Reported Decision: 189 A Crim R 454 New South Wales Court of Criminal Appeal CITATION: NGUYEN, Duc Quang v R [2008] NSWCCA 219 HEARING DATE(S): 18 July 2008 JUDGMENT DATE: 30 October 2008 JUDGMENT OF: McClellan CJ at CL at 1; Hidden J at 2; Fullerton J at 3 DECISION: 1. Leave to appeal granted. 2. Appeal dismissed. CATCHWORDS: CRIMINAL LAW - appeal against sentence - break and enter with intent to commit serious indictable offence in circumstances of aggravation - connection between mental illness and offending - finding of future risk to community - whether sentence manifestly excessive LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 CATEGORY: Principal judgment Allen v R [2008] NSWCCA 11 Ma and Pham v R [2007] NSWCCA 240 R v Arnold [2004] NSWCCA 294 R v Haines [2004] NSWCCA 294 CASES CITED : R v Hemsley [2004] NSWCCA 228 R v Hughes [2005] NSWCCA 117 R v Pham [2005] NSWCCA 314 R v Way [2004] NSWCCA 131; 60 NSWLR 168 R v Wicks [2005] NSWCCA 213 Veen v The Queen (No 2) (1988) 164 CLR 465 PARTIES: Duc Quang Nguyen (App) The Crown (Resp) FILE NUMBER(S): CCA 2007/3870 COUNSEL: I Nash (App) P Ingram (Resp) SOLICITORS: Legal Aid Commission of NSW (App) Director of Public Prosecutions (Resp) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 07/21/3074 LOWER COURT JUDICIAL OFFICER: Sides DCJ LOWER COURT DATE OF DECISION: 24 August 2007 IN THE COURT OF CRIMINAL APPEAL 2007/3870 McCLELLAN CJ at CL HIDDEN J FULLERTON J 30 OCTOBER 2008 Duc Quang NGUYEN v R Judgment 1 McCLELLAN CJ at CL: I agree with Fullerton J. 2 HIDDEN J: I agree with Fullerton J. 3 FULLERTON J: On 20 April 2007 the applicant pleaded guilty in the District Court at Campbelltown to a single count of break and enter with intent to commit the serious indictable offence of larceny in circumstances of aggravation, namely by inflicting actual bodily harm on the occupant of the home unit that was the subject of the break and enter, contrary to s 112(2) of the Crimes Act 1900. 4 The offence attracts a maximum term of imprisonment of 20 years and a standard non-parole period of 5 years, pursuant to Division 1 of Part 4 of the Crimes (Sentencing Procedure) Act 1999. 5 On 24 August 2007 the applicant was sentenced to a term of imprisonment consisting of a non-parole period of 3 years and 9 months, commencing on 16 October 2006 and expiring on 15 July 2010, with a balance of term of 1 year and 3 months commencing on 16 July 2010 and expiring on 15 October 2011. The sentence was backdated to commence on 16 October 2006, the date the applicant was taken into custody. He remained in custody from that date pending sentence. 6 The applicant seeks leave to appeal against sentence on two grounds: 1. The learned sentencing judge erred in the account he gave to the applicant's criminal record; and 2. The sentence imposed was manifestly excessive. The facts 7 The applicant was sentenced on the basis of agreed facts which were reproduced in his Honour's reasons for sentence. 8 On 16 October 2006, just after 7.30pm, the applicant was disturbed inside a wardrobe located in a bedroom of a home unit on the first floor of a unit block in Canley Vale by Mr Jovanovic, the occupier of the unit, who was at home with his wife and their son. Mr Jovanovic restrained the applicant with the assistance of his son, and was bitten on the arm whilst doing so. He consequently suffered bruising and broken skin. It was this assault with wounding that gave rise to the circumstances of aggravation as provided for in s 105A(1) of the Crimes Act. 9 The applicant apparently gained access to the unit by climbing onto the first floor balcony and slashing a sliding flyscreen door into the bedroom. At some stage after entering the unit he placed a chair against the bedroom door that led into other areas of the unit. Whilst in the bedroom he disturbed the contents of a wardrobe including papers and documents. On his arrest he was searched and $370 in cash, identified as belonging to Mr Jovanovic, was located. 10 The applicant told police that he was in the premises because he had come to see his friend Mohammed. The police officer also reported that the applicant was "behaving as though he was mentally impaired" when he was spoken to. The police did not report as to the applicant's state of sobriety. Subjective circumstances 11 At the time of the offence the applicant was 35 years of age. He had migrated to Australia from Vietnam in his early twenties having already completed his high school education and two years of a university course. After his arrival in Australia he studied English for a year before taking up work as a painter in a powder-coating plant. In 1999, at age 29, he was diagnosed with schizophrenia. He has worked only intermittently since that time. He was living with his mother at the time of his arrest. His Honour's findings for sentencing purposes 12 His Honour was satisfied that the plea of guilty on arraignment entitled the applicant to a discount of 20 per cent reflecting the utility of the plea and, that in his Honour's view, it was "relatively early". He was not satisfied that there was any other indication of contrition. 