New South Wales Court of Criminal Appeal CITATION: R v Pace [2008] NSWCCA 233 HEARING DATE(S): 30/9/08 JUDGMENT DATE: 30 October 2008 JUDGMENT OF: Bell JA at 1; Latham J at 1; Fullerton J at 1 DECISION: Appeal dismissed CATCHWORDS: SENTENCE - Crown appeal - principles of restraint - significance of respondent's psychiatric illness Crimes Act 1900 (NSW) LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 (NSW) Mental Health (Criminal Procedure) Act 1990 Everett v R (1994) 181 CLR 295 Griffiths v The Queen (1997) 137 CLR 239 Markarian v R [2005] HCA 25; 228 CLR 357 CASES CITED : R v Engert (1995) 84 A Crim R 67 R v Hemsley [2004] NSWCCA 288 R v Matthews [2004] NSWCCA 112; (2004) 145 A Crim R 445 R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383 PARTIES: Regina (Applicant) Daniel Simon Pace (Respondent) FILE NUMBER(S): CCA 2008/00001354 COUNSEL: Mr D Arnott SC (Crown) Mr A Haesler SC (Respondent) SOLICITORS: S Kavanagh (Applicant) S O'Connor (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 08/11/0004 LOWER COURT JUDICIAL OFFICER: Goldring DCJ LOWER COURT DATE OF DECISION: 15/8/08 IN THE COURT OF CRIMINAL APPEAL CCA 2008/00001354 BELL JA LATHAM J FULLERTON J Thursday 30 October 2008 R v Daniel PACE Judgment 1 THE COURT: On 30 September 2008, the Court dismissed an appeal brought by the Director of Public Prosecutions against the asserted inadequacy of the sentences imposed on the respondent on 15 August 2008. These are the Court's reasons for making that order. 2 The respondent pleaded guilty in the District Court to four counts in an indictment charging offences under s 94 of the Crimes Act 1900 (NSW). Counts 1 and 2 charged completed offences and counts 3 and 4 charged attempted offences. 3 The first offence was committed on 28 August 2007. The respondent walked into a convenience store in Randwick. He kept his right arm behind his back while gesturing with his left arm towards the cash register. He instructed the shop assistant to "open the till or I'll kill you, I swear to God I will kill you". The assistant handed the respondent the sum of $1,000 in cash. The respondent directed him not to move, repeating the threat to kill him. CCTV film depicted the respondent wearing the same clothing that he had been wearing a few hours earlier when he reported to the police in accordance with his bail conditions. The police made enquiries of the respondent's family. At about 11 am the following morning, the respondent attended the police station and confessed to the robbery. He told the police, "I did it. I'm confused. I'm having a bad time in the last couple of days". Detective Senior Constable Gouge, who was aware of the respondent's "possible mental health issues", assessed him as being "a vulnerable person" and arranged for his mother to attend the police station. In Detective Gouge's view, the respondent was unfit to be interviewed. He was released on bail on 7 September 2007. 4 The remaining three offences all occurred within a 24-hour period, commencing at around 7.30 pm on Sunday 23 September. The respondent entered a convenience store in Malabar, wearing a stocking over his head. He jumped over the front counter and tried to open the cash register. The proprietor and his wife were seated behind the counter. The proprietor took hold of a metal bar and repeatedly struck the respondent around the back of his head. The respondent ran empty-handed from the shop. (This was the offence charged in count 4). 5 Shortly after this incident, at about 7.45 pm, the respondent entered the Oporto restaurant in Kingsford, wearing a stocking over his head. He jumped over the front counter and took $620 from the till. The shop assistant ran to the rear of the shop and summonsed the manager. The respondent left the premises pursued by the manager. (This was the offence charged in count 2.) 6 At about 2.30 am on Monday 24 September, the respondent entered a shop in Darlinghurst. He removed a portable portion of the shop counter and confronted the shop assistant, demanding, "Give me all the money. Open the till otherwise I'm going to kill you". The assistant ran from the shop and enlisted the assistance of two security guards who were working at a nearby hotel. The respondent left the premises and was detained by the security guards, who kept hold of him until the police arrived. (This was the offence charged in count 3.) 7 Following his arrest, the respondent's behaviour was aggressive; he was punching the walls of his cell and calling out abuse. The police did not consider it appropriate to interview him at this time. He was interviewed on 31 October. At this time he was cooperative and he made full admissions of his involvement in all three offences. His account of his circumstances in the hours preceding the first attempted robbery was as follows: "I was just pretty much homeless at the time, like I was kicked out of my home the same day, 'cause my mum just thought that, she just, she just didn't want me there, like, and I, I think I was charged with, for breaching AVO 'cause I just went there because I didn't have a place to go". (A 38) He went on to say that: "I pretty much went there and, like, she came home and I just, I was like, really confused and that, and I, I started having a few drinks because I couldn't find my medication and I wasn't feeling good. And she, she just, she just said I don't want you here, this and that, I'm going to call the police, so I, I left". (A 40) 8 The respondent told the police that he understood that he was not to return to his home because an AVO had been taken out against him. He said that he was "just very panicky and a lot of thoughts were running through my head". (A 40) 9 The respondent recalled each of the offences. He volunteered that he had bought a stocking in order to disguise himself. He pleaded guilty to the offences in the Local Court and was committed for sentence. There was a formal defect in the committal document, which explains the presentation of the indictment in the District Court. 