New South Wales Court of Criminal Appeal CITATION : R v Michael Wayne Pickett [2004] NSWCCA 389 HEARING DATE(S) : 11/11/2004 JUDGMENT DATE : 12 November 2004 JUDGMENT OF : McColl JA at 1; Howie J at 2; Buddin J at 3 DECISION : 1 Leave to appeal against sentence imposed in respect of count 2 granted. 2 Appeal allowed (in part). 3 Confirm the head sentence but quash the non-parole period imposed in the District Court and in lieu thereof impose a non-parole period of 18 months which will expire on 27 January 2005 at which date the applicant will be eligible for release on parole. CATCHWORDS : Criminal law - sentencing - assault occasioning actual bodily harm to police officer in execution of duty - relevance of De Simoni principle - delay - relevance of antecedent criminal history - "special circumstances" LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 R v Bolamutu [2002] NSWCCA 454 R v Crombie [1999] NSWCCA 297 R v Keen [2004] NSWCCA 86 R v LWP [2003] NSWCCA 215 CASES CITED : R v Qutami [2001] 127 A Crim R 369 R v Sivyer [2002] NSWCCA 410 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Wickham [2004] NSWCCA 193 The Queen v De Simoni (1981) 147 CLR 383 Veen v The Queen (No2) (1987-8) 164 CLR 465 PARTIES : Regina Michael Wayne Pickett FILE NUMBER(S) : CCA 2004/2126 COUNSEL : J Rowling (Crown) C Craigie SC (Applicant) SOLICITORS : S Kavanagh (Crown) S O'Connor (Applicant LOWER COURT District Court JURISDICTION : LOWER COURT 03/21/1056 FILE NUMBER(S) : LOWER COURT Gibb DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 2004/2126 MCCOLL JA HOWIE J BUDDIN J FRIDAY 12 NOVEMBER 2004 REGINA v MICHAEL WAYNE PICKETT Judgment 1 McCOLL JA: I agree with Buddin J. 2 HOWIE J: I agree with Buddin J. 3 BUDDIN J: Yesterday at the conclusion of the hearing of the matter the court pronounced the following orders: 1 Leave to appeal against sentence imposed in respect of count 2 granted. 2 Appeal allowed (in part). 3 Confirm the head sentence but quash the non-parole period imposed in the District Court and in lieu thereof impose a non-parole period of 18 months which will expire on 27 January 2005 at which date the applicant will be eligible for release on parole. 4 The court also indicated that it would publish its reasons today. What follows are my reasons for joining in the making of those orders. 5 The applicant seeks leave to appeal against the severity of sentences imposed upon him in the District Court where he pleaded guilty to an indictment which contained two counts. The first alleged that he stole a motor vehicle on 19 July 2002. The second alleged that on the same date he assaulted a police officer acting in the execution of his duty and thereby occasioned him actual bodily harm. The latter offence attracted a maximum penalty of 7 years imprisonment whilst the earlier offence attracted a maximum penalty of 5 years imprisonment. That offence was deemed to be a larceny because the applicant was driving a stolen vehicle without the owner's consent at the time of his arrest. In respect of the first count the applicant was sentenced to 2 years imprisonment with a non-parole period of 12 months. That sentence was ordered to commence on 28 July 2002 which was the date upon which the applicant was arrested and went into custody. It is apparent that that sentence has now expired. In respect of the second count the applicant was sentenced to 4 years imprisonment with a non-parole period of 2 years. That sentence was ordered to commence on 28 July 2003. The applicant is accordingly eligible for release on parole on 27 July 2005. The total effective sentence is thus one of 5 years imprisonment with a non-parole period of 3 years. 6 A statement of facts was tendered at the sentencing hearing. It is convenient to set out, with minor modifications, the relevant parts of that document. On 19th July, 2002, Senior Constable Adam Evans, whilst on duty driving a police car along Sackville Street, Blacktown, observed the offender driving a motor vehicle. Evans knew the offender from previous arrests and knew the offender was a disqualified driver. Evans pursued the offender. The offender was driving [a vehicle which had been stolen three days earlier] without the consent of the owner. During the pursuit, the offender turned left, the wrong way, into a one-way street. The front of the car driven by the offender collided with the side of a white van at the intersection. The driver of the van was stationary, waiting to turn left out of the intersection. Immediately upon impact, two passengers in the stolen vehicle alighted from the car and decamped. One of the passengers was in the front passenger seat. When he alighted, he left the passenger door wide open. Senior Constable Evans was close behind the stolen vehicle driven by the offender. Evans also turned left and pulled the police car up, next to the stolen car. The police car was approximately 1 metre away from the stolen car. The front of the police car was adjacent to the open