New South Wales Court of Criminal Appeal CITATION : Regina v GARNER [2004] NSWCCA 343 HEARING DATE(S) : 29 September 2004 JUDGMENT DATE : 1 October 2004 JUDGMENT OF : Dunford J at 1; Barr J at 2; Hoeben J at 30 DECISION : Leave to appeal granted; appeal dismissed. PARTIES : Regina v Andrew Glen GARNER FILE NUMBER(S) : CCA 2004/1796 COUNSEL : Applicant: P Byrne SC Respondent: J Girdham SOLICITORS : Applicant: L De Luca & Co Respondent: S Kavanagh LOWER COURT District Court JURISDICTION : LOWER COURT 03/11/07469 FILE NUMBER(S) : LOWER COURT Gibson QC DCJ JUDICIAL OFFICER : - 9 - IN THE COURT OF CRIMINAL APPEAL 2004/1796 Dunford J Barr J Hoeben J 1 October 2004 Regina v Andrew Glen Garner Judgment 1 DUNFORD J: I agree with Barr J. 2 BARR J: This is an application for leave to appeal against sentences imposed in the District Court. On 10 October 2003 the applicant, Andrew Glen Garner, pleaded guilty to charges that may be summarised as follows – 1 On 19 March 2003 at Manly, being armed with an offensive weapon, namely a knife, he robbed Jing Juan Lin of $400; and 2 On the same day at Cromer, being armed with an offensive weapon, namely a knife, he robbed Ann Zhuang of $185 and a quantity of cigarettes. 3 When he entered his pleas the applicant asked Gibson QC DCJ, to take into account under the provisions of the Crimes (Sentencing Procedure) Act one further offence, namely the use at Cromer on 19 March 2003 of an offensive weapon with intent to prevent his lawful apprehension. 4 On the first charge his Honour imposed a non-parole period of twelve months and an overall sentence of two years. On the second his Honour imposed non-parole period of one year and six months and an overall sentence of three years. His Honour took into account the applicant's use of the knife with intent to prevent his lawful apprehension. The effective sentence for the totality of his criminality was therefore three years with a non-parole period of one year six months. 5 At 9:05 am on Wednesday 19 March 2003 the applicant, who was dressed in dark clothing and a black beanie, entered a shop in Manly and brandished a knife at Mr Lin, the proprietor of the business. Mr Lin was afraid and retreated some way into the shop. The applicant raised the knife and pointed it at Mr Lin. Mr Lin's wife heard the commotion and entered the shop. She too was afraid and walked to the cash register. She opened the till and the applicant told her he wanted all the money. So he stole about $400. He ran out of the shop and bystander saw him removing the beanie from his head as he went. 6 At about 11:45am on the same day the applicant entered a shop at Cromer, holding the same knife. He told the proprietor, Mrs Zhuang, to hand over her money. She went to the till and did so. Then the applicant required him to hand him a number of packets of cigarettes. Mrs Zhuang acted as she did because she thought that the applicant would use the knife if she did not. 7 The applicant walked out of the shop but soon the alarm was raised. Bystanders pursued the applicant and one of them came close to him. The applicant turned to confront him and pointed the knife at him. He asked him "do you want this?". He turned and ran off. His pursuers did not give in and one of them told him to drop the bag in which he was carrying the stolen money and cigarette. Again the applicant pulled out the knife and threatened to use it. The police were called and the applicant was arrested. 8 The applicant is an only child. He was twenty-one years nine months of age when he committed the offences and twenty-two years four months when sentenced. Until about six weeks before the offences the applicant had lived with his family all his life. He left school after year eleven and entered upon an apprenticeship with a baker. He left the apprenticeship after two years in order to enter the family business. His parents were in the business of furniture removals. He remained in that job. 9 When he was nineteen years old. He began to smoke marijuana. After using that drug for about six months he began to take methylamphetamine and ecstasy. He had a relationship with a young woman but it deteriorated and by about the end of 2002 or the beginning of 2003 it came to an end. Also by the end of 2002 the applicant ceased using illegal drugs. Early in 2003 he began gambling. He began playing on machines at the local RSL club. He went there apparently because he was looking for new acquaintances, having ceased his relations with his girlfriend. During his time with her he had been saving to buy a house and had a little over $20,000. He lost that money gambling at the club. He also ran up a bill of more than $5000 on a credit card. All the time, he was working in the family business. 10 In February 2003 his parents found out what he had been doing and there was a row. His parents told him that he was not welcome at home and they sacked him from his job. He went to stay with someone he had met at the club. He had no savings left and no wage. He committed the offences because somebody told him that would be a good way to raise money. 11 The applicant gave evidence before the sentencing judge. He said that he was sorry for what he had done. He had written letters to the persons whom he had robbed, and copies were tendered. A large number of testimonials were tendered, demonstrating in what high regard the applicant was held in the community. These were his only offences. 