New South Wales Court of Criminal Appeal CITATION : REGINA v ARNOLD [2004] NSWCCA 294 HEARING DATE(S) : 14 July 2004 JUDGMENT DATE : 30 August 2004 JUDGMENT OF : Wood CJ at CL at 1; Adams J at 2; Kirby J at 77 DECISION : Counts 7 to 10: On each count, imprisonment for a term of 6 years to commence on 23 February 2003 and conclude on 22 February 2009; Counts 11 to 17: On each count, imprisonment for 7 years to commence on 23 February 2004 and conclude on 22 February 2011; Count 18: Imprisonment for 6 years to commence on 23 February 2005 and conclude on 22 February 2011; Count 19: Imprisonment for 3 years and 9 months to commence on 23 February 2008 and conclude on 22 November 2011; Count 24: Imprisonment for 9 years to commence on 23 February 2009 and conclude on 22 February 2018. Non-parole period of 1 year to commence on 23 February 2011 and expire on 22 February 2012; Count 21: Imprisonment for 7 years to commence on 23 February 2011 and to conclude on 22 February 2018 Non-parole period of 1 year to commence 23 February 2011 and conclude on 22 February 2012; Counts 1 to 6 and 20, 22 and 23: The sentences on these counts are confirmed; Overall sentence commences on 23 February 2003 and expires on 22 February 2018 (rather than 22 February 2023) Eligible to be released on parole on 22 February 2012 (rather than 22 February 2015). CATCHWORDS : Sentence appeal - series of serious offences - history of mental disturbance - effect on sentence - effect of accumulation on utilitarian discount - need to adjust overall sentence to demonstrate discount LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 s44 Criminal Appeal Act 1912 s6(3) R v George [2004] NSWCCA 247 CASES CITED : R v Hemsley [2004] NSWCCA 228 R v Henry (1999) 46 NSWLR 346 R v Thomson & Houlton (2000) 49 NSWLR 383 Regina PARTIES : v Bradley Scott ARNOLD (Applicant) FILE NUMBER(S) : CCA 60157/04 COUNSEL : P Power SC (Crown) R J Button (Applicant) SOLICITORS : S O'Connor (Crown) S Kavanagh (Applicant) LOWER COURT District Court JURISDICTION : LOWER COURT 03/11/0179; 03/11/10184 FILE NUMBER(S) : LOWER COURT Finnane DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60157/04 WOOD CJ at CL ADAMS J KIRBY J MONDAY 30 AUGUST 2004 REGINA v BRADLEY SCOTT ARNOLD Judgment 1 WOOD CJ at CL: I have read in draft form the judgment of Adams J. I agree with the orders proposed, and with the reasons of his Honour. 2 ADAMS J: Following his pleas of guilty in the Local Court, Arnold was committed for sentence in the District Court for a crime spree between 20 December 2001 and 10 July 2002 during which he committed the following offences – (i) one charge of attempted break and enter with intent to commit larceny; (ii) one charge of breaking and entering with intent to steal; (ii) four charges of disposing of stolen property; (iii) two charges of break, enter and steal; (iv) thirteen charges of aggravated break, enter and steal in which the aggravating circumstance was depriving the householder of his or her liberty; (v) two charges of aggravated attempted break, enter and steal with intent to commit larceny, in which the aggravating circumstance was the use of corporal violence on the victim; (vi) one count of assault with intent to rob; and (vii) twenty-eight charges for related offences, which were taken into account comprising obtaining benefits by deception, taking conveyances without consent of the owner, attempting to obtain a benefit by deception, assaulting police, resisting an officer in execution of duty, possessing housebreaking implements and having goods suspected of being stolen in his custody. 3 Arnold was sentenced to an aggregate head sentence of twenty years' imprisonment with an aggregate non-parole period of twelve years. He does not submit that any individual sentence is excessive but that the pattern of accumulation ordered by the sentencing judge resulted in a manifestly excessive sentence, having regard to the totality of criminality. 4 There was no dispute about the circumstances of the offences. The following account is a summary in chronological order drawn from the Crown statement of facts that was tendered without objection. Offence 1 5 On the afternoon of 20 December 2001, Arnold went to a house in Umina and smashed a front window. The householders, who were in the backyard at the time, went to the front of the house but Arnold had fled. Blood spots located by police near the window contained Arnold's DNA and identified him as Arnold. Offence 2 6 On 4 January 2002 an unknown person stole a Compaq laptop computer, a camera bag containing a camera and other photographic gear from a house in Cremorne. On the following day Arnold went to a loan office in the city and pledged the bag and the gear, identifying himself falsely as the owner. He obtained $180. Offence 3 7 On 7 January 2002, Arnold pledged the stolen Compaq computer, receiving $600 for it. Offence 4 8 On 17 January 2002 an unknown person stole a video recorder from a home in Neutral Bay. On the afternoon of the same day Arnold pledged the recorder, receiving $140 for it. Offence 5 9 On 26 January 2002 an unknown person stole a number of items from a house in Mosman. On the following day Arnold, with his girlfriend, pledged the camera for $70. Offence 6 10 On 6 May 2002 Arnold broke the front window of a house in Yeo Street, Neutral Bay. He stole a three-piece gold ring valued at about $10,000 and an "X-Box" computer console. Police located Arnold's fingerprint in the premises. Offence 7 11 On 24 May 2002, Arnold entered a house through the back door. He grabbed the 70 year old female householder from behind and, with one hand around her mouth, walked her into her bedroom where he taped her wrists and ankles together. He took $100 in cash and her bank key card, demanding her PIN number. He then left the house after taping her mouth. The victim managed to free herself about twenty minutes later and the police were contacted. Shortly afterwards Arnold withdrew $1000 from the victim's account using her key card and some hours later tried again but access was denied. These two offences were taken into account on a Form 