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: "Q ………do you agree that when you get that feeling you don't always need it and you stop taking medication, that sometimes you get into trouble? A. I do. Q. So does that cause you to realise that even when you feel well you should continue taking the medication? A. It's hard to say." 17 He gave evidence about his trip to Cairns that he said was to read the bible. It took three days and he did not sleep. He left as soon as he arrived after the phone call with his father. He drove back toward Sydney still unable to sleep. He was pulled over by the police in Coffs Harbour and told that he should not be driving. A friend then drove back to Sydney and he was on his way home when the robberies occurred. He said that his brother had been to see him in gaol and he apologised to him for his conduct. The applicant gave evidence as to his intentions to take his medication and not use illicit drugs upon his release. 18 As has been noted the Judge read the statement of facts into his sentencing remarks verbatim. He also included almost the whole of the psychologist's report. He made reference to the father's evidence, which he accepted. The Judge then referred to the guideline judgment in Henry and quoted some passages from the judgment of Sully J in R v Stanley [2003] NSWCCA 233. The Judge then said: "Whilst it is true that in the current case the offender did not, at the time of robbery, have the machete in his possession, he was aware of its existence and had called for it at that time. In the current case the offender pleaded guilty at a very early time. There was no planning. There was violence inflicted after the robbery which the offender has pleaded guilty to the second of these charges. The victims were not as vulnerable as the ones referred to and there were small amounts taken. There is also the matters that have been taken into account on the schedule one, which include two other robberies in company, matters which cannot be ignored in the sentencing process. I am taking into account the Form 1 schedule. Conviction on trial would in the view of this court result in a sentence of six years for robbery in company and twenty months for the assault occasioning actual bodily harm. I have taken into consideration the offender's very early plea of guilty as further evidence of his contrition and as having public utility and have reduced those sentences by twenty five per cent to four years six months and one year three months respectively. It has been submitted, and conceded by the Crown, that I should find special circumstances because of the age of the offender, prospects of rehabilitation, the agreed underlying psychiatric condition and the need for a lengthy period of supervision. I find special circumstances and accept those submissions and those facts". 19 The Judge then stated that he had considered whether he should impose a partly cumulative sentence for the assault offence but said: "On reflection as the offence occurred immediately after the above offence and in circumstances where the offender had not been taking his prescribed medication, and in the matters I am referred to, I am of the view that such a sentence should be concurrent". 20 The first ground of appeal contends that the Judge failed to give sufficient regard to the applicant's mental illness. The principles with regard to the sentencing of persons who are suffering from a significant mental disorder are well known. It is unnecessary to set them out again. The Court recently considered them in R v Henry [2007] NSWCCA 90. It must be borne in mind that, simply because an offender is suffering some form of mental illness or disorder, it does not necessarily follow that a lesser sentence will be imposed than if the person had not been suffering from a mental disorder. 21 The existence of a mental disorder may mean that the culpability of the offender is reduced, or that the full measure of general deterrence is not appropriate or that imprisonment will be more harsh. It also may be the case that the offender presents as a danger to the community and some measure of preventative detention is required. What has been made clear by the decisions of this Court is that it is primarily for the sentencing judge to determine how to apply the various, and sometimes conflicting, factors that arise when serious criminal offences are committed by mentally disordered persons. These are rarely simple sentencing exercises and reasonable minds might differ as to the weight to be given to particular factors. 22 It is clear that in the present case the Judge was well aware of the applicant's mental condition and its relevance to the exercise of his discretion. He mentioned it in relation to his determination to find special circumstances and his decision to make the sentences for the two offences concurrent. This latter finding was one that was very favourable to the applicant. But criticism is made of the following statement in the Judge's remarks: "I take into account the offender's psychiatric condition, not in mitigation but on the issue of deterrence." 23 It is reasonably clear that the Judge meant that he was not reducing the applicant's criminal culpability by reason of his mental illness but was going to take that matter into account in determining the weight to give to general deterrence. It would be clearly an error if his Honour thought that mental disability could not be a mitigating factor so far as an assessment of the criminality of the offender's conduct was concerned. But I cannot believe that the Judge operated under such a misconception. It is axiomatic that a person's mental state at the time of offending is relevant to an assessment of that person's criminal culpability and hence the gravity of the offence, regardless of what has brought about that particular mental state. It is less obvious that a person's mental disability may affect the weight to be given to general deterrence. 