New South Wales Court of Criminal Appeal CITATION : Regina v Jarman [2001] NSWCCA 178 revised - 22/05/2001 FILE NUMBER(S) : CCA 60039/00 HEARING DATE(S) : 07/05/01 JUDGMENT DATE : 11 May 2001 PARTIES : Regina Scott Jarman JUDGMENT OF : Carruthers AJ at 1; Badgery-Parker AJ at 2 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/31/0305 LOWER COURT JUDICIAL Judge Job OFFICER : COUNSEL : W Robinson QC (Crown) R Burgess (Applicant) SOLICITORS : S E O'Connor (Crown) D J Humpreys (Applicant) CATCHWORDS : sentencing - whether manifestly excessive - consideration of guideline (R v Henry (1999) 46 NSWLR 346) - judicial discretion in sentencing - relevance of psychiatric condition to sentencing process. LEGISLATION CITED : Mental Health Act 1990 R v Henry (1999) 46 NSWLR 346 CASES CITED: R v Engert (1995) 84 A Crim R 67 R v Letteri (NSWCCA) (Unreported,18 March 1992) R v Tsiaras (1996) VR 398 DECISION : 1. Leave to appeal granted.; 2. Appeal against sentence allowed.; 3. District Court sentence quashed. IN THE COURT OF CRIMINAL APPEAL CARRUTHERS AJ BADGERY- PARKER AJ DATE 11 MAY 2001 Regina v Scott Jarman (60039/00) JUDGMENT 1 CARRUTHERS AJ: I agree with Acting Justice Badgery-Parker and his Honour's reasons for judgment. 2 BADGERY-PARKER AJ: This is an application by Scott Allen Jarman for leave to appeal against a sentence imposed by his Honour Judge Job in the District Court at Gosford on 20 October 1999. In respect of the applicant's conviction, after an early plea of guilty, to a charge of robbery, and taking into account an offence of break, enter and steal in respect of which he admitted his guilt, the judge imposed a sentence of six years imprisonment comprising a minimum term of three and half years and an additional term of two and a half years. The sentence dated from 7 July 1999, since which date the applicant has been in continuous custody. 3 The applicant has an extensive criminal history which began with persistent stealing offences in his early teens, and includes a batch of some fourteen serious property offences for which, on 23 February 1988 at the age of eighteen, he was sentenced to six years imprisonment with a non parole period of two years and seven months; a robbery offence for which, on 15 December 1992 at the age of twenty three, he was sentenced to three and half years, comprising a minimum term of twelve months and a additional term of two and a half years; and a serious bank robbery for which, on the 16 September 1994 at the age of twenty-four, he was sentenced in the District Court to imprisonment for eight years, comprising a minimum term of six years and an additional term of two. On 31 July 1995 the Court of Criminal Appeal allowed his appeal against the severity of that sentence and substituted a sentence of six years comprising a minimum term of four and an additional term of two. From that sentence he was released on parole in about September 1998 and he was on parole at the time of each of the two offences now under consideration. 4 The break enter and steal was on 24 May 1999. He broke into a chemist shop and stole two bags of prescription medications. He was arrested within a quarter of an hour , charged, and grant police bail. He was thus on bail, as well as on parole , on 7 July 1999 when he entered a bank during business hours and waited in the queue; when he was called to the teller he demanded money, saying that he had a gun in his bag. He was given a sum of $1670. His photograph was taken by a security camera. 5 On 7 July 1999, he was interviewed by police, and when shown the bank photograph, he admitted his guilt. He fully cooperated with the police. When he appeared in the Local Court he entered a plea of guilty and he adhered to that plea in the District Court in due course. 6 Originally, the principal thrust of the appeal was that on the material before the sentencing judge the sentence imposed was manifestly excessive, out of line with the guideline judgment in R v Henry(1999) 46 NSWLR 346 delivered on 12 May 1999 and outside the range of sentences appropriate to such offeces as revealed by statistics supplied by the Judicial Commission. 7 Counsel for the applicant did suggest additionally a specific error on the part of the sentencing judge. After referring to the sentence imposed by the Court of Criminal appeal following the applicant's successful appeal against the earlier robbery sentences, his Honour said "I do not believe that I can go below the term fixed by the Court of Criminal Appeal as the total term". It was submitted that, in so saying, his Honour misdirected himself . However, I do not read the remark as anything other than the expression of a conclusion by the sentencing judge that, taking into account all of the circumstances which he had enumerated in the preceding pages of his remarks, it would not be appropriate to fix a sentence less than that which had been fixed by the court of appeal in 1995. 8 In the course of a careful an d thorough judgment, the sentencing judge identified all of the relevant features of the case including those which might lead a sentencing court to a heavier rather than a lighter sentence (the applicant's extraordinary criminal record for a man of his age, the fact that he committed and was being sentenced in respect of the criminality involved in two separate offences, the fact that each of those offences was committed whilst on parole and that one of them was whilst he was on bail) and also, as his counsel conceded, all of those matters which might tend towards a mitigation of the penalty, including in particular: his early plea of guilty; his cooperation with the investigating police; the fact that because of a recent episode in the prison he had been placed on strict protection, so that the period he must spend in jail would be more onerous than under ordinary prison discipline; the fact that his extensive criminal record quite clearly is very closely associated with his drug addiction, and the fact that, as appeared from reports tendered before the sentencing judge, he is now making a determined effort to overcome his addiction, thereby reducing the risk of his re-offending. Hence it was submitted that the proper conclusion is that, although His Honour adverted to all of the relevant mitigating circumstances, he failed to give them appropriate weight. 9 The guideline established by the decision in Henry was that a full term of imprisonment of four to five years would be appropriate for a young offender, with little or no criminal record, who committed a robbery where a weapon such as a knife was used. It is indeed the case, as counsel submitted, that usually a proper approach in sentencing for armed robbery will be to start with the guideline, and to look to see what aggravating or mitigating factors warrant taking the sentence above or below that starting point. But that does not appear to me to be a universally correct approach, nor is it appropriate to strain the guideline too far so as to include cases which are really of a different category. In this case the applicant cannot be described as a young offender. He has a very significant criminal record. The judge in sentencing for the robbery offence was obliged to take into account his admission of guilt in respect of a quite serious offence of break enter and steal. In those circumstances, little assistance can be derived from a consideration of the guideline judgment 10 The submission founded on the Judicial Commission's statistics seems to be of more substance. The statistics show that in respect of all offenders sentenced for offences of robbery ( including offenders who did not enter guilty pleas and offenders who were sentenced for more than one count) only eight percent of all sentences included a full term of six years or more and only nine percent a minimum term of three and half years or more. In relation to offenders sentenced in respect of one count of robbery only, who entered a plea of guilty and who had prior convictions of the same kind, only thirteen percent of offenders received terms of imprisonment between five and a half and five years and only thirteen percent of prisoners received minimum terms of between three and three and a half years. However, those statistics would seem not to include matters where the sentencing court was obliged to take into account another offence in respect of which the offender admitted guilt. It cannot simply be said, therefore, that the sentence is, by reference to the statistics, demonstrated to be outside the range. 