R.v. BUSHELL [2001] NSWCCA 462

New South Wales Court of Criminal Appeal

CITATION : R.v. BUSHELL [2001] NSWCCA 462 FILE NUMBER(S) : CCA 60054/01 HEARING DATE(S) : 19 November 2001 JUDGMENT DATE : 21 November 2001

PARTIES : Daniel Michael BUSHELL - Appellant Regina - Respondent JUDGMENT OF : Barr J at 1; Adams J at 21

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/21/1098 LOWER COURT JUDICIAL Gibson DCJ QC OFFICER :

COUNSEL : Mr H. Dhanji for the appellant Mr L.M.B. Lamprati for the Crown SOLICITORS : G.K. Walsh for the appellant S.E. O'Connor for the Crown

LEGISLATION CITED : Crimes Act 1900 CASES CITED: R v Henry (1999) 46 NSWLR 346 DECISION : See Judgment at Paragraph 20

IN THE COURT OF CRIMINAL APPEAL

60054/01 Barr J Adams J

21 November 2001 Regina v Daniel Michael Bushell

Judgment 1 BarrJ: Daniel Michael Bushell seeks leave to appeal against a sentence imposed upon him in the District Court. Following a trial before Gibson DCJ QC the applicant was found guilty of one count of armed robbery contrary to s.97 (1) Crimes Act 1900. The maximum penalty for such an offence is twenty years' imprisonment. His Honour granted the applicant bail but he failed to appear for sentence when required. Eventually he was arrested and brought in custody to the Court. That explains why his Honour was unable to impose sentence until 23 January 2001. His Honour sentenced the applicant to imprisonment for three years six months and set a non-parole period of one year six months. The sentence was backdated to 23 October 2000. 2 On 3 May 2000 the applicant and the complainant were passengers on a train in suburban Sydney. The applicant asked the complainant for a cigarette and the complainant refused. The applicant took out a pair of scissors and held them down by his side in a manner described by the complainant as "his hand over the holes of the scissors, not like you usually hold scissors". The applicant said nothing. After a few minutes he put the scissors into a shoe that he was carrying. The train stopped at a station and the applicant was forced off the train by the people alighting. He stood on the platform whilst the complaint stood in the carriage. The applicant was once again holding the scissors down by his side. The complainant said that he would give him a cigarette, that he did not want any trouble. He gave him the cigarette. The applicant then asked the complainant whether he had $5. The complainant said that he did not. The applicant walked away. 3 His Honour observed that this was not the worst charge of armed robbery that he dealt with and that it would rank towards the bottom of the scale of seriousness for such offences. His Honour regarded it as obviously ill-considered, an offence carried out on the spur of the moment. 4 The applicant was then twenty-six years of age and had a long record of convictions typical of those committed by persons addicted to the use of illegal drugs. In passing sentence his Honour referred to the cycle of drug taking, offending, convictions, attempts to give up the use of drugs and lapsing back into their use. His Honour accepted that the applicant genuinely wanted to give up his use of drugs and that he was remorseful. His Honour took into consideration that the applicant had spent some time at the Wentworth Area Mental Health Service hospital at Nepean because of drug-induced psychosis. His Honour doubted whether the applicant really appreciated the seriousness of the offence he had committed and thought that there was a consequent need for the sentence to be a deterrent to the applicant himself. However, his Honour increased the length of the parole period at the expense of the non-parole period in order to give the applicant a chance, under supervision, to overcome his drug habit and turn himself around. 5 The first ground of appeal with which it is convenient to deal asserted that his Honour failed to give proper consideration to the applicant's psychiatric illness. The applicant had been admitted to the Wentworth Area Mental Health Service hospital on 30 June 2000 and discharged on 2 July 2000. The admission was involuntary. The hospital discharge report was before his Honour. It shows that the applicant said that he had been hearing voices for a long time, telling him to hurt himself and others and to take marijuana. He had smoked marijuana on the day of the offence. He was getting messages from the television and the radio and had not been sleeping well. His mood was depressed and his affect blunted. There were loosened associations and ideas of reference with persecutory hallucinations. There were auditory hallucinations. Judgment was poor and risk assessment was considered high. There was no known past psychiatric history but the reporter noted an attempted overdose by the use of substances including heroin and methadone. He quickly settled after admission and after two days there was no evidence of psychosis. He was discharged into the care of his father with appropriate medication and a script for more. The diagnosis was drug-induced psychosis, possibly schizophrenia, poly-substance abuse and antisocial personality traits. 