1. The victim received welts on her wrists from the tape and was traumatised by the incident. Offence 8 12 On the evening of 27 May 2002, the 83 year old female victim opened her front door to Arnold's banging. He grabbed her, pushed her into a bedroom, demanding to know where her purse and handbag were, threatening to punch her if she did not give him any money. She told him that she kept some money in a box in a drawer, from which Arnold took $100. He then pushed the victim into a second bedroom and, when she struggled, punched her in the cheek. He produced a role of packing tape, wrapped it around her body, taping her arms to her side and binding her ankles together. He demanded her PIN number and threatened to "beat" her if it was incorrect. She gave him the wrong number. Arnold took her house keys and left the house, only to return about fifteen minutes later threatening to kill the victim's cat if she did not give him the correct number. Arnold took the victim's car keys and left the premises, taking her car. Later in the evening Arnold took a total of $1600 in five transactions from the victim's bank account. These thefts and that of the car were taken into account on the Form 1. The stolen vehicle was found about a week later near the premises of Arnold's girlfriend. Arnold's DNA and fingerprints were found on items in the car. The victim was terrified and feared for her life. She suffered an injury to her left knee and soreness to her right cheek. Offence 9 13 On 30 May 2002 Arnold entered the 79 year old victim's house through the rear door and grabbed him from behind. He demanded money and threatened to "bash" him if he did not stay quiet. He pushed him into the bedroom and forced him face down onto the bed. The victim tried to look around, but was hit four times to the back of his head. Arnold continued to demand the victim's wallet and money, whereupon the victim opened a drawer and gave Arnold $25. Arnold stole the victim's bank passbook, which had $100 cash inside, and ATM card demanding the victim's PIN, threatening to hurt him if he gave the incorrect number. In fear, the victim gave Arnold his PIN. Arnold pulled the victim's arms behind his back, taped his hands and ankles together and left the bedroom. A few minutes later the victim freed himself and called the police. 14 About 8.15pm that same day, Arnold went to an ATM machine and withdrew a total of $1,000 from the victim's account in two separate transactions, being $900 and $100. These transactions constitute the offences which are to be taken into account on a Form 1. The victim was traumatised from the incident. Offence 10 15 About 8pm on Saturday, 1 June 2002, the victim, a 65 year old woman, was home alone. Arnold knocked at the rear door, which the victim opened slightly. Arnold pushed the door open with force, pushed his hand into the victim's face, covering her mouth, and then pushed her backwards onto the floor. Arnold again covered the victim's mouth and demanded money. He ordered the victim to go into the bedroom and lie on the bed. The victim refused, but Arnold forced her into the bedroom, continuing to demand money from her. She told Arnold her money was in the handbag. Arnold and the victim returned to the lounge room to collect the victim's handbag and they then went back to the bedroom. He pushed the victim face down onto the bed, tied her hands behind her back and bound her ankles with packing tape. He removed $600 from the victim's handbag. Arnold left the bedroom for a short time and returned with the victim's car keys, demanding to know which car belonged to her. The victim described her car and told Arnold where it was parked. He left the house after cutting the tape from the victim's hands, but leaving the tape on her ankles. A few minutes later the victim was able to free her ankles. 16 A towel found at the scene contained DNA matching that of Arnold. CCTV footage at the nearby railway station depicted Arnold at a time that was consistent with the commission of the offence. 17 During the incident, the victim was shocked and traumatised. She received marks and bruises to her wrists from the packing tape. Offence 11 18 At 9.30pm on Saturday, 8 June 2002, the victim, a 77 year old woman was alone at home. She went to the laundry area of the house and was grabbed from behind by Arnold. He covered her mouth with his hands, causing her to wet herself. He demanded she remain quiet and threatened to break her jaw. She was pushed from behind towards the bedroom and he demanded her purse. The victim retrieved her handbag, which was taken by Arnold, who ordered her into the bedroom, pushing her onto the bed. He removed about $75 cash from her purse and demanded she tell him where there was more money. Arnold then demanded that she drive him to the bank, but she told him she had wet herself and needed to change clothing. She was allowed into the bathroom to change. As she walked back into the bedroom, he pushed her onto the bed and went to her handbag. He removed her ATM cards and demanded each PIN, which she gave him. He demanded more money from her and she led him into another room, where she gave him a further $50. The victim was then forced back into the bedroom and pushed face down onto the bed. Her hands were tied behind her back with packing tape, as were her ankles. Arnold then left the house. Some time later the victim freed herself and called the police. Arnold took the victim's motor vehicle, which was parked under the carport of the premises. This offence was taken into account on a Form 1. 19 About 9.43pm Arnold went to an ATM and used the victim's key card to withdraw $1,000 from her account. This offence was also taken into account on a Form 1. 20 About 10.02pm on 8 June 2002, Arnold drove the victim's car north in Clark Road, Neutral Bay and pulled into a driveway short of a random breath testing location. Police approached the vehicle, attempting to remove the keys from the ignition. Arnold reversed out of the driveway and collided with a stationary police vehicle and drove off in a southerly direction with police in pursuit. When Arnold neared an intersection, he slowed and again reversed into a police vehicle, which disabled it and he drove off in a southerly direction. The vehicle was abandoned in Kirribilli. 