11 It is not to be overlooked that at the time when he came to be sentenced the applicant was serving the balance of parole in respect of a previous sentece forrobbery. On his arrest on 7 July 2000, his parole was revoked and he was returned to prison to serve a term which, but for the imposition of the present sentences, would have led to his release in or about September of that year. The judge dated the sentence now in consideration back to the 7 July 2000 so that to the extent of about two and a half months it was to be served concurrently with the balance of parole. That is a circumstance which was of course justified by the principle of totality; but it is also a circumstance which reduces the value of the statistics to which counsel referred. 12 Whether one starts from the guideline judgment in Henry or from the statistics compiled by the Judicial Commission, the question remains the same: whether, allowing the broad range of the judicial discretion in sentencing, the sentence is above the permissible range: not because of its relationship to the Henry guideline or its position in the scale identified by the Judicial Commission statistics, but because our consideration of the individual circumstances persuades us that if proper weight were given to those, a lower sentence would necessarily result. If one starts from the guideline judgment, the question is to what extent the individual circumstances would warrant a sentence below the guideline sentence . If one starts from the Judicial Commission statistics, the question is what effect do those individual circumstances have in moving the case towards the lower end of the statistical range. 13 On the basis only of the material that was before the District Court judge, I doubt whether this court would have held the sentence to be appealable. 14 However, at the hearing of the appeal the applicant, with the consent of the Crown, was granted leave to adduce fresh evidence relating to the applicant's psychiatric condition. That evidence consisted of relevant documents from the Department of Corrections and from the Mental Health Review Tribunal and a report dated 12 April 2001 from a psychiatrist Dr Rosalie Wilcox. Those documents show that on 28 October 1999 a prison psychiatrist diagnosed the applicant as "probably acutely psychotic". He was then in custody at Junee but was transferred to the psychiatric ward at Long Bay Hospital. On 27 June 2000, the Chief Health Officer certified that the applicant was a mentally ill person within the meaning of the Mental Health Act 1990 and he ordered, pursuant to S 97 (1) of that Act, that he be transferred to a hospital. He was admitted on 19 August 2000 to "A" Ward of Long Bay Hospital as a forensic patient subject to the jurisdiction of the Mental Health Review Tribunal. 15 Dr Wilcox confirmed the diagnosis of Chronic Paranoid Schizophrenia. She found that the applicant had persisting residual symptoms but was responding well to anti psychotic medication. She expressed the opinion that it was 'highly probable that Mr Jarman was in the early stages of a psychotic illness when he committed the robbery". She said, however, that "although he had been experiencing persecutory ideation his offending behaviour was not directly attributable to his mental condition". She expressed this opinion- " I believe that his abuse of the prescribed sedative serepax played a significant role in his offending behaviour. Serepax has a disinhibiting effect and would have affected his judgment and ability to think in a rational manner. It is however also possible that due to the presence of his paranoia he may have self-medicated with the serepax and therefore, although his offending behaviour was not directly related to his mental illness it may have indirectly contributed to his actions". 16 As to prognosis, her opinion was that he is likely to be on medication indefinitely; that while he is on the anti psychotic clozatine he will need to have close supervision; and that his prognosis will depend not only his response to that medication but also on whether he is able to abstain from the further abuse of drugs, in particular amphetamine and marijuana. 17 It seems to be clear on the whole of the evidence that at the time of the bank robbery, and probably also at the time of the chemist shop offence, the applicant was in the early stages of his psychotic illness. The evidence does not support a conclusion that either or both of the offences resulted directly from his mental condition. In evidence in the course of the sentencing proceedings, the applicant asserted that at the time of the bank robbery he was under the influence of prescription medication, and his Honour did not indicate that he rejected that evidence. It seems to be the probability, but that of course does not mitigate the criminality of his conduct. As to whether his abuse of serepax was itself a consequence of his psychiatric disorder appears to be no more than a matter of speculation. It cannot be said that the applicant has established that as a matter of probability. 18 The fact of his psychiatric disorder remains a matter of significance in the sentencing process, notwithstanding that it is not shown that the mental disorder itself caused the commission of the offence: Regina v Engert (1995) 84 ACrimR 67. It may not, in those circumstances, reduce the moral culpability of the offence, but it does warrant consideration of the extent to which general deterrence and specific deterrence should be taken into account. In Regina v Letteri (NSWCCA) (unreported, 18 March 1992),in a judgment in which Gleeson CJ and Sheller JA agreed, I said: " the principle then is clear enough it is correctly stated as follows: that where as general deterrence is a relevant consideration in every sentencing exercise it is a consideration to suffering from a mental disorder or severe intellectual handicap. In an extreme case, the proper application of this principle may produce the result that considerations of general deterrence are totally outweighed by other factors. In every case it is a matter of balancing the relevant factors in a manner no different from that which is involved in every sentencing exercise" . In Engert ( supra, at p71) Gleeson CJ cited that passage and said, "I emphasise the concluding sentence in that passage". 