Regina v Evers [2002] NSWCCA 223

New South Wales Court of Criminal Appeal

CITATION : Regina v Evers [2002] NSWCCA 223 FILE NUMBER(S) : CCA 60046/01 HEARING DATE(S) : 5 June 2002 JUDGMENT DATE : 5 June 2002

PARTIES : Regina v Anthony Neil Evers JUDGMENT OF : Adams J at 1; Carruthers AJ at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/31/0205 LOWER COURT JUDICIAL His Honour Judge Patten OFFICER :

COUNSEL : Applicant - A.P. Cook Crown - D.C. Frearson SOLICITORS : Applicant - D.J. Humphreys Crown - S.E. O'Connor CATCHWORDS : Sentencing - appeal against alleged excessive sentences - by consent psychological report prepared after sentence placed before the Court - appellant demonstrated to be suffering from intellectual disability. LEGISLATION CITED : Crimes Act 1900, s 97(1) DECISION : Application for leave to appeal granted.; Appeal allowed. For orders see pars 19-21.

IN THE COURT OF CRIMINAL APPEAL 60046/01

ADAMS J CARRUTHERS AJ

Wednesday, 5 June 2002 REGINA v Anthony Neil EVERS Judgment 1 ADAMS J: I agree with the orders proposed and with his Honour's reasoning and also with the recommendation made by his Honour. The orders of the Court will be therefore as expressed by his Honour. 2 CARRUTHERS AJ: Anthony Neil Evers seeks leave to appeal against sentences imposed upon him by his Honour Judge Patten DCJ on 21 June 2000 at the Gosford District Court. The applicant had earlier pleaded guilty to one count of assault with intent to rob, being armed with an offensive weapon, pursuant to s 97(1) of the Crimes Act 1900 which offence carries a maximum penalty of twenty years imprisonment. 3 He also pleaded guilty to one count of robbery, whilst armed with an offensive weapon pursuant to s 97(1). 4 On 21 June 2000 his Honour sentenced the applicant to imprisonment for a period of six years commencing 8 April 2000 and expiring on 7 April 2006 on each count. His Honour imposed a non-parole period of four years and six months commencing on 8 April 2000 and expiring on 7 October 2004 on each count. Thus his Honour declined to find that there were special circumstances. 5 The applicant was born on 7 April 1977 and was accordingly twenty-three years of age at the date of sentence. In his remarks on sentence, his Honour referred to the fact that the applicant was on a disability pension due to dyslexia. He noted that his education was limited and that he had never held employment. His Honour went on to say that the applicant's criminal antecedents were certainly of no assistance to him. The applicant was first before a court, namely the Gosford Children's Court, in 1994 for shoplifting. Since then he has been before various courts on numerous occasions for a variety of offences, including those involving dishonesty, some violence and some sexual matters. 6 The relevant facts for the subject offences may be shortly stated. The first offence was committed on the afternoon of 8 April 2000. The applicant entered the Welcome Mart Supermarket at Buff Point and threatened a shop attendant, Mr Petch, with a knife and demanded money. Mr Petch resisted his demand and threw sweets, and other items on the counter before him, at the applicant whereupon the applicant ran away. According to his Honour, "Mr Petch acted quite bravely as the prisoner, presenting a knife, advanced upon him". 7 The second offence was committed on the same day at the Wyongah Liquor Store. The applicant entered the store armed with a knife and a baseball bat. He presented the knife, a twenty centimetre bladed kitchen knife, to the female attendant and demanded the contents of the till. She complied with that demand and the applicant left the store by bicycle. Police arrived fairly promptly and the prisoner, was arrested after a short pursuit. He remained in custody, bail having been denied, until the date of sentence. 8 Surprisingly, those representing the applicant before the District Court permitted the case to proceed without obtaining a psychological assessment of the applicant. There were indications, of course, that a psychological assessment was most desirable. However, the Legal Aid Commission did arrange for a psychological assessment of the applicant to take place on 10 April 2002 by Associate Professor Susan Hayes, head of the Centre for Behavioural Sciences, Department of Medicine, University of Sydney. 9 The report prepared by Dr Hayes dated 12 April 2002, clearly could not constitute fresh evidence in accordance with the well established principles relating to the admission of fresh evidence in this Court. However, it is of a cogent nature. Mr Frearson, of counsel for the Crown, with a fairness which is to be commended, did however agree to this Court considering what was in Dr Hayes' report for the purposes of the resolution of the question whether this Court should intervene in the matter. 