing a fracture to her skull. He then took money from the till, searched for further money and then ran from the store whilst removing his balaclava. Passers-by saw the applicant run from the store and heard Ms Englert scream for help. A passing motorist, Mr Mar, saw the applicant and pursued him into the grounds of a nearby primary school. He approached the applicant and verbally challenged him. The applicant, however, fired one round from his revolver towards the feet of Mr Mar, a ricochet from which struck him on the ankle, although the injury was not serious. He demanded Mr Mar's car keys but was refused. The applicant then started to walk towards the car, again challenging Mr Mar. He fired a further round at him and missed. Mr Mar rushed the applicant, a struggle followed and a further round was fired whilst he was attempting to disarm the applicant. During this struggle Mr Mar was kicked in the head by the applicant. 6 Two men, who were nearby, heard what had occurred and assisted Mr Mar to restrain the applicant. Whilst he was held on to the ground he put his hand into his pocket and removed a handful of live rounds. A further struggle ensued and one of the men, a Mr Bray, was kicked to the head. 7 Shortly after this police arrived and the applicant was taken into charge. The police discovered at the scene where he was arrested a small amount of money, a .44 calibre magnum revolver and a number of live rounds. Ms Englert suffered a fractured skull, lacerations and bruising to both arms. She has recovered from her physical injuries but still suffered from headaches as at the time of the sentencing proceedings. Mr Mar sustained a small puncture wound to his ankle, scratches to his body, bruising and a lump on his head. Although he attended hospital he was released shortly afterwards. Mr Bray was sore on his head but did not seek medical attention. 8 This statement of facts standing by itself indicates a commission by the applicant of very serious crimes. In one sense they each comprise one criminal episode, but it was an episode which, if anything, escalated in culpability after the initial crime of armed robbery was committed. To my mind, taken as a whole, the total criminality was towards the upper end of seriousness, certainly for the armed robbery and also in respect of his shooting at Mr Mar. That more serious injuries were not caused by the applicant's behaviour was fortunate indeed. 9 There is no doubt, however, that there were some unusual, not to say bizarre, circumstances which surrounded this crime. First of all, the applicant had, because of various stresses in his life arising out of his involvement in some earlier crimes and with law enforcement matters which I do not think it is necessary for the purposes of this judgment to dilate upon, found himself staying in accommodation away from his home near the place of the crime. He was there with his partner and it is clear that both of them because of the circumstances in which they found themselves, were under very considerable stress. Regrettably the applicant turned to drugs, at least in some part, for the purposes of dealing with his circumstances and his state of mind. 10 Two days before the crime in question the applicant attempted suicide and perhaps would have succeeded but for the intervention of his partner. He was taken to a local hospital and there assessed. The assessment was that the applicant had paranoid delusions, a depressed mood and suicidal ideation. On the other hand he had no formal thought disorder. The hospital notes which have been tendered before us by consent at the request of the applicant show that he remained suicidal and had no insight when first assessed, which appears to have been at 1.30pm on 5 September 1997. He was admitted as an involuntary patient, the basis substantially being that he was a danger to himself. 11 Somewhat later, I take it that day although the notes do not say, the doctor, whose signature is unclear, had a conversation with a relevant person who gave information which showed that, as it happened, the applicant was not suffering from paranoid delusions and, implicitly, that the fears that he had expressed at the time of his admission to hospital were realistic or at least based upon the facts. 12 The doctor then notes in the records that he interviewed the patient. It is not necessary for me for present purposes to set out the results of that interview. It is clear that it took place in an entirely different environment in the sense that the doctor had been made aware of facts which indicated that the initial diagnosis of paranoid delusion was in fact wrong. The brief notes made by the doctor indicate to my mind that there was then a significant change in the doctor's diagnosis of the applicant's condition. He agreed that the applicant should go home although it is unclear whether the applicant himself requested it. I note that there is a suggestion in one of the documents in the records, but when quite it was made is unclear, that although the applicant was anxious and his behaviour was unpredictable, he wanted to leave. 13 There was evidence from the applicant's partner that she had been informed by police that, in effect, it would be desirable for the applicant to leave hospital and it was that indication which led her to, as she agreed, "pick him up and take him out". It may be that, so far as she is concerned, it was at the police instigation that she attended the hospital for the purposes of bringing the applicant home. However, there is nothing in the hospital records which suggested that the police influenced the decision of the doctor to re-consider the appropriateness of the applicant's residence in hospital as an involuntary patient under the Mental Health Act. Indeed, as I read the records, the opposite is the case. Once one of the basic elements of the initial diagnosis, namely paranoid delusion, was removed it became necessary to completely re-consider the appropriateness of the medical disposition which had been made of the applicant in respect of what was believed to be his psychiatric state. To my mind the hospital records indicate that this is exactly what the doctor did. 14 I do not see anything in the evidence or in the records as they now appear to support the supposition which, it must be said in all candour, was adopted by counsel for the applicant at my invitation at the outset of his submissions, that it was at the insistence of the police that he was inappropriately removed from the hospital. 