door of the stolen car. Senior Constable Evans saw the two passengers decamp. Evans looked at the offender whilst he was still seated in the police car. The offender looked at Evans. Evans got out of the police car and started running towards the back of the stolen car. He was intending to arrest the offender. Senior Constable Evans had only gone a step or so when he heard someone yell out. He looked over his shoulder and saw the stolen vehicle reversing. Evans was hit by the open passenger door of the stolen vehicle driven by the offender. Evans was hit in the back of his legs. He felt the stolen car getting closer to him. He put one hand on the stolen car and the other on the police car and lifted himself up and over the boot of his car thereby avoiding being crushed between the two vehicles. The offender continued reversing the stolen vehicle out of the intersection and up the adjoining street. Senior Constable Evans sought medical treatment from his family doctor the following day. He was examined and found to have suffered a strain to his left wrist, strain to his back and a strain to his neck. He also suffered pain in the back of his legs. The police vehicle was damaged by the open front door of the offender's car. The police car was damaged from the drivers door to the rear panel. 7 The applicant had originally been charged with using an offensive weapon, namely a motor vehicle, with intent to avoid lawful apprehension contrary to s 33B(1)(a) of the Crimes Act. That offence renders a person liable to a maximum penalty of 12 years imprisonment and is accordingly a more serious offence than the one to which the applicant ultimately pleaded guilty. The applicant pleaded guilty to the alternative charge when it was first offered, that is when he was arraigned on 17 November 2003. Until then it had been anticipated that the matter would proceed to trial. In those circumstances, the sentencing judge extended to the applicant a discount of 25% on account of the pleas of guilty. 8 The applicant was aged 43 at the time of these offences. He is one of eight children of Aboriginal descent. He had a tumultuous upbringing which was largely attributable to his father's alcoholism. His father physically abused his mother and the children. The applicant left school at the age of 15 and worked intermittently in unskilled labouring jobs until he went onto sickness benefits in the mid 1980s. He has not worked since that time. He has had three significant relationships and has in all fathered four children. The applicant has had a very long history of serious abuse of both alcohol and illicit drugs. He has shown a marked reluctance in the past to address those problems. 9 When the applicant stood for sentencing he had accumulated a significant number of convictions dating back to 1978. Although his criminal history is by no means confined to such matters, he has a particularly lamentable record for offences involving the use of a motor vehicle. He has been convicted on more than a dozen occasions for drink driving offences not only this State but in Queensland and the Northern Territory as well. Furthermore he has been convicted on numerous occasions for driving whilst disqualified and is currently disqualified from driving until 2031. He also has a conviction for culpable driving and several convictions for illegal use of a vehicle and take and drive a conveyance. Furthermore he has twice been previously convicted of assault occasioning actual bodily harm as well as for a number of less serious forms of assault and resist arrest. The applicant has served a number of terms of imprisonment albeit that most have been of short duration. Alcohol has played a major part in the commission of many, if not all, of these offences. It was an aggravating feature of the present offences that they were committed whilst the applicant was on bail. That material was all relevant to an assessment of the applicant's culpability for the present offences. 10 Nevertheless it is to the applicant's credit that he has spent his time in custody productively. He has completed a methadone reduction program and is now reported to be free of any drugs for the first time in many years. When he first entered custody he was on a daily dose of 120 mlg of methadone but has gradually weaned himself off it altogether. It appears that he has gained some insights into his previous behaviour and has worked hard with the support of the prison psychologist and the prison chaplain towards achieving "his goal of being abstinent". He is currently studying a Bible studies course by correspondence and has enthusiastically embraced the Christian faith. He has successfully completed a number of other courses as well. The applicant was employed in the maintenance section of the gaol at the time of sentence and was reported to be an excellent worker. The applicant retains the support of his family and the evidence revealed that he has employment available to him upon his release from gaol. 11 The sentencing judge had regard to that material in determining that this was a case in which a finding of "special circumstances" could be properly made. Her Honour concluded that a longer than usual period upon parole was warranted and that the applicant would require an extended period of time in order to successfully reintegrate into the community after having been for such a lengthy period of time dependent upon alcohol and drugs. Her Honour also had regard to the evidence concerning the applicant's frontal lobe damage as a matter which supported a finding of "special circumstances". I shall return to consider that matter further in due course. 