10 For the first offence, the respondent was sentenced to a non-parole period of one year to date from 16 October 2007, with a balance of term of two years. In relation to each of the remaining offences, he was sentenced to a non-parole period of one year to date from 16 November 2007, with a balance of term of two years. The aggregate sentence was three years and one month, with an effective non-parole period of 13 months. 11 The respondent was aged 27 years at the date of sentence. He had a criminal record commencing in August 2002, when he was convicted of assault occasioning actual bodily harm. He was released on a bond to be of good behaviour for a term of two years. In June 2007, he was convicted of malicious damage to property and stalking with intent to cause fear. He was released on a bond to be of good behaviour for a term of 18 months. On 26 October 2007, he was convicted of affray, malicious damage to property and resisting a police officer in the execution of duty. He was sentenced by the Local Court for these offences while he was in custody on remand for the present offences. He was sentenced to four months' imprisonment to date from 23 September 2007 for the affray and to a concurrent term of three months' imprisonment for resisting the police. The malicious damage offence was dealt with under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW), which permits the Court to convict an offender without imposing any other penalty. 12 Each of the present offences was committed while the respondent was subject to the bonds that were imposed in June 2007. The offences charged in counts 2, 3 and 4 were committed while he was on bail for the offence charged in count 1. 13 The respondent suffers from schizophrenic disorder. He was first referred to a psychiatrist, Dr Whitten, in mid-2004 for treatment for a condition which his general practitioner characterised as "depression and excessive gambling". The general practitioner had commenced him on a course of antidepressant medication. At his initial consultation with Dr Whitten, the respondent presented as depressed and aggressive. Some months earlier he had undergone surgery to correct excessive breast development. This had been followed by further surgery to revise the surgical scarring. Dr Whitten assessed the respondent as having lost confidence and interest in life as a result of the complications surrounding the surgery. The respondent had reported a significant increase in his gambling and that he was "binge drinking". Dr Whitten observed that the respondent exhibited "mild persecutory ideation". In 2004, Dr Whitten's differential diagnosis was major depression and first presentation psychosis. 14 The respondent grew up in Matraville and had the benefit of a good education. He completed his School Certificate and enrolled in a TAFE apprenticeship course. At the time of his sentencing, he had completed most of the formal requirements necessary to become a licensed electrician. However, he had not held down employment for any length of time. He was living at home with his family. He reported tensions in his relationship with his father. His mother was supportive of him and she accompanied him to consultations with Dr Whitten. She gave an account that his behaviour at home was aggressive and said that he was difficult to manage. 15 Dr Whitten prepared a report for the Mental Health Screening Unit at the Metropolitan Remand and Reception Centre. In the report, he described a number of episodes in which the respondent had been removed from the family home by the police and taken to the Prince of Wales Hospital for assessment by the Acute Care Team. It appears that his earlier offences were associated with aggressive outbursts at home. 16 In March 2005, Dr Whitten detected that the respondent's thought content had become more vague. He commenced him on anti-psychotic medication. The respondent was resistant to the medication and Dr Whitten agreed to a reduction in the dose in order to maintain the therapeutic relationship. 17 Dr Whitten referred the respondent to the St Vincent's Gambling Clinic. The respondent did not pursue the referral, stating that he could stop gambling on his own. In August 2006, his mother reported that he had pawned her jewellery and gambled the proceeds. At this time he was leading an increasingly isolated life and spending most of his time in his room. He had stopped taking his medication at his father's suggestion. Mr Pace Snr had told him to, "cease medication, cease seeing a psychiatrist, and to get well on his own". This was at a time when the respondent was stealing from his family to gamble, smoking "ice" and cannabis and binge drinking. Dr Whitten referred him to the Langton Clinic, but this was not successful. In December 2006, the respondent was admitted to the Prince of Wales Hospital where he was medicated with Largactil following a fight with his father. Dr Whitten increased the dosage of Largactil when he reviewed the respondent in January 2007. 18 On 17 March 2008, at the request of his solicitors, the respondent was interviewed by Ms Robilliard, a psychologist. She considered that he exhibited bizarre thought patterns and a well developed, systematised delusional belief system in which religious themes were prominent with "paranoid cognitions". 19 The respondent's solicitor arranged for him to be assessed by a psychiatrist, Professor Greenberg. At the time of Professor Greenberg's initial assessment in May 2008, the respondent had been scheduled under s 51 of the Mental Health (Criminal Procedure) Act 1990 and was being held in Ward D at the Long Bay prison hospital. Professor Greenberg's initial report was directed to an assessment of the respondent's fitness to plead. Professor Greenberg reported that after the respondent came into custody, his mental state had deteriorated. At the time of his admission to D Ward he was exhibiting religious delusions and abnormal thought content. His psychotic symptoms gradually abated with treatment. 