Clay v R [2007] NSWCCA 106

New South Wales Court of Criminal Appeal

CITATION: Clay v R [2007] NSWCCA 106

HEARING DATE(S): 10/04/2007

JUDGMENT DATE: 18 April 2007

JUDGMENT OF: McClellan CJ at CL at 1; Howie J at 2; Hall J at 32

DECISION: Leave to appeal is refused.

CATCHWORDS: Criminal Law - Sentencing - relevance of mental illness of the offender - whether sentence excessive having regard to Henry guideline.

LEGISLATION CITED: Crimes Act 1900 - s 97(1) Mental Health (Criminal Procedure) Act 1990 - s 32

R v Henry (1999) 46 NSWLR 346 CASES CITED: R v Stanley [2003] NSWCCA 233 R v Henry [2007] NSWCCA 90 Bailey v Director of Public Prosecutions (1988) 62 ALJR 319

PARTIES: Leon Roderick Clay v Regina

FILE NUMBER(S): CCA 2007/233

COUNSEL: L. Babb - Crown A. Francis - Applicant

SOLICITORS: S. Kavanagh - Crown S.O'Connor - Applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/31/0376

LOWER COURT JUDICIAL OFFICER: McLoughlin DCJ

LOWER COURT DATE OF DECISION: 09/06/2006

IN THE COURT OF CRIMINAL APPEAL 2007/233

McCLELLAN CJ at CL HOWIE J HALL J

WEDNESDAY 18 APRIL 2007

Leon Roderick CLAY v REGINA

Judgment 1 McCLELLAN CJ AT CL: I agree with Howie J. 2 HOWIE J: The applicant pleaded guilty in the Local Court to two offences: a robbery in company, contrary to s 97(1) of the Crimes Act and an assault occasioning actual bodily harm, contrary to s 59(1) of the Act. The robbery offence carried a maximum penalty of imprisonment for 20 years and the assault offence imprisonment for 5 years. He was committed for sentence to the District Court and came before Judge McLoughlin (the Judge) for sentence. He adhered to his pleas of guilty and in addition asked the Judge to take into account three offences on a Form 1. These were two further robbery in company offences and a malicious damage. 3 On 9 June 2006 the Judge sentenced the applicant on the robbery offence, and taking into account the Form 1 matters, to a term of imprisonment consisting of a non-parole period of 2 years 3 months and a balance of term of 2 years 3 months. The sentence commenced on 15 September 2005 and the applicant is eligible to be released to parole on 14 December 2007. In respect of the assault offence the applicant was sentenced to a term of imprisonment consisting of a non-parole period of 8 months with a balance of term of 7 months. That sentence was to be served from 15 September 2005 and therefore was completely concurrent with the sentence for the robbery offence. 4 The applicant seeks leave to appeal against his sentence relying upon grounds of appeal contending, firstly, that the Judge gave insufficient regard to evidence of the applicant's mental illness and, secondly, that the sentence is manifestly excessive. 5 A lengthy statement of facts was handed up to the Judge by consent and was read out verbatim in the sentencing remarks. They can be summarised as follows. On 9 September 2005 four young men were walking from Lisarow railway station when they passed the applicant who was talking heatedly on a mobile phone. As they passed he made a comment to them but they ignored him. One of the victims said he had not heard anything and the applicant said, "I just got out a couple of days ago." 6 There was a red vehicle parked opposite with the interior light on. The applicant said, "I've got a machete and I'll cut you'se up" and then yelled in the direction of the red vehicle to bring the machete. The applicant then removed his shirt and told three of the young men to line up at the side of the footpath. He then asked for their wallets. The victim Tuiva said he had no money. The applicant repeated his demand and Tuiva handed over his wallet. The applicant, looking through the wallet, said that he now knew where he lived. The other two victims asked if they could give him money rather than their wallets, and the applicant agreed. One victim gave him ten dollars and the other 200 dollars. 7 The applicant then approached Tuiva and pushed him in the chest knocking him to the ground. He punched him to the face and head a number of times. He applied a choke hold on him and Tuiva struggled to free himself. At this time a co-offender produced a machete and told the applicant to hurry up otherwise he was going to "start hacking into his (Tuiva's) back". Tuiva stopped struggling and the applicant let him up. The applicant told him to "get lost". The victims ran away and one contacted police. Tuiva had bruising, swelling and minor lacerations to his face. Later police stopped a vehicle and two males, one being the applicant, ran away. The applicant was arrested a short time later at the home of his parents. This incident gave rise to the charge of robbery in company and assault occasioning actual bodily harm upon Tuiva. The robbery of the other two victims was included as two charges on the Form 1. 