New South Wales Court of Criminal Appeal CITATION: R v PANTELAKIS [2008] NSWCCA 265 HEARING DATE(S): 13/11/08 JUDGMENT OF: Bell JA at 1; Blanch J at 36; Hall J at 37 EX TEMPORE JUDGMENT DATE: 13 November 2008 DECISION: Appeal dismissed CATCHWORDS: CROWN APPEAL - s 11 adjournment respondent suffering from psychiatric illness - period of full-time custody served before the order LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 R v Hemsley, [2004] NSWCCA 228 CASES CITED : R v Palu [2002] NSWCCA 381; 134 A Crim R 174 R v Wright (1997) 93 A Crim R 48 PARTIES: Regina (Appellant) Con Pantelakis (Respondent) FILE NUMBER(S): CCA 2008/00005761 COUNSEL: J Girdham (Crown) H Dhanji (Respondent) SOLICITORS: S Kavanagh (Appellant) S O'Connor (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2008/11/0326 LOWER COURT JUDICIAL OFFICER: Woods DCJ LOWER COURT DATE OF DECISION: 18/9/08 - 8 - IN THE COURT OF CRIMINAL APPEAL CCA 2008/00005761003 BELL JA BLANCH J HALL J Thursday 13 November 2008 Regina v Con PANTELAKIS Judgment 1 BELL JA: The Crown appeals from the order of his Honour Judge G Woods QC made on 18 September 2008, adjourning the sentence proceedings to 6 February 2009 and granting the respondent conditional bail. The order was made pursuant to s 11 of the Crimes (Sentencing Procedure) Act 1999. An adjournment under s 11 is a sentence for the purpose of s 5D(1) of the Criminal Appeal Act 1912: s 2. 2 The Crown's notice of appeal is dated 24 September 2008. 3 The respondent was committed for sentence on a charge of aggravated robbery contrary to s 95(1) of the Crimes Act 1900, the circumstances of aggravation particularised being the use of corporal violence. It is an offence punishable by a maximum penalty of imprisonment for 20 years. 4 The respondent asked the judge, in sentencing him for this offence, to take into account a further aggravated robbery offence contrary to s 95 (1), committed within a short interval of the principal offence. 5 The facts of the offence are set out in an agreed statement signed by a solicitor from the office of the Director of Public Prosecutions, which is dated 14 May 2008. 6 The following summary is taken from that statement. 7 At about 7.50am on 29 November 2007 Mr Wright was walking towards Marrickville Railway Station when he was confronted by the respondent who demanded that he give him twenty dollars. Before Mr Wright could say anything the respondent slapped him across the face with his right hand. The respondent said, "give me fifty dollars, give me some money, give me twenty dollars". Mr Wright did not reply and the respondent slapped him three more times to both sides of his head. Mr Wright managed to get his wallet out and to hand sixty-five dollars to the respondent. The respondent immediately walked across the street. When Mr Wright sensed that he was at a sufficient distance he telephoned the Emergency OOO line and supplied the operator with a description of the respondent. 8 The offence charged in the Form 1 occurred around 9.00am. The complainant, Mr Spence, was walking along Henson Street, Marrickville. He was confronted by the respondent, who said to him, "give me your money, give me your fucking money". Mr Spence responded, "I don't' have any money" and the respondent struck him on the chin. Mr Spence fled the scene and was followed by the respondent who stood outside the front door of the building saying, "do you live here? I'm going to kill you". Mr Spence managed to enter his unit and make contact with the police. 9 The respondent was arrested by police in the vicinity of Henson Park around 10.00am that morning. 10 The respondent told the police that he was overdue to take his schizophrenia medication. He asked to speak with his caseworker from the Marrickville Crisis Team. At about 12.30pm on the same day two members of the Marrickville Crisis Team attended Burwood Police Station and spoke with the respondent. He was given medication, Olanzapine, and an injection of Fluanxol. He was in an agitated state at the time, and, for this reason the police decided not to interview him in relation to the two matters. 11 The respondent was aged 33 years at the date of the offence. He was on parole, having been convicted before the Sydney District Court on 7 September 2006 of an offence of armed robbery for which he was sentenced to imprisonment for two years and six months, to commence on 14 March 2006, with a non-parole period of twelve months which expired on 13 March 2007. 12 It appears that he was released at the expiration of the non-parole period. His parole was revoked with effect on 21 December 2007 and he served the balance of his parole, which expired on 14 September 2008. 13 The respondent appeared before the sentencing judge on 31 July 2008, on which occasion the Crown brief of evidence was tendered. A report prepared by Mr Anderson, a registered nurse with the South West Area Mental Health Service, and a report from Dr Carne, a psychiatrist, dated 25 July 2008, were tendered in the respondent's case. 14 Mr Anderson was, at the date of the report, the respondent's case manager and he set out the respondent's history with the Mental Health Service, which dates back to October 2003. The respondent had been diagnosed as suffering from schizophrenia, a condition that is related to a history of substance abuse. Contact with the respondent had ceased in April 2006 when he had been remanded in custody. When he was first seen by the Mental Health Service he was experiencing psychotic symptoms. He had been admitted in May 2003 to the Missenden Unit at a time when he was acutely paranoid and suffering from delusional ideation. These symptoms resolved with the administration of Olanzapine and he was discharged on 3 November 2003. 15 Mr Anderson referred to the respondent's history of encounters with the criminal law, noting that his conviction for assault in 2003 involved an offence that was the product of his delusional beliefs. On 18 December 2003 he had been released on a bond to be of good behaviour for twelve months, conditioned that he remain subject to a treatment regime. He had ceased taking medication prior to a relapse in August 2004. There followed an admission to the Rozelle Hospital as a voluntary patient: at the time the respondent was experiencing auditory hallucinations. He had discharged himself after three days and remained unwell with minimal insight into his condition. He had been re-admitted to hospital in September 2004. This admission was associated with a further assault committed while he was subject to the same delusional belief that had led to the first. He was discharged from the Rozelle Hospital on a community treatment order. The order was renewed in April 2005 and he was reported to have remained well, although he continued occasional use of drugs, which had an adverse effect on his mental health. 16 In June 2008, at the date of the reports that were before the sentencing judge, the respondent was receiving fortnightly injections of the anti-psychotic medication, Fluanxol. 17 Dr Carne obtained a history that since about 2002 the respondent had been seeing messages directed to him in car number plates. Prior to this he described a history of marijuana dependence and the use of other illegal drugs. 18 In the period prior to the commission of the offences he had not been taking his medication. He complained the medication affected him badly. In particular, he felt that it made his eyes divert downward, forcing him to observe patterns in the ground. 19 Since being in custody he had been placed on a new anti-psychotic medication, Zeldox, which did not have adverse side effects. Dr Carne considered that at the time of the alleged offences the respondent's behaviour had been driven by symptoms of an acute psychosis caused by non-compliance with his medication and by amphetamine and marijuana use. Dr Carne described the respondent's thought processes as being irrational, illogical and delusional and his behaviour as being "accordingly bizarre". 20 At the time of the consultation with Dr Carne, the respondent had been under regular psychiatric treatment for seven months. He had good insight into his condition and a good understanding of his problems. He accepted that he should remain abstinent from recreational drugs and that he should continue on medication. 21 He gave evidence before the sentencing judge confirming that he felt better on Zeldox. He described the adverse effects of the injections of the anti-psychotic medication that he had earlier been taking. The sentencing judge said that he was considering adjourning the proceedings until after the expiration of the remaining balance of sentence so that consideration could be given to a s 11 adjournment to assess whether the new medication continued to have positive effect. The Crown Prosecutor opposed this course, submitting that the objective seriousness of the offence called for a sentence of full-time custody. 