New South Wales Court of Criminal Appeal CITATION: Doolan v R [2006] NSWCCA 344 HEARING DATE(S): 18 July 2006 JUDGMENT DATE: 8 November 2006 JUDGMENT OF: McClellan CJ at CL at 1; Hidden J at 6; Hall J at 36 DECISION: Leave to appeal granted, (by majority) appeal dismissed. CATCHWORDS: CRIMINAL LAW: - Application for leave to appeal against sentence - robbery in company - whether adequate weight given to applicant's mental illness. LEGISLATION CITED: s97(1) Crimes Act 1900 CASES CITED: R v Hemsley [2004] NSWCCA 228 R v Henry [1999] NSWCCA 107 PARTIES: Rachel Beryl Doolan (applicant) Regina (respondent) FILE NUMBER(S): CCA 2006/885 COUNSEL: C Cragie SC (applicant) V Lydiard (respondent) SOLICITORS: N Mills (applicant) S Kavanagh (respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/11/0651 LOWER COURT JUDICIAL OFFICER: Donovan QC DCJ LOWER COURT DATE OF DECISION: 9 September 2005 IN THE COURT OF CRIMINAL APPEAL 2006/885 McCLELLAN CJ at CL HIDDEN J HALL J Wednesday 8 November 2006 Rachel Beryl DOOLAN v Regina Judgment 1 McCLELLAN CJ at CL: I have had the benefit of reading the judgment of Hidden J in draft. I gratefully adopt his Honour's account of the relevant facts and outline the issues to be resolved on the appeal. Unlike his Honour in my view the appeal should be dismissed. 2 Hidden J identifies the fact that the applicant has been diagnosed as suffering from a psychiatric illness which may have played a role in her offending. However, the crime in which she played a not insignificant role was a brutal attack on an innocent person during which the applicant and her co-offender inflicted serious injury. The applicant was not a young offender and she had a criminal history. 3 Notwithstanding her psychiatric problems the guideline in Henry (1999) 46 NMSWLR 346 is of considerable significance when determining the appropriate sentence. It may be that a lesser sentence could have been imposed but the question for this Court is whether an error has occurred which requires this Court to intervene. I am satisfied that such an error has not been demonstrated. 4 In my view the serious nature of the offence required a sentence which marks out the gravity of the applicant's crime and imposes a significant punishment. The sentence of a non-parole period of two and a half years and a balance of term of two years was, in my opinion, within the appropriate range. 5 Although I would grant leave to appeal the appeal should be dismissed. 6 HIDDEN J: The applicant, Rachel Beryl Doolan, pleaded guilty in the District Court to a charge of robbery in company, an offence under s97(1) of the Crimes Act which carries a maximum penalty of imprisonment of twenty years. She was sentenced to imprisonment for four and a half years, comprising a non-parole period of two and a half years and a balance term of two years. The sentence was directed to date from 3 March 2005, the date of the offence and her arrest. She seeks leave to appeal against that sentence. Facts 7 In the early afternoon of 3 March 2005 the applicant was involved with a co-offender, Ms Toni Bennett, in the robbery of a twenty nine year old woman at Waterloo. The learned sentencing judge summarised the facts in his remarks on sentence as follows: The facts are that the victim left a friend's home in Pitt Street, Waterloo at about 1.30pm on 3 March 2005 and walked a short distance to the Duke of Wellington Hotel at Wellington and Pitt Streets, Waterloo. As she walked to the hotel she saw the offender lying on a seat in Pitt Street and the co-accused Toni Bennett standing next to her. Bennett asked the victim if she had a few dollars. The victim replied that she had enough money for two beers. She went to the bottle shop at the Duke of Wellington Hotel and returned, walking back towards her friend's home with the two bottles in a brown bag inside a white plastic bag. The offender and Ms Bennett were present at the seat. The offender asked the victim for money and the victim replied that "Your friend already asked me. I got no money". As she finished saying this, Bennett said, "You reckon you've got no money you fucking bitch". She punched the victim to the left side of the face, flung the victim around, causing her to collide with the offender. The offender then punched the victim a number of times. Bennett grabbed the Myers bag containing the beer and threw more punches, striking the victim to her head and face. The offender Doolan also continued to hit the victim by punching her. The victim fell to the ground face down. Bennett grabbed the victim by the head and slammed her forehead to the ground a number of times. During the struggle, Bennett pulled the victim's head back and proceeded to bite her on the left ear, causing great pain and her ear to bleed. The victim screamed for help and a passing tow truck driver intervened. Bennett continued to strike the victim and then pulled her necklace from her neck. The victim continued to struggle and managed to regain one of her necklaces. Doolan and Bennett then walked along Pitt Street, Waterloo. They were followed by the victim along Pitt Street. Police were called and arrived a short time later. The victim pointed out the two accused. Police approached and arrested the pair. In the back of the truck Bennett was seen to have a number of items, including four gold chains and an earring which belonged to the victim. Each of the accused, that is, Bennett and Doolan, were carrying one of the stolen VB bottles when they were arrested. The victim suffered grazes to her face, neck and ankle, had a laceration to her ear, soreness and stiffness to her body. During the assault she thought her ear was going to be bitten off. The two accused, that is, Doolan and Bennett, declined the opportunity to be interviewed and were then charged. 