21 The vehicle was forensically examined and items found in it contained DNA with the same profile as Arnold's. Arnold also made certain admissions to his partner about being involved in a police pursuit. Offence 12 22 On 22 June 2002, the 71 year old female victim was home alone when Arnold entered the premises by forcing open an unlocked window in a bedroom. He came up behind the victim and placed a pillowslip over her head, demanding cash, key cards and PIN from her. He led her to the bedroom, demanded she put her hands behind her back and unsuccessfully attempted to pull off her wedding and engagement rings. Arnold tied the victim's hands and ankles together with tape. After taking the victim's ATM card and obtaining the PIN, he left the premises and attempted unsuccessfully to use the victim's card. Before the victim escaped her bonds, he returned and demanded the PIN again, tying more tape around the victim's wrists. A short time later she managed to free herself and alerted neighbours, who called the police. 23 Arnold went to the ATM and withdrew $760 in five separate transactions, which comprise the offences taken into account on a Form 1. 24 As a result of the offence the victim was traumatised and is extremely anxious about her security both outside and inside her premises. Offences 13 and 14 25 At about 9.05pm on 29 June 2002, the victims, who were brother and sister respectively aged 81 and 80 years, were at their home when Arnold gained entry through a rear door which was closed but unlocked. Once inside the premises, he went to the lounge room and violently grabbed the female's mouth and face. He ordered her and her brother into a bedroom, where he told them both to lie face down on the beds. He stole $795 in cash, and two ATM cards. He also stole two diamond rings, a gold ring with small ruby stone, one gold bracelet, a gold necklace and a school medal. When he bound the male victim's hands and feet with packing tape, both victims told him that he had a pacemaker, and Arnold untied his hands. He left the house and police were called. Arnold used one of the key cards to withdraw $1,000 in cash. This offence was taken into account on a Form 1. He also attempted to use the other key card to withdraw cash but access to the account was denied. This offence was taken into account on a Form 1. 26 Some time later, Arnold's partner pawned the stolen jewellery. On 16 July 2002 a search warrant was executed at premises in Umina Beach, where Arnold and his partner lived. Police located the school medal, inscribed with the male victim's name. 27 As a result of the offence the victims suffered trauma and shock and the female victim also suffered cuts and bruises to her face. Offences 15 and 16 28 At 9.40pm on 2 July 2002, the 71 year old female victim and her 45 year old son (who was terminally ill with cancer and died soon after) were at home when Arnold entered through a bedroom window wearing a black balaclava. He came up behind the female victim in the hallway, took hold of her and forced her into a bedroom. He made her lie face down on the bed and tied her hands and ankles with packing tape. Arnold grabbed her son from behind and held a sharp object to his neck. He made him walk to another bedroom and lie on a bed, tying his hands behind his back with cable ties. He stole $110 and four cards. Arnold left the premises and the victims shortly after freed themselves. Arnold also stole the female victim's car, which was later found nearby. This offence was taken into account on a Form 1. 29 Arnold went to an ATM and withdrew $180, $800 and $1,000 from the victims' accounts. These offences were taken into account on a Form 1. 30 The crime scene was forensically examined and a shoe impression was taken. The impression was analysed and compared to an impression of shoes which were seized upon Arnold's arrest on 10 July 2002. The two impressions were found to be very similar. 31 As a result of this offence both victims were traumatised. Offence 17 32 At about 11.30am on 7 July 2002, the victim returned home after a week's holiday to find that the flyscreen on a spare room of her house was open and the window had been broken. The room was obviously disturbed. But no property was found to be missing from the house. Police who examined the scene took swabs from a number of red stains on or near the broken widow. DNA with Arnold's profile was recovered. Offence 18 33 At about 7pm on Saturday, 6 July 2002, the 82 year old victim was home alone when Arnold gained entry by cutting the screen on the back door, smashing a window panel on the main door and unlocking the door in the rear enclosed verandah area. He left traces of his blood on the door. Arnold confronted the victim and grabbed her when she walked past the laundry. He demanded money from her and, fearing for her safety, she handed Arnold two envelopes containing $500 and $300. He pulled the phone cord out of the telephone and placed the two envelopes in his pocket. He left the house the same way he entered. CCTV footage recovered from a nearby railway station depicts Arnold at a time consistent with the commission of this offence. Offence 19 34 About 7.40pm on Saturday, 6 July 2002, the female victim, who was 39 years of age, was at home by herself, walking around the house and talking to her partner on her mobile phone. Arnold had entered the house through a rear door that was closed, but not locked. The victim saw him standing in the hallway and screamed. Arnold kicked her in the stomach, causing her to fall backwards. He ran to another room in the house. Fearing for her safety, the victim ran out of the house and used her mobile to call police who arrived a short time later. Arnold fled through a window. The victim noticed that the contents had been removed from her handbag and placed on the bed. 35 A shoe print was located at the scene, which was found to match shoes worn by Arnold at the time of his arrest on 10 July 2002. He was also depicted on CCTV footage recovered from a nearby railway station at about the time of the offence. The victim was shocked and traumatised by the incident and suffered pain to her stomach. Offence 20 36 Between 11pm and 11.30pm on 8 July 2002, the male victim and his wife were asleep in their bedroom when the male was woken by a banging noise from the yard at the rear of his house. The two victims went to the rear yard to investigate and heard the sound of breaking glass from their bedroom. They went back to their bedroom where they saw that the bedroom window had been broken. A wallet containing a number of ATM cards and personal papers had been taken from a side table near the window. Police seized an empty soft drink can, which was found to contain DNA with Arnold's profile. 