12 The applicant contends that the sentence in respect of count 2 was manifestly excessive. A number of grounds of appeal were advanced which are, in effect, particulars of that principal contention. It was conceded that a number of them were of a technical nature which they plainly are. 13 The first ground of appeal asserts that the sentencing judge erred in assessing the objective criminality of the conduct which is the subject of count 2. It was submitted that her Honour erred in describing the offence as being "at the upper end of the scale" for offences of this kind. 14 It was important, particularly given the way in which the matter unfolded, that the sentencing judge did not infringe the principles enunciated in The Queen v De Simoni (1981) 147 CLR 383. However so long as the sentencing judge did not find that the motor vehicle was used with the intention of avoiding lawful apprehension, then the De Simoni principle was not infringed. The sentencing judge did not fall into error of that kind and it was not suggested that she had. Indeed the sentencing judge was rather more circumspect than the circumstances required because her Honour was of the view that it was inappropriate to take into account the use of the vehicle in causing the assault. However it is unnecessary to explore that matter any further. 15 It was submitted that the applicant's conduct should not have been characterised as being at the upper end of the scale because it was not open to the sentencing judge to find that his conduct was intentional or deliberate. It was submitted that the evidence was only capable of supporting the view that it was reckless behaviour. In support of that submission, reliance was placed in part upon the report of Dr Jolly which concerned the applicant's compromised ability to "reason things through with clarity." As this submission was linked to the second ground of appeal it is convenient to return to this aspect of the matter when dealing with that ground. 16 It was also submitted, at least in the written submissions, that a finding that the applicant's state of mind was intentional or deliberate was not open because to so find would infringe the De Simoni principle. The argument, in essence, was that a finding that the applicant had acted intentionally or deliberately would necessarily entail a conclusion that he was guilty of the more serious charge with which he was originally charged, namely using the motor vehicle with intent to avoid lawful apprehension. I do not accept the submission. It was quite possible for the sentencing judge to have found that there was an intention to commit the assault without taking the further step of concluding that there was also an intention in doing so to avoid lawful apprehension. 17 Accordingly, it was not in my view incumbent upon the sentencing judge to come to the view that the applicant's actions were reckless as distinct from being intentional or deliberate in causing the assault upon Constable Evans. 18 But even if I am wrong in so concluding, and that the only view that was available upon the evidence was that the applicant's conduct was indeed reckless, then that would still not incline me to the view that the sentencing judge's characterisation of the applicant's conduct was erroneous. The totality of the applicant's conduct as disclosed in the Statement of Facts, together with the other matters to which I earlier referred, revealed criminality of a significant order. That being so, I am of the view that the objective gravity of the offence required the imposition of a substantial sentence. I would accordingly reject this ground of appeal. 