20 Professor Greenberg had access to Dr Whitten's report, Ms Robilliard's report, the medical records maintained by Justice Health and the Crown brief. He considered that the respondent had developed symptoms of mental illness in 2000 and that at the end of 2007/2008 he had a full-blown psychotic episode. Professor Greenberg diagnosed the respondent as suffering from schizophrenic disorder. He considered that the respondent had grossly impaired insight into his mental illness and his need for psychiatric treatment. Professor Greenberg explained that schizophrenic disorder often manifests very gradually and presents with symptoms that may mimic a mood disorder or personality disorder. 21 Professor Greenberg interviewed the respondent again on 13 August 2008. By this time, the respondent had been transferred from the prison hospital to the Mental Health Screening Unit at the Silverwater complex, which caters for seriously mentally ill inmates. He had been compliant with his anti-psychotic medication and his condition had markedly improved. He exhibited no acute symptoms of psychotic mental illness. He had reasonable insight into his mental illness and was willing to continue treatment under the direction of Dr Whitten and a community mental health service. Professor Greenberg said this: "I am of the opinion that at the time period surrounding the alleged offences, Mr Pace was suffering from early onset of symptoms of his major mental illness, namely his schizophrenic illness, which at that time had not been fully diagnosed. He was non-compliant with psychiatric treatment and did not report acute severe psychotic symptoms at that time period. He reports he was abusing alcohol which probably played a role in his disinhibited manner at that time period. He also reports significant social and family problems at that time period, which led to him being homeless and not having any money to pay for suitable accommodation. He reported that his family had evicted him and he had no place to live. The writer is of the opinion that based on the current information I have available to me at this time, Mr Pace does not have a Defence of Mental Illness. He did in my opinion understand the wrongfulness of his actions at that time period. His mental illness did not directly play a role in his mental reasoning at the time period of the alleged offence. However, indirectly his mental illness probably played a role in his poor social and personal circumstances at that time period." 22 Professor Greenberg recommended that, on the respondent's release from custody, he be referred to the Matraville Community Mental Health Service for follow-up. He considered the respondent's prognosis to be largely dependent on him continuing appropriate treatment for his psychiatric illness and remaining abstinent from illicit drugs and alcohol. In the short term, at least, Professor Greenberg assessed the respondent's prognosis as being "relatively favourable". 23 The respondent's father told the Probation and Parole Service that the family remained supportive of their son. The family was present in Court at the sentence hearing. 24 His Honour's remarks were relatively brief and were delivered ex tempore. He commenced by noting that the respondent had pleaded guilty to each of the counts. He did not, in terms, quantify a discount, but it may be inferred that he allowed a discount at the top of the range in R v Thomson and Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383, since the pleas were entered at the earliest opportunity. This would suggest that for each offence the notional starting point was a sentence of four years' imprisonment. The maximum sentence for each offence was 14 years' imprisonment. 25 The focus of his Honour's remarks was the significance of the respondent's mental illness. He referred to the decision of this Court in R v Hemsley [2004] NSWCCA 228 as to the ways in which mental illness may be relevant to sentencing. It is not submitted that his Honour misstated the principles. His Honour noted that the condition had not been fully diagnosed until after the respondent had been taken into custody for these offences. He concluded that, although the respondent appreciated that his conduct at the time of the offences was wrong, his psychiatric condition was causally connected to the offending. 26 On the hearing of the appeal, the principal way in which the Crown Prosecutor put the Crown's case was by contending that undue emphasis had been placed on the late diagnosis of the schizophrenic condition. The respondent's history of refusing to abide by a treatment regime, despite clear signs of some form of psychiatric illness, had a quality of recklessness to it, which, so it was said, required the Court to impose a sentence that would protect the community and bring home to the respondent the need to take his medication. 27 The Crown acknowledged that, in sentencing an offender suffering from a mental disorder, it will sometimes be appropriate to give little weight to general deterrence: R v Engert (1995) 84 A Crim R 67. In this case, it was said to have been an error for his Honour to have found that the respondent was "an inappropriate vehicle to general deterrence" given Professor Greenberg's evidence that he knew that what he was doing was wrong: R v Matthews [2004] NSWCCA 112; (2004) 145 A Crim R 445 per Wood CJ at CL (Hislop J agreeing) at 450-451 [25]. The Crown did not cavil with his Honour's finding that the respondent's psychiatric illness was causally related to the commission of the offences, but emphasised that the condition had been exacerbated by his failure to take his medication and by his binge drinking. 