New South Wales Court of Criminal Appeal CITATION: Regina v Kyle Thorburn [2005] NSWCCA 71 HEARING DATE(S): 1 March 2005 JUDGMENT DATE: 1 March 2005 JUDGMENT OF: Grove J at 1, 26, 28; James J at 27; Barr J at 2 DECISION: Appeal dismissed. PARTIES: Regina, Kyle Thorburn FILE NUMBER(S): CCA 2005/60 D Woodburne COUNSEL: S Odgers SC S Kavanagh SOLICITORS: Legal Aid Commission LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/51/0172 LOWER COURT JUDICIAL OFFICER: Ducker DCJ - 8 - IN THE COURT OF CRIMINAL APPEAL 2005/60 GROVE J JAMES J BARR J 1 MARCH 2005 REGINA v KYLE THORBURN Judgment 1 GROVE J: I will ask Barr J to give the first judgment. 2 BARR J: This is an appeal by the Director of Public Prosecutions against what is said to be the inadequacy of a sentence imposed on the respondent in the District Court. 3 The respondent pleaded guilty to one count of supplying a prohibited drug, namely amphetamine. Ducker ADCJ sentenced the respondent to a non-parole period of three months imprisonment and a balance of sentence of nine months, a total of twelve months. The non-parole period will expire in a few days' time, on 7 March next. His Honour made the following directions: I direct that he be released to parole on the expiration of three months and that he be supervised by the Probation and Parole Service. Further that it is to be a condition of his parole that he place himself under the control and supervision of the Probation and Parole Service and obey all directions given to him by the officer in charge of his case, including if considered likely to be beneficial, drug and alcohol counselling, including within an institution. It is a further condition of his parole, that he will obey all directions to provide a urine sample for analysis at the direction of his parole officer, or any person accredited by any organisation in which he may be an inmate and further that he shall do all things necessary, give all permissions required, for the results of his urine analysis to be made available to the Probation and – to his Probation and Parole officer. 4 The facts are simple. The respondent was selling amphetamines from his home in Moree. An undercover police officer called at the premises six times in 2004 commencing on 4 May and ending on 12 May. On each occasion the respondent supplied amphetamines to the officer. Altogether the amount supplied was 4.8 grams. After the last supply the police searched his premises and found equipment showing that he was a dealer in the drug. 5 The respondent came before the District Court for the first time on 2 August 2004 and the proceedings were adjourned so that a psychologist's report could be obtained. There was already a pre-sentence report dated 29 July. A supplementary report was requested. 6 According to the report of Doctor Roland, psychiatrist, he had tested the respondent and thought that there was a high probability that he had acquired brain impairment as well as attention deficit hyperactivity disorder. The matter was further adjourned so that a psychological assessment could be obtained. 7 When the matter came back before his Honour there was the report of Doctor Roland, a report from Miss Lynda Troy, clinical neuropsychologist, and the original and a supplementary pre-sentence report. In her report Miss Troy stated the following: At the time of the assessment (the respondent) reported the following cognitive difficulties: . Major problems learning new information. For example he has been seeing his current girlfriend for 12 months and is unable to remember her phone number, even though he calls it at least once every day. . He has difficulty in learning dates and months. . Very limited reading. Can read "stop" sign but unable to read street signs or directions on signs. . Problems understanding what people say to him. . Memory is ok for everyday events but is generally forgetful . Unable to concentrate, finding it overwhelming. . He becomes tired when he has to concentrate and finds it very stressful to drive and is easily distracted. He finds this very tiring. . He has had difficulty sleeping as long as he can remember, with frequent waking, nightmares, sometimes waking with a start, disoriented with heart pounding, sweating. He reported that this is more (likely) to happen when he is feeling depressed and does not happen if he has marihuana, alcohol or sleeping tablets. 8 Miss Troy administered a series of tests designed to reveal the level of intellectual functioning of the respondent. His verbal IQ showed moderate impairment, his performance IQ fell into the low average range, his full scale IQ showed moderate impairment, his verbal comprehension showed mild impairment, his capacity for perceptual organisation was average, his working memory was severely impaired and the speed of processing was moderately impaired. Commonsense reasoning and social judgment were moderately impaired. 9 Commenting on the results, Miss Troy observed that the respondent showed a severe impairment in his capacity to take in auditory verbal information but had average capacity for taking in visuo-spatial information, as she put it, "using the persistent feedback from the visual stimulus to maximise performance." He was, however, unable to sustain that level for more than a minute, with progressive deterioration in attention as time passed. He was unable to divide or alternate his attention between simple tasks. The pattern suggested attention deficit disorder. 10 The respondent was a man in his late twenties who had used alcohol since his teenage years. He had a history of using illegal drugs as well. During the most recent drought he had lost work and the pressure on him and his family had led to a breakdown in the family. He responded by increasing his intake of alcohol. He also began smoking cannabis. Frustrated by his inability to concentrate, he resorted to the use of amphetamines. He committed the offences for which he pleaded guilty in order to raise money to buy that drug. 11 All those facts were found by the sentencing judge. 12 Since his arrest the respondent had undergone drug and alcohol counselling at Moree Hospital. He told Miss Troy that he had stopped using drugs and that he had achieved that result by staying on his girlfriend's family's farm for two months. Miss Troy concluded her report with the following summary: The neuropsychological pattern indicates significant organic brain dysfunction consistent with developmental difficulties identified in the above diagnoses. There was no evidence of any acquired brain injury, and it is likely that Mr Thorburn has suffered these difficulties since childhood, with a strong genetic pre-disposition for these disorders given his report of significant learning disorders in the families of both his parents. There was no evidence of any enduring neurotoxic effects related to the use of psychoactive substances in the past. The profile supports the diagnosis of Attention Deficit Hyperactivity Disorder, and support Mr Thorburn's assertion that he experienced significant improvement in ability to focus his attention with amphetamines. The major medication used in treatment of Attention Deficit Hyperactivity Disorder is an amphetamine, and is useful in helping to settle individuals with this disorder, and allow them to concentrate more effectively. It is likely that the calming effect of amphetamines on his cognitive functioning contributed to his abuse of this substance. There is no evidence of any persisting effects (negative or positive) resulting from his drug use. Referral to a psychiatrist for appropriate medical management of his Attention Deficit Hyperactivity Disorder is indicated. The neuropsychological pattern also suggests that Mr Thorburn would have difficulty in completing standard drug rehabilitation programmes as a result of his cognitive deficits. 