13 Despite the fact that the applicant claimed that he had been drinking alcohol on the day of the offence in his account to Dr Jonathan Carne, a consultant forensic psychiatrist, and that on his own assessment the amount he consumed may explain his lack of memory of anything on the day of the offence until arrested by police, his Honour was not satisfied that any alcohol consumed that day impacted adversely on the applicant's capacity to appreciate what he was doing when he broke into the Jovanovic's residence, or the potential consequences of his conduct. His Honour was also of the view that the use of the chair to try and block entry via the bedroom door indicated that the applicant appreciated the rational possibility that if there was no-one in the unit at the time he broke in, but they returned after he broke in, the chair would serve to both block their entry into the bedroom and perhaps enable him to make good his escape. 14 Having regard to the fact that the amount of money taken was relatively small, that the injury sustained by the victim relatively minor, and the fact that there was no reliable evidence that the offence was premeditated, his Honour regarded the objective criminality as towards the lower end of the notional range. 15 For this reason, coupled with the applicant's plea of guilty, his Honour was satisfied that it was not appropriate to impose the standard non-parole period. He did however acknowledge its utility as a reference point or benchmark in accordance with R v Way [2004] NSWCCA 131; 60 NSWLR 168. The significance of the applicant's mental health and his criminal record 16 The applicant's state of mental health was an issue on sentence and on the application for leave to appeal in circumstances where, as a matter of simple temporality, he first came to adverse notice in 2000, a year after he was diagnosed with schizophrenia. 17 In so far as his criminal record was concerned, his Honour noted that the applicant was sentenced in September 2000 for a period of 12 months with 6 months non-parole period in relation to a number of break, enter and steal offences together with offences of common assault. In 2002 he was imprisoned for a further term, again in respect of offences including break enter and steal. On this occasion an overall sentence of 4 years was imposed with a non-parole period of 3 years. The next significant period of custody commenced on 19 July 2005 in respect of the applicant's possession of house-breaking implements and a further offence of break, enter and steal. At the time he committed the subject offence he was on parole. 18 It would appear to have been uncontroversial on sentence that the applicant's mental illness provided the context in which he first came to notice. The extent to which his past offending (excluding for present purposes the offending the subject of this appeal) was causally connected to his mental illness was not, however, the subject of direct evidence in the sentence proceedings. The only information relevant to the question came from Dr Carne, who first saw the applicant in May 2007. He reported the applicant's claim that his prior offending was as a result of his experiencing command auditory hallucinations and, although he confirmed the diagnosis of schizophrenia, he did not refer to any material independent of the applicant's account that would serve to confirm that the previous offending was relevantly and causally linked to his condition. In particular, there was no evidence tendered on sentence from the applicant's treating doctors and no evidence elaborating upon the severity of his condition. That said, it was not a matter of controversy that the applicant had been in receipt of psychiatric treatment from Cumberland Hospital regularly since he was diagnosed and that he has apparently been compliant with prescribed anti-psychotic medication as part of his treatment. 19 Whilst Dr Carne did not appear to doubt the veracity of the applicant's assertions that auditory hallucinations played a role in the commission of each of the offences which appeared on his criminal record, he was unable to determine whether or not the applicant was affected by any symptoms of his underlying mental illness (whether that be auditory hallucinations and/or commands or otherwise) at the time of committing the offence for which he was sentenced. Dr Carne said: "…. whilst Mr Nguyen suffers from schizophrenia and may have been suffering from schizophrenia at the time of the offences, it was not possible to make a direct causal connection between schizophrenia and the offences…" The first ground of appeal 20 It is not submitted that His Honour ignored the fact that the applicant suffered from an underlying mental illness. The question which arises on the first ground of appeal is whether his Honour gave it insufficient weight when considering the principle of general deterrence and/or whether he gave it undue overweight (or wrongly weighted it as a matter of principle) in concluding that the applicant's criminal history justified a finding that it was highly probable that he will remain a danger to the community by committing offences of the kind for which he was to be sentenced despite the fact that he will receive medical treatment whilst in custody. 