19 The existence of a mental disorder may also be relevant to the sentencing process because it may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served and because a given sentence will weigh more heavily on the prisoner than it would on a person in normal health (Regina v Tsiaras (1996) VR 398 at 400 and Engert, supra at P 70). It is in my view appropriate to take this applicant's mental condition into account in both of those respects. Because of his psychotic illness, he is a forensic patient and subject to the control of the Mental Health Tribunal. Unless that body otherwise orders, he will for the duration of his illness ( whether or not that period ends before, coincides with or extends beyond the non parole period) be confined in the prison hospital and as I would understand it would thereby be deprived of access to the ordinary activities which would be available to him under ordinary prison discipline. It is not possible to say for how long his illness will produce that effect. Dr Wilcox's evidence holds out some hope that his condition will respond to medication, at least so long as he is able to abstain from the further abuse of drugs. She seems to contemplate that he will progress to a stage where, subject to the exigency of his prison sentence, he will be able to return to the community under close supervision. However, as is recorded in the sentencing judgement, the applicant while in prison received a "hot shot" of heroin from other inmates which he perceived, rightly or wrongly to have been an attempt on his life. For that reason he sought to be admitted to strict protective custody and that request was granted. With the benefit of hindsight and the knowledge that he suffers from a paranoid psychiatric disorder, it may be thought that that incident was not real or, if it was real, was not in fact a deliberate attack upon him, but was accidental; but the prison authorities might nevertheless be reluctant to accede to any request that he be taken out of protective custody and returned to the mainstream in the prison, for fear of liability in the event he comes to a harm. It is realistic therefore to assume that, not merely because of his psychiatric disorder but for these other reasons, he may be required to serve his sentence ( if released from hospital) in protection. Either way, therefore, it is reasonable to conclude that his incarceration will bear upon him more heavily than upon the ordinary run of prisoners. Furthermore, the existence of his psychiatric illness will, one would think, mean that incarceration, even under ordinary conditions of prison discipline, will bear more heavily upon him than upon others. 20 All of those are matters to be considered in relation to both the duration of his sentence and in relation to the apportionment of the sentence as between the non parole period and the ensuing parole period. Nevertheless, it is necessary first to have regard to the objective seriousness of the offences. Both offences are serious and must be dealt with a measure of severity. 21 It is necessary also to attach considerable significance to the circumstance that at the time of both offences the applicant was on parole; and to the circumstance that at the time of the second offence, he was on bail granted to him following the chemist shop offence. 22 In relation to the bank robbery he contrived (as indeed he had done at the time of the earlier bank robbery he refereed to above) to cause the teller to believe that he was armed. She had no way of knowing that he was not telling the truth when he said that he had a gun, and I reject the submission that, because he did not produce a pretend weapon but merely spoke of its existence, his crime should be viewed as significantly less serious. 23 The Crown drew attention to some of the applicant's answers in the electronically recorded interview, which indicate that he had in mind to commit, if not this particular robbery, a bank robbery, for perhaps two weeks prior to the actual offence. I think that those answers are equivocal and I would not be prepared to make a finding, nor should the sentencing judge have been prepared to make a finding, that the crime was premeditated. It was emphasised by the applicant in the course of his evidence in the District Court that he had done little by way of any attempt to disguise himself; but the reality is that he did what was necessary, as is clearly demonstrated by the security photographs taken in the bank; and immediately after the robbery he hasten to change his clothes thwart any attempt to identify himself. 24 In my view, the objective seriousness of the offence, is such that, notwithstanding all of the subjective circumstances, including in particular the psychiatric material, warrants a sentence of the length which was imposed by Judge Job, a full term of six years imprisonment. It does, however, appear to me that the state of the evidence now is such as to warrant a different apportionment of the sentence between the non parole period and the parole period. This court should intervene, not because of any error on the part of the sentencing judge (there was none) but because of the significance of the fresh evidence which was not before the sentencing judge. Judge Job found special circumstances to exist in the prisoner's need for assistance when he was released in his attempt to control his drug taking. It is now plain that that will be necessary, not only for the reasons which were apparent at the time of the District Court proceedings but because of the significance of future drug abuse in relation to control of his mental illness. I find further special circumstances in the psychiatric illness itself because of the circumstances adverted to above as to the way in which the conditions of his prison existence will be affected. In combination those circumstances appear to me to require a reduction in the non parole period and a corresponding extension of the time during which the prisoner might be at large on parole. 25 I propose the following orders:- (1) Leave to appeal granted (2) The appeal against sentence is allowed and the sentence imposed in the District Court quashed (3) In lieu thereof in respect of the robbery committed on 7 July 1999 and taking into account the break enter and steal offence on 24 May 1999 the applicant is sentenced to imprisonment for a term of six years which having commenced on 7 July1999 will expire on 6 July 2005. There should be a non parole period of two years and nine months which having commenced on 7 July 1999 will expire on 6 April 2002. That date is the earliest date upon which the applicant will be eligible for release on parole. - 15 - IN THE COURT OF CRIMINAL APPEAL CARRUTHERS AJ BADGERY- PARKER AJ DATE 11 MAY 2001 Regina v Scott Jarman (60039/00) JUDGMENT 1 CARRUTHERS AJ: I agree with Acting Justice Badgery-Parker and his Honour's reasons for judgment. 2 BADGERY-PARKER AJ: This is an application by Scott Allen Jarman for leave to appeal against a sentence imposed by his Honour Judge Job in the District Court at Gosford on 20 October 1999. In respect of the applicant's conviction, after an early plea of guilty, to a charge of robbery, and taking into account an offence of break, enter and steal in respect of which he admitted his guilt, the judge imposed a sentence of six years imprisonment comprising a minimum term of three and half years and an additional term of two and a half years. The sentence dated from 7 July 1999, since which date the applicant has been in continuous custody. 3 The applicant has an extensive criminal history which began with persistent stealing offences in his early teens, and includes a batch of some fourteen serious property offences for which, on 23 February 1988 at the age of eighteen, he was sentenced to six years imprisonment with a non parole period of two years and seven months; a robbery offence for which, on 15 December 1992 at the age of twenty three, he was sentenced to three and half years, comprising a minimum term of twelve months and a additional term of two and a half years; and a serious bank robbery for which, on the 16 September 1994 at the age of twenty-four, he was sentenced in the District Court to imprisonment for eight years, comprising a minimum term of six years and an additional term of two. On 31 July 1995 the Court of Criminal Appeal allowed his appeal against the severity of that sentence and substituted a sentence of six years comprising a minimum term of four and an additional term of two. From that sentence he was released on parole in about September 1998 and he was on parole at the time of each of the two offences now under consideration. 