New South Wales Court of Criminal Appeal CITATION : REGINA v GRUBER [2002] NSWCCA 120 FILE NUMBER(S) : CCA 60329/01 HEARING DATE(S) : 20 March 2002 JUDGMENT DATE : 20 March 2002 Regina PARTIES : v Robert Raymond Gruber JUDGMENT OF : Adams J at 1; Smart AJ at 18 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/31/0086 LOWER COURT JUDICIAL Maguire DCJ OFFICER : COUNSEL : H Dhanji (Applicant) G E Smith (Crown) SOLICITORS : D J Humphreys (Applicant) S E O'Connor (Crown) LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 CASES CITED: R v Simpson [2001] NSWCCA 534 DECISION : Leave to appeal granted, appeal allowed, sentence quashed so far as the non-parole period is concerned and a non-parole period commencing on 2 January 2001 and ending on 1 April 2002 is substituted. IN THE COURT OF CRIMINAL APPEAL 60329/01 ADAMS J SMART AJ WEDNESDAY 20 MARCH 2002 Regina v Robert Raymond GRUBER Judgment 1 ADAMS J: On 28 May 2001, the applicant pleaded guilty in the District Court at Taree to two counts of assaulting a police officer in the execution of his duties. The offences were committed on 2 January 2001 at Wingham immediately prior to his arrest. He has been in custody since that date. 2 The applicant was sentenced to a term of one year and ten months' imprisonment with a non-parole period of one year and five months in relation to the second count and a fixed term of twelve months in relation to the first count. The sentences commenced on 2 January 2001. The charges were brought under s 60(1) of the Crimes Act 1900, which provides a maximum penalty of five years' imprisonment. 3 The applicant and his de facto wife Ms Spackman were visiting the latter's parents at their house in Wingham for the Christmas holiday period. They were accompanied by their two young children. The applicant had a broken left ankle set in a cast from the knee to the toes. He has had a drinking problem for some time and, as appears to have been frequently the case, became argumentative and aggressive. He also gave evidence of becoming irrationally suspicious. The applicant and his wife argued over two days, in the course of which the applicant became increasingly abusive, threatening to kill his family and other family members, who eventually locked themselves inside the house and rang the police. The applicant was outside at this time shouting threats. The applicant then went to a nearby flat where Ms Spackman's sister, Tracey, lived. Tracey, who had been called by her sister to the premises, went to her flat followed by her father who had armed himself with a jemmy. They found the applicant sitting inside watching television with an assortment of six or seven knives in the waistband of his trousers. An altercation occurred and the applicant stood up and pulled out a knife. Tracey knocked the knife out of his hand and ran back to the house. Whilst the family waited inside the applicant came up to the house, yelling and swearing and threatening to kill them. Then he left the vicinity and as he did so fell down a small embankment. Tracey followed him and was talking with him, although it seems that he had continued his threats. The police then arrived and the threats expanded to include them. He stood up and waived a kitchen knife with a blade about ten centimetres long at the police. The police had come with a trained dog but this did not prevent the applicant lunging towards one of them. He was sprayed with a capsicum spray and backed off whilst waving the knife. He was sprayed again. He discarded the knife and stumbled towards the police officers. A struggle then took place during which the applicant bit an officer's left arm, leaving a two centimetre mark. This was potentially particularly nasty as the applicant had, as he knew, hepatitis B and hepatitis C. The applicant was then handcuffed but continued to struggle. Eventually he was taken to the Taree Police Station and charged. 4 In the circumstances that ensued the trial judge said, and if I may respectfully say so, correctly, that he was prepared to treat the applicant's plea of guilty as having been made at the earliest opportunity. His Honour remarked about this, "The prisoner will receive appropriate recognition for this". 5 In the circumstances I do not think any criticism can be levelled at his Honour for not indicating any precise measure of recognition. It is clear that a process of plea bargaining had occurred and that the resulting charges were not the most serious with which the applicant could have been charged. In these circumstances, the benefit to the offender from the utilitarian advantage to the administration of justice by his plea is taken up to some degree by the fact that he has been charged with lesser offences than might otherwise have been appropriate. 