New South Wales Court of Criminal Appeal CITATION : R v Campbell [2003] NSWCCA 176 HEARING DATE(S) : 30/05/03 JUDGMENT DATE : 30 May 2003 JUDGMENT OF : James J at 1; Smart AJ at 25 DECISION : Leave to appeal granted - appeal dismissed CATCHWORDS : Criminal law- sentence appeal - vehicle offence - mitigation by intoxication - carjacking LEGISLATION CITED : Crimes Act 1900 CASES CITED : R v Coleman (1990) 47 A Crim R 306 R v Letteri (CCA 18 March 1992) PARTIES : Regina v Robert Stuart Campbell FILE NUMBER(S) : CCA 060055/03 COUNSEL : AP Cook - Applicant DML Woodburne - Crown SOLICITORS : DJ Humphreys - Applicant SE O'Connor - Crown LOWER COURT District Court JURISDICTION : LOWER COURT 02/31/0216 FILE NUMBER(S) : LOWER COURT English DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 060055/03 JAMES J SMART AJ FRIDAY 30 MAY 2003 REGINA v ROBERT STUART CAMPBELL Judgment 1 JAMES J: Robert Stuart Campbell has applied for leave to appeal against sentences imposed on him by her Honour Judge English in the District Court on 12 September 2002. 2 The applicant had pleaded guilty to charges of three offences, all committed on the same day 27 February 2002, namely (1) without having the consent of Scott McPhee, the person in lawful possession of a motor vehicle, he had attempted to take the motor vehicle for the purpose of driving it, when Scott McPhee was in the vehicle (2) without having the consent of Natalie Grundy, the person in lawful possession of another motor vehicle, he took and drove that motor vehicle, when Natalie Grundy was in the vehicle, in circumstances of aggravation, namely that he inflicted actual bodily harm on Natalie Grundy (3) he assaulted Nona Baird with the intention to take a motor vehicle, that is a third motor vehicle, and without having the consent of Nona Baird, the person in lawful possession of the motor vehicle, he took and drove that third motor vehicle in circumstances of aggravation, namely that he inflicted actual bodily harm on Nona Baird. 3 The first offence was an offence under s 154(1)(c) and s 344A of the Crimes Act, for which the maximum penalty is imprisonment for ten years. The second and third offences were offences under s 154C(2) of the Crimes Act for which the maximum penalty is imprisonment for fourteen years. Offences under s 154C of the Crimes Act are described in the heading to the section as "carjacking". 4 In sentencing the applicant for the second offence her Honour took into account three further offences of resisting arrest, assaulting a police officer in the execution of his duty and committing an act of cruelty on a police dog. 5 For the first offence her Honour sentenced the applicant to a fixed term of imprisonment of one year, commencing on 22 August 2002. For the second offence her Honour sentenced the applicant to a term of imprisonment of four years, commencing on 22 August 2002 with a non-parole period of eighteen months. For the third offence her Honour sentenced the applicant to a fixed term of imprisonment of eighteen months, commencing on 22 August 2002. It would seem that her Honour made the sentences she imposed commence from 22 August 2002, and not the date of sentencing, so as to take into account a discrete period of pre-sentence custody of about three weeks between 27 February 2002 and 20 March 2002. 6 In her remarks on sentence her Honour stated the facts of the three offences in a way which has not been the subject of any complaint on the hearing of this application. Her Honour said: "The circumstances giving rise to the offences were as follows. At 9.20 p m. on Tuesday 27February 2002 the offender rode his pushbike to the Woolworths service station, Pacific Highway, Wyoming. He approached Scott McPhee who was sitting in his vehicle adjacent to a petrol bowser. McPhee had just filled his car with fuel. His vehicle was a red Ford Falcon registered number XQK 702. At the time McPhee's girlfriend, Lorien Grundy, was inside the service station paying for fuel. The offender said to McPhee 'I need a lift. I need a ride'. McPhee said 'No' and at this point Miss Grundy returned to the vehicle and said to the offender 'Go away'. The offender then opened the driver's door. McPhee tried to put his seatbelt on but the offender reached through and grabbed McPhee's arm and seatbelt and tried to prevent him putting the belt on. The offender then punched at McPhee aiming blows to his head but McPhee managed to block the punches. He then stood from the vehicle and grabbed the offender. A struggle ensued and the offender tried to get back on his pushbike but McPhee pushed him to the ground. A further struggle ensued and they rolled onto an adjacent garden bed. The offender grabbed hold of McPhee and threw him out onto the roadway into the path