New South Wales Court of Criminal Appeal CITATION : Regina v Hunter [2001] NSWCCA 530 FILE NUMBER(S) : CCA 60134/01 HEARING DATE(S) : 10/12/01 JUDGMENT DATE : 10 December 2001 PARTIES : Regina v Angus Ian HUNTER JUDGMENT OF : Greg James J at 27; Whealy J at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/11/0011 LOWER COURT JUDICIAL Solomon DCJ OFFICER : COUNSEL : L.M.B. Lamprati - Crown A.P. Cook - Applicant SOLICITORS : S.E. O'Connor - DDP D.J. Humphreys - Legal Aid Commission LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencng Procedure) Act 1999 Veen (No 2) (2988) 164 CLR 465 CASES CITED: Thompson & Houlton (2000) 49 NSWLR 383 R v Carter (2001) NSWCCA 245 R v Lo (2001) NSWCCA 271 DECISION : Leave to appeal granted but the appeal dismissed IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL 60134/01 GREG JAMES J WHEALY J MONDAY 10 December 2001 REGINA v Angus Ian HUNTER Judgment 1 WHEALY J: The applicant in this matter is a forty five year old man who suffers from schizophrenia. He is seeking leave to appeal from a sentence imposed by Solomon DCJ on 2 March 2001 at the Sydney District Court. The applicant pleaded guilty to an offence of robbery whilst armed with an offensive weapon. This offence carried a maximum penalty of twenty years imprisonment (s 97(1) of the Crimes Act). A common assault charge committed at the same time as the robbery was taken into account on a form 1. His Honour sentenced the applicant to a total term of seven years imprisonment with a non parole period of three and a half years. The non parole period is to expire on 6 April 2004. 2 The facts were that at about 12.15pm on Saturday, 7 October 2000, Ms Lorie Bell and her two children, who were aged respectively eleven and nine, were in the vicinity of an ATM in Spring St, Bondi Junction. Ms Bell commenced to withdraw money from the ATM. The applicant approached the family and placed his right arm around the neck of the younger child, Lysia Bell aged nine, and held a knife to her throat. At this stage, according to the statement of Lorie Bell dated 7 October 2000, the applicant said: "It wouldn't be a pretty sight if I cut your daughter's throat". 3 Ms Bell observed that her daughter was quivering and starting to cry. She described the knife as being held very close to her daughter's skin. She said in her statement that she put her right hand "in between the knife and Lysia's throat so she wouldn't be cut." An amount of $100 was produced by the ATM. The applicant snatched it and ran off. 4 The applicant got on to a bus and he was arrested shortly afterwards on the bus. He was found with the proceeds of the robbery less an amount he had spent on the purchase of a bus ticket, on his person at the time of his arrest. 5 He was interviewed by the police at Waverley Station a short time later. He made full admissions as to his involvement in the offence. He told the police (Q. 18) that he: "just felt sick and, knew I needed some heroin and, I was walking around and, you know walking around for hours, and, then I saw this people at the ATM". 6 Further, he said that he had slept the night before at the back of the health centre in Bondi Junction. He said that when he woke up he had pains and took three Serepax. He said that he had not had any heroin for "a couple of days". (Q. 16 and Q. 17). He was asked the following questions: "Q. 31. And you held to the little girl's throat? A. I guess so, yeah, I doubt, I doubt, I doubt she was cut. I'll say she was very scared, I have no intention of, you know, if the woman screamed. If the woman screamed out, robbery, robbery, I had been gone." He was also asked: "Q. 35. Did you actually had the knife up against her, touching her neck? A. I doubt if it would have been touching her neck. I know, the mother saw it. I, feel the little girl's head was there on my - are, on my, I didn't mean, I didn't, I didn't, I wanted the mother to see the knife. I didn't want, want, want, the little, the main object was for the woman to see the knife. Ah, and then, like I said, at that time, the money rolled out of the ATM. I grabbed the money and I ran". He went on to say that in his estimate the knife was probably "ten centimetres away from her neck". (Q. 37). He also went on to agree that he was threatening the little girl. He was asked (Q. 92) whether he felt sorry about what he had done. He made the following reply: "Am, I feel, I feel, really sick, I mean lot of pain. Am, I feel sorry that there was, a juvenile involved, all right that was, that was unforgivable, all right. Am but, I am here, I am still, I ...". 7 There are two principal bases for this appeal. The first asserts that his Honour erred in relation to the discount he allowed as a result of the applicant's plea. It is submitted that his Honour "discounted" the value of the plea on a utilitarian basis because of his perception of the strength of the Crown case. The fact is that the applicant made admissions following his arrest. He entered a plea of guilty on arraignment in the District Court on 16 February 2001. 