4 The break enter and steal was on 24 May 1999. He broke into a chemist shop and stole two bags of prescription medications. He was arrested within a quarter of an hour , charged, and grant police bail. He was thus on bail, as well as on parole , on 7 July 1999 when he entered a bank during business hours and waited in the queue; when he was called to the teller he demanded money, saying that he had a gun in his bag. He was given a sum of $1670. His photograph was taken by a security camera. 5 On 7 July 1999, he was interviewed by police, and when shown the bank photograph, he admitted his guilt. He fully cooperated with the police. When he appeared in the Local Court he entered a plea of guilty and he adhered to that plea in the District Court in due course. 6 Originally, the principal thrust of the appeal was that on the material before the sentencing judge the sentence imposed was manifestly excessive, out of line with the guideline judgment in R v Henry(1999) 46 NSWLR 346 delivered on 12 May 1999 and outside the range of sentences appropriate to such offeces as revealed by statistics supplied by the Judicial Commission. 7 Counsel for the applicant did suggest additionally a specific error on the part of the sentencing judge. After referring to the sentence imposed by the Court of Criminal appeal following the applicant's successful appeal against the earlier robbery sentences, his Honour said "I do not believe that I can go below the term fixed by the Court of Criminal Appeal as the total term". It was submitted that, in so saying, his Honour misdirected himself . However, I do not read the remark as anything other than the expression of a conclusion by the sentencing judge that, taking into account all of the circumstances which he had enumerated in the preceding pages of his remarks, it would not be appropriate to fix a sentence less than that which had been fixed by the court of appeal in 1995. 8 In the course of a careful an d thorough judgment, the sentencing judge identified all of the relevant features of the case including those which might lead a sentencing court to a heavier rather than a lighter sentence (the applicant's extraordinary criminal record for a man of his age, the fact that he committed and was being sentenced in respect of the criminality involved in two separate offences, the fact that each of those offences was committed whilst on parole and that one of them was whilst he was on bail) and also, as his counsel conceded, all of those matters which might tend towards a mitigation of the penalty, including in particular: his early plea of guilty; his cooperation with the investigating police; the fact that because of a recent episode in the prison he had been placed on strict protection, so that the period he must spend in jail would be more onerous than under ordinary prison discipline; the fact that his extensive criminal record quite clearly is very closely associated with his drug addiction, and the fact that, as appeared from reports tendered before the sentencing judge, he is now making a determined effort to overcome his addiction, thereby reducing the risk of his re-offending. Hence it was submitted that the proper conclusion is that, although His Honour adverted to all of the relevant mitigating circumstances, he failed to give them appropriate weight. 9 The guideline established by the decision in Henry was that a full term of imprisonment of four to five years would be appropriate for a young offender, with little or no criminal record, who committed a robbery where a weapon such as a knife was used. It is indeed the case, as counsel submitted, that usually a proper approach in sentencing for armed robbery will be to start with the guideline, and to look to see what aggravating or mitigating factors warrant taking the sentence above or below that starting point. But that does not appear to me to be a universally correct approach, nor is it appropriate to strain the guideline too far so as to include cases which are really of a different category. In this case the applicant cannot be described as a young offender. He has a very significant criminal record. The judge in sentencing for the robbery offence was obliged to take into account his admission of guilt in respect of a quite serious offence of break enter and steal. In those circumstances, little assistance can be derived from a consideration of the guideline judgment 10 The submission founded on the Judicial Commission's statistics seems to be of more substance. The statistics show that in respect of all offenders sentenced for offences of robbery ( including offenders who did not enter guilty pleas and offenders who were sentenced for more than one count) only eight percent of all sentences included a full term of six years or more and only nine percent a minimum term of three and half years or more. In relation to offenders sentenced in respect of one count of robbery only, who entered a plea of guilty and who had prior convictions of the same kind, only thirteen percent of offenders received terms of imprisonment between five and a half and five years and only thirteen percent of prisoners received minimum terms of between three and three and a half years. However, those statistics would seem not to include matters where the sentencing court was obliged to take into account another offence in respect of which the offender admitted guilt. It cannot simply be said, therefore, that the sentence is, by reference to the statistics, demonstrated to be outside the range. 11 It is not to be overlooked that at the time when he came to be sentenced the applicant was serving the balance of parole in respect of a previous sentece forrobbery. On his arrest on 7 July 2000, his parole was revoked and he was returned to prison to serve a term which, but for the imposition of the present sentences, would have led to his release in or about September of that year. The judge dated the sentence now in consideration back to the 7 July 2000 so that to the extent of about two and a half months it was to be served concurrently with the balance of parole. That is a circumstance which was of course justified by the principle of totality; but it is also a circumstance which reduces the value of the statistics to which counsel referred. 12 Whether one starts from the guideline judgment in Henry or from the statistics compiled by the Judicial Commission, the question remains the same: whether, allowing the broad range of the judicial discretion in sentencing, the sentence is above the permissible range: not because of its relationship to the Henry guideline or its position in the scale identified by the Judicial Commission statistics, but because our consideration of the individual circumstances persuades us that if proper weight were given to those, a lower sentence would necessarily result. If one starts from the guideline judgment, the question is to what extent the individual circumstances would warrant a sentence below the guideline sentence . If one starts from the Judicial Commission statistics, the question is what effect do those individual circumstances have in moving the case towards the lower end of the statistical range. 13 On the basis only of the material that was before the District Court judge, I doubt whether this court would have held the sentence to be appealable. 14 However, at the hearing of the appeal the applicant, with the consent of the Crown, was granted leave to adduce fresh evidence relating to the applicant's psychiatric condition. That evidence consisted of relevant documents from the Department of Corrections and from the Mental Health Review Tribunal and a report dated 12 April 2001 from a psychiatrist Dr Rosalie Wilcox. Those documents show that on 28 October 1999 a prison psychiatrist diagnosed the applicant as "probably acutely psychotic". He was then in custody at Junee but was transferred to the psychiatric ward at Long Bay Hospital. On 27 June 2000, the Chief Health Officer certified that the applicant was a mentally ill person within the meaning of the Mental Health Act 1990 and he ordered, pursuant to S 97 (1) of that Act, that he be transferred to a hospital. He was admitted on 19 August 2000 to "A" Ward of Long Bay Hospital as a forensic patient subject to the jurisdiction of the Mental Health Review Tribunal. 