of an oncoming car. McPhee saw the lights of the oncoming vehicle and managed to jump back off the roadway. The vehicle came to a halt a short distance away. It was a Honda registered number OXZ 829. The offender ran towards the vehicle and as he did so McPhee heard Miss Grundy yell out 'Mum' and McPhee looked up to see that the vehicle which stopped was driven by Miss Grundy's mother, Natalie Grundy. By this time the offender was trying to open the driver's door but he could not get in. He attempted to break the window by punching it. McPhee then started yelling and hitting the driver's door and saying to Mrs Grundy 'Go, go, go'. The offender ran to the passenger side of the vehicle and jumped in. At the same time McPhee opened the driver's door and was trying to get Mrs Grundy out of the vehicle. The offender lent over Mrs Grundy and grabbed the steering wheel with both hands and put his right foot over to the accelerator pedal. He pushed down on the pedal causing the vehicle to drive north along the Pacific Highway. McPhee, by this stage was using his foot to push the offender in the forehead to try and force him out of the car. The car continued north along the Pacific Highway and as the car entered a roundabout McPhee jumped from the car fearing that he would be injured if he remained. Mrs Grundy started to yell at the offender 'Just back off. Slow down, I'll drive you wherever you want to go'. The offender said 'You've got your safety all lined up'. The vehicle continued to a point about 70 metres south of Brooks Avenue and it collided with the rear of another vehicle VPK 501 which was travelling in the same direction. This vehicle was driven by one Nona Beard. The vehicle driven by Mrs Beard stopped and the offender caused Mrs Grundy's vehicle to stop. When the vehicle stopped the offender punched Mrs Grundy several times in the face with his right elbow causing lacerations to her mouth and blackening her left eye. He then ran from Mrs Grundy's vehicle to Mrs Beard's vehicle. She had alighted from her vehicle and had her keys on her. She was walking back towards Mrs Grundy. The offender jumped into the driver's seat of Mrs Beard's vehicle and started to shake the steering wheel violently. He then got out of the vehicle and approached Mrs Beard, grabbing her by the right arm, and yelling at her 'Give me the keys'. She tried to pull away screaming 'Help me, help me'. The offender bit her on the hand causing her to drop the keys. He picked up the keys, ran back to the vehicle, started the car and drove straight down Brooks Avenue. By this time others arrived at the scene including the tow truck driver who had seen the offender at the service station. He had followed the offender and continued to do so but lost him when he did a U turn in Brooks Avenue. Another vehicle continued to follow the offender and at a point in Showground Road the offender collided with a cyclone wire fence adjacent to the railway line. The offender ran across the roadway and scaled a cyclone fence on the perimeter of the showground. He then got onto the roof of the building and paced up and down for some time. He then climbed down and was approached by police who attempted to negotiate with him but he became extremely violent kicking, punching and spitting at them Police used several cans of capsicum spray in an attempt to subdue him but to no avail. Assistance was summoned including two police dogs. The dogs attempted to subdue him but he grabbed one of the dog's leads and was throttling the dog with the lead. He then bit the second police dog on its ear. It took eight police officers to subdue him and handcuff him. By this stage he was naked. His shorts and T shirt had come off during the struggle. He was placed in the back of the caged vehicle and taken to Gosford police station". 7 It was apparent to police that the applicant was affected by drugs. An acute care team at a psychiatric clinic was contacted and came to the police station but declined to enter the applicant's cell because of his highly agitated state. While the applicant was in a cell at the police station, he rolled around on the floor of the cell trying to cover himself with a mattress and he bit his arms and legs, until they started to bleed. It took six hours before he calmed down. 8 On 28 February 2002 the applicant was assessed by a psychiatric registrar from the Gosford Hospital, who formed the opinion that the applicant's presentation the previous day had been consistent with a drug induced psychosis caused by the intravenous taking of amphetamines. 9 In evidence given in the proceedings on sentence the applicant said that for a period of seven nights prior to 27 February he had been taking amphetamines intravenously. On 27 February a blood sample was taken from the applicant and on analysis the sample was found to contain .19 milligrams per litre of methamphetamine. 10 In her remarks on sentence her Honour recorded that in May 2001 the applicant had suffered brain injuries in a motor vehicle accident. Dr Alan Lam, a rehabilitation specialist to whom the applicant had been referred after his motor vehicle accident, expressed the following opinion in a report of 30 March 2002: "I would be surprised that his cognitive deficits from the traumatic brain injury would have caused his irrational behaviour in attempting to carjack vehicles. I feel that, given his poor cognitive reserve as a result of his traumatic brain injury and the extra cerebral insult by the illegal substances, are the likely reason why he ended up acting in an irrational way in carjacking vehicles." 11 In her remarks on sentence her Honour made findings about the subjective circumstances of the applicant. At the time he was sentenced the applicant was thirty two years old. He had a minor criminal history in the Australian Capital Territory, including drug offences. 12 The applicant had had in a number of respects an unfortunate life. He had had a dysfunctional childhood. He had been placed in an orphanage, after his mother became ill following the birth of a younger brother. After being returned to his mother's care, his parents had had an acrimonious divorce. When the applicant was twenty, his younger brother committed suicide. The applicant had to identify his brother's body and her Honour found that event had led to his using drugs. The applicant had married in 1990 and had four children but some of the children had been born with serious health problems. In 2001 he had had the serious motor vehicle accident in which he had suffered some brain injuries. After the accident his marriage had broken down. 13 The applicant is a carpenter by trade and had resumed working as a carpenter, after participating in part of a rehabilitation program conducted by the Salvation Army between 20 March 2002 and about May 2002. 14 In her remarks on sentence the sentencing judge found that the offences were objectively grave. Her Honour noted that the victims of the offences had required medical attention and counselling. Mrs Grundy in particular had had the terrifying experience of being forced to drive her vehicle whilst the applicant was in command of both the steering wheel and the accelerator. Mrs Grundy had suffered facial injuries. Mrs Baird had suffered injuries to her right hand. Mrs Baird no longer felt comfortable driving at night. She required a security guard to escort her to her vehicle when she finished work at night. Even in broad daylight, if someone moved suddenly towards her, it caused her great stress and anxiety. Her car had been damaged beyond repair in the incident. 15 Her Honour found that the need for general deterrence could be given less weight, because of the significant brain injuries the applicant had suffered. Her Honour found that, if it had not been for the combination of the brain injuries and the illicit substances the applicant had administered to himself the offences probably would not have been committed. Her Honour said that she would allow a twenty per cent discount for the applicant's early pleas of guilty. Her Honour found that all of the offences were part of an ongoing course of criminal conduct. Her Honour found special circumstances in the applicant's need for ongoing supervision and rehabilitation. 16 On this application the only ground on which the sentences imposed by her Honour were challenged was that, it was submitted, the sentencing judge had failed to give appropriate weight to the mental condition of the applicant at the time of committing the offences. It was not submitted that the sentencing judge had failed to make appropriate findings about the applicant's mental condition at the time of committing the offences; only that she had failed to give appropriate weight to what she had found to be the mental condition of the applicant at the time of committing the offences. It was submitted that, if her Honour had allowed a twenty per cent discount for the applicant's pleas of guilty, then her starting point, before taking the pleas of guilty into account, must have been five years or more. Such a starting point would suggest little if any tempering of the sentences to take into account the mental state of the applicant. It was submitted that a sentence other than a sentence of full time custody could have been imposed, having regard to:- a. The crime was entirely out of character and caused by an unexpected result of amphetamine use in the context of a pre-existing head injury. b. The applicant was motivated by fear and panic while in