8 The second error is said to reside in the manner in which his Honour dealt with the appellant's mental condition. As I have said, the appellant suffers from schizophrenia. The complaint appears to be that his Honour just did not adequately reveal the weight he gave to the presence of the schizophrenic mental illness in determining the sentence and that secondly he, in effect counterbalanced whatever weight was given by purporting to apply the principles in Veen No 2 (1988) 164 CLR 465. This was so even though those principles had little or no application to the circumstances of the applicant. 9 Before dealing with these submissions, I should note that the Court has received a substantial affidavit from the applicant outlining the improvements that he has achieved through medication in relation to his mental illness while in custody, outlining the fact that he has remained drug free and outlining the very difficult circumstances of his custody on protection and his aspirations for his mental and other rehabilitation after his release. 10 There is also an updated report as well from Dr Nielssen who had provided a report to Solomon DCJ. This is also encouraging although it seems that the applicant is still reporting symptoms of psychotic illness in the form of tormenting auditory hallucinations. The doctor notes: "However people with disabling mental illness are at the very bottom of the pecking order in gaol and Mr Hunter is currently detained in a very tense and restrictive environment." 11 Finally there is further material from the Department of Corrective Services and the Chaplain detailing the applicant's progress whilst in custody. 12 I turn now to consider his Honour's reasons for sentence. At page 3 his Honour said that this offence was a most serious offence. His Honour then set out the details of the offence that I have already recorded. His Honour noted the prisoner's record and noted that on 25 June 1976 the prisoner had been dealt with at the District Court, Sydney, in relation to the offence of robbery being armed. Further in 1994 he had been dealt with in Queensland in relation to unlawful assault and also deprivation of liberty. 13 His Honour then turned to the subjective circumstances and in a passage which has involved considerable discussion his Honour said this: "The prisoner has pleaded guilty and has saved the community the cost of bringing him to trial. The plea of guilty also indicates that the prisoner is contrite. The prisoner is entitled to a discount for an early plea of guilty and I will apply a discount in favour of the prisoner. However it should be noted that in applying the discount I am cognizant of the fact that the Crown case was indeed strong. I have further taken into consideration that the offence was unplanned". 14 In relation to the applicant's mental condition his Honour said this: "I further take into consideration the prisoner's mental condition. In that regard I have read the comprehensive and helpful report of Dr Nielssen dated 8 February 2001. The report indicates to me that at the time of the commission of the offence the prisoner was suffering from schizophrenia. The prisoner's schizophrenic history was graphically set out in the report. The prisoner comes from a tragic background insofar as mental illness is concerned ... it is pleasing to note that the prisoner is presently receiving treatment for schizophrenia in prison and that he has responded well to the treatment. I accept the opinion of Dr Nielssen that the prisoner was a heroin addict and that it is his experience schizophrenics self medicate themself with heroin. However I am not satisfied that the prisoner committed the offence as a direct consequence of schizophrenia". 15 As to the approach that his Honour proposed to take in relation to the placement of the applicant's mental illness in the sentencing scheme, his Honour said: "Insofar as the prisoner's schizophrenic condition is concerned, I take it into consideration when considering general deterrence. I am guided by the principle that when sentencing a person who suffers from serious mental condition that the element of general deterrence is to be given little weight by the sentencing Judge. However I note that the sentence in principles referred to in and Veen v The Queen ... which include the protection of Society. Further in relation to the prisoner's schizophrenia I am aware of the prisoner's sentencing principles in Engert (1996) 84 ACR 67." 