New South Wales Court of Criminal Appeal CITATION : Regina v McGrath [2004] NSWCCA 440 HEARING DATE(S) : 11/11/2004 JUDGMENT DATE : 8 December 2004 JUDGMENT OF : McColl JA at 1; Howie J at 2; Buddin J at 25 DECISION : Application for leave is granted and the appeal is allowed. The sentence imposed by Judge McGuire is quashed and in lieu the applicant is to be sentenced to 6 years from 19 January 2002. There is to be a non-parole period of 4 years which is to expire on 18 January 2006 the date upon which the applicant is eligible to be released to parole. CATCHWORDS : Criminal Law - Sentencing - No matter of principle LEGISLATION CITED : Crimes Act 1900 - s 33B Criminal Procedure Act 1986 CASES CITED : Fordham (1997) 98 A Crim R 359 PARTIES : Regina v Shane McGrath FILE NUMBER(S) : CCA 2004/2024 COUNSEL : G. Rowling - Crown H. Dhanji - Applicant SOLICITORS : S. Kavanagh - Crown S. O'Connor - Applicant LOWER COURT District Court JURISDICTION : LOWER COURT 02/31/0157 FILE NUMBER(S) : LOWER COURT McGuire DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 2004/2024 McCOLL JA HOWIE J BUDDIN J WEDNESDAY 8 DECEMBER 2004 REGINA v SHANE McGRATH Judgment 1 McCOLL JA: I agree with Howie J. 2 HOWIE J: This an application for leave to appeal against a sentence imposed upon the applicant in the District Court following his plea of guilty on arraignment to an offence of using an offensive weapon to avoid lawful apprehension contrary to section 33B of the Crimes Act. That is an offence that carries a maximum penalty of 12 years imprisonment. In addition, the applicant asked Judge McGuire to take into account, when sentencing him for that offence, two matters on a Form 1 under the provisions of the Criminal Procedure Act. As a consequence his Honour sentenced the applicant to imprisonment for 8 years and specified a non-parole period of 6 years. The applicant is eligible to be released to parole on 18 January 2008. 3 There were three grounds of appeal originally filed. They complained in effect that, firstly his Honour failed to properly discount the applicant's sentence as a result of his plea of guilty; secondly, his Honour failed to properly consider whether there were special circumstances in determining the length of the non-parole period; and, thirdly, that the sentence imposed was manifestly excessive. On the day before the hearing of the application a further ground was filed asserting that there was a miscarriage of justice occasioned by the absence of evidence of the applicant's intellectual disability at the sentencing hearing. Leave was sought to add the further ground of appeal, notwithstanding that the original grounds were filed on 22 July this year and that a psychological report, upon which the new ground was based, is dated 27 September 2004. 4 The facts upon which the applicant was to be sentenced were contained in a statement of facts tendered before the District Court and set out in the sentencing remarks. They were not in dispute. The applicant, who is a car thief, was driving a stolen vehicle on the morning of 19 January 2002 when he picked up three youths with whom he was acquainted. They drove to the car park of a club in Tumbi Umbi where the applicant and his companions intended to steal another motor vehicle. The applicant entered a vehicle by the use of a screwdriver he carried for that purpose and attempted to start it by tampering with the ignition. Having failed in this attempt the applicant, with the assistance of the youths pushing the vehicle, attempted to jump-start it. 5 Security officers observed this activity on closed-circuit television. They attended the scene and apprehended the youths. The applicant, however, entered the stolen vehicle he had previously been driving. He drove out of the car park then over a grassed medium strip towards the group almost colliding with the security guards and the young persons they were detaining. The applicant then alighted from the vehicle brandishing a sharp object that he maintained was a screwdriver. He threatened the security guards, swinging the object in their direction and causing them to release the young persons. After two of the young persons entered the vehicle, the appellant drove off. He later dropped off his passengers and, coming upon a patrolling security van, drove into the rear of it. He then abandoned the stolen vehicle. Police arrested him later that morning. 6 As a result of this course of conduct the applicant faced sentence for the offence under s 33B(1)(b) of the Crimes Act in relation to his threats to the security guards using the screwdriver. In addition he asked his Honour to take into account on a Form 1 two offences of driving a conveyance without consent and an offence of driving in a manner dangerous. This last matter arose from the conduct of the applicant driving in the direction of the security guards. 7 The applicant was aged 33 years at the time of sentence. He has what his Honour described as an "appalling criminal history", much of it for stealing motor vehicles and other offences of dishonesty but including driving offences and violence against the person. He had received gaol sentences for such offences on numerous occasions. Most recently he was imprisoned for offences including using an offensive weapon and assaulting police officers. He was a disqualified driver at the time of the offence, and perhaps more importantly was on parole. Clearly this was a case where on its face a very significant gaol sentence was required, if for no other reason than personal deterrence notwithstanding that the applicant had spent most of his adolescence and early adulthood incarcerated. 