R v Reed [2001] NSWCCA 364

New South Wales Court of Criminal Appeal

CITATION : R v Reed [2001] NSWCCA 364 FILE NUMBER(S) : CCA 60097/01 HEARING DATE(S) : 14/9/01 JUDGMENT DATE : 14 September 2001

PARTIES : Regina Robert Gregory Reed JUDGMENT OF : Sully J at 25; Carruthers AJ at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/31/0164 LOWER COURT JUDICIAL Price DCJ OFFICER :

COUNSEL : G E Smith (Crown) P J D Hamill (Applicant) SOLICITORS : S E O'Connor (Crown) D J Humphreys (Applicant) CATCHWORDS : Sentencing - possession of offensive weapon - provocation as a mitigating factor - sentence 50% longer than that given for similar offences. LEGISLATION CITED : Crimes Act 1900 CASES CITED: R v Salt (Unreported NSWCCA 26 August 1994), DECISION : Leave to appeal granted. Appeal allowed. Sentence imposed by Price J quashed. New sentence: 4 years imprisonment (25.9.00 - 24.9.04) with a non-parole period of 2 years (25.9.00 - 24.9.02).

- 8 -IN THE COURT OF CRIMINAL APPEAL 60097/01 SULLY J CARRUTHERS AJ Friday 14 September 2001 Regina v Robert George Reed