15 So far as the matter stood at the time when the applicant left the hospital, I am satisfied not only that he was not removed at the instigation of the police but also that it was appropriate for him then to be permitted to go home as the matter was then understood by the relevant and responsible medical officer. I will need to return to this aspect of the case in a moment. 16 His Honour, after dealing with the facts of the offence which I have briefly mentioned, gave substantial credit to the applicant on a number of grounds. The first was a confidential ground which it is unnecessary for me to advert to further. The second was, that if he had not been released from the hospital it is unlikely that this offence would have happened and that at that time his psychiatric state was highly questionable. 17 His Honour also accepted that the plea of guilty attracted significant mitigation because it was in circumstances where the applicant may have been able to run a substantial defence of mental illness and his declining to do so indicated not only contrition but a degree of candour which in the circumstances warranted mitigation. 18 His Honour had before him the report of Dr Bruce Westmore of 9 November 1998 tendered on the applicant's behalf. It is unnecessary for me to relate the whole of the details of that report but I do wish to quote some passages - "Your client indicates he has no memory for the offending behaviour. Rohypnol and alcohol individually, and certainly in combination, can severely affect the laying down of clear memory traces. This may account for your client's memory disturbances. His behaviour may also have become disinhibited because of the drugs and alcohol he took, both these drugs in large quantities are also known to impair judgment. The history would suggest that he was affected adversely by drugs at the time the offending behaviour occurred." 19 I should interpolate here that when the applicant left the hospital he had been given a prescription for, amongst other things, Rohypnol. It is clear that he had taken far more than was appropriate of this drug and that he was affected by it on the occasion of the crime in question. 20 To resume from Dr Westmore's report - "Regarding the possibility of an insanity defence, your client's absence of memory detracts from this defence to some degree. I have little doubt that he was suffering from a depressive condition which probably was a major depressive illness. This is a serious psychiatric condition which requires psychiatric treatment, usually with antidepressant medication. It is most unfortunate that he was discharged prematurely from hospital. The original intention apparently had been to keep him there for at least two weeks. This should have occurred ... Your client was under a great deal of psychological stress, he appears to have been suffering from a psychiatric illness." I think it unlikely that Dr Westmore had available to him the medical notes which were before us. I do not read, however, his remarks as being anything more than made in the light of hindsight and indeed they are all too true. Had the condition of the applicant been demonstrated at the time of his discharge it is obvious I think that he would not have been discharged. Dr Westmore, of course, talks from the stand point of hindsight. 21 I accept, as did the learned sentencing judge, that Dr Westmore's diagnosis was correct but I do not think that the medical officer and the hospital should be criticised for not predicting what was to occur especially when those facts most significantly contribute to Dr Westmore's diagnosis. 22 It is clear, therefore, that the applicant's circumstances required a substantial reduction of the sentence which was otherwise appropriate having regard to the seriousness of the objective facts surrounding these offences. It was submitted to us on his behalf that although his Honour did make some allowance for these matters insufficient allowance was given. 23 Having given this matter anxious consideration I have come to the conclusion that this submission ought not to be accepted. I consider that his Honour dealt fairly, indeed with sympathy, for the applicant in the context of extremely serious offences. I am not saying that I would necessarily have passed the same sentence as his Honour but I am unable to see that the way in which his Honour disposed of the sentencing task, which was his primary responsibility, demonstrates any failure either of fact or law. I do not consider that his Honour's discretion miscarried. The sentence his Honour passed was well within the appropriate range available to his Honour in the circumstances. 24 Accordingly, I would propose that leave to appeal be granted but that the appeal be dismissed. 25 SULLY J: I agree with the orders proposed and generally with the reasons advanced by his Honour for those orders. 26 The orders of the court will be therefore - (1) Leave to appeal against sentence is granted. (2) The appeal against sentence is dismissed. ************* DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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