15 Dr Wilcox confirmed the diagnosis of Chronic Paranoid Schizophrenia. She found that the applicant had persisting residual symptoms but was responding well to anti psychotic medication. She expressed the opinion that it was 'highly probable that Mr Jarman was in the early stages of a psychotic illness when he committed the robbery". She said, however, that "although he had been experiencing persecutory ideation his offending behaviour was not directly attributable to his mental condition". She expressed this opinion- " I believe that his abuse of the prescribed sedative serepax played a significant role in his offending behaviour. Serepax has a disinhibiting effect and would have affected his judgment and ability to think in a rational manner. It is however also possible that due to the presence of his paranoia he may have self-medicated with the serepax and therefore, although his offending behaviour was not directly related to his mental illness it may have indirectly contributed to his actions". 16 As to prognosis, her opinion was that he is likely to be on medication indefinitely; that while he is on the anti psychotic clozatine he will need to have close supervision; and that his prognosis will depend not only his response to that medication but also on whether he is able to abstain from the further abuse of drugs, in particular amphetamine and marijuana. 17 It seems to be clear on the whole of the evidence that at the time of the bank robbery, and probably also at the time of the chemist shop offence, the applicant was in the early stages of his psychotic illness. The evidence does not support a conclusion that either or both of the offences resulted directly from his mental condition. In evidence in the course of the sentencing proceedings, the applicant asserted that at the time of the bank robbery he was under the influence of prescription medication, and his Honour did not indicate that he rejected that evidence. It seems to be the probability, but that of course does not mitigate the criminality of his conduct. As to whether his abuse of serepax was itself a consequence of his psychiatric disorder appears to be no more than a matter of speculation. It cannot be said that the applicant has established that as a matter of probability. 18 The fact of his psychiatric disorder remains a matter of significance in the sentencing process, notwithstanding that it is not shown that the mental disorder itself caused the commission of the offence: Regina v Engert (1995) 84 ACrimR 67. It may not, in those circumstances, reduce the moral culpability of the offence, but it does warrant consideration of the extent to which general deterrence and specific deterrence should be taken into account. In Regina v Letteri (NSWCCA) (unreported, 18 March 1992),in a judgment in which Gleeson CJ and Sheller JA agreed, I said: " the principle then is clear enough it is correctly stated as follows: that where as general deterrence is a relevant consideration in every sentencing exercise it is a consideration to suffering from a mental disorder or severe intellectual handicap. In an extreme case, the proper application of this principle may produce the result that considerations of general deterrence are totally outweighed by other factors. In every case it is a matter of balancing the relevant factors in a manner no different from that which is involved in every sentencing exercise" . In Engert ( supra, at p71) Gleeson CJ cited that passage and said, "I emphasise the concluding sentence in that passage". 19 The existence of a mental disorder may also be relevant to the sentencing process because it may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served and because a given sentence will weigh more heavily on the prisoner than it would on a person in normal health (Regina v Tsiaras (1996) VR 398 at 400 and Engert, supra at P 70). It is in my view appropriate to take this applicant's mental condition into account in both of those respects. Because of his psychotic illness, he is a forensic patient and subject to the control of the Mental Health Tribunal. Unless that body otherwise orders, he will for the duration of his illness ( whether or not that period ends before, coincides with or extends beyond the non parole period) be confined in the prison hospital and as I would understand it would thereby be deprived of access to the ordinary activities which would be available to him under ordinary prison discipline. It is not possible to say for how long his illness will produce that effect. Dr Wilcox's evidence holds out some hope that his condition will respond to medication, at least so long as he is able to abstain from the further abuse of drugs. She seems to contemplate that he will progress to a stage where, subject to the exigency of his prison sentence, he will be able to return to the community under close supervision. However, as is recorded in the sentencing judgement, the applicant while in prison received a "hot shot" of heroin from other inmates which he perceived, rightly or wrongly to have been an attempt on his life. For that reason he sought to be admitted to strict protective custody and that request was granted. With the benefit of hindsight and the knowledge that he suffers from a paranoid psychiatric disorder, it may be thought that that incident was not real or, if it was real, was not in fact a deliberate attack upon him, but was accidental; but the prison authorities might nevertheless be reluctant to accede to any request that he be taken out of protective custody and returned to the mainstream in the prison, for fear of liability in the event he comes to a harm. It is realistic therefore to assume that, not merely because of his psychiatric disorder but for these other reasons, he may be required to serve his sentence ( if released from hospital) in protection. Either way, therefore, it is reasonable to conclude that his incarceration will bear upon him more heavily than upon the ordinary run of prisoners. Furthermore, the existence of his psychiatric illness will, one would think, mean that incarceration, even under ordinary conditions of prison discipline, will bear more heavily upon him than upon others. 20 All of those are matters to be considered in relation to both the duration of his sentence and in relation to the apportionment of the sentence as between the non parole period and the ensuing parole period. Nevertheless, it is necessary first to have regard to the objective seriousness of the offences. Both offences are serious and must be dealt with a measure of severity. 21 It is necessary also to attach considerable significance to the circumstance that at the time of both offences the applicant was on parole; and to the circumstance that at the time of the second offence, he was on bail granted to him following the chemist shop offence. 22 In relation to the bank robbery he contrived (as indeed he had done at the time of the earlier bank robbery he refereed to above) to cause the teller to believe that he was armed. She had no way of knowing that he was not telling the truth when he said that he had a gun, and I reject the submission that, because he did not produce a pretend weapon but merely spoke of its existence, his crime should be viewed as significantly less serious. 