13 The author of the pre-sentence report doubted whether, in view of his history and use of illegal drugs and his most recent resort to alcohol, as well as his limited capacities, the respondent had really rid himself of the drug habit. 14 His Honour was invited by counsel to impose a suspended sentence but did not regard the circumstances as so exceptional as to justify such a course. His Honour did conclude, however, that the respondent was handicapped to the extent that the role of personal deterrence and general deterrence should be to some extent mitigated. 15 His Honour said this: The usual sentence for an offence such as this would be something like two years, given the quantity involved. I think that that can be moderated. He pleaded guilty at the earliest possible opportunity. He was co-operative with the police officers when they did come to arrest him. He has made attempts to address his drug problems. His almost non-existent literacy is a considerable handicap for him and an impediment so far as employment is concerned. I confess I feel considerable concern over how this young person can cope within a custodial situation… 16 The first ground of appeal is that the sentence imposed is manifestly inadequate because his Honour gave too much weight to the respondent's subjective circumstances and mental condition. 17 The respondent had a moderate criminal record containing entries for the possession and cultivation of prohibited drugs and the possession of associated implements. He had never before dealt in drugs, however. The sentence appealed from is well below that which would ordinarily have been imposed as his Honour himself observed. What the Crown must show to succeed on this ground of appeal is that the features taken into account by his Honour did not justify the sentence imposed, which was consequently outside the proper range of his Honour's sentencing discretion. 18 It seems to me that the relevant features were these: (1) the several effects upon the respondent of his organic brain dysfunction; (2) his need of psychiatric management of his attention deficit hyperactivity disorder; (3) the utilitarian value of his early plea of guilty; (4) his contrition; (5) his successful steps in and good prospects of rehabilitation. In view of his Honour's findings, I set out that conclusion notwithstanding the doubts raised by the author of the pre-sentence report; (6) The difficulty the respondent would have in serving a sentence of full-time detention in view of his incurable organic brain dysfunction; (7) the consequent need for an extended period of supervision and treatment on parole. 19 It is well established that the need for a general deterrent sentence may lessen in the face of evidence that an offender suffers a mental disorder or an intellectual deficit: Crown v Scognamiglio (1991) 56 A Crim R 81. 20 In this Court the Crown Prosecutor criticised this passage in his Honour's remarks - It is obvious that this man is handicapped to the extent that the role of personal deterrence and general deterrence must be mitigated to some extent. 21 It was submitted that his Honour had misled himself, regarding himself as bound to give less weight to the role of deterrence, whereas such a handicap was something to be taken into account in deciding whether and to what extent the role of deterrence was to be evaluated. I do not understand his Honour to have said that he was bound to give effect to the mental condition of the respondent in weighing the role that deterrence was to play in the sentence. I take his Honour's words as indicating that he had a discretion in the matter. I see no error in the words complained of. 22 The Crown drew the attention of the Court to statistics published by the Judicial Commission for the offence under s 25A Drug Misuse and Trafficking Act of the ongoing supply of amphetamine and to the range of full-time sentences imposed. The Court has on many occasions remarked on the difficulty of demonstrating error by reference to such statistics. One need only observe that this was quite an unusual case and that some twenty-five per cent of convictions under this section do not result in full-time prison sentences at all, to conclude that the statistical information is of no assistance in this appeal. 23 The circumstances of this case are quite unusual. His Honour is a most experienced sentencing judge who was in my opinion entitled to assess the need for a custodial sentence within the range chosen. I think that the sentence of twelve months was, in the special circumstances of this case, within the proper range of his Honour's sentencing discretion. I do not think that the first ground of appeal has been made good. 24 The second ground of appeal attacks the proportion between the non-parole period and the remainder of the term. At first sight, a period of three months before release to parole is a short time, particularly for an offence like this. The Crown submitted that his Honour had given double value for the assistance the respondent had given to the authorities by his early plea of guilty and the sincere regret which Honour accepted the respondent had for the offence he had committed. According to his Honour's remarks on sentence, both matters were brought into account in fixing the total sentence and as justifying a departure from the usual ratio between the non-parole period and the overall sentence. If that is literally what his Honour meant, then his Honour may have fallen into error. However, there were many other and, in my opinion, overwhelming features of the case that justified the treatment which his Honour brought to the sentence. The principal ones were the urgent need of the respondent for psychiatric help, combined with the extraordinary difficulty he was likely to have, because of his incurable condition, serving his sentence in full-time custody. 25 In the circumstances, I do not think that the attack on the proportion between the non-parole period and the overall sentence has been made good. I would dismiss the appeal. 26 GROVE J: I agree. 27 JAMES J: I also agree. 28 GROVE J: The orders of the Court, therefore, are that the Crown appeal is dismissed. ********** 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.