37 On 16 July 2002, Arnold's partner was arrested in relation to other unrelated charges. While searching her, police seized all four bank cards which were the property of the male victim. Offence 21 38 About 7.40pm on Wednesday, 10 July 2002, the 82 year old victim was watching television in the lounge room of his home when Arnold cut the gauze from the front door, unlocked it and entered. The victim heard the front gauze door open. As he was getting up from the lounge, Arnold appeared in the doorway of the lounge room. He punched the victim to the head and body. He took the victim to a bedroom, where he again punched him a number of times to the head and then pushed him onto a bed. After ransacking drawers and cupboards in the bedroom, Arnold demanded the victim's wallet. The victim got up to hand the wallet to Arnold from his back pocket when he was spun around by Arnold who grabbed the wallet from the victim's back pocket and took $30 from it. He also took approximately $400 from a drawer in the bedroom. He left the bedroom and said, "Don't move. Don't ring the police or I'll come back and do you over". 39 The victim heard Arnold leave the house. When he tried to call the police, he noticed that the telephone cord had been ripped from the phone. The victim called police from a neighbour's phone. A plastic milk bottle that was found in the driveway of the home was found to contain DNA with Arnold's profile. The victim suffered trauma and pain to his face where he had been struck by Arnold. Offence 22 40 About 9.00pm on Wednesday, 10 July 2002, the 54 year old victim was sitting in his kitchen when he heard a loud noise from the spare room and went to investigate. A short time later, the victim went outside to take out the garbage. He was still within the curtilage of his property when he saw Arnold standing rigid against the wall near the front of his house. Arnold jumped on the victim and they fell towards some garbage bins. Arnold punched the victim's head and forced him to the ground. The victim was screaming for help when Arnold ran off. The victim's neighbour came to his assistance and police were called. 41 The victim examined his house and noticed that the flyscreen covering the window of the spare room had been removed. There was a hole in the window about the size of two fifty-cent coins near the bottom of the frame. Police located a shoe print in the dirt near the garbage bins. This shoe impression was very similar to the shoes worn by Arnold at the time of his arrest later that night. During the offence, the victim was in fear for his safety and traumatised by the assault. He received bruising to the right and left side of his head, left eye and temple, a cut to his left ear and numerous bruises and pain throughout his body. Offence 23 42 About 9.55pm on Wednesday, 10 July 2002, the 42 year old victim was alone in her unit when she heard noises coming from her ground floor balcony. She opened the balcony door and saw Arnold standing on the balcony. He pushed her back into the unit and wrestled her onto the lounge. He grabbed her handbag from a nearby coffee table and ran out the door. This handbag was located nearby on the following day. The victim was traumatised by the offence. Offence 24 43 About 10.40pm on Wednesday, 10 July 2002, the 59 year old victim was at home when she heard a noise outside and went to investigate by opening the rear sliding door. Arnold was standing outside. The victim began to yell at him. He walked to the side of the house and then came back towards the victim and grabbed her right arm before she had an opportunity to return to the house. He punched her several times to the head, which caused her spectacles to fly off and become damaged, put her in a headlock and dragged her into the house where he continued to punch her to the head. During the assault, the victim screamed out for help. He let her go and began to open and close the cupboards in the kitchen. He grabbed the victim again, punched her to the head and dragged her into the sitting room. Arnold attempted to get the victim to sit on the ground, but she resisted. He went up the hallway and she attempted to lock herself in another room. Arnold grabbed her in a headlock and a further struggle ensued. During this struggle, the victim punched Arnold in the stomach and he let her go. She ran out of the house and onto the street, where she yelled out for help. She ran to the nearby railway station, where she continued to yell out for assistance. Police arrived shortly after and spoke to her. 44 The victim suffered emotional trauma and physical injuries. The injuries included bruising under her right eye, right cheek, swollen mouth, swollen right wrist, fingers and hand. She had a sore head from being punched by Arnold and also suffered a sore left leg and soreness to her back and neck. Arrest of applicant and his interviews 45 At 10.45pm on Wednesday, 10 July 2002, plain-clothes police were patrolling in Kendall Street, Gosford searching for Arnold in relation to offences 21-24. He was seen walking in Kendall Street and was arrested after a short pursuit. In the course of resisting arrest, Arnold assaulted three police officers, one of them with a small glass-breaking hammer. Two offences of resist arrest and two offences of assault police were taken into account on a Form 1. 