12 He told the court that the knowledge of a number of events in and around his family had affected him. When he was six or seven years old he learned that a cousin of his had been murdered when he, the applicant, was two years old. He said that he was "devastated" when he heard. At about the same age he learned that his grandfather and grandmother had died young. When he was in year six in primary school he and a friend had found his friend's mother dead in bed. Later on the friend was injured in a motor vehicle accident and suffered brain damage. The applicant became upset about that and kicked in a door at school. He was referred to a psychologist for treatment of his symptoms of anger. 13 When he left home he thought little of himself and contemplated committing suicide. On the day of the robberies he had not slept for two days. He was going to jump off a cliff, and went to the place where he intended to carry out the act. However, he was afraid and did not go on with it. He did not know where he was going to live or what he was going to do. He needed money. He therefore decided to "rob a shop". He laid hands on a knife and gloves. The knife was an ornamental one he had brought home from a visit overseas. Some time earlier he had dyed his hair green. 14 Reports of a psychologist, Mr Rees, and a psychiatrist, Dr Westmore, were tendered. The applicant had seen them both and had told them about the traumatic events of his early life. Mr Rees went into them in some detail. He dealt with the matters I have summarised as well as other matters which the applicant told him about but was unable to remember when he gave evidence. They were that in 1987 an uncle of his murdered his mother-in-law, son and daughter. He also tried to murder the applicant's aunt, then committed suicide. The aunt had been left with severe brain damage. There were other events as well. 15 The history on which Mr Rees relied was supplied principally by the applicant and his mother. Mr Rees also had before him some account of the offences charged. He tested the applicant with standard psychological tests. He expressed some very strong opinions. He thought that there was a high probability of a hypo-manic episode with psychotic features. He said that persons in such a state are essentially mentally compromised and that their capacity to exercise judgments about appropriate social behaviour is significantly reduced because of their psychotically disturbed state of mind. He thought that the applicant was suffering from an aberration of mind at the time of the robberies which was psychotic in nature. He thought that the applicant should be under the continuing care of a psychiatrist. 16 Dr Westmore, psychiatrist, wrote a report. He made passing reference to the stressors dealt with by Mr Rees. He noted the applicant's history of hearing his own voice speaking to him. He thought that the applicant might have suffered a drug-induced condition or a primary process schizophrenic illness. He thought that the choice between those diagnoses would be determined after the applicant had remained free from illicit drugs for several months. The preferred diagnosis was that he had suffered drug-induced early onset psychosis, probably interrupted in its course by a course of olanzapine which had been prescribed in 2001 after the applicant's father took him to hospital because of suicidal thoughts and cannabis consumption. He thought that the applicant's condition had probably responded positively to the cessation of the use of illicit drugs. He thought that the applicant had become significantly depressed and was suffering a major depressive illness which was probably affecting him when he committed the offences. He said that that illness would have affected the applicant's judgment. He concurred with Mr Rees' opinion that the applicant's offending behaviour was in complete contrast to his premorbid personality and characteristics. There was no evidence, he said, that the probable psychotic illness was playing any direct role in his offending behaviour. He thought that the applicant should continue with counselling. He would expect a steady but progressive improvement in his mental state. 17 A short report of Mr Pickworth, psychologist, stated that he had been treating the applicant since August 2003. He thought that the applicant had a strong desire to overcome his long-standing psychological problems and did not appear to need medication. The prognosis was excellent. 18 There were three grounds of appeal namely - 1. The total effective sentence imposed on the applicant was excessive in all the circumstances. 2 The learned sentencing judge failed to properly assess and give appropriate weight to the evidence bearing upon the applicant's medical condition at the time of the offences. 3 The learned judge should have found that there were exceptional circumstances in the applicant's case which justified an even greater departure from the guideline sentence established in R v Henry [1999] NSW CCA 111 (1999) 46 NSWLR 346. 19 The grounds may be dealt with together. It was submitted that there were three features of the case that made it unusual. The first was that the applicant robbed the proprietors of shops where he had previously conducted business, so he was likely to be recognised. He made no attempt to cover his face. That raised the question whether what he was really doing was "some form of cry for help". The second was that the offences were committed shortly after a profound psychological disturbance. The evidence of Dr Westmore, Mr Rees and Mr Pickworth showed that the applicant was extremely disturbed when he committed the offences. The third was that the offences were out of character, as demonstrated by his clean record and by the strong evidence of character references attesting to his high moral standards. So the offences were explained by the mental condition the applicant was suffering from at the time. 20 Dealing with the applicant's mental condition, his Honour said this - Whilst I acknowledge that the offender may have been suffering from some depression, that does not mean to me in this case that the need for personal and general deterrence disappears. 