6 It was submitted that his Honour failed to reduce the weight given to general deterrence in imposing sentence. Counsel pointed to the well-established principle that general deterrence is generally given less weight in the sentencing of offenders suffering from mental disorders or severe intellectual disability. His Honour did not refer to any such reduction in the weight given to general deterrence. 7 I do not accept this submission because I do not infer that his Honour did not give appropriate weight to the applicant's condition as demonstrated by the hospital discharge summary. In the structuring of any sentence the significance of the offender's mental capacity has to be seen and evaluated in the light of all the facts and circumstances of the case. Sometimes there is a very serious mental condition or intellectual deficit, leading to the imposition of a sentence that would otherwise appear lenient. But there was no evidence that this offence was committed under the influence of a drug-induced psychosis and there was no suggestion of significant intellectual deficit. It seems to me that the head sentence and non-parole period were somewhat lower that one would have expected to see in a simple armed robbery carried out by means of a pair of scissors. I think that the proper conclusion is that his Honour gave appropriate weight to the applicant's mental condition. 8 By the next ground of appeal the applicant asserted that his Honour erred in finding that there was a need for the deterrence of the applicant himself. In my opinion this ground has not been made good. The author of the pre-sentence report which was put before his Honour observed that the applicant did not consider the offence seriously and minimised his involvement in it. That circumstance alone gave rise to a need for the applicant to be discouraged for offending again. 9 The next ground of appeal asserted that his Honour erred in finding that he was obliged by authority to impose a gaol sentence. During his remarks his Honour said this - …but that is not to say that you are not going to spend some period of time in gaol. You are and you have to in light of the authorities as far as I am concerned…. 10 The submission was that his Honour was not obliged by authority to impose a full-time gaol sentence. His discretion was not so limited. I think that this submission has no substance. I do not think that the quoted remark can be taken to mean that that is what his Honour thought. To my mind it means no more than that his Honour considered the authorities and formed his own independent view that this was a case in which nothing but a sentence of full-time custody would be appropriate. In my opinion his Honour was entitled to come to that view. 11 The next ground of appeal was that the sentence was manifestly excessive. Reference was made to R v Henry (1999) 46 NSWLR 346 and the generally applicable range of sentences set forth therein of four to five years for armed robbery offences having the following features: young offender with little or no criminal history, weapon like a knife capable of killing or inflicting serious injury, limited degree of planning, limited actual violence but a real threat thereof, victim in a vulnerable position, small amount of money taken and plea of guilty. The facts of the present case were compared with those features and the applicant was asserted to have been harshly dealt with by that comparison. 12 There is no substance in this submission. R v Henry is not an authority which binds sentencing judges but which is intended only to guide towards an appropriate result. But it could scarcely be of any assistance here because there were significant differences between the facts in the present case and those in the model. For example, the applicant did not plead guilty. He exercised his right to be tried and thereby forwent the reduction in sentence which a plea of guilty would have earned him. I addition, he was scarcely young, at twenty-six year of age, and could by no stretch of the imagination be described as having little or no criminal history. In my opinion the guideline would not have assisted his Honour and does not assist this Court. 13 But for the matters to which I am about to turn I would not have interfered with the sentence. 14 The final ground of appeal relied upon a report of Dr Bruce Westmore, psychiatrist, dated 2 August 2001. There might have been some difficulty for the applicant in demonstrating that the evidence was fresh so as to be available on the hearing of the application, but the circumstances were rather unusual. I have already referred to the pre-sentence report which was tendered to his Honour. According to an affidavit of the applicant which was read on the appeal that report was first shown to him by his present solicitor, who did not appear for him in the sentencing proceedings, on 15 November 2001, some ten months after the hearing. Having referred to a prescription made for the applicant of a psychiatric drug at the Metropolitan Remand and Reception Centre and to his admission to Wentworth Area Health Services unit at Nepean hospital, the author of the pre-sentence report stated that in her opinion the Court might benefit from a psychiatric assessment of the applicant. She observed that available reports were brief and written in times of crises and did not touch on any prognosis. It is unfortunate that the legal practitioner who appeared for the applicant did not at least discuss with the applicant the possibility or desirability of obtaining such an assessment. The proceedings went on without one. In the circumstances the Crown did not object to the tender of Dr Westmore's report as fresh evidence. 