6 The applicant gave evidence. The Crown did not cross-examine him to suggest that the history he gave to Dr Carne, a consulting forensic psychiatrist to whose evidence I will come in a moment, was untrue or unreliable. Nor did his Honour suggest that he did not accept the applicant's testimony in any respect. Amongst other things, the applicant said that he was so affected by alcohol at the time of the offences that he could not recall what actually occurred. He did not suggest, however, that he was affected by any delusions or hallucinations at the time. 7 The applicant was seen in custody for the purposes of preparing a report for the sentence proceedings by Dr Jonathon Carne. His report was tendered without objection. The Crown did not take issue either with the history which the doctor obtained from the applicant or with the doctor's opinion. 8 The applicant said, amongst other things, that whilst at school, he had problems with literacy and spent his primary school years in remedial classes. He was often in trouble in class because he was unable to read or write and found it difficult to pay attention. The applicant's parents separated when he was thirteen and he told Dr Carne that he was "thrown out of home" at this time as "uncontrollable". He said that he left school and started living on the streets, abusing alcohol, marijuana and injecting heroin and amphetamines intravenously. He said that he lived this way for four years, dependent upon these drugs and supporting his dependence by property crime. At seventeen, he met and moved in with a girlfriend but continued to use drugs and the relationship broke up after two years. The applicant returned to his previous lifestyle. He was practically illiterate. At the age of thirty, the applicant met Ms Spackman. They moved into a Housing Commission house in Melbourne and had two children. He said that he then abstained from substance abuse and his life assumed a more stable pattern until he started taking drugs again. He committed a number of property crimes to support his drug dependence. Detoxification and rehabilitation treatments through the 1980s were, it seems, unsuccessful. Quite what the applicant was doing between the ages of nineteen and thirty does not appear from Dr Carne's report but I note that his record contains a number of convictions for property and drug offences during this period. 9 The applicant gave Dr Carne the history that when intoxicated with amphetamines he experiences auditory hallucinations and other delusions. He was admitted a number of times to psychiatric hospital for the treatment of drug-induced psychosis or schizophrenia, which included treatment with anti-psychotic medication. His last such admission was in 1993 or 1994. The applicant described to Dr Carne a number of depressive episodes and said that he had attempted suicide on a number of occasions. The applicant's Corrections Health Service records disclosed that he was seen by a mental health nurse shortly after his arrest and began treatment with the anti-psychotic medication Olanzapine. He was reviewed by a psychiatrist who diagnosed a psychotic illness, unfortunately not further specified by Dr Carne, and continued treatment with Olanzapine. He has remained under treatment with Olanzapine, as I understand it, certainly up to the time of sentence and probably up to the present time. Not surprisingly, Dr Carne considered that the applicant's primary problem was the result of the effects of alcohol and other substance abuse and that he would benefit from taking part in a long-term drug and alcohol rehabilitation programme. He also thought, and again this is not surprising, that the applicant would benefit from regular psychiatric assessments and considered that he should continue to take his anti-psychotic medication as prescribed through the prison medical service. 10 The applicant gave evidence that the medication had a significant effect upon his mood and temperament. He said that he was able to approach life rationally and logically. He could understand that his auditory experiences were not real and he has been able to control and manage his temper which he has never been able to do in the past. As he put it, "I have been a lot better within myself". He said that he intended to go on taking the medication as it was prescribed because of its beneficial effects. He expressed remorse for his behaviour towards the police officers and said that he did not know what had happened. He also said that he had been on protection for about four months as at the date of his sentence because of threats by another inmate having no connection with the offence. 11 As I have identified what seems to me to be a significant error in the Court below, I thought it material to consider the information provided as to the courses that the prisoner has undertaken whilst in prison up to the present time. He has followed what may be generally described as a vocational training programme with what appears to be considerable success, gaining many certificates in varying fields of endeavour. To my mind these certificates indicate that the treatment that he is receiving in prison is having a significant effect upon him. I note, however, that the education officer does not suggest that the applicant has any problem with literacy and I take it that over the years he has overcome that early handicap. 