28 The Crown pointed to a number of claimed "errors" in his Honour's reasons for sentence. Some were those to which reference has already been made, including the contentions that insufficient emphasis was given to deterrence and that too great an allowance was made for the reduction in moral culpability caused by the psychiatric condition. The weighing of these considerations was of the essence of the discretionary judgment that his Honour was called upon to make. There is no single correct sentence, as the joint reasons in Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at 371 [27] per Gleeson CJ, Gummow, Hayne and Callinan JJ makes clear. Intermediate courts of appeal are enjoined to allow as much flexibility in sentencing as is consonant with consistency of approach. 29 In Griffiths v The Queen [1977] HCA 44; 137 CLR 293 at 310 Barwick CJ said: "[A]n appeal by the Attorney General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons." 30 It is clear that the avoidance of manifest inadequacy or inconsistency in sentencing standards is a matter of principle, which, in an appropriate case, will support a challenge by the Crown on an appeal under s 5D: Everett v R [1994] HCA 49; 181 CLR 295 at 300. However, in a case in which an offender's frank psychiatric condition is causally related to the offending, it may be difficult to speak meaningfully of consistency in sentencing standards. This is because the principles explained in Engert admit of the imposition of a sentence which would otherwise be outside the range. 31 The significance of the circumstance that the respondent's mental condition had not been diagnosed at the date of the offences was that the severity of his illness does not appear to have been fully understood. So much seems clear from his father's robust advice that he should "get well on his own". Since being in custody and taking anti-psychotic medication, the respondent's condition has improved and he has displayed reasonable insight into his mental illness. He is willing to continue treatment. 32 His Honour referred to the circumstance that the offences had been committed while on bail and in breach of the bonds. It cannot be said that he was not mindful of the matters that the Crown submitted were relevant to special deterrence. Nor is it correct to say that his Honour paid no regard to general deterrence or the protection of the community. He took these matters into account in making the determination that, notwithstanding the respondent's psychiatric illness, it was necessary to impose a sentence of fulltime custody in relation to each offence. 33 His Honour approached the sentencing of the respondent on an acceptance of Professor Greenberg's opinion. In our opinion, it could not be said to have been outside the exercise of discretion for the Judge to favour a sentence, which placed emphasis on rehabilitation and treatment. 34 The Crown addressed other criticisms to his Honour's remarks in the written submissions filed in support of the appeal. These included that his Honour had failed to analyse the objective seriousness of each offence. This complaint can be dealt with shortly. His Honour set out the agreed facts of each offence. He noted that none of the offences involved the use of a weapon and that they did not fall within the Henry guideline judgment. He went on to observe that they were, nevertheless, serious offences; they involved threats to the shop staff who had been put in fear. His Honour was not required to say more. 35 The Crown submitted that it was an error not to discriminate between the offences by imposing more severe sentences for those offences which were more objectively serious. His Honour could have approached the sentencing of the respondent in a number of ways, which included imposing longer sentences for the completed offences, or for those offences in which explicit threats were made. It would have been open to impose lengthier sentences for the offences charged in counts 2, 3 and 4, which were committed while on bail. However, this does not mean that, in the exercise of his Honour's wide discretion, it was an error in the circumstances of this case to determine the appropriate sentence for each offence was three years' imprisonment (after allowance for the respondent's early pleas of guilty). 36 The structure of the sentences was such as to subsume the earlier sentences imposed for the affray and resisting police. In the usual course, one would have expected the sentences for the present offences to have been accumulated on the short sentences imposed in the Local Court. The affray and resisting police offences appear to have occurred in the context of the respondent's volatile behaviour at home. He was in custody on remand for the present offences at the time that he was sentenced for them. His Honour's decision to date the commencement of the present sentences so as to encompass almost the entire period that had been spent on remand cannot be said to have been outside the exercise of discretion given that the respondent's psychiatric illness was relevant to an understanding of the whole of his criminal offending. 37 The last matter that was the subject of complaint was the decision to specify a non-parole period that represented 36 per cent of the overall sentence. It was submitted that this involved an element of "double dipping" in that the respondent's psychiatric condition had been taken into account in the imposition of a lenient sentence and, again, in the specification of the non-parole period. The Crown did not contend that the evidence failed to support a finding of special circumstances under s 44(2) of the Sentencing Procedure Act but, rather, that the departure from the statutory proportion was too great. It is sufficient to state the contention in order to understand why, given the restrictions that attend Crown appeals, it was rejected in a case in which the causal relation between the respondent's schizophrenic disorder and his offending was not in issue, and nor was the fact that he was now amenable to treatment. ********** 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.