8 Ms Bennett was dealt with before the applicant, by another judge. She had asked that a charge of goods in custody be taken into account on a Form One. She was sentenced to imprisonment for six years with a non-parole period of three and a half years. In sentencing the applicant, his Honour noted a number of features with distinguished her case from Ms Bennett's. It was Ms Bennett who had initiated the robbery. She was considerably more aggressive than the applicant in the course of it, and it was she who seized the victim's items of property. As I have said, she had a further offence taken into account and her subjective case was less favourable than the applicant's. Indeed, she had previously served a term of imprisonment for a similar offence. Subjective Case 9 The applicant was thirty-one years old at the time of the offence and is now thirty-two. She is Aboriginal and was born in the settlement at Cherbourg in Queensland. She has a criminal record in that State for relatively minor matters, including some offences of dishonesty, none of which was visited with a prison sentence. 10 A pre-sentence report and a psychiatric report disclosed what his Honour described as "a tragic history". Both her parents died when she was a teenager. Her two older sisters are dead, one of natural causes and the other having suicided. She has two brothers. At the time she was sentenced one of them was in a residential mental health unit and the other was in custody for alcohol related offences. According to her, her late father had been an alcoholic. 11 She attended school until Year 8 in Queensland. She had not worked since she was eighteen years old and, because of her psychiatric condition to which I shall turn in a moment, she had since been on a disability pension. She has a long history of abuse of alcohol and a variety of illicit drugs. She has two children to different fathers. She had had no contact with the fathers, and at the time of sentence the children, who had become the responsibility of the Department of Community Services, were in the care of another sister of hers in Brisbane. 12 From the report of a psychiatrist, Dr Barbara Sinclair, it emerges that she also has a history of schizophrenia since her early teens. The condition has been complicated by drug induced psychotic episodes. In earlier years she had had institutional psychiatric care on a number of occasions. Cognitive testing at that time disclosed an IQ of only 78. Unfortunately, she also had a history of poor compliance with community treatment orders, in particular, taking prescribed medication. 13 As to the offence, she told Dr Sinclair that she had been drinking and using drugs, and that she was hearing voices commanding her to "act". She did not realise what she had done until she "woke up" in custody. Dr Sinclair confirmed the longstanding diagnosis of schizophrenia, noted her low IQ, and concluded: At the time of the alleged offence it is very likely that Ms Doolan was in a psychiatric state responding to command hallucinations. These could have been as a result of untreated active symptoms of schizophrenia or a superimposed drug induced psychosis, drug delirium or drug intoxication. It is very likely her judgement was impaired at the time. 14 His Honour accepted this evidence. He concluded that her mental state at the time was affected by her schizophrenia and a drug induced psychosis. He saw her schizophrenia as a "significant or material contribution to her involvement in the offence", but noted the contribution to her mental state of her ingestion of alcohol and drugs. As a result, he found, she "was not fully aware of the consequences of her actions…". 15 She had pleaded guilty at the earliest opportunity. In evidence she expressed remorse for her offence, which his Honour accepted as genuine. She said that, upon her release, she planned to live with her sister who had the care of her children. She had undertaken some educational courses while in custody, and Dr Sinclair reported that she had "expressed some insight into her mental health problems" and acknowledged the need for treatment and counselling. His Honour thought, albeit with reservations, that she had "some prospects of rehabilitation…". As is apparent from the length of the non-parole period, he found special circumstances. The Application 16 Mr Craigie SC, for the applicant, argued that the sentence fails to reflect her subjective case and, in particular, her mental illness. Her disadvantaged background is clearly interrelated with her mental condition, and it was upon that condition that argument was focused. Mr Craigie acknowledged that his Honour referred to the psychiatric evidence and accepted the bearing of her mental condition upon her offending, but submitted that that was not reflected in the sentence. The result, he said, was a sentence which failed adequately to differentiate her position from that of Ms Bennett and is, in any event, manifestly excessive. 17 There is no need to examine the familiar line of authority dealing with the relevance of mental illness to sentence. Mr Craigie relied upon the concise statement of the relevant principles, with reference to the authorities, in the judgment of Sperling J in R v Hemsley [2004] NSWCCA 228 at [33] ff: 33 Mental illness may be relevant…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… 34. Secondly, mental illness may render the offender an inappropriate vehicle for general deterrence and moderate that consideration… 35. Thirdly, a custodial sentence may weigh more heavily on a mentally ill person… 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… 18 Clearly, the first of those factors, the contribution of the mental illness to the commission of the offence, is relevant here. So is the second, the moderation of the consideration of general deterrence, although his Honour did not expressly refer to it. As to the third factor, there does not appear to have been any evidence about the likely impact of imprisonment on the applicant. I do not think that the fourth factor, the danger which the offender might present to the community, is a matter of concern here. It is true that the applicant has a history of non-compliance with medication regimes and his Honour was guarded about her prospects of rehabilitation. Nevertheless, her criminal history contains no offence of this character and, as I have said, the psychiatric report suggests that she has developed some insight into her psychiatric condition since being in custody. 19 His Honour referred to R v Henry [1999] NSWCCA 107. This was not the well known guideline judgment delivered by a five-judge bench, reported at (1999) 46 NSWLR 346. It was the separate judgment in which the Crown appeal in Henry's case was allowed. In respect of an offence of armed robbery and a separate offence of robbery in company, taking a minor summary offence into account, Henry was sentenced to concurrent terms of imprisonment for five and a half years, comprising a minimum term of three and a half years and an additional term of two years: see the judgment of Simpson J, with whom all the members of the bench except Hulme J agreed. 20 His Honour in the present case observed that there were "some distinctions" which reduced the applicant's criminality to a level less than that of Henry and of her co-offender, Ms Bennett. He went on to point out the differences between the applicant's case and that of Ms Bennett, but did not expressly deal with the distinction between her case and that of Henry. This is significant because his Honour does appear to have used the Henry sentence as a guide or yardstick and, in all probability, that is how the sentence of four and a half years imposed upon the applicant was arrived at. 21 Yet there were marked differences between the applicant's criminality and that of Henry. As I have said, Henry was being dealt with for two separate robbery offences. In addition, he was on conditional liberty of one form or another at the time of both of them. Allowing for the moderation which this Court exercises when re-sentencing on a Crown appeal, it does not appear to me that the disposition of Henry's case could be of any material assistance in determining the appropriate sentence for the applicant. 22 As it happens, the applicant's sentence sits squarely in the four to five year range of sentence propounded in the guideline judgment in Henry at [162] - [165]. It is appropriate to look to that guideline judgment for assistance in cases of robbery in company, an offence dealt with in the same provision in the Crimes Act as armed robbery and carrying the same maximum sentence. Of the characteristics of a typical case set out by the Chief Justice at [162], it could not be said that the applicant was a "young offender with no or little criminal history" or that the offence involved "limited, if any, actual violence". Indeed, given the amount of violence involved, this offence could be seen as significantly more serious than the typical armed robbery the subject of the guideline. 23 On the other hand, the applicant's role in the offence could fairly be described as subordinate to that of Ms Bennett and the contribution of her mental illness was a significant factor. In so saying, I am mindful that his Honour found it to be not the only factor and that her ingestion of alcohol and drugs had its part to play. In all the circumstances, I am persuaded that the sentence fails adequately to reflect her subjective case and, in particular, the relevance of her mental illness to her culpability for the offence and to considerations of deterrence. I think that some adjustment of the sentence, albeit modest, is required. 24 We received an affidavit of the applicant in the event that she was to be re-sentenced. It discloses that she has been undertaking educational courses in custody, that her behaviour has been satisfactory, and that she has been undergoing psychiatric treatment and drug and alcohol counselling. 25 I would grant leave to appeal and allow the appeal. I would quash the sentence passed in the District Court and, in lieu, I would sentence the applicant to imprisonment for three years and nine months, comprising a non-parole period of one year and nine months and a balance term of two years, to commence on 3 March 2005. She would be eligible for release on parole on 2 December 2006. 26 HALL, J: I have had the advantage of reading the judgments of McClellan, CJ. at CL. and of Hidden, J. in draft. I respectfully adopt Hidden, J.'s account of the facts and issues arising on this appeal. 27 In the written and oral submissions of Mr. Craigie, SC. on behalf of the applicant, it was submitted that the evidence as to the existence of a mental illness at the time of the offence and a causal relationship between the illness and the offence was not appropriately reflected in the formulation of the sentence or in an appropriate sentencing outcome (Ground 1 of the appeal). 28 In addition, it was contended that the sentence was manifestly excessive by reason of an error in approach said to have occurred in the course of the sentencing judge's consideration (Ground 2). It was contended that such an error supports the conclusion that the sentence exceeds that which was appropriate at law and in the particular circumstances. 29 In the course of his oral submissions, Mr. Craigie correctly observed that the learned sentencing judge made a number of findings in relation to the issue of mental illness and its causal relationship with the offence but contended that such findings were not sufficiently reflected in the outcome of the sentence. This, it was submitted, disclosed error. 30 It was further argued that there were more than sufficient grounds for a significant differentiation between the criminality of the applicant and that of her co-offender, even before taking into account the factor of mental illness. It was contended for the applicant that his Honour did not adequately differentiate on this account. 31 The sentencing judge's remarks on sentence contain extensive consideration of the medical evidence bearing upon the applicant's mental state and, in particular, the nature and extent of the contribution which the appellant's mental state made to her involvement in the offence. In this respect, extensive reference was made to the evidence of Dr. Barbara Sinclair, forensic psychiatrist, and no criticism has or could be made in respect of the discrete findings his Honour made based upon that evidence. 32 I do not consider that, his Honour having made a detailed analysis of the medical evidence, and having made appropriate findings, then failed to properly evaluate such matters in determining the appropriate sentence. It is clear that his Honour had regard to the maximum penalty for the offence and to the sentence that was imposed upon the applicant's co-accused on 15 July 2005. In this latter respect, reference was made by his Honour to the existence of a number of factors, which distinguished the applicant's situation from that of her co-offender, some of which related to her objective involvement and some to the subjective features of the case. 33 I consider that his Honour correctly proceeded, inter alia, by reference to the relevant findings made concerning the appellant's mental state and with due regard to the sentence imposed upon her co-offender, to determine the sentence imposed being one which was in the range of sentences appropriate for the case. 34 I respectfully agree with what has been stated by McClellan, CJ. at CL. that the serious nature of the offence, taken in context, but also with due regard to the applicant's psychiatric illness, nonetheless required a sentence that marked the gravity of the crime and that a term of imprisonment comprised of a non-parole period of two and half years with a balance of term of two years was within the range of possible sentences for the offence. 35 I, accordingly, agree with McClellan, CJ. at CL. that the applicant should be granted leave to appeal but that the appeal should be dismissed. 36 HALL, J: I have had the advantage of reading the judgments of McClellan, CJ. at CL. and of Hidden, J. in draft. I respectfully adopt Hidden, J.'s account of the facts and issues arising on this appeal. 37 In the written and oral submissions of Mr. Craigie, SC. on behalf of the applicant, it was submitted that the evidence as to the existence of a mental illness at the time of the offence and a causal relationship between the illness and the offence was not appropriately reflected in the formulation of the sentence or in an appropriate sentencing outcome (Ground 1 of the appeal). 38 In addition, it was contended that the sentence was manifestly excessive by reason of an error in approach said to have occurred in the course of the sentencing judge's consideration (Ground 2). It was contended that such an error supports the conclusion that the sentence exceeds that which was appropriate at law and in the particular circumstances. 39 In the course of his oral submissions, Mr. Craigie directly observed that the learned sentencing judge made a number of findings in relation to the issue of mental illness and its causal relationship with the offence but contended that such findings were not sufficiently reflected in the outcome of the sentence. This, it was contended, disclosed an error. 40 It was further argued that there were more than sufficient grounds for a significant differentiation between the criminality of the applicant and that of her co-offender, even before taking into account the factor of mental illness. It was contended that his Honour did not adequately differentiate on this account. 41 The sentencing judge's remarks on sentence contain extensive consideration of the medical evidence bearing upon the applicant's mental state and, in particular, the nature and extent of the contribution which the appellant's mental state made to her involvement in the offence. In this respect, extensive reference was made to the evidence of Dr. Barbara Sinclair, forensic psychiatrist and no criticism has or could be made in respect of the discrete findings his Honour made based upon that evidence. 42 I do not consider that, his Honour having made a detailed analysis of the medical evidence, and having made appropriate findings, then failed to properly evaluate such matters in determining the appropriate sentence. It is plain that his Honour had regard to the maximum penalty for the offence and in light thereof to the sentence that was imposed upon the applicant's co-accused on 15 July 2005. In this respect, reference was made to the existence of a number of factors, which distinguished the applicant's situation from that of her co-offender, some of which related to her objective involvement and some to the subjective features of the case. 43 I consider that his Honour correctly proceeded, by reference to the relevant findings made concerning the appellant's mental state and with due regard to the sentence imposed upon her co-offender, determined a sentence which was in the range of sentences appropriate for the case. 44 I respectfully agree with what has been stated by McClellan, CJ. at CL. that the serious nature of the offence, taken in context but with due regard to the applicant's psychiatric illness, nonetheless required a sentence that marked the gravity of the crime and that a term of imprisonment comprised of a non-parole period of two and half years with a balance of term of two years was within the range. 45 I, accordingly, agree with McClellan, CJ. at CL. that the applicant should be granted leave to appeal but that the appeal should be 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. 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