New South Wales Court of Criminal Appeal CITATION : Regina v Clarke [2003] NSWCCA 184 HEARING DATE(S) : Tuesday 1 July 2003 JUDGMENT DATE : 1 July 2003 JUDGMENT OF : Grove J at 1; Shaw J at 25 DECISION : LEAVE TO APPEAL REFUSED. CATCHWORDS : CRIMINAL LAW AND PROCEDURE - SENTENCE - NEW EVIDENCE - PSYCHIATRIC AND PSYCHOLOGICAL REPORTS OBTAINED AFTER SENTENCE - DIFFERENT PSYCHOLOGICAL REPORT TENDERED AT HEARING - NEW MATERIAL NOT PROVOKING INTERVENTION AND LESSER SENTENCE R v Chambers 1992 64 A Crim R 224 CASES CITED : R v Goodwin 1990 51 A Crim R 328 R v Letteri, unreported CCA 18 March 1992 R v Scognamiglio 1991 56 A Crim R 81 PARTIES : Regina v Anthony Paul Clarke FILE NUMBER(S) : CCA 60117/03 COUNSEL : D. Howard (Crown) G. Bashir (Applicant) SOLICITORS : S.E. O'Connor (Crown) D.J. Humphreys (Applicant) LOWER COURT District Court JURISDICTION : LOWER COURT 02/41/0024 FILE NUMBER(S) : LOWER COURT Bell DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60117/03 GROVE J SHAW J Tuesday 1 July 2003 REGINA v ANTHONY PAUL CLARKE Judgment 1 GROVE J: The applicant seeks leave to appeal against severity of sentence imposed by his Honour Judge Bell in the Wollongong District Court on 2 August 2002. The applicant had pleaded guilty to two counts of breaking entering and stealing and on a Form 1 had asked that there be taken into account on sentence nine further offences, two of which were also for breaking, entering and stealing, four of making a false instrument and three of using a false instrument. 2 On the first count in which the Form 1 matters were taken into account, the applicant was sentenced to three years imprisonment with a non-parole period of two years. On the second count he was sentenced to two years imprisonment with a non-parole period of sixteen months. Although the latter sentence was partly cumulative upon elements of the first sentence, it was wholly subsumed within the period of the imposition on the first count. The imposition allowed for pre sentence custody and the applicant is due for parole on 1 February next year. 3 The facts in relation to the first count involved breaking into factory premises in the early hours of the morning of 21 November 2000 and the stealing of items including a set of golf clubs, a disc sander and a battery power pack. Later it was discovered that some cheque forms had been taken from a cheque book. The applicant had used the cheque forms and deposited the purported instruments into the account of his mother. They were dishonoured by the bank. The applicant's mother had, on occasions, taken goods to pawnshops on behalf of her son. She told police that she had, on one particular occasion, done so in relation to golf clubs. 4 At New Year January 2001 the applicant broke into private premises belonging to a student from which he stole a number of items including a computer, television, video cassette recorder, camera, disks and jewellery. The computer was sold to a pawnbroking business by the applicant's mother on his behalf. 5 The applicant has a significant prior record and has served terms of imprisonment on a number of occasions. 6 The sole ground advanced on his behalf is that lesser sentences than those passed would, in circumstances now known, be warranted in law. 7 In support of this ground the applicant seeks to tender fresh evidence in the form of reports from Dr Jonathan Carne, a psychiatrist who saw the applicant in Parramatta Gaol on 7 February 2003 and Professor Susan Hayes, a psychologist who saw the applicant at Parramatta Correctional Centre on 28 May 2003. As I have mentioned, sentence was imposed on 2 August 2002. 8 The asserted significance of this material needs to be gauged in the context of what had been put before the sentencing judge. 9 His Honour had a report from Katherine Barrier, a psychologist who had interviewed and tested the applicant on 30 July 2002. Testing to assess global intellectual capacity was undertaken in accordance with the Ravens Standard Progressive Matrices. Ms Barrier reported that the results on this assessment indicated that the applicant's non-verbal cognitive functioning was within the low average range and in the lowest twelve percent of population. His Honour made express reference to this report and its content in his remarks on sentence. 10 His Honour also accepted a number of submissions which had been made to him concerning the applicant's subjective situation. These included an acceptance that the applicant had been subjected to sexual assault when a child and came from a background of social disadvantage characterized by alcohol. 11 As the statement of the ground now relied upon implies it is not sought to attribute error to his Honour's dealing with the matter on the evidence before him. 12 Dr Carne (who saw the applicant before Professor Hayes administered any tests) reported: "From my assessment and my interview with his mother, in my opinion Mr Clarke's intellectual disabilities may be significantly more severe than revealed by the psychological testing performed by Ms Barrier on 31 July 2002. I would estimate Mr Clarke as having a developmental disability (intellectual disability/mental retardation) at the mild level of mental retardation and with an IQ in the region of 70 (normal 80-120) that significantly disables him, particularly in the area of judgment and social skills." 