23 The Crown drew attention to some of the applicant's answers in the electronically recorded interview, which indicate that he had in mind to commit, if not this particular robbery, a bank robbery, for perhaps two weeks prior to the actual offence. I think that those answers are equivocal and I would not be prepared to make a finding, nor should the sentencing judge have been prepared to make a finding, that the crime was premeditated. It was emphasised by the applicant in the course of his evidence in the District Court that he had done little by way of any attempt to disguise himself; but the reality is that he did what was necessary, as is clearly demonstrated by the security photographs taken in the bank; and immediately after the robbery he hasten to change his clothes thwart any attempt to identify himself. 24 In my view, the objective seriousness of the offence, is such that, notwithstanding all of the subjective circumstances, including in particular the psychiatric material, warrants a sentence of the length which was imposed by Judge Job, a full term of six years imprisonment. It does, however, appear to me that the state of the evidence now is such as to warrant a different apportionment of the sentence between the non parole period and the parole period. This court should intervene, not because of any error on the part of the sentencing judge (there was none) but because of the significance of the fresh evidence which was not before the sentencing judge. Judge Job found special circumstances to exist in the prisoner's need for assistance when he was released in his attempt to control his drug taking. It is now plain that that will be necessary, not only for the reasons which were apparent at the time of the District Court proceedings but because of the significance of future drug abuse in relation to control of his mental illness. I find further special circumstances in the psychiatric illness itself because of the circumstances adverted to above as to the way in which the conditions of his prison existence will be affected. In combination those circumstances appear to me to require a reduction in the non parole period and a corresponding extension of the time during which the prisoner might be at large on parole. 25 I propose the following orders:- (1) Leave to appeal granted (2) The appeal against sentence is allowed and the sentence imposed in the District Court quashed (3) In lieu thereof in respect of the robbery committed on 7 July 1999 and taking into account the break enter and steal offence on 24 May 1999 the applicant is sentenced to imprisonment for a term of six years which having commenced on 7 July1999 will expire on 6 July 2005. There should be a non parole period of two years and nine months which having commenced on 7 July 1999 will expire on 6 April 2002. That date is the earliest date upon which the applicant will be eligible for release on parole. ********** (2) The appeal against sentence is allowed and the sentence imposed in the District Court quashed (3) In lieu thereof in respect of the robbery committed on 7 July 1999 and taking into account the break enter and steal offence on 24 May 1999 the applicant is sentenced to imprisonment for a term of six years which having commenced on 7 July1999 will expire on 6 July 2005. There should be a non parole period of two years and nine months which having commenced on 7 July 1999 will expire on 6 April 2002. That date is the earliest date upon which the applicant will be eligible for release on parole. ********** - 15 - IN THE COURT OF CRIMINAL APPEAL CARRUTHERS AJ BADGERY- PARKER AJ DATE 11 MAY 2001 Regina v Scott Jarman (60039/00) JUDGMENT 1 CARRUTHERS AJ: I agree with Acting Justice Badgery-Parker and his Honour's reasons for judgment. 2 BADGERY-PARKER AJ: This is an application by Scott Allen Jarman for leave to appeal against a sentence imposed by his Honour Judge Job in the District Court at Gosford on 20 October 1999. In respect of the applicant's conviction, after an early plea of guilty, to a charge of robbery, and taking into account an offence of break, enter and steal in respect of which he admitted his guilt, the judge imposed a sentence of six years imprisonment comprising a minimum term of three and half years and an additional term of two and a half years. The sentence dated from 7 July 1999, since which date the applicant has been in continuous custody. 3 The applicant has an extensive criminal history which began with persistent stealing offences in his early teens, and includes a batch of some fourteen serious property offences for which, on 23 February 1988 at the age of eighteen, he was sentenced to six years imprisonment with a non parole period of two years and seven months; a robbery offence for which, on 15 December 1992 at the age of twenty three, he was sentenced to three and half years, comprising a minimum term of twelve months and a additional term of two and a half years; and a serious bank robbery for which, on the 16 September 1994 at the age of twenty-four, he was sentenced in the District Court to imprisonment for eight years, comprising a minimum term of six years and an additional term of two. On 31 July 1995 the Court of Criminal Appeal allowed his appeal against the severity of that sentence and substituted a sentence of six years comprising a minimum term of four and an additional term of two. From that sentence he was released on parole in about September 1998 and he was on parole at the time of each of the two offences now under consideration. 4 The break enter and steal was on 24 May 1999. He broke into a chemist shop and stole two bags of prescription medications. He was arrested within a quarter of an hour , charged, and grant police bail. He was thus on bail, as well as on parole , on 7 July 1999 when he entered a bank during business hours and waited in the queue; when he was called to the teller he demanded money, saying that he had a gun in his bag. He was given a sum of $1670. His photograph was taken by a security camera. 5 On 7 July 1999, he was interviewed by police, and when shown the bank photograph, he admitted his guilt. He fully cooperated with the police. When he appeared in the Local Court he entered a plea of guilty and he adhered to that plea in the District Court in due course. 6 Originally, the principal thrust of the appeal was that on the material before the sentencing judge the sentence imposed was manifestly excessive, out of line with the guideline judgment in R v Henry(1999) 46 NSWLR 346 delivered on 12 May 1999 and outside the range of sentences appropriate to such offeces as revealed by statistics supplied by the Judicial Commission. 7 Counsel for the applicant did suggest additionally a specific error on the part of the sentencing judge. After referring to the sentence imposed by the Court of Criminal appeal following the applicant's successful appeal against the earlier robbery sentences, his Honour said "I do not believe that I can go below the term fixed by the Court of Criminal Appeal as the total term". It was submitted that, in so saying, his Honour misdirected himself . However, I do not read the remark as anything other than the expression of a conclusion by the sentencing judge that, taking into account all of the circumstances which he had enumerated in the preceding pages of his remarks, it would not be appropriate to fix a sentence less than that which had been fixed by the court of appeal in 1995. 8 In the course of a careful an d thorough judgment, the sentencing judge identified all of the relevant features of the case including those which might lead a sentencing court to a heavier rather than a lighter sentence (the applicant's extraordinary criminal record for a man of his age, the fact that he committed and was being sentenced in respect of the criminality involved in two separate offences, the fact that each of those offences was committed whilst on parole and that one of them was whilst he was on bail) and also, as his counsel conceded, all of those matters which might tend towards a mitigation of the penalty, including in particular: his early plea of guilty; his cooperation with the investigating police; the fact that because of a recent episode in the prison he had been placed on strict protection, so that the period he must spend in jail would be more onerous than under ordinary prison discipline; the fact that his extensive criminal record quite clearly is very closely associated with his drug addiction, and the fact that, as appeared from reports tendered before the sentencing judge, he is now making a determined effort to overcome his addiction, thereby reducing the risk of his re-offending. Hence it was submitted that the proper conclusion is that, although His Honour adverted to all of the relevant mitigating circumstances, he failed to give them appropriate weight. 