16 His Honour then went on to say that he found special circumstances relating to the applicant's need for on going rehabilitation in the community on his release from prison. He imposed a sentence to which I have made earlier reference. During the course of his decision his Honour made mention of the report of Dr Nielssen. It is relevant if I just briefly mention some portions of it in relation to the offence and the circumstances surrounding it. Dr Nielssen obtained a history from the applicant. Dr Nielssen said: "Mr Hunter said that four days. before the offence he was discharged from Foley House, a drug rehabilitation centre in Surry Hills, where he had spent a month withdrawing from Methadone. He said he was initially taken down from his previous dose 50 mg per day to 20 mg and then for two weeks prior to his discharge the drug was stopped altogether. He said that the regime at the rehabilitation centre was fairly loose, and that it was possible to leave the unit and buy drugs and also to return in an intoxicated state without being reprimanded by the staff. He said that he had used about a half a gram of heroin over several days whilst at the centre, but said that he left the centre with the intention of ceasing drugs. He said that he had not received heroin for three days before the offence. Mr Hunter said that he had nowhere to stay after leaving Foley House, and spent the night before the offence, in a park behind the Bondi Junction Community Health Centre (BJCHC). He said that he had attended the BJCHC the two days before and saw an experienced psychiatrist, Dr Hume, who had known him for the four years he had been treated at Prince of Wales Hospital for schizophrenia. He said that Dr Hume told him that he had to deal with his drug problem before he could receive psychiatric treatment. He said that about eight o'clock in the morning of the offence he went to the mall in Bondi Junction where he spent the next four hours experiencing withdrawal symptoms and a strong craving to use drugs. He said that the offence occurred on the spur of the moment after he reached the conclusion that he had to have some heroin. Mr Hunter said that he held the child around the chest with the hand holding the knife. He said that he did not hold the knife to the child's throat, but instead wanted to show the knife to the child's mother. He said the offence was committed as an "act of desperation" and he had not intended any physical harm to the victims. Mr Hunter said that he had suffered from episodes of mental illness, schizophrenia for twenty years, and had not received treatment for about ten months prior to the offence. He said that in addition to withdrawing from heroin he was experiencing symptoms of mental illness, including auditory hallucinations of voices commenting on his actions, and ideas of reference from his surroundings." 17 Dr Nielssen also set out at length the tragic and long psychiatric history of the applicant. At the conclusion of his report on page 6 he said when referring to the applicant: "The relationship between schizophrenia, drug dependence and abuse and criminal responsibility is complex, and it has been argued that it hinges on the degree of disability arising from the mental illness. In Mr Hunter's case, it appears that despite the frequency of admissions to hospital, he had relatively little residual disability, as he reports being able to work as a journalist until as recently as 1997. His inability to work since then seems to be as much due to drug abuse as to active psychotic illness. Moreover, he reported committing the offence to obtain money for heroin because he was distressed by withdrawal symptoms, and gave largely coherent responses to the police in the ERISP. He did not report symptoms of mental illness amounting to a defect of reason affecting his knowledge of moral wrong, and does not have the defence of mental illness open to him. However, there is clear that Mr Hunter was suffering from an acute relapse of illness at the time of the offence, of which the main symptom was critical auditor hallucinations and persecutory beliefs. People with schizophrenia frequently report using heroin as a way of controlling both acute and chronic symptoms of the disorder. People with schizophrenia are also more likely to act impulsively, without considering the likely outcome, as the disease effects parts of the brain controlling planning and impulse control." 18 As to the first point, s 22(1) of the Crimes (Sentencing Procedure) Act 1999 requires that in passing sentence for an offence on an offender who has pleaded guilty to the offence, the court must take into account the fact that the offender has pleaded guilty. It must also take into account when the offender has pleaded guilty and indicated an intent to plead guilty. The gravamen of the first argument as is has been debated between the Crown and the applicant in this appeal turns on the interpretation of Solomon DCJ's remarks on sentence. If his Honour intended to convey that he limited the discount for early plea because of its utilitarian value, had to be offset by a recognition of the strength of the Crown case, then error would have been shown (see Thompson & Houlton (2000) 49 NSWLR 383; see also R v Carter (2001) NSWCCA 245 and R v Lo (2001) NSWCCA 271). If on the other hand his Honour's decision meant that insofar as the element of contrition was concerned, the strength of the Crown case might have had a bearing on the value of the plea in this regard only, no error would have been shown. How then is his Honour's decision to be interpreted? 