12 It appears that the applicant's relationship with Ms Spackman has now broken up. Indeed, he is precluded from approaching her by reason of an apprehended violence order. The applicant said that, when he served his sentence, it was his intention to return to Victoria where his sister has offered him accommodation. It appears that he has a close and loving relationship with his children, now aged four and five. 13 A number of grounds were relied on by the applicant as demonstrating error in the Court below. The first of these is the determination by the learned sentencing judge that there were no special circumstances within the meaning of s 44 of the Crimes (Sentencing Procedure) Act 1999. Having regard to the relatively recent discussion of the significance of such a finding in the sentencing process by this Court, presided over by the Chief Justice, in the R v Simpson [2001] NSWCCA 534 I do not intend to say anything more about this ground, except that as stated it does not raise a substantial question. Indeed Mr Dhanji did not press the ground in this form in his written submissions. 14 Mr Dhanji, on behalf of the applicant, does not submit that the head sentence imposed below was manifestly excessive. He accepts that, having regard to the objective criminality of the offence, the head sentence was well within his Honour's sentencing discretion. He submits, rather, that the non-parole period was manifestly excessive. It is obvious that in determining such a question the whole of the relevant circumstances in the case need to be considered. Neither the legislation nor sentencing principle requires the Court to undertake its analysis in any particular order. Rather, all the relevant matters are to be weighed in the process of arriving at the final determination. However, the discretion to impose a term of less than the statutory ratio cannot result unless the sentencing judge or the Court is satisfied that special circumstances justifying this departure are demonstrated. In this case, the non-parole period was set at a term comprising seventy-seven per cent of the head sentence. 15 Although deterrence is a most, possibly the most, significant element in the calculation of a sentence, there can be no doubt that rehabilitation is always a relevant and important matter. Thus, whilst the non-parole period should reflect the seriousness of the offence and the true criminality of an offender, the placing of the actual term appropriately within the discretionary available range, will depend to a greater or lesser extent on, amongst other factors, the offender's prospects of rehabilitation. In order to give this issue as well as the measurement of criminality proper consideration it is obviously important to give appropriate weight to the relevant facts, including (as particularly relevant here) the offender's psychiatric or psychological condition. Here there was, as I have pointed out, objective and cogent evidence that the applicant was to a significant, though not measured, extent suffering from a psychiatric condition or illness requiring anti-psychotic medication from the time of his incarceration. Further monitoring by the Corrections Medical Service has continued that treatment. The applicant gave evidence of a psychiatric history and of increasing irrational suspicions at the time of the offence. This was significant, in my view, both as to the objective criminality of his assaults and the appropriate sentencing disposition. In the latter respect it highlighted the importance, not only from the offender's point of view, but also that of the public interest of considering the significance of the psychiatric material. 16 In my respectful opinion, the learned sentencing judge wrongly dismissed the psychiatric evidence as virtually irrelevant. This is evident not only from his Honour's remarks on sentence but from the structure of the sentence itself in providing even less than the usual ratio between the head sentence and the non-parole period. It appears that there has been significant benefit from medication in dealing with the applicant's mental stability. This points to the importance of a reasonably lengthy period under supervision in the community. 17 I consider that in dealing with this aspect of the case, his Honour the learned sentencing judge erred and this Court's jurisdiction is therefore enlivened. I would grant leave to appeal, allow the appeal, quash the sentence so far as the non-parole period is concerned and substitute a non-parole period commencing on 2 January 2001 and ending on 1 April 2002. 18 SMART AJ: I agree. 19 ADAMS J: The orders will therefore be as I have proposed. ********** 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.