21 This remark was attacked as an inadequate analysis of the applicant's mental condition. It was submitted that a complete and thorough analysis would have led to a different conclusion. Extensive reference was made to the principles which apply to the sentencing of persons suffering from mental illness and intellectual deficit. See R v Scognamiglio (1991) 58 A CrimR 81 and R v Anderson [1981] VR155. In the latter case the Victorian Court of Criminal Appeal said - In sentencing generally, it is necessary to balance personal and general deterrence on the one hand with rehabilitation on the other. But in the case of an offender suffering from a mental disorder or abnormality, general deterrence is a factor which should often be given very little weight…general deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others. 22 See also R v Letteri, Court of Criminal Appeal, New South Wales, 18 March 1992 unreported, R v Wright (1997) 95 A CrimR 48. In the latter case Hunt CJ at CL said at 51 - It is an accepted principle of sentencing that general deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others. In most of the cases in which that principle is applied, the offender has suffered from a significant mental illness or retardation, but such a condition is not a necessary condition for the principle to be applied. Considerations of general (or even personal) deterrence are not rendered completely irrelevant, and the significance of the offender's mental incapacity is to be weighed and evaluated in the light of the particular facts and circumstances of the individual case. The reason for the principle is that the interests of society do not require such persons to be punished as severely as persons without that disability because such severity is inappropriate to their circumstances. The full understanding of the authority and requirements of the law which is attributed to the ordinary individual of adult intellectual capacities cannot be expected of a person whose intellectual function is insufficient to have that understanding. The means by which the courts give effect to that principle (as an instrument of social administration) is to moderate the consideration of general deterrence to the circumstances of the particular case. But, if the offender acts with knowledge of what he is doing and with the knowledge of the gravity of his actions, the moderation need not be great. 23 I have summarised the relevant conclusions reached by Dr Westmore and Mr Rees. The difference between them about the illness from which the applicant was suffering when he decided to commit the robberies is remarkable. His Honour rejected the opinion of Mr Rees and found, on the evidence of Dr Westmore's opinion, that the applicant was suffering from depression. 24 I do not think that the manner in which his Honour expressed his conclusion indicates any inadequate analysis or failure to understand Dr Westmore's opinions. I do not think that the reference to "some depression" indicates that his Honour was qualifying Dr Westmore's evidence. The words his Honour used do not suggest to me that he overlooked or misunderstood any relevant part of the opinion. 25 As the remarks of Hunt CJ at CL in R v Wright recognise, the ways in which offenders may be affected by mental illness or intellectual deficit vary enormously. There will be cases where the effect that is such that the law ought not to regard such offenders as appropriate media for the imposition of sentences to deter offenders generally. For the same reason there may be little or no reason to give any weight in sentencing to personal deterrence. 26 But the applicant, though undoubtedly ill, did not fall into any such category of such persons. He was well able to consider his problems, make plans and put them into effect. It may be accepted that his judgment was affected by his depression and that, as he told his Honour, he acted in a way he would not otherwise have acted. But that was only one part of what was affecting him. He was seriously short of money and made enquires about how he might raise it. He made a conscious decision to rob. He obtained the knife and gloves. He selected the shops to rob. There is no substance in the submission that his Honour ought to have seen these offences as a cry for help. It is correct to say that the applicant did not cover his face and that he held up the proprietors of shops he had entered a number of times before, and that that carried a risk that he would be recognised. However, he took the trouble to hide his distinctive green hair with the beanie, and when pursued after the second robbery, made a determined and protracted effort to get away. 27 In my opinion his Honour was entitled to come to the conclusion that the applicant's illness did not mean that there was no need for the sentence to provide for general and personal deterrence. 28 As his Honour observed, the applicant's offences were, except for the fact that there were two robberies, the result of conduct like that contemplated in R v Henry (1999) 46 NSWLR 346. The starting range for such offences is imprisonment from four to five years. Mitigating factors will justify lower sentences: see the judgment of Spigelman CJ at paragraphs 165, 169. 29 It seems to me that the sentences imposed by his Honour appropriately recognised the extent to which the applicant's illness mitigated his criminality. In my opinion the sentences were well within the proper range of his Honour's sentencing discretion. I would grant leave to appeal but would dismiss the appeal. 30 HOEBEN J: I agree with Barr J. ************ Last Modified: 10/18/2004 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.