8 However, there was a significant amount of material before his Honour as to the subjective circumstances of the applicant. There was in evidence a psychiatric report from Dr Tran of the Corrections Health Service. He recorded that the applicant had been diagnosed with Attentional Deficit Hyperactivity Disorder about two years earlier and had been prescribed medication to treat the disorder. The applicant reported to the doctor that he had been drinking alcohol from the age of 10 years and using amphetamine from the age of 14 until his last confinement to prison in 1999. The applicant had been admitted to the psychiatric ward of the prison on past occasions due to his self-harming behaviour resulting from his repeatedly cutting the main arteries in his arms. 9 Dr Tran gave the following opinion as to the applicant's mental state: Although [the applicant] does not suffer from a mental illness as defined by the Mental Health Act 1990 or a mental condition for which treatment is available in a hospital, he appears to be suffering from multiple comorbid psychiatric conditions, aetiologically related to a number of factors including biological vulnerability, early childhood adversity as well as substance-related significant developmental disruptions and long term psychosocial sequelae. He recommended that, if the applicant were to receive a term of imprisonment for the present offences, he would benefit from "on-going drug and alcohol counselling, regular psychiatric reviews, and specific psychological programs aimed at anger management and self-enhancement social skills". Dr Tran thought that the applicant remained "an on-going risk of serious harm in response to situational stressors requiring both crisis interventions and appropriate custodial management". 10 There was also a pre-sentence report prepared by an officer of the Probation and Parole Service. In relation to the applicant's drug and alcohol history the report states that the applicant "has on more than one occasion since [diagnosis of ADHD] combined his prescribed medication with illicit drugs in addition to abusing alcohol". The officer concluded that the applicant would be in need of psychiatric assistance and drug and alcohol intervention on a long-term basis and added "it would appear that the offender has needs for intervention beyond the normal resources of this service". 11 The applicant gave evidence before the sentencing judge. He confirmed that he had been released to parole for offences of car-stealing and assault on 17 December 2001. His only dispute with the facts was that he maintained that he held the screwdriver with the point down when threatening the security officers. He explained that he had harmed himself previously in custody "to relieve the stress", but that he had not cut himself in the four months since his return to prison. He conceded that he had been using both drugs and alcohol on his release to parole and on the night of the offences had been drinking heavily after having an argument with his girlfriend. 12 The fresh evidence is in the form of a report from a psychologist asked to examine the applicant since sentence was imposed and at the behest of the solicitor employed by the Legal Aid Commission to prepare the appeal. The basis upon which the Court is asked to receive the evidence is that the solicitor, who appeared for the applicant on sentence, although apparently competent, lacked the experience possessed by the later solicitor to identify that the applicant's behaviour and background required examination from a psychologist. This is of course notwithstanding that there was a psychiatric report in evidence before Judge McGuire. It is submitted that the fresh evidence is significant as to the applicant's prospects of rehabilitation and without the evidence the sentencing proceedings miscarried. 13 It is unnecessary because of the view I take as to the other grounds of appeal to determine whether the evidence ought to be received as fresh evidence. But it should not be thought that simply because a solicitor preparing a matter for appeal to this Court, whether from the Commission or otherwise, thinks that it would have been better had a psychological or other examination been undertaken of the applicant before sentence, that this Court will readily admit the evidence. I indicated my views of such evidence in Fordham (1997) 98 A Crim R 359 and I can see little difference between the situation that pertained in that case and that which exists in the present. It appears to me to be a case of the later solicitor simply second-guessing the course taken by the earlier solicitor. 14 However, that may be I have formed the view that the sentence is manifestly excessive as a reflection of the objective seriousness of the offences committed by the applicant, as serious as those offences were and as bad as the applicant's criminal record was for similar offences. Notwithstanding the subjective circumstances of the applicant, both general and personal deterrence required a salutary sentence to be imposed upon him. This would be so even had the psychological report, now in evidence before this Court, been placed before the sentencing judge. But the sentence imposed, being a term of 8 years as against a statutory maximum of 12 years and following a plea of guilty, albeit not an early one, is simply too high in my opinion, even having regard to the matters taken into account on the Form 1. The statistical information provided to the Court confirms what was my immediate reaction to the sentence. 15 It should be borne in mind, as Judge McGuire did, that the s 33B offence related to the threat with the screwdriver. A reader of the facts tendered by the Crown could be excused for thinking that the most serious threat to the safety and welfare of the security guards, and the young persons in their custody for that matter, was posed by the applicant's use, or rather misuse, of the stolen motor vehicle. The facts tendered by the Crown appear to have been the same as those used to support the offences with which the applicant had originally been charged. Those charges included two s 33B(1) offences: one with respect to the use of the motor vehicle and the other the screwdriver. The Crown apparently believed that it was in the community's interest in securing a plea of guilty in the face of an overwhelming Crown case, to relegate what I consider to be the most serious aspect of the applicant's conduct to a driving offence and that to be taken into account on a Form 1. 