15 The Nepean hospital discharge summary which was before his Honour is quite short. Although it refers to the applicant's release on bail it makes no reference to the offence. It is no evidence of the mental state of the applicant on 3 May 2000 when he committed the offence. The diagnosis of his condition on entry to the hospital on 30 June 2000 is drug-induced psychosis, ? schizophrenia, poly-substance abuse and antisocial personality traits. Although the discharge summary observes that the applicant was on bail when he was admitted on 30 June 2000 it makes no reference to the offence with which he had then been charged or to his possible mental state at the time of that offence. There was no evidence before his Honour about what the applicant's mental state might have been when he committed the offence. Accordingly, his Honour took into consideration the question of the applicant's drug addiction and observed that that addiction was not an excuse but showed why the applicant acted as he did. His Honour treated the offence as one committed by a drug addict with an apparently normal state of mind but on the spur of the moment. 16 The report of Dr Westmore sheds an entirely different light upon the matter. Having performed a detailed review of the applicant's family, personal and psychiatric history Dr Westmore provisionally diagnosed the applicant as suffering form a schizophrenic illness. He said that the differential diagnosis would include a drug-induced psychosis, though that diagnosis was less likely. The applicant also qualified for the diagnosis of poly-substances abuse. Dr Westmore thought that the applicant suffered a serious psychiatric disability, and that his schizophrenic illness was likely to have a chronic cause. He noted a report (admittedly by the applicant himself) that a psychiatrist at Long Bay had diagnosed him as suffering from paranoid schizophrenia. 17 Dr Westmore was aware that the applicant had been sentenced and intended to seek leave to appeal against the sentence. He concluded his report as follows - It is a little uncertain from his history whether the offending behaviour occurred in the context of his mental illness although it is unlikely from his description of his behaviour on the day of the incident that he would qualify for a mental illness defence to the charge and subsequent sentence now being considered by the court. He may have been anxious and agitated by his mental illness which in turn led him to seek a cigarette from another train traveller. To that extent his mental illness may have indirectly been involved in this offence, but it cannot be stated more strongly than that, I feel. 18 Although Dr Westmore cannot do more than point to the possibility that the applicant schizophrenia was indirectly involved in the offence in the way that he explained, it seems to me that his opinion is significant. I think that it provides a probable explanation why the applicant acted as he did. This was not an ordinary hold-up. The applicant did not present the scissors in what one might regard as a normal way. He did not demand anything other that a cigarette. When he asked the complainant whether he had $5 and the complainant said that he did not he simply walked away. I think that the probably explanation for this strange behaviour is the schizophrenia from which the applicant was then suffering. In my opinion the fresh evidence justifies this Court disturbing the sentence. 19 Since the applicant has been in custody he has been treated for his schizophrenia. He has read the report of Dr Westmore and accepts his condition and his need for continuing treatment and medication. He has behaved himself. He has undertaken a methadone program but has now weaned himself off that drug. He has completed other courses and has worked well. He is trusted. He intends when paroled to live with his mother at Emu Plains. He intends to keep up his treatment as an outpatient at Nepean hospital. He has good work prospects. I think that his proposed programme should commence as soon as possible. 20 I propose the following orders - (1) Grant leave to appeal against the sentence. (2) Allow the appeal and quash the sentence appealed from. (3) In lieu sentence the applicant to imprisonment for two years, commencing on 23 October 2000 and expiring on 22 October 2002. (4) Fix a non-parole period which will expire on 23 November 2001. It will be a condition of the applicant's parole that within seven days after his release to parole he report to the Wentworth Area Mental Health Service at Nepean hospital and accept the advice of the officers of that service as to his treatment and medication.