9 The guideline established by the decision in Henry was that a full term of imprisonment of four to five years would be appropriate for a young offender, with little or no criminal record, who committed a robbery where a weapon such as a knife was used. It is indeed the case, as counsel submitted, that usually a proper approach in sentencing for armed robbery will be to start with the guideline, and to look to see what aggravating or mitigating factors warrant taking the sentence above or below that starting point. But that does not appear to me to be a universally correct approach, nor is it appropriate to strain the guideline too far so as to include cases which are really of a different category. In this case the applicant cannot be described as a young offender. He has a very significant criminal record. The judge in sentencing for the robbery offence was obliged to take into account his admission of guilt in respect of a quite serious offence of break enter and steal. In those circumstances, little assistance can be derived from a consideration of the guideline judgment 10 The submission founded on the Judicial Commission's statistics seems to be of more substance. The statistics show that in respect of all offenders sentenced for offences of robbery ( including offenders who did not enter guilty pleas and offenders who were sentenced for more than one count) only eight percent of all sentences included a full term of six years or more and only nine percent a minimum term of three and half years or more. In relation to offenders sentenced in respect of one count of robbery only, who entered a plea of guilty and who had prior convictions of the same kind, only thirteen percent of offenders received terms of imprisonment between five and a half and five years and only thirteen percent of prisoners received minimum terms of between three and three and a half years. However, those statistics would seem not to include matters where the sentencing court was obliged to take into account another offence in respect of which the offender admitted guilt. It cannot simply be said, therefore, that the sentence is, by reference to the statistics, demonstrated to be outside the range. 11 It is not to be overlooked that at the time when he came to be sentenced the applicant was serving the balance of parole in respect of a previous sentece forrobbery. On his arrest on 7 July 2000, his parole was revoked and he was returned to prison to serve a term which, but for the imposition of the present sentences, would have led to his release in or about September of that year. The judge dated the sentence now in consideration back to the 7 July 2000 so that to the extent of about two and a half months it was to be served concurrently with the balance of parole. That is a circumstance which was of course justified by the principle of totality; but it is also a circumstance which reduces the value of the statistics to which counsel referred. 12 Whether one starts from the guideline judgment in Henry or from the statistics compiled by the Judicial Commission, the question remains the same: whether, allowing the broad range of the judicial discretion in sentencing, the sentence is above the permissible range: not because of its relationship to the Henry guideline or its position in the scale identified by the Judicial Commission statistics, but because our consideration of the individual circumstances persuades us that if proper weight were given to those, a lower sentence would necessarily result. If one starts from the guideline judgment, the question is to what extent the individual circumstances would warrant a sentence below the guideline sentence . If one starts from the Judicial Commission statistics, the question is what effect do those individual circumstances have in moving the case towards the lower end of the statistical range. 13 On the basis only of the material that was before the District Court judge, I doubt whether this court would have held the sentence to be appealable. 14 However, at the hearing of the appeal the applicant, with the consent of the Crown, was granted leave to adduce fresh evidence relating to the applicant's psychiatric condition. That evidence consisted of relevant documents from the Department of Corrections and from the Mental Health Review Tribunal and a report dated 12 April 2001 from a psychiatrist Dr Rosalie Wilcox. Those documents show that on 28 October 1999 a prison psychiatrist diagnosed the applicant as "probably acutely psychotic". He was then in custody at Junee but was transferred to the psychiatric ward at Long Bay Hospital. On 27 June 2000, the Chief Health Officer certified that the applicant was a mentally ill person within the meaning of the Mental Health Act 1990 and he ordered, pursuant to S 97 (1) of that Act, that he be transferred to a hospital. He was admitted on 19 August 2000 to "A" Ward of Long Bay Hospital as a forensic patient subject to the jurisdiction of the Mental Health Review Tribunal. 15 Dr Wilcox confirmed the diagnosis of Chronic Paranoid Schizophrenia. She found that the applicant had persisting residual symptoms but was responding well to anti psychotic medication. She expressed the opinion that it was 'highly probable that Mr Jarman was in the early stages of a psychotic illness when he committed the robbery". She said, however, that "although he had been experiencing persecutory ideation his offending behaviour was not directly attributable to his mental condition". She expressed this opinion- " I believe that his abuse of the prescribed sedative serepax played a significant role in his offending behaviour. Serepax has a disinhibiting effect and would have affected his judgment and ability to think in a rational manner. It is however also possible that due to the presence of his paranoia he may have self-medicated with the serepax and therefore, although his offending behaviour was not directly related to his mental illness it may have indirectly contributed to his actions". 16 As to prognosis, her opinion was that he is likely to be on medication indefinitely; that while he is on the anti psychotic clozatine he will need to have close supervision; and that his prognosis will depend not only his response to that medication but also on whether he is able to abstain from the further abuse of drugs, in particular amphetamine and marijuana. 17 It seems to be clear on the whole of the evidence that at the time of the bank robbery, and probably also at the time of the chemist shop offence, the applicant was in the early stages of his psychotic illness. The evidence does not support a conclusion that either or both of the offences resulted directly from his mental condition. In evidence in the course of the sentencing proceedings, the applicant asserted that at the time of the bank robbery he was under the influence of prescription medication, and his Honour did not indicate that he rejected that evidence. It seems to be the probability, but that of course does not mitigate the criminality of his conduct. As to whether his abuse of serepax was itself a consequence of his psychiatric disorder appears to be no more than a matter of speculation. It cannot be said that the applicant has established that as a matter of probability. 