8 The other matter on the Form 1 was an incident that occurred on 13 September when the applicant was being driven by his brother, who is crippled from spina bifida, in his brother's vehicle. The applicant became more and more irate and eventually told his brother to pull over into a service station. The applicant began to berate his brother and eventually left the vehicle but before he did so kicked the interior panel of the vehicle causing significant damage. The brother then drove to the police station to report the damage. The applicant was arrested the next day. 9 The applicant was interviewed by police. He said that before the robbery offences he had ingested cannabis and a can of bourbon and coke. The applicant had been prescribed medication that he described as "mood stabilisers" but had not taken any for four days before the incident. He said that the person with the machete was a hitchhiker. In respect of the damage to his brother's vehicle, the applicant told police that he became annoyed with his brother because of his driving and had to kick the door open so that he could get out of the vehicle. 10 The applicant was aged 21 years at the time of the offences. He has a criminal record dating back to 1999 in the Children's Court. In March 2002 the court dealt with two offences, a resist police and trespassing, under s 32 of the Mental Health (Criminal Procedure) Act. In October 2002 the applicant was placed on a two year bond for a number of offences involving intimidation and driving matters. There were conditions that he accept supervision and psychiatric counselling. He was also sentenced to three months imprisonment for an aggravated break and enter offence. He was placed on bonds in both 2003 and 2004 for driving matters. On 19 September 2005 he was given a suspended sentence of 9 months for an offence of assault occasioning actual bodily harm. On 19 June 2006 he was sentenced to imprisonment for 6 months for offences of stealing from a dwelling and malicious damage. 11 There was in evidence a psychological report. It sets out the applicant's background. He has three siblings and stated that he was brought up in an atmosphere of violence from his father. His parents separated when the applicant was aged 12 years. He initially resided with his mother and then with his father. From 2002 he lived independently with friends. He was educated to year 10 standard. He has completed a course in welding and has worked at times with his father. 12 He has a history of substance abuse. He commenced using alcohol at age thirteen and drank regularly by the age of 17. He has used cannabis also from the age of 13 and was using amphetamine and ecstasy at the time of his arrest. As a result of his use of drugs he would become angry and irrational and would not sleep for days. He acknowledged his drug problem to the psychologist and expressed a desire for help. 13 The applicant has a history of psychiatric disorders since 2001. He was admitted to a clinic in that year following symptoms of paranoia and visual and auditory hallucinations. He was diagnosed as suffering from Post Traumatic Stress Disorder as a result of an assault by a gang when he was aged 16. He has been prescribed medication including Zoloft. He ceased taking his medication in 2002 and resumed amphetamine use resulting in him experiencing hallucinations. He sought assistance from a psychologist who diagnosed him as suffering Hypermania. He was instructed to resume his medication, which he did, and he remained well until 2005. He said that at his 21st birthday he was subject to a home invasion at his flat. Thereafter his paranoia increased. By August 2005 he was again using drugs and had stopped his medication. He continued to have delusions and hallucinations until he was arrested on these matters. He has been on medication while in custody. 14 The applicant told the psychologist that he had no recollection of the events giving rise to the offences because that period was a blur to him due to his intense drug taking and lack of sleep. He expressed remorse and empathy with the victims and his brother. On release he intends to live with his father and seek re-employment. He intends to stop using illegal substances and to take anger management courses. The psychologist indicated that the applicant needed counselling and assistance to address his drug use and might benefit from group therapy. 15 The applicant's father gave evidence on sentencing. He stated that the applicant had a good relationship with his invalid brother and expressed the view that his behaviour in the motor vehicle was out of character. The father gave evidence that shortly before these offences he became aware that the applicant was psychiatrically unwell and sought to assist him. The applicant refused help and went to Cairns. His father later received a call from the applicant wanting money. His father tried to talk him into coming home but he was irrational. 16 The applicant also gave evidence. He admitted that he was not always compliant with his medication because sometimes he did not feel that he needed it. The following question and answers were given: