New South Wales Court of Criminal Appeal CITATION: Regina v Wicks [2005] NSWCCA 213 HEARING DATE(S): 07/06/05 JUDGMENT DATE: 7 June 2005 JUDGMENT OF: Studdert J at 42; James J at 2; Howie J at 43 DECISION: Appeal dismissed CATCHWORDS: CRIMINAL LAW - sentence - Crown appeal - offence of robbery whilst armed with an offensive weapon - whether total sentence and non-parole period were manifestly inadequate - mental illness of chronic schizophrenia Crimes (Sentencing Procedure) Act LEGISLATION CITED: Criminal Appeal Act Mental Health Act R v Hemsley [2004] NSWCCA 228 R v Henry (1999) 46 NSWLR 346 CASES CITED: R v Mills [2005] NSWCCA 175 R v Wall [2002] NSWCCA 42 PARTIES: REGINA v Jade Ebony WICKS FILE NUMBER(S): CCA 2005/277 G Rowling - Crown COUNSEL: C Craigie SC - Respondent S Kavanagh - Solicitor for Public Prosecutions SOLICITORS: P Bugden - Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): District Court Armidale 04/51/0177 LOWER COURT JUDICIAL OFFICER: Coorey DCJ IN THE COURT OF CRIMINAL APPEAL 277/05 STUDDERT J JAMES J HOWIE J TUESDAY 7 JUNE 2005 REGINA v JaDE EBONY WICKS Judgment 1 STUDDERT J: The Court is in a position to deliver judgment immediately and I will ask Justice James to deliver judgment. 2 JAMES J: This is an appeal by the Crown pursuant to s 5D of the Criminal Appeal Act against a sentence imposed on the respondent Jade Ebony Wicks in the District Court at Armidale on 4 February 2005 by his Honour Judge Coorey. For an offence of robbery whilst armed with an offensive weapon committed on 6 May 2004, to which the respondent had pleaded guilty, Judge Coorey imposed a sentence of imprisonment totalling three years with a non parole period of eight months twenty eight days commencing on 6 May 2004 and expiring on 3 February 2005, that is on the day before his Honour passed sentence, and a balance of the term from 4 February 2005 to 5 May 2007. 3 The respondent had been arrested on 6 May 2004 soon after committing the offence and had remained in custody referable to this offence from 6 May 2004 to the date on which she was sentenced. 4 On 4 February 2005 his Honour made a parole order directing that the respondent be immediately released from custody. His Honour imposed as conditions of the parole order that the respondent report to the Probation and Parole Service at Tamworth, that she accept the supervision of the Probation and Parole Service and that she undergo continuing psychiatric counselling and medication as advised by her medical practitioners and particularly a psychiatrist Dr Parmegiani. 5 The facts of the offence and of events immediately following commission of the offence were stated by the sentencing judge in his remarks on sentence in a way which closely followed a facts sheet admitted without objection in the proceedings on sentence and which has not been the subject of any criticism on the hearing of this appeal. His Honour said: "The prisoner, on 6 May 2004 at around 2.45pm, walked to a store and threatened the victim with a knife and demanded money from the cash register. The prisoner grabbed the wrist of the victim, causing bruising. The victim opened the cash register and the prisoner left with a total of $1340. The prisoner, ran from the store to her vehicle and she was arrested shortly thereafter when she was stoped by police highway officers who had recognised the vehicle from the description circulated of the robbery. The prisoner volunteered to the police that there was 'weed' in the vehicle and she also indicated some dried vegetable matter. This was identified by the prisoner as marijuana and then she was arrested. The prisoner was taken to Glen Innes Police Station and, when spoken to, admitted that she was responsible for the robbery of the store referred to above. She took police officers to the site where she had indicated the place where she had concealed the stolen money from the store. All of the money was recovered and the prisoner was then returned to the Glen Innes Police Station. The prisoner later showed police officers the whereabouts of the knife and the police were able to attend with a search warrant. The prisoner was then interviewed and made full admissions in relation to the offence. The prisoner told the police officers that she suffered from mental disabilities, including psychosis and depression. She told the police officers that she hears voices in her head all the time. The voices have told her to carry out the robbery or they would kill her. The prisoner expressed deep remorse to the police officers and regret for what she had done to the victim. The prisoner related, in relation to the cannabis leaf and hashish that had been found, that she kept that for her personal use only". 6 Some of the subjective features of the respondent can be briefly stated. The respondent was born in Tamworth in March 1978 and is, accordingly, now 27 years old. At the time of being sentenced she had never met her father. Her mother had been violent and abusive to her while she was a child and she was raised by her maternal grandmother. She had accepted as her step-father a man with whom her mother had a relationship. At the age of eighteen the respondent commenced using cannabis and she was subsequently a heavy user of cannabis. The respondent has never married and has no children. 7 An important matter in the original sentencing of the respondent and on this appeal has been the respondent's mental condition. I have already referred to the sentencing judge's summary in his remarks on sentence of what the respondent had told police officers about her mental disabilities, including her hearing voices telling her to commit the robbery or she would be killed. 8 The respondent gave evidence in the proceedings on sentence and in his remarks on sentence his Honour summarised some of that evidence, including evidence by the respondent that she had suffered from auditory hallucinations. 9 In his remarks on sentence his Honour said he had closely studied reports by a forensic psychiatrist Dr Yvonne Skinner, which had been admitted into evidence in the proceedings on sentence. 10 In her first report dated 17 September 2004 Dr Skinner said she had seen the respondent in prison on 9 September 2004. The respondent had told Dr Skinner that she had had her first hallucination, a visual hallucination, at the age of sixteen, before she had ever used drugs or alcohol. After the respondent moved to Sydney and commenced to use cannabis she had had feelings of paranoia. A psychiatrist Dr Parmegiani made a provisional diagnosis of a delusional disorder or schizophrenia and prescribed medication. When the respondent took this medication, she suffered from gynaecological side effects. After being taken into custody the respondent had continued to experience auditory hallucinations. 11 In her report Dr Skinner noted, from medical records of the Tamworth Base Hospital, that in the year 2000 the respondent had been suffering from an acute psychosis and had been admitted to the Tamworth Base Hospital Psychiatric Unit for treatment. She had been placed on a continuing treatment order under the Mental Health Act for six months and this order had later been extended for another six months. During this period the respondent attended an out patients clinic, where she was seen by Dr Parmegiani. 12 In her report Dr Skinner stated the following opinions about the respondent:- "She suffers from an underlying severe mental illness, schizophrenia. I note that on her admission to Tamworth Base Hospital in the year 2000 there was some uncertainty about diagnosis because she was taking drugs at the time and it was thought that she might have been suffering from a psychotic episode caused by substance abuse. However, she has not been using any illicit substances or alcohol since her arrest. It has been established and confirmed by a number of psychiatrists in the prison that she is in fact suffering from the chronic mental illness, schizophrenia. Her symptoms have been reduced with antipsychotic medication, although she continues to experience auditory hallucinations. Based on the history given by her, her history of treatment for mental illness and my conversation with Dr Parmegiani, it is my opinion that Ms Wicks was suffering from a severe mental illness, chronic schizophrenia. I believe that she was suffering from this illness and experiencing auditory hallucinations at the time of the alleged offences and that her mental illness affected her judgment at the time. I believe that she did know the difference between right and wrong, but her ability to control her actions and her judgment were impaired by her mental illness. Ms Wicks comes from an unfortunate background of emotional and physical abuse. She has a vulnerable personality because of her background…" 13 Dr Skinner furnished a second report dated 26 November 2004. Dr Skinner had seen the respondent again in prison on 17 September 2004, when Dr Skinner, who happened to be at the prison for another reason, was asked to see a seriously ill prisoner who turned out to be the respondent. Dr Skinner had subsequently seen the respondent again on 19 November 2004. In her report of 26 November 2004 Dr Skinner stated that after she had seen the respondent on 9 September 2004 the respondent's condition had deteriorated. When Dr Skinner saw the respondent in prison on 23 September 2004 the respondent was catatonic and mute. She was sitting in a hunched position with her arms held awkwardly by her sides. She was unable to swallow. On 22 September she had set her hair alight. Because of her catatonic state and the risk of dehydration, the respondent was taken to the Prince of Wales Hospital, where she was given electro-convulsive therapy. She was discharged from the Prince of Wales Hospital and returned to the Long Bay Prison Hospital. 14 In her report of 26 November 2004 Dr Skinner said that in her opinion the respondent was suffering from chronic schizophrenia and the respondent had suffered a severe exacerbation of her illness while in prison. 15 Dr Skinner furnished a further report dated 28 January 2005, having seen the respondent earlier that day. In this report Dr Skinner said she considered that the respondent's mental state had shown definite improvement. In her report Dr Skinner stated: "Jade Wicks suffers from mental illness, chronic schizophrenia. She has recovered from a severe exacerbation of illness and responded to treatment with ECT. Her condition has stabilised. Ms Wicks requires ongoing treatment with medication and psychiatric supervision. In the past she attended regular appointments with Dr Parmegiani at Tamworth and took medication. If she returns to live in the Tamworth area she should resume this contact with her treating psychiatrist and the community mental health centre. If she lives in another area she should contact the community mental health centre to arrange follow-up appointments. This should be done before her release from prison. Ms Wicks comes from a background of emotional deprivation and physical and sexual abuse. She is intelligent and capable of furthering her studies, but was disadvantaged by family problems and frequent changes of school during her childhood and adolescence". 16 The sentencing judge clearly accepted the opinions expressed by Dr Skinner in her reports and it was clearly open to the sentencing judge to do so. No countervailing evidence had been adduced by the Crown. 17 In his remarks on sentence the sentencing judge, apart from referring to the evidence given in the proceedings on sentence by the respondent and to the reports of Dr Skinner, referred to evidence by the respondent's step-father that he lived within an hour's drive of Tamworth, that the respondent would be able to live with him and that he would assist the respondent to take her medication. 18 The sentencing judge also referred to evidence given by the respondent's solicitor that he had spoken to Dr Parmegiani and Dr Parmegiani had told the solicitor he attended Tamworth twice a week and would be able to see the respondent. 19 In his remarks on sentence the sentencing judge found the objective seriousness of the offence had been aggravated by the circumstances that the victim of the offence had been vulnerable, that some harm including emotional harm had been caused to the victim by the commission of the offence and the offence had been committed while the respondent had been on conditional liberty. 20 On the other hand the sentencing judge found that the objective seriousness of the offence was mitigated by the respondent's mental state at the time of commission of the offence and the respondent had not been fully aware of the consequences of her actions because of her mental disability. His Honour considered that the respondent's mental state at the time of the commission of the offence differentiated the present case from the typical case of armed robbery described by the Chief Justice in R v Henry (1999) 46 NSWLR 346 at 380 (162). 21 I have mentioned that the sentencing judge found that the offence had been committed while the respondent was on conditional liberty. 22 The respondent's criminal history is quite brief. Apart from the present offence and a driving offence, she had been charged on 27 February 2004 with offences of supplying a prohibited drug, making a false instrument and using a false instrument and had been granted bail. She was on this bail at the time she committed the offence of armed robbery on 7 May 2004. On 7 May 2004 the respondent was charged with the offences committed on that day of possession of a prohibited drug and self-administering a prohibited drug. All of these five offences were dealt with in the Local Court on 21 July 2004 when the Magistrate directed that the respondent enter into a two year good behaviour bond. 23 In his remarks on sentence the sentencing judge found some favourable subjective features in that the respondent had entered an early plea of guilty and had demonstrated contrition. 24 In his remarks on sentence the sentencing judge referred to the decision of the Court of Criminal Appeal in R v Hemsley [2004] NSWCCA 228 and, in particular, to the judgment of Sperling J at pars 33 to 36. 25 Judge Coorey, applying the principles stated by Sperling J in Hemsley, found that the punishment which should be imposed on the respondent should be moderated, because her mental illness had contributed to the commission of the offence in a material way, because her mental illness rendered the respondent a less appropriate vehicle for general deterrence and because a custodial sentence would weigh more heavily on the respondent than on a prisoner without her mental illness. 26 As regards the fourth matter referred to by Sperling J in par 36 of his judgment in Hemsley, that is, the level of danger which the offender presents to the community, which can be a factor requiring a more severe sentence, his Honour clearly accepted a submission made on behalf of the respondent that the respondent was unlikely to re-offend and had good prospects of rehabilitation. 27 His Honour found special circumstances within s 44 of the Crimes (Sentencing Procedure) Act in the respondent's need for lengthy and close supervision because of her severe mental illness and he found that there was a specific plan for rehabilitation of the respondent, involving her living near Tamworth and undertaking psychiatric treatment by Dr Parmegiani, who had treated her in the past. His Honour proceeded to pass the sentence and to make the parole order which I have set out earlier in this judgment. 28 Unfortunately the specific plan proposed in the proceedings on sentence which his Honour had attempted to facilitate by the orders he made, was not fulfilled. On 14 February 2005 the respondent asked her parole officer in Tamworth for permission to go to Glen Innes for a few days and permission was granted. Subsequently, contact between the respondent and her Probation and Parole Officer in Tamworth was limited. In a report dated 2 March 2005 the Probation and Parole Office recommended that the respondent's parole be revoked. Part of the report was in the following terms: "Ms Wicks' response to supervision has been poor, with contact over the past two weeks mainly by telephone. She appears to be living an itinerant lifestyle, in unstable accommodation and does not seem to be complying with the obligations to her Parole Order. As Ms Wicks has mental health problems, which have previously seen her in Long Bay Hospital in a catatonic state, it would appear imperative that she be in a stable environment and maintain regular sessions with the Community Mental Health Team. She would seem reluctant to conform to such. It would further appear she has been avoiding contact with Doctor Parmegiani and ongoing psychiatric counselling. In addition it is unclear whether she remains on prescribed medication." 29 The respondent's parole was revoked on 4 March 2005, with effect from 18 March 2005, and the respondent has been in custody since 18 March 2005. 30 At a meeting of the Parole Board on 26 April 2005 the Board adjourned consideration of the respondent's parole to the 24 June 2005, to await the outcome of this appeal. 31 In this appeal the Court provisionally received an affidavit by the respondent and an affidavit by a solicitor acting for the respondent. In her affidavit the respondent admitted she had breached conditions of her parole. 32 I have set out these events occurring since the respondent was sentenced but on the hearing of this appeal neither the Crown Prosecutor nor counsel for the respondent suggested that these events occurring after the respondent was sentenced should be taken into account in determining whether the sentencing judge erred in passing the sentence he did on the respondent. 33 On this Crown appeal it was submitted by the Crown in written submissions that the offence was objectively serious and that the objective gravity of the offence was aggravated by a number of circumstances. It was submitted that the offence was more serious than the typical case described by the Chief Justice in his judgment in Henry. A matter particularly urged by the Crown in oral submissions was that the sentencing judge had failed to take into account the fourth matter referred to by Sperling J in his judgment in Hemsley, namely the level of dangerousness the respondent presented to the community. It was submitted by the Crown that, by giving undue weight to the respondent's subjective circumstances, the sentencing judge had failed to impose a sentence, and particularly a non-parole period, which properly reflected the objective seriousness of the offence and had imposed a total sentence and a non-parole period which were manifestly inadequate. 34 It was submitted on behalf of the respondent that the respondent's offence, before allowing for her mental state, was similar to the typical case in Henry; that the uncontested evidence was that at the time of the offence the respondent had suffered and up to the time of sentencing the respondent had continued to suffer from the severe mental illness of chronic schizophrenia; that, because of her mental illness, a less severe sentence had properly been imposed for reasons identified by Sperling J in Hemsley; that a wide discretion should be allowed to a judge at first instance in sentencing an offender who has a serious mental illness; that this court, before it could allow the Crown appeal, would have to find the sentencing judge had made some error and that the respondent's failure, after she had been sentenced, to comply with the conditions of her parole was not relevant to whether, at the time he sentenced the respondent, the sentencing judge had made some error. 35 The principles to be applied by this court in determining Crown appeals against sentence were stated by Wood CJ at CL in his judgment in R v Wall [2002] NSWCCA 42 at (70). His Honour recently quoted this paragraph of his judgment in Wall in his judgment in R v Mills [2005] NSWCCA 175 at (75). At paragraph (70) of his judgment in Wall Wood CJ at CL said: "The Crown contends that not only was the sentence imposed inadequate on its face, but also that the sentencing judge made a number of errors of principle in determining that it was appropriate to proceed under s19B of the Crimes Act 1914. Before considering these submissions it is important to note the principles which apply in relation to the determination of a Crown appeal against sentence: (a) The normal restriction upon appellate review of the exercise of a discretion, as set out in House v The King (1936) 55 CLR 499, applies to Crown appeals against sentence: Dinsdale v The Queen (2000) 202 CLR 321; with the result that this Court cannot merely substitute its opinion, as to the appropriate sentence, for that of the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665 at 671; rather, it may interfere only where error either latent or patent is shown; R v Tait (1979) 46 FLR 386 at 388; and Wong and Leung v The Queen (2001) 76 ALJR 79 at para58 and para109. (b) Appeals by the Crown should generally be rare; Malvaso v The Queen (1989) 168 CLR 227 at 234, and unless there is a clear error of principle identified, it would be exceptional for the Court to interfere: R v Baker [2000] NSWCCA 85. (c) A Crown appeal against sentence is concerned with establishing matters of principle 'for the governance and guidance of courts having the duty of sentencing convicted persons': per Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 but this power extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing, that is, where the sentence is definitely outside the appropriate range for the case in hand: Everett v The Queen (1994) 181 CLR 295 at 299; Dinsdale v The Queen (2000) 202 CLR 32, at para61 and para62, and Wong & Leung v The Queen at para109. (d) The Court has a lively discretion to refuse to intervene even if error has been shown, and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal: R v Allpass (1993) 72 A Crim R 561, R v Papazis (1991) 51 A Crim R 242 at 247, and Wong and Leung v The Queen at para110. (e) A sentence which is imposed as a consequence of a successful Crown appeal will generally be less than that which should have been imposed by the sentencing court: R v Holder and Johnston (1983) 3 NSWLR 245 at 256, and will generally be towards the lower end of the available range of sentence: Dinsdale v The Queen at par 62". 36 In the present case the offence was objectively serious. However, a number of the factors relied upon by the Crown as aggravating the objective seriousness of the offence are in fact included in the description of the typical case in Henry for which the Chief Justice said that a total sentence of four to five years would generally be appropriate, including that the respondent had little criminal history, that the respondent was armed with a knife, that there was only a limited degree of planning, that the actual violence was limited and that the victim was in a vulnerable position as being a shop-keeper. It is true that the respondent was on conditional liberty at the time of committing the offence of armed robbery but for quite different and fairly minor offences. In favour of the respondent she had pleaded guilty at the first opportunity, whereas the typical case in Henry postulates only a late plea of guilty. 37 In my opinion, it was open to his Honour to take the view that the respondent's offence, even before allowing for her mental illness, was no worse than the typical case in Henry. It was then open to his Honour to accept, as he did, the uncontested evidence that at the time of committing the offence the respondent had been suffering, and at the time of being sentenced she was continuing to suffer, from a severe mental illness of chronic schizophrenia and to find that the respondent's culpability had been reduced, because her mental illness had contributed to the commission of the offence in a material way, her mental illness rendered her a less appropriate vehicle for general deterrence and a custodial sentence would weigh more heavily on her, as it already had, than on a prisoner not having her mental illness. 38 His Honour's finding, that despite her mental illness the respondent was unlikely to re-offend, was a finding open to his Honour and could not be challenged in this court and rebuts the submission made by the Crown on this appeal that the sentencing judge failed to take into account the possibility of future dangerousness. 39 There was clearly a need for the respondent to obtain psychiatric treatment and in the proceedings on sentence the Crown expressly accepted that the sentencing judge could make a finding of special circumstances. The sentencing judge accepted evidence given in the proceedings on sentence by the respondent's step-father and, indirectly, by the psychiatrist Dr Parmegiani, who had treated the respondent in the past, that, if released from custody, the respondent could reside with her step-father and would be able to obtain regular psychiatric treatment from Dr Parmegiani. 40 In all the circumstances I do not consider his Honour should have been held to have erred in setting a total sentence of three years. It is more questionable whether it was within his Honour's sentencing discretion to set a non-parole period as low as the non-parole period set by his Honour. However, having regard to the evidence before his Honour, which his Honour accepted, the respondent's comparative lack of criminal history including a lack of any criminal history involving offences of violence, I have come to the conclusion that the non-parole period set by his Honour, low as it was, was not outside the permissible range for the exercise of his Honour's sentencing discretion. Even if this were not the case, now that the respondent has served more than a further three months in custody, so that the total time the respondent has spent in custody exceeds a year, I would consider that the court, in the exercise of the wide discretion it has in determining Crown appeals, should not intervene. 41 In my opinion the Crown appeal should be dismissed. 42 STUDDERT J: I agree that this court should not intervene. I agree with the orders proposed. 43 HOWIE J: I agree with the order proposed and the reasons given by Justice James. 44 STUDDERT J: Accordingly, the order of the court will be those proposed by Mr Justice James. ********** 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.