46 Arnold's possession of the small glass-breaking hammer and a City Rail train pass (of a kind which is only on issue to war veterans) in the name of R Thompson are the basis of the charges of possession of housebreaking implements and goods in custody that were taken into account on a Form 1. 47 Arnold was taken to Gosford Police Station. On 11 July 2002, he participated in an ERISP in relation to offences 6 and 21-24, making no admissions. Arnold was charged with offence 6 and with the six offences which were to be taken into account on a Form 1. On 16 July 2002, Arnold again participated in an ERISP in relation to most of the above offences. He made neither admissions nor denials, telling police that his memory of the period during which the offences were committed was marred by his use of drugs. On two occasions during the ERISP Arnold said, "What have I done" in answer to allegations which were put to him. 48 Arnold was charged with further offences on 16 July 2002 and in court on 17 July 2002. Fresh charges were also laid during subsequent court appearances at Central Local Court. The sentences 49 In respect of counts 1, 2, 3, 4 and 5, Arnold was sentenced to five concurrent terms of two years each, commencing on 23 February 2003 and ending on 22 February 2005. In respect of counts 6, 17, 20, 22 and 23, Arnold was sentenced to five concurrent terms of three years commencing on 23 February 2004 and ending on 22 February 2007. In respect of counts 7, 8, 9 and 10, Arnold was sentenced to four concurrent fixed terms of six years each, commencing on 23 February 2005 and ending on 22 February 2011. On counts 11 and 12 Arnold was sentenced to two concurrent terms of seven years each commencing on 23 February 2007 and ending on 22 February 2014. On counts 13, 14, 15 16 and 17, Arnold was sentenced to five concurrent terms of seven years each, commencing on 23 February 2008 and ending on 22 February 2015. On count 18, Arnold was sentenced to a six year fixed term to commence on 23 February 2009 and end on 22 February 2015. On count 19, Arnold was sentenced to a term of three years and nine months commencing on 23 February 2011 and ending on 22 November 2014. On count 21, Arnold was sentenced to a head sentence of seven years commencing on 23 February 2014 and ending on 22 February 2021, with a non parole period of one year commencing on 23 February 2014 and ending on 22 February 2015. On count 24 Arnold was sentenced to a head sentence of nine years commencing on 23 February 2014 and ending 22 February 2023 with a non-parole period of one year commencing on 23 February 2014 and ending on 22 February 2015. 50 The learned sentencing judge, Finnane DCJ allowed a discount in the order of twenty per cent on each sentence to reflect the undoubted utilitarian value of the pleas. This varied a little in each case as his Honour (justifiably) rounded the terms of imprisonment. 51 The matters on the various Forms 1 were taken variously into account on charges 7, 8, 9, 11, 12, 13, 14, 15, 16 and 24. 52 Following the setting of the individual sentences, his Honour stated – "I have decided after anxious thought over many weeks, that the appropriate head sentence is one of twenty years…I propose to fix a non-parole period of twelve years." He then went on to set the concurrent terms and partial accumulations that yielded this result. The objective features 53 Two other aggravating features should be mentioned. On 14 April 2000, Arnold was sentenced to imprisonment for three years from 18 August 1999, with a non-parole period of two years and three months for the offence of breaking, entering and stealing. He was released on parole on 17 November 2001. It follows that all the present offences were committed whilst Arnold was on parole. (Arnold's parole was revoked and he commenced serving the balance of parole on 11 July 2002, the day after his arrest, this period expiring on 23 February 2003, on which date the learned sentencing judge commenced the present sentences.) The second matter is that, on 27 February 2002 Arnold, then in the William Booth Institute in Surry Hills, was charged, following some admissions, with offences 2 to 5. He was issued with a Court Attendance Notice. It will be seen that most of the present offences were committed after that date, that is to say, at a time when he was already required to attend court to be dealt with for earlier offences. 54 The above account, though in summary form, of Arnold's offences demonstrates without the need for further elaboration or comment very serious objective criminality indeed. It is clear that, having regard to the advanced age of many of his victims, Arnold had planned his attacks with some care and selected them as easy targets. He had obviously taken the adhesive tape with him for the purpose of disabling the victims. Nor was it happenstance that the victims were at home, since it is clear that he intended to obtain access to their bank accounts, if he could, and needed to extract the PINs. In summary, the crimes were calculated, the violence was premeditated and Arnold intended to terrify the victims to disable resistance and compel compliance with his demands for their PINs. Even when arrested, Arnold was violent and attacked police with an offensive implement. 55 Arnold claimed to police, and has since maintained, that he has little or no recollection of the offences, since he was affected by illicit drugs of one kind or another when he committed them. There seems little doubt that, indeed, he had reverted to drug abuse and that this was a significant factor affecting his conduct but it is difficult to accept that his ignorance of the circumstances of the crimes is indeed as limited as he claims. However, the sentencing judge accepted that Arnold "appears to have but a vague understanding of what…he was doing in these various incidents" and the Crown did not contend that this Court should find otherwise. This is of limited significance. 