16 Although, as I have indicated, Judge McGuire was with respect experienced and astute enough not to fall into the trap opened by the Crown's tender of the statement of facts used to support more serious allegations, I cannot help coming to the conclusion that his Honour was unduly influenced by the applicant's conduct in driving the vehicle at least in reckless disregard of the safety of the security guards. This is notwithstanding that, after commenting on that fact and the risk of death or serious injury resulting, his Honour made the point that the applicant was not to be sentenced for that conduct. 17 Had the Crown pursued the initial charges laid against the applicant, it might be the case that a sentence somewhere approaching that imposed by his Honour would have been appropriate. But the Crown had eschewed the use of the vehicle as a weapon and relegated that conduct to a very minor role in the sentencing proceedings having regard to the nature of the offence to be taken into account on the Form 1. 18 The bargain struck by the Crown resulted in a substantial reduction of the charges faced by the applicant and a consequential reduction in a sentence that would otherwise have been appropriate for the protection for the public in general and persons such as security guards and police officers in particular. The sentence imposed by his Honour might provide the protection from the applicant the public deserves but it is not, in my respectful view, proportional to the criminality reflected in the single charge for which the applicant was to be sentenced and on a basis that the only threat was from a screwdriver, however seriously that threat was taken by the victims. 19 However, having regard to the applicant's record a very significant sentence is to be imposed, notwithstanding the subjective material. I believe that there is little in the psychological report that would justify mitigating the applicant's punishment to any significant degree. The applicant has been assessed as of "borderline intellectual capacity". The report concludes: When he is released, [the applicant] needs to address drug and alcohol counselling and support, as well as vocational programs and general counselling that would be suitable for a person with a mild intellectual disability and serious impairment in communications skills. The Court has no evidence as to whether such programs and counselling are available within the Parole Service or whether, if they were, they would make the slightest difference to the applicant given his age and continued re-offending. The simple fact is that, while on release to parole, the applicant was refusing to take his medication to control his erratic behaviour, and instead was abusing alcohol and drugs. 20 The fact that the applicant has now been found to have an intellectual disability does not indicate to me that he has any better prospect of rehabilitation than was apparent before that discovery. It may explain why the officer in the pre-sentence report concluded that he needed "some form of intervention beyond the scope of the service". Nor in the circumstances of this particular case does the finding of an intellectual disability mean that the court should temper to any significant degree the deterrent aspect of the sentence to be imposed. 21 As is so often the case, there have been a large number of affidavits filed in the Court for the purpose of re-sentencing the applicant. Much of it relates to the applicant's current custodial status. There is nothing in that material that indicates to me that the sentence should be reduced substantially because of more onerous gaol conditions suffered by the applicant or for any other reason. The applicant must understand by now that, if when released he re-offends, the only response of the courts will be to return him to custody, in whatever conditions that sentence might have to be served. 22 I indicate that I would give the applicant a reduction of the sentence by approximately 15 per cent by reason of the plea of guilty. This results in a head sentence of 6 years. 23 Judge McGuire found that there were no special circumstances justifying an alteration in the relationship between the non-parole period and the head sentence. That finding is unimpeachable on a sentence of eight years, as that would provide the applicant with a parole period of two years. I am prepared to find special circumstances only on the basis that the applicant will be required to serve a substantial period in custody before being eligible for release and it may be the case that at the end of that period some form of parole supervision will be available to the parole board to justify a finding that he can be assisted by release to parole at the earliest opportunity. However, there can only be a very slight reduction in the non-parole period because the minimum period of imprisonment I propose is the very least that can adequately reflect the criminality of the offence and the importance of both specific and general deterrence. 24 I propose that the application for leave be granted and the appeal be allowed. The sentence imposed by Judge McGuire is quashed and in lieu the applicant is to be sentenced to 6 years from 19 January 2002. There is to be a non-parole period of 4 years which is to expire on 18 January 2006 the date upon which the applicant is eligible to be released to parole. 25 BUDDIN J: I agree with Howie J. ********** Last Modified: 12/09/2004 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.