a psychotic state. There was no rational motive for his behaviour. c. The events, although violent and frightening to the victims, were of short duration and were quite spontaneous. d. The applicant pleaded guilty at the earliest opportunity. e. The applicant was truly remorseful and contrite. f. The applicant arguably had available to him a defence of mental illness which he abandoned by his pleas of guilty. g. The applicant had had a difficult personal background due to reasons no fault of his own. h. The applicant had demonstrated genuine insight into the impact of drugs on his conduct and there was every reason to be confident about his rehabilitation. i. The applicant had following his release to bail on 20 March 2002 spent until at least 22 May 2002 as a full time resident at the Endeavour Community, run by the Salvation Army". 17 Counsel referred to the decisions of this Court in R v Letteri (Court of Criminal Appeal 18 March 1992) and R v Coleman (1990) 47 A Crim R 306 at 307, where Hunt J, as his Honour then was, with the concurrence of the other members of the Court, said that intoxication may mitigate a crime, because the offender has by reason of that intoxication acted out of character. 18 It was submitted by counsel for the applicant in oral submissions on the hearing of this application that it had been erroneous for her Honour to say, as she did at page 10 of her remarks on sentence, that the circumstances of the offences committed by this offender clearly fell within the targeted group of offences envisaged by the amendments to the Crimes Act which added carjacking offences to the Crimes Act. 19 On this application the Crown submitted that the offences were objectively serious, the applicant had voluntarily, whether deliberately or recklessly, administered amphetamine to himself intravenously for all of the seven nights or days prior to committing the offences and the sentencing judge had not erred in considering that some weight should still be given to the need for general deterrence and the need for personal deterrence. It was further submitted that the sentences imposed by her Honour were lenient, in that her Honour had made all of the sentences commence from the same date and had set a non-parole period of only eighteen months. 20 As I have already said, it was accepted by counsel for the applicant that her Honour had made appropriate findings about the applicant's mental condition at the time of committing the offences. The only error which it was submitted her Honour had made was failing to give appropriate weight to the mental condition of the applicant at the time of committing the offences, with the consequence that the sentences imposed by her Honour were manifestly excessive. 21 I do not read the remark made by her Honour at page 10 of her remarks on sentence, to which I have already referred, as meaning anything other than that the offences committed by the applicant fell within the carjacking amendments to the Crimes Act. 22 Her Honour was faced with a difficult sentencing task and, after considering the submissions of counsel, I have reached the conclusion that the appeal should not be upheld. Her Honour was sentencing the applicant, not for a single offence, but for three offences of carjacking, all of which were objectively serious. Her Honour was entitled to take into account the serious effect of the commission of the offences on the victims of the offences. Her Honour recognised that the need for general deterrence could be given less weight, because of the significant brain injuries the applicant had suffered. Her Honour accepted that the applicant had committed the offences while in a psychotic state and that the offences were unplanned and out of character. On the other hand, the applicant's brain injuries by themselves would not have caused the applicant to commit the offences. According to Dr Lam's report, an important cause of the applicant's behaviour was "the extra cerebral insult by illegal substances". This extra cerebral insult was caused by the applicant's voluntarily administering amphetamines to himself by intravenous injection on each of the seven days or nights preceding the commission of the offences. 23 The sentences imposed by her Honour were not in my opinion unduly severe. Her Honour made all of the sentences concurrent. Her Honour found special circumstances and set a non-parole period of only eighteen months. 24 In my opinion, although leave to appeal should be granted, the appeal against sentence should be dismissed. 25 SMART AJ: I agree. 26 JAMES J: The orders of the Court will be as proposed by me. ********** Last Modified: 07/10/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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.