19 The second ground of appeal asserts that the sentencing judge erred in assessing the significance of the substantial body of medical evidence that was placed before the sentencing judge. That material consisted of a report from Dr Jolly dated 5 August 2003 as well as a report from Ms Anita Duffy dated 17 September 1999. The latter report was clearly prepared in respect of earlier offences which the applicant had committed. There was no updated report from her which concerned the present offences. There was a report dated 12 March 1990 from Ms Jennifer Batchelor, a clinical neuropsychologist at Westmead Hospital, together with a short report dated 5 April 1990 from Dr Janine Stevenson, who was a staff psychiatrist at Westmead Hospital. There were also reports of assessments made concerning the applicant's mental state at about the time of his arrest in July 2002. Unfortunately some of those reports, as the sentencing judge observed, suffered from two difficulties. First, the handwriting upon them was difficult to decipher and secondly, the right hand side of the pages of the reports had been cut off presumably whilst the documents were being photocopied. That clearly reduced the extent to which the sentencing judge could place any reliance upon them. 20 Insofar as there was any inconsistency between the various reports, the sentencing judge indicated a preference for the views expressed by Dr Jolly who had the decided advantage of having available to him all the other reports to which I have referred. Her Honour's finding seemed to relate particularly to his conclusion that the applicant was not suffering from a psychiatric illness. 21 However Dr Jolly also considered the applicant's overall mental functioning and its significance to the question of his criminal responsibility for his actions. He arrived at the following conclusions: In a general sense, this man is not psychotic. I concluded this section of my report and emphasised 'issue of panic'. I need to emphasise my opinion, at risk of labouring the point, that the combination of 'anxiety' and inability to reason things through with clarity, on account of frontal lobe damage, causes this man to react in ways which are understandable in that context even though the normal or 'average' person might be expected to process information in such a way as to become aware of the immediate circumstances of an incident. … Psycho-legally, the finding of frontal lobe dysfunction pre-existent, and application of those findings to the subject incident and setting, is important in that Mr Pickett's decreased ability to reason calmly and process information as might a cerebrally intact person must be taken into consideration. Further, I emphasis his tendency to 'panic'. 22 As I have said Dr Jolly had available to him various reports. It included Ms Batchelor's neuropsychological assessment performed in 1990. Since Dr Jolly's reference in his report to the applicant's frontal lobe damage depended upon that assessment, it is convenient to set out the relevant parts of that assessment: The results of the assessment revealed Michael to be demonstrating specific difficulties on measures of adaptive (frontal lobe) functioning. Thus, his ability to plan his responses, to switch from one train of thought to another, to inhibit inappropriate response tendencies (even when he knew these to be incorrect) and to reason and problem solve all appeared reduced relative to expected levels. In contrast, recent memory functions and intellectual status proved relatively intact. The pattern of performances returned on testing was suggestive of a specific disturbance of those abilities mediated by the frontal lobes. Whilst this profile is frequently seen as a result of chronic alcohol abuse, it should be kept in mind that Michael has a long history of poorly controlled behaviour and it is possible that his childhood problems were themselves the result of an underlying pathology of the frontal lobes. Thus, although the assessment revealed evidence of a specific impairment of adaptive abilities it is difficult to draw any firm conclusions regarding the etiology of these deficits 23 The submission was advanced that the sentencing judge did not give proper weight to this material particularly insofar as it bore upon the question of the applicant's moral culpability. I would reject that submission in view of the fact that the sentencing judge not only specifically referred to this material but also included extensive passages from Dr Jolly's report in the Remarks on Sentence, including the critical findings to which I earlier referred. Moreover, as I earlier observed, her Honour again made specific reference to this material as a matter which was relevant to a finding of "special circumstances". I would accordingly reject this Ground of Appeal. 24 The next ground of appeal asserts that the sentencing judge's "response to the fact that the applicant had not given evidence resulted in an error of approach and an inadequate assessment of contrition as a relevant factor". 25 The applicant did not give evidence during the course of the sentence proceedings. The evidence touching upon this subject was accordingly in a short compass. The author of the pre-sentence report observed that the applicant "accepts responsibility for the commission of the offence and appeared remorseful for his actions". Dr Jolly reported that the applicant told him that "I've got no malice towards officer Evans…he's just a (a policeman) doing his job…I'm so grateful he didn't get hurt". The drug and alcohol counsellor at the gaol also indicated that the applicant had expressed remorse. 