56 It remains to mention the sheer number of Arnold's crimes. The subjective features 57 Arnold was twenty-six years of age at the time of sentence. He was twenty-four when he committed the first of the offences. His parents were alcoholics and his upbringing was chaotic and scarcely adequate. Not surprisingly, he had manifested emotional and behavioural problems from an early age that required him to be placed in a residential unit for children. He was diagnosed with dyslexia and attention deficit disorder. At the time of sentence, his relations with his mother and step-father were positive and provided some basis for confidence that he would have their help towards rehabilitation. 58 Arnold's criminal history commenced in December 1993, when he was sixteen years of age, with a sentence of community service for taking and using a conveyance and being an unlicensed driver. He was given another community service order in February 1994 for breaking and entering with intent. Five months later he was subjected to control orders for a number of offences, including two of breaking, entering and stealing and possession of a shortened firearm. In December 1994, he was sentenced to periodic detention and community service for two offences of breaking, entering and stealing and two offences of stealing. In 1996 and 1999 he committed several relatively minor offences, but in April 2000 he was convicted of the breaking, entering and stealing offence to which reference has already been made, together with the deemed supply of a prohibited drug. 59 A number of reports were tendered in the hearing. They included reports from the Probation and Parole Service, the Metropolitan Medical Transient Centre, Dr C J Lennings, psychologist, the Corrections Health Service, a report from the Residential Care Team Leader on Arnold's admission to Burnside Homes and other incidental reports. 60 It is unnecessary to set this material out in detail. It discloses that Arnold had a very disturbed childhood, involving serious psychological and behavioural problems and repetitive institutionalisation. Amongst other things, he may well have been sexually assaulted on a number of occasions and his drug use dates from his early teen age. At the time of the present offences it appears that Arnold's mental state was somewhat disturbed by a combination of his psychological condition and amphetamines and possibly other illicit drugs. He claimed to Dr Lennings that his crimes were impulsive. Some may have been. Quite obviously, most were not. 61 Dr Lennings considered that Arnold's "level of personality disorganisation is profound and, along with the psychological torture he appears to experience, it seems a provisional diagnosis might be borderline personality disorder at the very severest end of the spectrum, complicated by some kind of organic brain dysfunction." Prospects of rehabilitation appear to be low, having regard to Dr Lennings' view that – "Although Mr Arnold has some cognitive assets, he is functionally so impaired that he is very unlikely to achieve much in the way of self regulation. His use of substances can only complicate and erode what little real-world functional ability he has." 62 The learned sentencing judge summarised the position as follows – "He has used heroin, amphetamines and alcohol. He claims currently to be drug free. Whether this is so or not I do not know. He has been diagnosed as suffering from attention deficit hyperactive disorder. He also claims to have been sexually assaulted by a family friend. Attention deficit disorder is a severe condition which can create, in many people, great difficulties in coping with life. It is also clear enough from much of the evidence presented to this Court on numerous cases that sexual assaults on people often cause them to behave in inappropriate ways later in life. However, sexual assaults and the having of an attention deficit disorder are no excuse and no justification for any of the offences with which he has been charged. He is now twenty-six years old. Whatever may have happened in his past life, it is about time that he stopped living in the past and blaming the past for his current plight. However disturbed his background may have been, there can be no justification for what he has done. An alcohol and drug report has shown that, according to him, he started drinking alcohol at fourteen, he started smoking cannabis at the same age and continued up till the time of his arrest. He started using amphetamines at fifteen and quickly became a daily injector of amphetamines. He has used cocaine inhalants and heroin. He has used benzodiazepines. He has been on the methadone program. On occasions he has sought assistance from institutions such as the Salvation Army. However, he has not persisted with them and has remained a drug user. I have read a psychological report on him. It is not a psychiatric report and therefore, in my opinion, cannot be regarded as being diagnostic of any mental condition. Psychologists, in my opinion, have no entitlement to express opinions about mental disorders, although, of course, they are entitled to conduct tests and to take histories. The psychological report suggests that he suffers from some form of personality disorder. I am not prepared to accept that as a basis for concluding that when considering the question of deterrence, I should rate deterrence as less important because of his mental condition. I see nothing in the report to indicate he has any particular mental condition, apart from an addiction to drugs." His Honour concluded, as to this aspect – "The material which has been provided…indicates that he is a twenty-six year old drug addict with a well developed pattern of drug offending from an early age. He is dyslexic, he has had a disrupted life, he does not suffer from any known mental affliction except of course the compulsion produced by drug addiction to get cash to buy the drugs." 