24 It is unfortunate that the Judge did not explain why he was not reducing the culpability of the applicant by reason of his mental illness having found that he was suffering from the illness at the time of offending. With respect there is little to be achieved in sentencing remarks from quoting almost in its entirety the contents of a psychiatric report without applying some analysis to the matters revealed in it. The Judge's treatment of the mental illness of the applicant was unfortunately somewhat superficial. 25 It is clear in the present case that, like so many mentally ill offenders, the applicant failed to take his medication, used illegal drugs and this caused him to commit serious criminal offences. This was not the first occasion that the applicant's mental state had deteriorated under these circumstances. He had previously come under psychiatric care for that reason and had been told that he was to continue to take his medication and avoid drugs. The applicant had chosen to stop taking medicine on this occasion and used illegal drugs. He must have known that this was likely to make him mentally unstable. The result was that he became irrational and aggressive and the offences were committed. It is clear from the answers quoted above that there must be some doubt about the applicant's insight into his offending. In light of his history I would not be persuaded that his prospects of rehabilitation was strong notwithstanding that he said all the right things to the psychologist. 26 In these circumstances less weight should be given to the applicant's mental illness as reducing his criminal culpability and more weight given to personal deterrence. He had twice before been before a court and orders were made requiring him to take his medication. This was in addition to instructions given to him by at least one psychiatrist. Although the facts of the matters are not known, the applicant was convicted for offences of intimidation in 2002, and this indicates some aggressive conduct had taken place. His father had tried to get him to see sense and seek treatment before he left for Cairns. 27 There was some unusual conduct by the applicant in the period leading up to the commission of the offences that was no doubt a result of his florid state. But the actual offences have nothing of the bizarre or abnormal about them. They showed clear thought processes and purposive behaviour. The applicant needed money. He had been on the phone angrily attempting to obtain some when the young men came by. True he might have picked on them because he thought that in some way they were antagonising him by perhaps looking at him. But he made statements intended to intimidate them and succeeded. He demanded their wallets but was prepared to take the money when offered to him by two of the victims. There was in fact a machete and it was produced during the incident. He subsequently lied about his conduct blaming a hitchhiker he picked up for committing the robbery. It is clear that he knew what he was doing and what he had done. 28 In my view it was open to his Honour to find that the applicant's mental illness did not significantly affect his criminal conduct and, therefore, he was not in error in deciding not to mitigate the criminality of the offending by reason of the applicant's mental state. But in any event the Judge in effect reduced the otherwise appropriate punishment by not making the sentence for the assault offence partially cumulative. This was a serious aggravation of the criminality in the robbery offence. It is one thing to obtain property by threats. It is quite another to assault a person simply because he had no money to hand over. 29 Complaint is made that the starting sentence of six years mentioned by his Honour was too high having regard to the range in Henry. The Judge made an error in giving the applicant the benefit of a 25 per cent discount for early plea yet the guideline has inbuilt a discount of 10 per cent for a late plea. There were three robberies here even though the applicant was being sentenced for only one. The matters on the Form 1 should have resulted in a heavier sentence by reason of denunciation for his conduct. Unlike the typical offender in the Henry guideline, the applicant had a criminal record of some significance and had served a period of custody previously, albeit briefly. True it is that there was no planning in the offence, but the Judge referred to this matter. 30 I am far from satisfied that there was any error in the remarks of the sentencing judge to the disadvantage of the applicant. The sentence, particularly the non-parole period, was a lenient one. I am not persuaded that the sentence was manifestly excessive. The applicant was given not only the benefit of a finding of special circumstances but a very generous reduction in the non-parole period. It is only 50 per cent of the head sentence. In my opinion no lesser non-parole period could be imposed upon the applicant and yet reflect the seriousness of the offences. 31 My conclusion that the appeal against sentence has no merit would normally lead to a proposal that leave be granted to appeal but that the appeal should be dismissed: see Bailey v Director of Public Prosecutions (1988) 62 ALJR 319; 34 A Crim R 154. However the Court has been informed that a co-offender of the applicant has recently been sentenced in the District Court. The Court has, therefore, been asked not to dismiss the appeal, if the Court were against the applicant on the arguments placed before it, but merely to refuse leave to appeal in order to permit the applicant to approach the Court if the issue of parity arises between the sentence imposed upon the applicant and that imposed upon the co-offender. That seems to me to be an appropriate course to take in the particular circumstances of this matter otherwise the applicant might be shut out from arguing a case of disparity that has merit. 32 Therefore I propose that the Court refuse the application for leave to appeal. 33 HALL J: I agree with Howie J. ********** 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. 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