13 It is worth noting that on the history given to him Dr Carne also observed that at the time of the offences the applicant had an opiate and sedative dependency. 14 Professor Hayes reported: "The result of psychometric testing indicates that Mr Clarke functions between the categories of mild intellectual disability and borderline intellectual disability, on a level lower than ninety-eight percent of the population. " 15 Professor Hayes noted the difference between her result and that reported by Ms Barrier. She had applied the Kaufman Brief Intelligence Test and stated that this is a more recent and comprehensive test than the Ravens Standard Progressive Matrices and asserted that the norms are considerably better which may account for the difference. 16 I am obviously not in a position to evaluate this statement but for present purposes I assume that it is correct. 17 The thrust of the submissions on behalf of the applicant is that he was suffering from a developmental disability/mental retardation at the time of all offences and that therefore a miscarriage of justice has occurred and this Court should proceed to resentence. Miscarriage, in real terms, must mean that the applicant has received a longer sentence than ought to have been imposed. 18 A recognized relevance of mental disability is that in the cases of particular persons so handicapped may not be suitable vehicles for the conveyance of general deterrence. There is ample authority to this effect: R v Scognamiglio 1991 56 A Crim 81, R v Letteri, unreported CCA 18 March 1992 and others. 19 Be that as it may, I consider that the Crown submission that the material now sought to be relied upon is such as to place the applicant at a lower point in the continuum of intellectual disability, but not significantly lower than assessed by Ms Barrier and, further, that the material does not propose any previously undisclosed link between the condition of the applicant and the commission of the offences, is correct. 20 Given the applicant's criminal history which I note includes full time imprisonment for failing to report for periodic detention as long ago as 1983, full time sentences for breach of recognizance in 1992 and for maliciously setting fire to a building and a fixed term for stealing from a person in 1993, I am unable to assess the sentences imposed in the District Court as other than lenient. His Honour made no specific reference in his remarks to any conclusion that he had reached that the sentence should be such as to manifest general as distinct from personal deterrence and, as I have observed, its overall lenience strongly indicates that such an element did not play a part in inflating the period of imprisonment. 21 From the material from Ms Barrier and also the Probation and Parole report his Honour was sensitive to a need, at least based in general terms, for medical and psychiatric assessment and rehabilitation upon release and to the advantage of the applicant he altered the proportion of the non-parole period as against head sentence. 22 I accept that new evidence may be admitted where it has real significance to the sentencing proceedings, particularly where the significance of the evidence was unknown to the applicant and/or had not been made known to his legal representatives at the time of sentencing: R v Goodwin 1990 51 A Crim R 328. In this case I am unable to see that what is now proposed as new evidence has a significant effect upon the sentence actually imposed. 23 As is plain, for present purposes I have looked at the material and it is of no practical consequence whether the evidence is rejected or admitted, having regard to my conclusion that it would not lead to intervention by this Court to impose a lesser sentence upon the applicant. 24 I would reject the new evidence and refuse leave to appeal. 25 SHAW J: I appreciate that counsel for the applicant puts to this court the judgment of the Court of Criminal Appeal in Chambers (1992) 64 A Crim R 224 because that case did involve an allegation of intellectual handicap and that factor was regarded as relevant to the sentencing process. However, it seems to me Kirby J's judgment in that case (which was concurred with by Sully J and Lee AJ) turns on what was said to be a procedural injustice in which the accused person sought an adjournment to get some medical opinion, which was disallowed by the trial judge and this was said to have been a defect and hence led to the re-sentencing by the Court of Criminal Appeal. 26 That seems to me distinguishable from the present case where this Court has actually considered, in the judgment of Grove J, the additional material and has formed a view that it would not make a practical difference to the result in the case. 27 Accordingly, I agree with the judgment of Grove J and the orders that his Honour has proposed. 28 GROVE J: The orders of the Court therefore will be as I have proposed. ********** Last Modified: 07/11/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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