JUDGMENT

1 CARRUTHERS AJ: Robert George Reed seeks leave to appeal against sentences imposed upon him by his Honour Judge Price at the East Maitland District Court on 16 February 2001. 2 The applicant had, on 14 August 2000 pleaded guilty before Coolahan DCJ to the charge that he on 12 February 2000 at Cessnock did possess an offensive weapon, namely a sterling .22 calibre shortened rifle with intent to commit an indictable offence, contrary to s 33B(a) of the Crimes Act 1900. 3 When the applicant came before Judge Price for sentence, his Honour was asked to take into account four additional charges on a Form 1. One, was possess a shortened firearm, a second was handle firearm under the influence of alcohol, the third was possess loaded firearm in a public place, and fourth was possess an unlicensed firearm. The offence under s 33B(a) carries a maximum penalty of 12 years imprisonment. 4 The applicant was arrested on 12 February 2000, and bail was refused. However on 3 July 2000 he was granted conditional bail. He was then taken into custody again on 16 February 2001, when he came before Judge Price, and has thereafter remained in custody. Thus he had a period of pre-sentence custody of 144 days. The plea of guilty was not entered until he came before Judge Coolahan on arraignment. 5 Taking into account the matters on the Form 1 (which were related to the subject offence) his Honour sentenced the applicant to a term of imprisonment of four years and six months to commence on 25 September 2000, and to expire on 24 March 2005. His Honour set a non-parole period of two years and eight months to commence 25 September 2000 and to expire on 24 May 2003. His Honour found special circumstances being the applicant's prospects of rehabilitation, his mental disorder, his need for psychological and psychiatric treatment, and his need for lengthy supervision to assist him in overcoming his alcohol and drug problem. 6 The facts may be concisely stated. On 12 February 2000 the applicant, who is a slightly built man, with his brother consumed about two cartons of beer. They then entered a hotel, where the applicant encountered Clinton Cameron who is referred to as the victim - that may be an inappropriate expression - but nothing turns on it. There was bad blood between the applicant and Cameron as a result of an incident which had occurred some months earlier involving the applicant's terminally ill mother who was then 75 years of age. 7 The two men left the hotel after the applicant had remonstrated with Cameron. The appellant had demanded an apology for the disgusting and violent behaviour that Cameron had earlier directed towards his mother who by then had died. Cameron then assaulted the applicant causing him serious injuries to the head. The assault included the applicant's head being smashed into a switch box and steel rail, and being kicked. He sustained lacerations above his left and right eyes, and was knocked unconscious. Apparently no charge was laid against Cameron in relation to that matter or the assault upon the applicant's mother. 8 The applicant, in his intoxicated state, returned home and took possession of a .22 calibre rifle and returned to the area. On his own admissions, which were full and frank to the investigating police, he had formed the intention to shoot and kill Cameron. The weapon was loaded. Cameron was sighted by the applicant from his car outside a different hotel. The applicant took aim at Cameron. However Cameron decided that he would defend himself by seizing two females in the near vicinity, and using them as a shield. This caused the applicant to withdraw the gun. He later told police that he did this because he did not want to put innocent lives at risk. Cameron ran away, and the applicant followed him in his car. When the applicant saw Cameron inside the Wentworth Hotel he gave up his attempt, and a short time later voluntarily surrendered himself to the police. 9 In his car the police located the weapon which was loaded with one round in the chamber, and a magazine filled with two rounds was fitted to the firearm. Full and frank admissions were made to the arresting police by the applicant, who attributed his behaviour to the disgraceful conduct of Cameron towards his mother. 10 In his remarks on sentence his Honour understandably came to the view that the facts placed the offence into a high level of seriousness, to use his Honour's phrase. Counsel for the applicant in this Court realistically accepted that this finding was open to the sentencing judge, particularly bearing in mind the Judge's finding of the applicant's stated intention to kill Cameron, and that he would have fired at Cameron, with the intention of killing him, but for Cameron using the young women as a shield. Further, the applicant pointed the loaded gun into a public area, whilst intoxicated to a significant degree, and whilst in a moving vehicle. 11 The mitigating factors were, however, the extremely provocative acts of Cameron associated with his earlier conduct towards the late Mrs Reed, and the savage assault upon the applicant, the disturbed psychological state of the applicant, the fact that he did not pull the trigger, his reaction to the presence of innocent bystanders, and the fact that he drove away, and voluntarily surrendered himself to police. 12 The applicant has a criminal record albeit in matters only involving offences which were dealt with in Local Courts. He has unfortunately suffered a depressive illness for many years. He has a borderline personality disorder requiring psychological or psychiatric treatment. 13 There is a history of attempted overdose of heroin in August 2000, six weeks after his release on bail. A psychological report before his Honour goes into some detail about this matter particularly stressing the serious nature of the depressive condition. And again this report stresses the fact that the applicant idolised his mother. At the time of examination, the applicant presented as depressed and suicidal. He was taking medication to ameliorate the impact of his depressive condition. 14 His Honour allowed discount of 25 percent for the plea of guilty on utilitarian grounds. Despite what has been put to us by Mr Hamill on behalf of the applicant, that conclusion was fair, and is not subject to in any sense valid criticism. His Honour accepted that the applicant was genuinely remorseful, albeit, it was argued on behalf of the applicant that there was insufficient allowance for this remorse. That proposition I have difficulty in accepting. 15 The aspect of this case which troubles me is a reference to the statistics supplied by the Judicial Commission in relation to this particular offence. They cover the period April 1993 to March 2000, and there is only a sample of eight cases. However, they demonstrate that of 8 cases 6 received a full-time custodial sentence. With regard to the full terms imposed on that six, (allowing for the rounding off process used by these statistics) one received a full term of 18 months, two received a full term of 24 months and three received a full term of 36 months. 16 It can be seen therefore that the subject head sentence is 50 percent greater than any of those disclosed by the statistics. In relation to the minimum or fixed terms: of the six, three received terms of 12 months, two received terms of 18 months and one received a term of two years. Thus again there is approximately a 50 percent greater minimum term in this case than any of the other six. 17 The position is a little complicated by the fact that one case to which both parties have drawn our attention has not for some reason found its way into the statistics. That is the judgment of this Court in Regina v Salt (Unreported NSWCCA 26 August 1994), where the sentence was reduced by this Court to an overall sentence of eight years with a minimum term of three and a half years. 18 The facts of that case, however, can be clearly distinguished from the instant case without going into detail. One need only focus on the fact that in Salt there was a relatively lengthy period of premeditation and planning that did not exist in the instant case. 19 Although, as I have said on many occasions, the statistics which are helpfully provided by the Judicial Commission are our servants, and not our masters. I am persuaded in the instant case that despite the fact that the sample is relatively small - which is no fault of the applicant - the disparity between the subject case and the earlier cases is so great as to require the intervention of this Court. One comes to that conclusion when one balances the serious objective circumstances with the nevertheless very significant subjective circumstances. 20 Counsel for the applicant has provided the Court with certain affidavit evidence for use by the Court in the event that the Court concludes that its intervention is called for. That demonstrates that the applicant has put the period he has been in custody to good use, and has shown encouraging signs of rehabilitation, as well as some determination to come to terms with his problems with alcohol. Alcohol and drug use is unfortunately is uncommonly associated with persons suffering from a long standing depressive condition. 21 It is also encouraging, as counsel for the applicant pointed out, that whilst the applicant was on bail, Cameron visited his home and taunted him, but this did not attract any positive reaction by the applicant. That is a very encouraging sign. 22 In all the circumstances therefore I would propose that the intervention of this Court is called for. I would propose that the sentences imposed by his Honour be varied as follows: in lieu of the head sentence imposed by his Honour, I would propose a head sentence of four years to commence on 25 September 2000, and to expire on 24 September 2004. 23 And, bearing in mind there are special circumstances as explained by his Honour, that the non-parole period be varied to one of two years to commence on 25 September 2000, and to expire on 24 September 2002. 24 For the sake of good order I would propose that this Court specifically confirm the recommendation of the learned sentencing judge to the Commissioner of Corrective Services that the applicant be permitted to take his anti depressant medication, Cipramil in accordance with the directions of his general practitioner Dr Michael.