18 The fact of his psychiatric disorder remains a matter of significance in the sentencing process, notwithstanding that it is not shown that the mental disorder itself caused the commission of the offence: Regina v Engert (1995) 84 ACrimR 67. It may not, in those circumstances, reduce the moral culpability of the offence, but it does warrant consideration of the extent to which general deterrence and specific deterrence should be taken into account. In Regina v Letteri (NSWCCA) (unreported, 18 March 1992),in a judgment in which Gleeson CJ and Sheller JA agreed, I said: " the principle then is clear enough it is correctly stated as follows: that where as general deterrence is a relevant consideration in every sentencing exercise it is a consideration to suffering from a mental disorder or severe intellectual handicap. In an extreme case, the proper application of this principle may produce the result that considerations of general deterrence are totally outweighed by other factors. In every case it is a matter of balancing the relevant factors in a manner no different from that which is involved in every sentencing exercise" . In Engert ( supra, at p71) Gleeson CJ cited that passage and said, "I emphasise the concluding sentence in that passage". 19 The existence of a mental disorder may also be relevant to the sentencing process because it may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served and because a given sentence will weigh more heavily on the prisoner than it would on a person in normal health (Regina v Tsiaras (1996) VR 398 at 400 and Engert, supra at P 70). It is in my view appropriate to take this applicant's mental condition into account in both of those respects. Because of his psychotic illness, he is a forensic patient and subject to the control of the Mental Health Tribunal. Unless that body otherwise orders, he will for the duration of his illness ( whether or not that period ends before, coincides with or extends beyond the non parole period) be confined in the prison hospital and as I would understand it would thereby be deprived of access to the ordinary activities which would be available to him under ordinary prison discipline. It is not possible to say for how long his illness will produce that effect. Dr Wilcox's evidence holds out some hope that his condition will respond to medication, at least so long as he is able to abstain from the further abuse of drugs. She seems to contemplate that he will progress to a stage where, subject to the exigency of his prison sentence, he will be able to return to the community under close supervision. However, as is recorded in the sentencing judgement, the applicant while in prison received a "hot shot" of heroin from other inmates which he perceived, rightly or wrongly to have been an attempt on his life. For that reason he sought to be admitted to strict protective custody and that request was granted. With the benefit of hindsight and the knowledge that he suffers from a paranoid psychiatric disorder, it may be thought that that incident was not real or, if it was real, was not in fact a deliberate attack upon him, but was accidental; but the prison authorities might nevertheless be reluctant to accede to any request that he be taken out of protective custody and returned to the mainstream in the prison, for fear of liability in the event he comes to a harm. It is realistic therefore to assume that, not merely because of his psychiatric disorder but for these other reasons, he may be required to serve his sentence ( if released from hospital) in protection. Either way, therefore, it is reasonable to conclude that his incarceration will bear upon him more heavily than upon the ordinary run of prisoners. Furthermore, the existence of his psychiatric illness will, one would think, mean that incarceration, even under ordinary conditions of prison discipline, will bear more heavily upon him than upon others. 20 All of those are matters to be considered in relation to both the duration of his sentence and in relation to the apportionment of the sentence as between the non parole period and the ensuing parole period. Nevertheless, it is necessary first to have regard to the objective seriousness of the offences. Both offences are serious and must be dealt with a measure of severity. 21 It is necessary also to attach considerable significance to the circumstance that at the time of both offences the applicant was on parole; and to the circumstance that at the time of the second offence, he was on bail granted to him following the chemist shop offence. 22 In relation to the bank robbery he contrived (as indeed he had done at the time of the earlier bank robbery he refereed to above) to cause the teller to believe that he was armed. She had no way of knowing that he was not telling the truth when he said that he had a gun, and I reject the submission that, because he did not produce a pretend weapon but merely spoke of its existence, his crime should be viewed as significantly less serious. 23 The Crown drew attention to some of the applicant's answers in the electronically recorded interview, which indicate that he had in mind to commit, if not this particular robbery, a bank robbery, for perhaps two weeks prior to the actual offence. I think that those answers are equivocal and I would not be prepared to make a finding, nor should the sentencing judge have been prepared to make a finding, that the crime was premeditated. It was emphasised by the applicant in the course of his evidence in the District Court that he had done little by way of any attempt to disguise himself; but the reality is that he did what was necessary, as is clearly demonstrated by the security photographs taken in the bank; and immediately after the robbery he hasten to change his clothes thwart any attempt to identify himself. 24 In my view, the objective seriousness of the offence, is such that, notwithstanding all of the subjective circumstances, including in particular the psychiatric material, warrants a sentence of the length which was imposed by Judge Job, a full term of six years imprisonment. It does, however, appear to me that the state of the evidence now is such as to warrant a different apportionment of the sentence between the non parole period and the parole period. This court should intervene, not because of any error on the part of the sentencing judge (there was none) but because of the significance of the fresh evidence which was not before the sentencing judge. Judge Job found special circumstances to exist in the prisoner's need for assistance when he was released in his attempt to control his drug taking. It is now plain that that will be necessary, not only for the reasons which were apparent at the time of the District Court proceedings but because of the significance of future drug abuse in relation to control of his mental illness. I find further special circumstances in the psychiatric illness itself because of the circumstances adverted to above as to the way in which the conditions of his prison existence will be affected. In combination those circumstances appear to me to require a reduction in the non parole period and a corresponding extension of the time during which the prisoner might be at large on parole. 25 I propose the following orders:- (1) Leave to appeal granted (2) The appeal against sentence is allowed and the sentence imposed in the District Court quashed (3) In lieu thereof in respect of the robbery committed on 7 July 1999 and taking into account the break enter and steal offence on 24 May 1999 the applicant is sentenced to imprisonment for a term of six years which having commenced on 7 July1999 will expire on 6 July 2005. There should be a non parole period of two years and nine months which having commenced on 7 July 1999 will expire on 6 April 2002. That date is the earliest date upon which the applicant will be eligible for release on parole. ********** 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.