R v Perry [2000] NSWCCA 375

New South Wales Court of Criminal Appeal

CITATION : R v Perry [2000] NSWCCA 375 FILE NUMBER(S) : CCA 60535/99 HEARING DATE(S) : 09/08/00 JUDGMENT DATE : 9 August 2000

PARTIES : Regina- Crown Therese Perry- Applicant JUDGMENT OF : James J at 1; Dowd J at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/0061 LOWER COURT JUDICIAL Shillington DCJ OFFICER :

COUNSEL : Mr AM Blackmore- Crown Mr GF Jauncey- Applicant SOLICITORS : SE O'Connor- Crown Sydney Regional Aboriginal Corporation Legal Service- Applicant CATCHWORDS : Severity appeal - Malciously damaging property with intent to cause bodily harm - Mental illness - Protection of the community LEGISLATION CITED : Crimes Act 1900 (NSW) Veen v The Queen (No 2)(1998) 164 CLR 465. CASES CITED: R v Eastway (Unreported, NSWCCA, 19 May 1992, Gleeson CJ, Hunt CJ at CL and Matthews J). R v Graham Campbell (Unreported, NSWCCA, 12 April 1999, Grove and Kirby JJ). R v Kivits (Unreported, NSWCCA, 4 November 1993). DECISION : 1. Appeal dismissed; 2. Leave to appeal granted.

IN THE COURT OF CRIMINAL APPEAL

BRUCE JAMES J DOWD J

Wednesday 9th August 2000

N60535/99 REGINA V THERESE PERRY

JUDGMENT 1 BRUCE JAMES J: I will call on Dowd J to give the first judgment.