19 Fairly read, it seems to me that the remarks on page 4 do not affect the principles I have stated. His Honour is a very experienced criminal Judge and I do not consider it at all likely that his Honour would have been unaware of the relevant distinction recognised in Thompson. The passage in the reasons when read in its entirety are, in context, not susceptible to the narrow construction urged on behalf of the applicant. I am also unpersuaded by the transcript reference to the discussion that occurred before the sentencing decision was given. I do not think that is helpful to have regard to an ambiguous and uncorrected transcript in that way. I do not consider that any error has been shown in relation to the first ground of appeal. 20 As to the second matter it seems to me clear that his Honour expressly applied the correct principles to the circumstances of the applicant's unfortunate history in relation to his mental illness. This appears in the passages I have already set out and it appears specifically at page 5. His Honour said that he would take that into consideration - that is the schizophrenic condition - when considering general deterrence, and that the application of general deterrence had to be given little weight when sentencing a person who suffers from a serious mental condition. Further his Honour said that in relation to the schizophrenia he was aware of the sentencing principles that are set out in Engert. 21 Although his Honour referred in this context to the need to consider the protection of society, it does not appear that his Honour allowed this factor to overbear his consideration of the applicant's mental condition. Further although it be correct that his Honour expressly concluded, as he was entitled to do, that he was not satisfied the offender committed the offence in direct consequence of the schizophrenia, and he found that the offence was committed for the express purpose of obtaining money to feed his heroin addiction, his Honour did not allow these findings to dissuade him from applying the correct principles he identified. These findings were plainly relevant to an assessment of culpability. 22 In Engert Gleeson CJ, recognised the complexity of the sentencing task and the multiplicity of objects it must serve. His Honour concluded at page 68: "It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case what is called for is the making of a discretionary decision in light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise". 23 His Honour went on to say at page 71: "... the question of the relationship, if any, between the mental disorder and the commission of the offence, goes to the circumstances of the individual case to be taken into account in the application of the relevant principles. The existence of such a causal relationship in a particular case does not automatically produce the result that the offender will receive a lesser sentence any more than the absence of such a causal connection produces the automatic result that an offender will not receive a lesser sentence in a particular case. For example, the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence and increase the importance of particular deterrence or of the need to protect the public. By the same token, there may be a case in which there is an absence of connection between the mental disorder and the commission of the offence for which a person is being sentenced, but the mental disorder maybe very important to considerations of rehabilitation, or the need for treatment outside the prison system". 24 I accept the Crown's submission in this case that this was not a situation in which the applicant's mental condition was the principal cause of the offence or had a substantial operation in leading the applicant to commit the offence. There is nothing to suggest that the sentencing Judge did not adequately take the applicant's mental condition into account. To the contrary his Honour considered the condition and found special circumstances to warrant a variation of the statutory ratio between the full term and the non parole period. 25 For these reasons I am not satisfied that the second argument has been established. 26 This is a very sad case. The Court has sympathy for the condition in which the applicant finds himself. It is necessary however to point out that the offence was a very serious one indeed. His Honour gave earnest consideration to the situation of the applicant in relation to his mental illness. His Honour recognised the need for a longer period of supervision and rehabilitation on parole by his finding of special circumstances. Every matter that could possibly be found on the applicant's behalf was taken into account, in my opinion, by the sentencing Judge. In my view, leave to appeal should be granted but the appeal should be dismissed. 27 GREG JAMES J: I agree. In particular I agree with the remarks his Honour has made concerning the sympathy the Court has for the applicant and the position in which he is placed, and the regard the Court must have for the gravity of the offence and the circumstances in which it was committed. 28 Therefore the orders shall be as proposed by Justice Whealy. 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.