New South Wales Court of Criminal Appeal CITATION : Regina v Leys [2000] NSWCCA 358 FILE NUMBER(S) : CCA 60354/00 HEARING DATE(S) : 06/09/00 JUDGMENT DATE : 6 September 2000 PARTIES : Regina (Appellant) Stephen Thomas Leys (Respondent) JUDGMENT OF : Fitzgerald JA at 1; Wood CJ at CL at 21; Newman J at 22 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/0440 LOWER COURT JUDICIAL Dodd, DCJ OFFICER : COUNSEL : P G Berman (Crown) M Ainsworth (Respondent) SOLICITORS : S E O'Connor (Crown) Jack Rigg (Respondent) LEGISLATION CITED : Crimes Act 1900 Criminal Appeal Act 1912 DECISION : Appeal dismissed THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL CCA 60354/00 DC 99/11/0440 FITZGERALD JA WOOD CJ at CL NEWMAN J WEDNESDAY 6 SEPTEMBER 2000 REGINA v LEYS JUDGMENT 1 FITZGERALD JA: On 29 February this year, the respondent was convicted of maliciously inflicting actual bodily harm with intent to have sexual intercourse contrary to subs 61K(a) of the Crimes Act 1900. The maximum penalty is imprisonment for twenty years. 2 On 17 April, the District Court judge before whom the respondent was tried sentenced him to a recognisance for self in the sum of one thousand dollars to be of good behaviour for five years and to appear before the Court for sentence if called upon to do so at any time during the term of the bond for any breach occurring during that period. The respondent was required to accept supervision of the Probation and Parole Service for as long as it deemed necessary or desirable but not exceeding the term of the bond; to obey all reasonable directions of the officers of that service including any directions or instructions to undertake examination, assessment, therapy, treatment or counselling whilst he is under that supervision and guidance; and to report to Dee Why Probation and Parole Service not later than 1pm on 20 April, which was two or three days after the sentence. 3 The Director of Public Prosecutions has appealed pursuant to s 5D of the Criminal Appeal Act 1912. Subject to one matter of critical importance the respondent's sentence was plainly so inadequate that it would be appropriate for this Court to intervene notwithstanding the established principles which limit the review of sentences by this Court on an appeal by the prosecution. 4 At about 2.30am on 8 January 1999, the complainant completed work as a bar attendant at the Dee Why Hotel. After a drink with some friends she left the hotel premises alone. She walked down Pacific Parade and saw the respondent sitting in the gutter. She heard a footstep behind her and then was hit very hard on the head. She fell to the ground with blood on her face. The respondent was on top of her. He ripped open her shirt and bra and in response to her queries said that he wanted to have sexual intercourse with her. He told her that his name was Beau. She kicked the respondent off her and he hit her a number of times. He left but subsequently returned to the scene where he was apprehended. 5 The complainant was physically sore and needed stitches in a cut over one eye. 6 Understandably, as the trial judge recognised, the complainant was terrified by what his Honour described as a vicious assault. I do not think that his Honour intended to diminish the significance of what occurred when he went on to say that the complainant "does not appear to have suffered too greatly in the long term, either physically or emotionally". 7 In the absence of any evidence that the complainant had suffered greatly in the long term either physically or emotionally, his Honour could not properly have proceeded on the basis that that had occurred and the statement which his Honour made was, I think, properly based upon what his Honour would have observed when the complainant gave evidence. It was a finding open to his Honour. 8 It is common ground that at the time when he offended, the respondent was an undiagnosed schizophrenic. He had a difficult childhood and adolescence. His mother was a schizophrenic and unable to care for her children and his father was an alcoholic. When the respondent moved to Sydney in 1997 he obtained employment which he has since retained. 9 The respondent first experienced psychiatric symptoms when he was aged about nine years. Since then he has heard noises in his head. Since he was about seventeen years of age he has heard an imaginary voice telling him what to do and about other persons' derogatory thoughts. The voice instructed him not to tell anyone about its existence or he would be harmed. He suffered mood swings, impaired concentration, reduced capacity for rational thinking and suicidal impulses. He began drinking to block out his auditory hallucinations and by the time of his offence he was regularly becoming heavily intoxicated with amnesic periods. 10 The respondent was heavily intoxicated at the time of the offence. On the material before the trial judge he had no memory of the offence, or of the complainant, or subsequent events. He expressed shame and remorse and sought psychiatric assistance. His illness has now been diagnosed and is responding to medication. The respondent does not now drink alcohol. 11 The trial judge took into account that the offence was out of character. His Honour was also aware that the respondent could receive appropriate treatment in gaol if he was sentenced to imprisonment. Further, there was medical evidence that his offence was not the direct result of his illness, although it was the result of his abuse of alcohol to escape his auditory hallucinations. 12 The prosecution submitted that there is an overriding rule of sentencing that there must be a reasonable proportion between the sentence and the objective gravity of the offender's conduct, whether or not the defendant is suffering from a mental illness and that general deterrence is always important. 13 In my opinion those submissions over simplify the sentencing process which requires a judge to take into account a variety of considerations, many of which point in opposite directions. The personal circumstances of an offender and his or her prospects of rehabilitation rather than reoffending are always material, sometimes critically so. It would be absurd for the law to require that a sentence be imposed which was against best interests of both the offender and the community. 14 The prosecution also submitted that the trial judge erroneously regarded the respondent's state of intoxication as a critically significant mitigating factor. It was submitted that that was erroneous because "a great deal of social interaction between people is accompanied by the consumption of alcohol and to regard drunkenness as a significant mitigating factor for an offence of this type is to significantly reduce the deterrent effect of the criminal law on offences of this type." 15 Those submissions would have considerable force in ordinary circumstances but are of limited significance in the present case in which the respondent's mental illness was the direct catalyst for his intoxication. There is no legitimate basis for this Court to depart from the trial judge's conclusion that it is "impossible to disentangle the respondent's drunkenness from his mental condition." 16 I do not accept the prosecution's submission that the respondent's mental illness did not cause him to be aware of what he was doing, or fail to appreciate the gravity of what he was doing. The trial judge's findings implicitly, if not expressly, proceed on the basis that the respondent's judgment and control were adversely affected by the alcohol which he had ingested to silence his auditory hallucinations. 17 As the prosecution accepted, the trial judge faced a difficult task in sentencing the respondent. 18 In my opinion his Honour discharged that task creditably and arrived at the correct conclusion. 19 Certainly the Court's intervention would not be justified according to the established principles which govern prosecution appeals against sentences. 20 I would dismiss the appeal. 21 WOOD CJ AT CL: I agree. 22 NEWMAN J: I also agree. 23 FITZGERALD JA: The appeal 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. 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.