2 DOWD J: The applicant pleaded guilty to four counts before Shillington DCJ in the Sydney District Court. There were two counts of maliciously damaging property with intent to cause bodily harm, and two counts of maliciously damaging property contrary to s195(b) of the Crimes Act 1900 (the 'Act'), with a maximum penalty of ten years penal servitude. 3 His Honour sentenced the applicant on the two counts which were later in point of time, being one charge under s196(b) of the Act and one under s195(b) of the Act, to a minimum term of three years penal servitude, commencing on 17 June 1999, when the applicant went into custody, to expire on 16 June 2002. An additional term of three years was imposed to conclude on 16 June 2005. 4 On each of the other two counts, His Honour imposed a fixed term of one year, to commence on 17 June 1999 and to expire on 16 June 2000. 5 The applicant had been arrested and granted bail on the first count, the offence having occurred on 15 January 1997, and was released on bail. Bail was subsequently refused on 19 June 1999. The applicant has been in continuing custody since that time. 6 The background facts are that on 7 January 1997, the applicant moved into premises in Waverley that were owned by the New South Wales Department of Housing, and leased to the Bea Miles Women's Housing Organisation. That organisation provides medium-term housing for women who are affected by mental illness or mental disorder, as is this applicant. 7 On Wednesday evening of 15 January 1997, the applicant and another resident were alone in the house, a third resident being in hospital. At nine o'clock, the other resident went to her bedroom, leaving the applicant sitting in the lounge room smoking cigarettes. At 11:25pm, the applicant woke up the other resident, telling her that there was a fire. The other resident went with the applicant to the porch and saw that a couch and chair were on fire. The applicant told the resident that the fire brigade was on the way, and that she had been gone only half an hour earlier and that she did not know who had lit the fire. The fire brigade arrived shortly afterwards, and put out the fire. The other resident then said that she was going to bed. The applicant was still sitting in the lounge room, smoking. 8 At about 12:30am the following morning, the other resident was woken by breaking glass. She heard a sound like an explosion, smelled smoke, opened her door and found that the hallway was full of smoke. She then tried to awaken the applicant, whose bedroom was next to hers, but the smoke was so thick as to prevent her getting into that room. 9 The fire brigade arrived at 12:37am, fought the fire and started to search for the applicant, believing her to still be in the premises. The fire had been started in the third bedroom, being that used by the resident who was in hospital. The room was severely damaged. Clearly, the fire had been deliberately lit. The premises suffered severe smoke damage, and the other resident who was in the premises was both scared and in a state of shock. 10 On the following day, the applicant, who of course had not been in the premises when she was being searched for, said that two young males had lit the first fire and that she had seen them run away. She said that she had left the premises, caught a bus to Circular Quay and another bus to Malabar to spend the night at her boyfriend's place. She denied knowledge of the second fire. 11 In November 1997, in the course of an interview in relation to later fires, the applicant made full admissions that the first fire on the porch had been lit by her with the intention of killing the other resident. The applicant also admitted that she lit the second fire, and that she had left the premises without waking the other resident. The first fire gave rise to the charge under s196(b) of the Act, the second incident being the basis of the s195(b) charge. 12 Early in the morning of Saturday 8 March 1997, the fire brigade attended premises at Birrell Street, Bondi, concerning a fire in a building. It was a large fire requiring six fire units to bring it under control, just after 7am. The building, which was used to house the Eastern Sydney Developmental Disability Service, did not provide accommodation and was vacant, the building having been locked the evening before. The building had extensive electronic equipment which was valued at approximately $1 million. Something of the order of $2 million was paid out on insurance to cover the damage. 13 In the interview that I have referred to on 7 November 1997, the applicant admitted that she had lit the fire of 8 March 1997, she having been identified as being present in the early hours of the morning by an NRMA employee who attended her with a vehicle. This was the second count under s195(b) of the Act. 14 The fourth count related to the applicant setting fire to a unit in Anzac Parade, Malabar, with intention to cause bodily injury to the resident, Nick Koulashov, by means of a fire. He in fact suffered extensive burns and was admitted to the intensive care unit at Royal Prince Alfred Hospital, and remained there for some time. He suffered severe burns to twenty-five per cent of his body, requiring several skin grafts. 15 The applicant had been in the unit on the 24th, and had lit a fire knowing that he was asleep in the unit. The unit was virtually destroyed and had the potential to kill Mr Koulashov. 16 The applicant has quite a substantial criminal history extending back to 1992 involving forgery, creating false instruments, stealing, driving matters, and driving whilst disqualified. The applicant has a diagnosis in terms of DSM IV of a personality disorder, in that she is anti-social of a borderline type and was under the guardianship of a public guardian concerning her accommodation and health care. She continues to have an association with her mother and brothers. 17 The applicant had been taken into care at the age of two years for neglect and for being destitute. She was placed under foster care, from which she continually absconded during her childhood and teenage years. In that period, there were reports of alcohol abuse and that she was living in an abusive de facto relationship for a period. A number of psychiatrists have diagnosed her with schizophrenia. Her disorderly behaviour continued despite appropriate medication. She had hallucinations, delusions, inappropriate presentation, confusion of identity and confabulation, and a problem with alcohol and a history of anti-social behaviour. 18 By the age of nineteen, the applicant was unmanageable and unconfinable. She had stolen Government buses, driving them with passengers in them, crashing into cars, and spending time in various psychiatric units. 19 The applicant's level of intellectual functioning is in the upper mild range of intellectual disability, her verbal IQ score being significantly higher than her non-verbal. She has a low level of communication skills, but has good receptive skills and her expressive skills are well-developed, and she can read and write. She has well-developed interpersonal skills, but has maladaptive problems with a tendency to abscond. She tends to make allegations against, and threatens others. 