21 In R v Hemsley [2004] NSWCCA 228, Sperling J usefully summarised the significance of mental illness in the sentencing context as follows: "[33] Mental illness may be relevant – and was relevant in the present case – 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: Henry at [254]; Jiminez [1999] NSWCCA 7 at [23]; Tsiaras [1996] 1 VR 398 at 400; Lauritsen (2000) 114 A Crim R 333 at [51]; Israil [2002] NSWCCA 255 at [23]; Pearson [2004] NSWCCA 129 at [43]. [34] Secondly, mental illness may render the offender an inappropriate vehicle for general deterrence and moderate that consideration: Pearce (NSW CCA, 1 November 1996, unreported); Engert (1995) 84 A Crim R 67 at 71 per Gleeson CJ; Letteri (NSW CCA, 18 March 1992, unreported); Israil at [22]; Pearson at [42]. [35] Thirdly, a custodial sentence may weigh more heavily on a mentally ill person: Tsiaras at 400; Jiminez at [25]; Israil at [26]. [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; Israil at [24]." 22 In circumstances where there was no causal link between the applicant's illness and the commission of the offence, and no inference that his pharmacological regime was being mismanaged or inappropriate, the first basis upon which an offender's mental illness might be taken into account on sentence in accordance with the principles in Hemsley had no application. The interaction between the second and fourth principles is in issue. 23 Despite the first principle having no application to the sentencing exercise, given the applicant's criminal antecedents it was nevertheless open to his Honour not to entertain any optimism as to his prospects of rehabilitation or any confidence that he would not commit further offences on his release. In coming to that view his Honour was properly entitled to have regard to the fact that the subject offence was the second occasion where the applicant had breached parole over the course of a relatively significant criminal history since he migrated to Australia. It was in that context that his Honour concluded that there was a high probability that despite treatment for the applicant's condition being available in the prison system, the community was at risk of him committing further offences of the kind that are reflected in his criminal antecedents and, by inference, that considerations of specific deterrence were relevant. 24 It is the finding of future dangerousness (or risk to the community) that is the subject of challenge on the appeal, together with what is said to be his Honour's failure to counterweight that consideration (if it was an available finding) against a moderated need for the sentence to address the principle of general deterrence. 25 The applicant submitted that the finding of risk to the community was not open because of what is said to be the demonstrated connection between the applicant's prior offending and his mental illness and, as recognised in the second principle in Hemsley, an associated moderation of his moral culpability. It is submitted that viewed in this way his Honour's finding is also at variance with the approach to an assessment of future dangerous that the High Court has commended in Veen v The Queen (No 2) (1988) 164 CLR 465 at 477: "The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind." 26 I am not persuaded that his Honour's approach was wrong as a matter of principle. Hemsley recognises that the level of danger that an offender who suffers mental illness presents, or might present to the community may be a countervailing consideration even where his illness might otherwise operate in mitigation of sentence. Here the applicant's commission of the earlier offences (possibly attended by a causal connection with his mental illness) and his commission of the subject offence (absent any causal connection but with mental illnesses nevertheless established) were both considerations relevant to an assessment of the likelihood of the applicant presenting a danger to the community upon his release. (See also R v Arnold [2004] NSWCCA 294; R v Haines [2004] NSWCCA 294; R v Wicks [2005] NSWCCA 213; R v Pham [2005] NSWCCA 314 and R v Hughes [2005] NSWCCA 117.) 