10 Dr Hayes administered a battery of psychometric tests on the applicant. The results indicated that the applicant was mildly intellectually disabled and functioned at a lower level than ninety-nine percent of the population. His mild intellectual disability, as it was categorised, was exacerbated by a specific learning disability, namely dyslexia. The applicant cooperated well with the assessments. Although interestingly, Dr Hayes refers to the intellectual deficit as being "a mild intellectual disability", the very significant factor is that the applicant functions at a lower level than ninety-nine percent of the population, and as Dr Hayes pointed out, this situation is exacerbated by dyslexia. 11 The applicant gave Dr Hayes a history of abuse and rejection by his family. He alleged that he was physically abused by his mother and sexually abused by his grandmother. It would appear from Dr Hayes' report that the latter abuse caused him prolonged distress. Dr Hayes concluded that the applicant has: "a reasonably quiet and placid personality under normal circumstances, and if he receives vocational training, he could be a good and reliable worker". 12 Mr Cook of counsel for the applicant argued that there were two errors made by his Honour when sentencing the applicant. They related to the appropriate discount for the plea of guilty and, secondly, what was said to be an error on the part of his Honour in taking into account as "aggravating circumstances", the fact that the applicant has a very lengthy history of prior criminal offences. 13 In view of the fact that this Court now has before it the report of Dr Hayes, a benefit which was denied to the sentencing judge, it seems to me that the inevitable result must be that this Court, armed with this important additional subjective information, must intervene and re-sentence the applicant. 14 There were aggravating factors relevant to the subject offences in that the applicant was in breach of a good behaviour bond for three years which had only just commenced at the time of the commission of the offences and, in addition, at the relevant time the applicant was serving a sentence of periodic detention. 15 Objectively, the criminal conduct involved was serious. The incompetent fashion in which the applicant went about his criminal conduct is no doubt related to his intellectual deficit, nevertheless, he must be appropriately sentenced for what were two serious criminal offences. 16 He did immediately acknowledge his guilt and cooperated with the authorities and, in my view, he would be entitled to a maximum allowance by way of discount for his plea of guilty and his contrition to the order of twenty-five percent. That would be an appropriate discount. In my view it is appropriate to follow the regime his Honour adopted of concurrent sentences for these two matters bearing in mind their proximity in time. Thus, overall, I would start with a nominal head sentence of six and a half years and discount that down to five years. 17 Before I indicate the orders which I would propose, I would state the acceptance by this Court of the late report by Dr Hayes is necessarily an exceptional situation dictated by the exceptional circumstances which occurred. 18 Having said that, I would propose the following orders, namely, that the application for leave to appeal be granted and the appeal upheld and the sentences imposed by his Honour Judge Patten be set aside. 19 In lieu thereof, I would propose that the applicant be sentenced to imprisonment for five years on each count to be served from 8 April 2000 and expiring on 7 April 2005. 20 The intellectual deficit from which the applicant unfortunately suffers constitutes special circumstances and I would propose that there be a non-parole period of three years to date from 8 April 2000 and to expire on 7 April 2003. Thus the applicant would be entitled to apply for release to parole on 7 April 2003. 21 I would recommend that upon his discharge to parole he be placed under the supervision of the Probation and Parole Service and that he participates in such vocational training and other professional counselling or treatment as may be required at the discretion of the Probation and Parole Service. 22 For the sake of good order a copy of Dr Hayes' report dated 12 April 2002 is annexed to this judgment.