20 The applicant is obsessed with fires and buses, and has a tendency to light fires and steal buses if the opportunity permits. She shows little remorse, although she is quite well aware of her actions, and appears to enjoy her celebrity status. 21 The first ground of appeal is that His Honour erred in the emphasis he placed upon the protection of the community. It is put on behalf of the applicant that although the ultimate object of the law is protection of the community from crime, the sentence meted out should be proportionate to the gravity of the crime. The applicant submits that Shillington DCJ had no basis for finding that she was likely to re-offend, and that such a finding should have been made beyond a reasonable doubt. 22 Mr Jauncey, on behalf of the applicant, has today emphasised that His Honour did not make that finding beyond a reasonable doubt. It is not the practice of the courts that sentencing judges are constantly to refer to the standard of proof required. There is no doubt that an experienced sentencing judge such as His Honour would have understood that, and it could not be difficult on the evidence before him for that finding to be made beyond a reasonable doubt. Indeed, it is the only finding that could be made. 23 It was further submitted on behalf of the applicant that there is a purposive element of preventative detention in breach of the decision in Veen v The Queen (No 2)(1998) 164 CLR 465, in the majority decision at 472. 24 It is further submitted that it is difficult to see that the sentence as imposed, would act as a general or specific deterrent, or how it would assuage moral outrage in the community. It is, in my view, clear that there can be no general deterrence from this sentence. However, even in the nature of the applicant's problems, there is in fact some component of specific deterrence. 25 It is further put that issues of general and specific deterrence play a lesser role due to the intellectual capacity of the applicant. That, of course, is clearly correct. I however accept the Crown's submissions that, notwithstanding the applicant's intellectual and psychiatric limitations, that she understood perfectly well the seriousness of the offences which she carried out. There is nothing in the remarks on sentence to suggest any component of preventative detention. 26 The second ground of appeal is that His Honour failed to have sufficient regard to the subjective features of the applicant's needs, and that His Honour failed to take into account the factor of general and specific deterrence in sentencing a person of limited intellectual abilities and psychiatric problems. I do not accede to this submission. His Honour had a considerable amount of material, which has been pointed out today. His Honour specifically referred to those matters having been taken into account. Clearly, His Honour, in fixing the extended additional term, having found special circumstances, did in fact pay significant attention in the light of such very serious offences. 27 In balancing the minimum and additional term, His Honour was giving a sentence which is in the circumstances appropriate for the protection of the community and takes into account the subjective circumstances of the applicant. 28 The next ground of appeal was that His Honour failed to pay sufficient regard to the conditions under which the applicant would serve her sentence. In support of this ground, it is put on behalf of the applicant that Mulawa Women's Prison would not be able to cope with the applicant doing time in protective custody, and that His Honour failed to give sufficient weight to this factor. 29 As was pointed out in the evidence before the Court and before His Honour, there is no doubt that the applicant provides a serious problem for any custodial premises and indeed for non-custodial care. I do not, however, think in the light of the seriousness of the offence that it can be shown that His Honour did not take this factor into account. 30 The next ground of appeal is that His Honour failed to take into account the period spent on conditional liberty whilst on sentence. The applicant was not on remand whilst awaiting sentence. The bail condition that she remain in appropriate psychiatric care was referable to her particular needs. 31 We have been referred to the judgments of R v Eastway (Unreported, NSWCCA, 19 May 1992, Gleeson CJ, Hunt CJ at CL and Matthews J), and R v. Graham Campbell (Unreported NSWCCA, 12 April 1999, Grove and Kirby JJ). Each of these decisions underlines the desirability of a person under sentence being given credit for quasi-custodial care during a period awaiting sentence. What is clear in this case is that His Honour in fact acknowledged that the nature of the care that the applicant underwent was, to quote p7 of his Honour's remarks on sentence: "Part of a need to continue a high level of support to Miss Perry as being vital." His Honour quoted a report, saying: "It is considered this high level of support with gradual reduction of supervision would prove a significant long-term benefit to Miss Perry." 32 His Honour referred to Mr Jauncey's submissions about the nature of the care under the guardianship orders which had been made. His Honour adverted to the difficulties of the Mulawa Correction Centre where, quite appropriately with their staff/prisoner relationship, they were not able to give the applicant the care and supervision that is desirable for her, and much of this was carried out indeed by other inmates of that establishment. 33 It is however clear that, in my view, referring to R v Kivits (Unreported, NSWCCA, 4 November 1993), that restrictive or supervised accommodation requirements do not necessarily amount to quasi-custody. It is not appropriate to equate the supervision that somebody of the nature of the applicant requires, as being of the same nature as the quasi-custody which a person of different abilities and not needing the level of supervision that she does would suffer as a result of restrictive custody in places such as those run by the Salvation Army. 34 The final ground of appeal was that insufficient weight was given to the applicant's pleas of guilty. His Honour had to undertake a most difficult sentencing task, and it is today acknowledged by the Crown and by the applicant that in fact that was the case. However, the objective seriousness of the four offences, the two lesser sentences having expired, and the objective seriousness of those offences which brought about the imposition of a minimum term of three years and an additional term of three years are, in my view, in the light of the very serious offences for which someone without the applicant's disabilities would have required a very much heavier sentence, were appropriate in the circumstances. 35 In my view, therefore, the applicant's case has not been made out. But, in the light of the difficulty of the matter, I would grant leave to appeal but I would dismiss the appeal.