63 In my view, the learned trial judge's refusal to give any weight to Dr Lennings' report because it is not that of a psychiatrist is a serious error. There was no objection by the Crown to the tender of the report or to the admissibility of any opinion expressed in it, nor did the Crown contend that only qualified weight should be given to Dr Lennings' conclusion, though it was (in some respects only) expressed to be provisional. The attitude of the Crown is not surprising, having regard to the obvious care with which the report is compiled and Dr Lennings' curriculum vitae, which indicates, amongst other things, that he is a clinical psychologist with a Masters Degree in Clinical Psychology, he has a Doctorate in a relevant field (personality), and he has had extensive experience over many years both for Government and private clients in making assessments of the kind he made in this case. This is not to say that the court is obliged to accept his opinions, but to reject them because he is a psychologist rather than a psychiatrist, especially when no such objection is made by the other party, strikes me as arbitrary and unreasonable. 64 All the evidence about Arnold's mental and emotional condition demonstrated that, at the very least, he had been a very disturbed individual for a considerable time, almost certainly since well before he was ten years of age. It seems to me that the view of this matter expressed by the sentencing judge in the above passages not only wrongly fails to take Dr Lennings' opinion into account but also substantially and unfairly understates the considerable psychological and behavioural problems exhibited by Arnold from a relatively early age and the significant impact on his mental functioning of his early introduction – long before adulthood – to amphetamines and other addictive illicit drugs. On the latter question, the fact that an offender's drug abuse starts at an early age as distinct from when an adult is a very material factor in considering its effect on sentence and may provide mitigation: see the thorough discussion of this matter by Wood CJ at CL (with whom the other members of the Court agreed) in R v Henry (1999) 46 NSWLR 346 at 387ff, especially at [238] and [273(c)]. It is clear that the sentencing judge overlooked this important distinction. 65 Dr Lennings mentions that Arnold "appears to have experienced genuine and deep remorse about what he has done but he also appears to be in a state where he is unable to account for or explain his behaviour". The Crown did not take issue with this evidence. The sentencing judge did not mention it, although his Honour may have considered this aspect in the context of his conclusion that the non-parole period reflected the "needs of rehabilitation". 66 Although Arnold was not co-operative with investigating police, he pleaded guilty at committal and, in substance, adhered to those pleas in the District Court. The trial judge stated that he applied a discount in accordance with R v Thomson & Houlton (2000) 49 NSWLR 383 of a little above twenty per cent. No issue on this point is taken. Analysis 67 In R v Hemsley [2004] NSWCCA 228 Sperling J usefully summarised the significance of mental illness in the sentencing context as follows – "[33] Mental illness may be relevant – and was relevant in the present case – in three ways. First, where mental illness contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced; there may not then be the same call for denunciation and the punishment warranted may accordingly be reduced: Henry at [254]; Jiminez [1999] NSWCCA 7 at [23]; Tsiaras [1996] 1 VR 398 at 400; Lauritsen (2000) 114 A Crim R 333 at [51]; Israil [2002] NSWCCA 255 at [23]; Pearson [2004] NSWCCA 129 at [43]. [34] Secondly, mental illness may render the offender an inappropriate vehicle for general deterrence and moderate that consideration: Pearce (NSW CCA, 1 November 1996, unreported); Engert (1995) 84 A Crim R 67 at 71 per Gleeson CJ; Letteri (NSW CCA, 18 March 1992, unreported); Israil at [22]; Pearson at [42]. [35] Thirdly, a custodial sentence may weigh more heavily on a mentally ill person: Tsiaras at 400; Jiminez at [25]; Israil at [26]. [36] A fourth, and countervailing, consideration may arise, namely, the level of danger which the offender presents to the community. That may sound in special deterrence; Israil at [24]." 68 Although these observations directly refer to mental illness, as distinct from other mental disabilities, it seems to me that they relate also – with obvious adjustments – to the problem of sentencing any individual with significant mental disabilities of any kind, whether or not they might be regarded in a medical sense as mental illnesses: R v George [2004] NSWCCA 247. It is obvious that Finnane DCJ thought that these considerations were irrelevant. In this regard I have concluded, with respect, that his Honour erred. However, this does not necessarily mean that the sentence imposed should be reduced. 69 In this case, the problem facing the applicant is that (as pointed out above) the opinion of Dr Lennings appears to have the consequence that, although Arnold's culpability may have been somewhat reduced by his mental condition, by the same token, his prospects of rehabilitation are substantially reduced. Moreover, the danger which he therefore presents to the community militates against a sentence at the lower end of the available range. It is, perhaps, worth noting that this danger is in all events strongly suggested by the scope and character of the crime spree that led to his sentences. The most serious of the offences, namely those involving the temporary but intentionally frightening disablement of elderly people, did not to my mind demonstrate a marked degree of confusion of thought or judgment. Balancing these considerations nevertheless leads me to the conclusion that Arnold's mental condition, as described by Dr Lennings, did reduce his culpability to an extent that ought, in justice, to have been reflected in the sentence, though not, perhaps, by very much. 70 An additional problem in this case arises from the failure to state, when specifying the appropriate total sentence, whether it had been adjusted by reference to Thomson & Houlton (2000) 49 NSWLR 383 considerations. The mere fact that the individual sentences had been discounted does not assist in this regard, since it is obvious that the effect of the adjustments can be wholly or partly