27 It is also submitted that his Honour should not have proceeded to any conclusion about future dangerousness in circumstances where the adequacy of the applicant's medical treatment at the time of the earlier offending was unclear. While it is true that Dr Carne's report did not address the nature of the applicant's psychiatric treatment or specify the medications he was prescribed, there is no suggestion in the evidence that this regime was inadequate or inappropriate save for the fact that the applicant maintained that he continued to suffer hallucinations notwithstanding the treatment he was receiving in custody. In the circumstances, this is a wholly unreliable basis upon which to mount a challenge of the kind the applicant advances on an application for leave to appeal against sentence. Not only was there no evidence tendered before his Honour bearing upon the significance of his mental illness in the context of the past offending, Dr Carne reported that the applicant was both managed by medication and compliant and that he had been a regular recipient of treatment from Cumberland Hospital for some years. 28 The applicant submitted that even if it were open to his Honour to impose a longer sentence because the applicant's mental instability posed a danger to the community, the sentence actually imposed should be substantially offset by the reduced need for general deterrence. His Honour expressly referred to the fact that it is appropriate to give less weight to general deterrence in his sentencing remarks. I am not persuaded that his Honour failed to reflect this in the sentence that was imposed. 29 I am not satisfied the errors comprehended by the first ground of appeal have been made out. Sentence was manifestly excessive 30 The applicant submitted that in light of his Honour's positive finding that the offending was at the lower end of the spectrum (and there being no finding of special circumstances which might otherwise disturb the statutory ratio between non-parole period and the balance of term) the specification of 20 per cent as the discount for the utilitarian value of the plea meant that the commencement point for the calculation of sentence must have been a head sentence of 6 years 3 months and a non-parole period of approximately 4 years 10 months. It was further submitted that the proximity of the non-parole period of 3 years and 9 months to the standard non-parole period of 5 years renders the sentence one that is manifestly excessive. 31 The applicant draws support for that submission from what is said to be a substantial sample of 226 cases, assembled from the available statistics, and which reveal that after the introduction of the regime for the imposition of a standard non-parole period, a head sentence of 5 years was imposed in 90 per cent of the cases and a minimum (or fixed) term of 42 months or less imposed in 95 per cent of the cases. 32 Reference to the Judicial Commission statistics in support of a challenge to a sentence on the basis of it being manifestly excessive is not always instructive. As Hulme J observed, with the concurrence of the other members of the Court, in Ma and Pham v R [2007] NSWCCA 240: "Subliminal in the reference to the statistics and the observation that the sentences here fall into the highest end of the range is the proposition that that is indicative of error. The proposition must be rejected. As this Court has said on many occasions, the range extends to the maximum penalty set by Parliament and it is against that that an offender's conduct must primarily be judged. Certainly, the statistics may at times inspire further reflection on the sentence in a particular case and perhaps give some limited guidance but, of themselves, they do not demonstrate error. Particularly is this so because, within each category, they provide no details of the cases reflected in them." See also Allen v R [2008] NSWCCA 11 per Grove J at [24] (Harrison J expressly agreeing at [56]). 33 Quite apart from what the Crown pointed to as a refinement of the statistical data relied upon by the applicant, which reduced the number of cases considerably even if it did not alter the analysis, the Crown also emphasised that because the applicant's sentence was ordered to commence on the day that he went into custody, the sentence entirely subsumed the balance of parole in respect of the sentence imposed on 19 July 2005 and, for that reason, the sentence does not compare easily with the statistical categories of "consecutive and non-consecutive sentences". 34 In the result I am not persuaded that the statistical data supports the applicant's challenge to the sentence on the ground of manifest excess. 35 In addition, since I am satisfied that it was open to his Honour to have been concerned about the protection of the community in light of the applicant's criminal record and his propensity to commit offences – protection of the community being a principle to which the purposes of sentencing are appropriately directed as provided for in s 3A of the Crimes (Sentencing Procedure) Act – I am of the view that the non-parole period of 3 years and 9 months is within an available range utilising the 5 year standard non-parole period as a reference point. Orders 36 I would propose the following orders: 1. Leave to appeal granted. 2. Appeal 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. 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.