26 The sentencing judge observed that "on a reading of some of the medical reports, it may be possible to suggest that he has, on occasion, expressed regret and sorrow for his action. However, the offender remains resolutely silent before me. It is apparent, from the report of Dr Jolly, that the offender has in his presentation some rather conscious knowledge of the need to advocate his own position; and to present it in the best possible light." 27 In R v Qutami [2001] 127 A Crim R 369 Smart AJ, with whom Spigelman CJ and Simpson J agreed, said that: There is one further general observation. In this case reliance appears to have been placed on statements made by the prisoner to psychiatrists and the psychologist. While those statements are admissible in evidence, very considerable caution should be exercised in relying upon them when there is no evidence given by the prisoner. In many cases only very limited weight can be given to such statements. There has been a noticeable and disturbing tendency of more recent years for prisoners on a sentence hearing not to give evidence and to rely on statements made to experts. Prisoners should realise that if this course is taken great caution will be exercised in respect of the weight, if any, given to those statements. (at 377) 28 In light of the limited evidence which was before the sentencing judge, this was a case in my view in which it was well open to the sentencing judge to conclude that little weight could be extended to the applicant for any element of contrition which went beyond that which was apparent in the pleas of guilty themselves, which as I have observed attracted a discount of 25%, a figure which is at the top of the range identified in R v Thomson & Houlton (2000) 49 NSWLR 383. 29 The applicant acknowledges that the sentencing judge was entitled to treat those expressions of apparent remorse, which were not made on oath, with a degree of caution. The real complaint is focussed upon her Honour's observation that "the offender remains resolutely silent before me". It is submitted that those observations amounted to a "negative conclusion as to the applicant's attitude". Furthermore it was submitted that "the absence of sworn evidence was not to be regarded as a negative 'step back' factor". 30 It may be observed at once that the sentencing judge's remarks were rather unusual and somewhat ambiguous. Whilst it is incumbent upon an offender who is seeking a measure of leniency on account of an expression of remorse or contrition to adduce evidence in support of such a claim, there is clearly no obligation to do so. A failure to put forward such evidence simply deprives the offender of any such benefit. Although the expression used by the sentencing judge was perhaps unfortunate, I am not persuaded that the sentencing judge's approach to this issue has been demonstrated to be in error. I would reject this ground of appeal. 31 It is next contended that the sentencing judge "failed to consider as a relevant factor that the amended indictment contained offences capable of being disposed of in the Local Court". 32 In support of this ground, the applicant relies upon the decision of this court in R v Crombie [1999] NSWCCA 297. However a failure by a sentencing judge to mention that a matter could have been dealt with in the Local Court cannot of itself constitute error. In R v Sivyer [2002] NSWCCA 410, Wood CJ at CL, in a passage which is particularly apposite to the present case, said; It was submitted that, by failing to advert to this fact, or to the possibility that the matter could have been dealt with in the Local Court under S 32 of the Mental Health (Criminal Procedure) Act , his Honour must have overlooked this consideration. However, as I pointed out in Regina v Crombie [1999] NSWCCA 297, there is no absolute principle of law that a sentencing judge must proceed upon the basis that the maximum sentence available in such a situation (here, imprisonment for three years) should be that which could have been imposed in the Local Court. The facts in Crombie are markedly different from those in the present case, where the applicant had multiple convictions for similar offences; had served several terms of imprisonment and has re-offended while on parole. The simple fact is that the applicant chose to plead not guilty in the Local Court, and the DPP had every right to elect to proceed upon indictment in view of the prior record. 33 There is no substance in this ground of appeal in my view particularly when proper regard is had to the objective circumstances of the offence and the applicant's antecedent criminal behaviour. 34 The next ground asserts that the sentencing judge "gave inadequate weight to delay and the circumstance of the applicant having served 19 months of pre-sentence custody in maximum security". 35 As I observed earlier it was anticipated that these matters (or at least the incident which ultimately gave rise to count 2) were to proceed to trial. Apparently the sentencing proceedings commenced before Judge Payne on 18 December 2003 but could not then be completed. For reasons that have not been made clear, the sentence hearing commenced afresh before the sentencing judge on 27 February 2004 and then proceeded to finality on that day. Counsel for the applicant informed the court that Judge Payne had expressed a view at some stage of the proceedings on 18 December 2003 as to the appropriate sentence. That was a sentence which was more lenient than the sentence which was imposed by the sentence judge. It is said that that circumstance had the consequence that "the delay in proceedings had an extra sting". 36 It is clear that Judge Payne's remarks formed no part of the proceedings before the sentencing judge and indeed were not brought to her Honour's attention. Moreover the applicant properly concedes that Judge Payne's comments could not, in any event, circumscribe the exercise of the sentencing judge's discretion. Apart from any other consideration, the material placed before the respective judges was quite clearly different. For example, the applicant gave evidence before Judge Payne but did not do so before the sentencing judge. In short, the comments made by Judge Payne can assume no relevance, in my view, to the disposition of this appeal. Nor in my view is there any basis for assuming that the sentencing judge erred in assessing the weight to be given to the factor of delay. Her Honour was aware of it and expressed the view, during the course of the proceedings, that it was regrettable. Nevertheless it was not of such an order as to attract any significant measure of leniency particularly as the applicant was able to demonstrate that he had used that time productively in order to show that there was for the first time some scope for optimism as to his prospects for rehabilitation. In those circumstances, I would reject this ground of appeal. 37 The applicant was granted leave to rely upon an additional ground of appeal. The complaint is directed at the following passage in the Remarks on Sentence in which her Honour said that "in respect of each of these offences there is an aggravating factor immediately to hand. Relevantly, in each case, the offender previously had been convicted of similar offences." 38 The applicant relies upon this court's decision in R v Wickham [2004] NSWCCA 193 in support of the submission that the sentencing judge fell into error in making those observations. That decision is of little assistance in the present context because it concerns the construction of a particular provision in s 21A of the Crimes (Sentencing Procedure) Act 1999 which was not in operation at the time these offences were committed. 39 This submission thus falls to be assessed in accordance with the pre-existing common law. In Veen v The Queen (No2) (1987-8) 164 CLR 465, a majority of the High Court held: The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell . The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties. (at 477-8) 40 It was not, and could not have been, contended that the applicant's antecedent criminal history was not relevant in the way in which the High Court indicated in Veen (No2). The language employed by the sentencing judge did not strictly conform to the principles enunciated by the High Court. However, I am not in the circumstances disposed to conclude that error has been established, particularly as at a later stage in the Remarks on Sentence her Honour observed that the fact that the applicant had an extremely lengthy criminal history meant that the principle of specific deterrence had a significant role to play in the sentencing process. 41 There is however one final matter to be considered. The sentencing judge observed that "it is appropriate, having regard to the special circumstances, to set a much longer period to the parole period than would ordinarily be the case. I will vary the ordinary ratio which is …seventy five/twenty five to fifty/fifty in order to provide for that need for longer term supervision." 42 It is apparent that in structuring the individual sentences her Honour, as she said she would, set the non-parole period at 50% of the head sentence. However, because the second sentence was partially accumulated upon the first sentence, the overall non-parole period produced was in fact 60% of the overall effective sentence. In other words, the outcome which the sentencing judge intended was not given effect to in the actual orders which were made. In my view, it is appropriate for this court to intervene but only for the purpose of correcting that anomaly. This court has intervened in somewhat similar circumstances in cases such as R v Bolamutu [2002] NSWCCA 454; R v LWP [2003] NSWCCA 215 and R v Keen [2004] NSWCCA 86 and should do so in the present case as well. ********** Last Modified: 11/18/2004 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. 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