negated by the mode of accumulation. Having regard to the language of his Honour in explaining how he arrived at the overall sentence of twenty years and the length of the term itself, I have concluded that, indeed, his Honour did not have regard at that stage to the need to extend – and be seen as unmistakeably extending – the benefit of the utilitarian discount of his pleas to the applicant. If this is not done, the important public policy which Thomson & Houlton is designed to effectuate will be frustrated. In this case there was not only the saving of considerable public resources by obviating the requirement of multiple trials but also a large number of elderly and frail witnesses were spared the painful necessity of reliving their experiences in a public forum. Whilst I would not be prepared to go so far as to find that Finnane DCJ ignored the latter consideration, it seems to me that the discount he allowed did not give it as much weight as it deserved. With respect, I cannot see why the full indicative twenty-five per cent discount should not have been allowed. 71 I note that Mr Button of counsel who appeared for the applicant in this Court assumed that, indeed, the starting point for Finnane DCJ's overall sentence was twenty-five years and argued that this demonstrated that his Honour's starting point was manifestly excessive and that the resulting sentence did not realistically demonstrate any discount for Arnold's pleas. 72 Mr Button submitted that, in measuring Arnold's overall criminality, it was significant that that he had not used any weapon except, it seemed, on one occasion against one victim, and that he had acted alone and as a drug addict rather than as a professional criminal. His detection was aided by DNA evidence, including that which was obtained from bloodstains left by him, and his repetitious modus operandi. Moreover, he was convicted of the aggravated versions of the most serious offences, not the "specially aggravated" versions. 73 These submissions fairly and correctly state a number of considerations that reduce the seriousness of each offence to a level substantially below the most serious category, and should have a concomitant effect on the overall sentence but, aside from the length of the sentence itself, there is no indication that the learned sentencing judge overlooked these matters. In this case, moreover, it is obvious that the sheer number of offences must weigh very heavily in the measure of seriousness. 74 If Finnane DCJ indeed chose twenty-five years as the appropriate starting point for the overall sentence before the Thomson & Houlton discount, this would in my respectful opinion have been manifestly excessive. If, on the other hand, the sentence of twenty years did not involve any discount under this head – as I am inclined to think is the case – then this was an error justifying the intervention of this Court. When the other matters to which I have adverted are taken into account, the conclusion that this Court should interfere is inevitable. 75 Arnold has tendered an affidavit that deals essentially with his situation as it has developed in prison. He is on protection but there is no evidence that suggests he is subjected to a significantly more harsh regime than would otherwise be the case. He claims to suffer from back injuries that cause significant pain and discomfort. He takes painkilling medication, which is only partly effective and is waiting to have an operation. These factors do not seem to me to justify any further adjustment in the sentences which I propose. Proposed orders 76 To adopt the language of s6(3) of the Criminal Appeal Act 1912, a less severe overall sentence is warranted in law and should have been passed. As I have mentioned, it is not submitted that the individual sentences are inappropriate. It seems to me that the appropriate mode of reducing the overall sentence is to adjust several of the accumulations, though a strict analysis might demonstrate some illogic in the resulting scheme. I consider that the overall criminality demonstrated by these crimes, taking into account all the subjective features to which I have referred (except for the utilitarian discount), warrants a sentence of twenty years' imprisonment. I would allow a utilitarian discount of twenty-five per cent, resulting in an overall sentence of fifteen years. Finnane DCJ found (rightly, if I may respectfully say so) that special circumstances were present justifying departure from the statutory calculation of the non-parole period provided in s44 of the Crimes (Sentencing Procedure) Act 1999. Adopting that conclusion, I would impose a non-parole period of nine years. To effect these changes, I would vary the commencement and conclusion dates as follows on the following sentences – Counts 7 to 10: On each count, imprisonment for a term of 6 years to commence on 23 February 2003 and conclude on 22 February 2009. Counts 11 to 17: On each count, imprisonment for 7 years to commence on 23 February 2004 and conclude on 22 February 2011. Count 18: Imprisonment for 6 years to commence on 23 February 2005 and conclude on 22 February 2011. Count 19: Imprisonment for 3 years and 9 months to commence on 23 February 2008 and conclude on 22 November 2011. Count 24: Imprisonment for 9 years to commence on 23 February 2009 and conclude on 22 February 2018. Non-parole period of 1 year to commence on 23 February 2011 and expire on 22 February 2012. Count 21: Imprisonment for 7 years to commence on 23 February 2011 and to conclude on 22 February 2018. Non-parole period of 1 year to commence 23 February 2011 and conclude on 22 February 2012. Counts 1 to 6 and 20, 22 and 23: The sentences on these counts are confirmed. 77 The consequence is that Arnold's overall sentence commences on 23 February 2003 and expires on 22 February 2018 (rather than 22 February 2023) and he is eligible to be released on parole on 22 February 2012 (rather than 22 February 2015). 78 KIRBY J: I agree with Adams J. ********** Last Modified: 09/02/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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