22 The proceedings were adjourned to 18 September 2008. On this occasion, the respondent gave further evidence. He expressed his willingness to continue to take Zeldox. He said that he was eating and sleeping well and that he was not feeling paranoid. Generally he described feeling "great". His Honour said this: "What I'm minded to do, gentlemen, is to subject to hearing from his mother, Mr Fraser, as to the appropriateness of the arrangements if we can do that in a moment but what I'm minded to do is to direct under s 11 of the Crimes (Sentencing Procedure) Act that the matter be adjourned until 6 February next year, Friday 6 February, and to see how the rehabilitation takes place and if the rehabilitation is satisfactory then I'll put him on a bond all things being equal, do you want to call some evidence from his mother?" (T'cpt 18/9/08 8.18-24) 23 The respondent's mother, Serana Pantelakis, gave evidence. Mrs Pantelakis was not comfortable with the respondent returning home if he was not on medication, but was willing to have him at home, provided he took his medication. She confirmed that over the past few months he had been in daily telephone contact with her and that he had been feeling well. 24 His Honour gave brief reasons for his decision to adjourn the proceedings and to grant the respondent conditional bail. At the conclusion of those reasons he indicated that: "In conditionally disposing of this matter, I do not reach any concluded position as to a sentence which might ultimately be imposed and it depends on the behaviour of the offender." 25 The Crown submitted that the primary judge had clearly signified his intention to impose a non-custodial sentence, provided that his progress on bail is satisfactory. I accept that is so. Notwithstanding the respondent's mental health difficulties, in the Crown's submission such a sentence is manifestly inadequate having regard to the respondent's history and the objective seriousness of the offence. 26 Mr Danji, who appears on the respondent's behalf, in written submissions contended firstly that the ground of appeal is manifest inadequacy and that this was not appropriate in a case in which no sentence had been passed. Mr Danji referred to his Honour's remarks set out above, submitting that no concluded view had been formed. 27 The Crown's right to bring an appeal against an order adjourning proceedings under s 11 is undoubted: R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174. 28 It was appropriate for the Crown to approach the matter on the basis that his Honour had signified an intention, subject to the respondent's compliance with his bail conditions, of imposing a sentence other than one of full-time custody. 29 Central to the Crown's challenge is the circumstance that the respondent's admitted psychotic condition was the product of his failure to adhere to a treatment regime and his use of illegal drugs. There is no challenge to the evidence of the respondent's mental condition and to its causal relationship to the offence, but the Crown submitted this does not point to the respondent being unaware of what he was doing at the time he made his demands of the complainants. The Crown characterised his behaviour as purposeful and, in the case of the second offence, persistent. 30 The Crown pointed to his Honour's characterisation of the respondent's behaviour as "bizarre". It was submitted that there were no features of the offences other than that they involved a daylight robbery, carried out in the presence of witnesses and in circumstances in which the robber remained in the near vicinity, to justify the description. I understand his Honour's reference to be to Dr Carne's report, to which I have referred. 31 The Crown relied on the well-known passage in the judgment of Hunt J in R v Wright (1997) 93 A Crim R 48 at 52: "by his recklessness in bringing on these psychotic episodes, [the applicant] is a continuing danger to the community, a matter which would in any event reduce – if not eradicate – the mitigation which would otherwise be given for the respondent's mental condition." 32 The principles that are to be applied in dealing with offenders suffering from mental disorder are well-known and need not be restated: see R v Hemsley [2004] NSWCCA 228, [33] – [35]. 33 Significant to the determination of this appeal is a consideration that at the date of the order the respondent had been in custody following his arrest for the present offences for approximately ten months. From 21 December 2007 his custody was in consequence of the revocation of parole. It was also in consequence of his arrest and the refusal of bail. The Crown acknowledges that it would be within the sentencing judge's discretion to impose a sentence backdated to the date of arrest. That is so. 34 Given the respondent's psychotic condition and its causal connection to the offences, the primary judge's sentencing discretion must be acknowledged to be somewhat broader than in the case of a mentally sound offender. The Crown's contention that the objective seriousness of the offence required the imposition of a sentence of fulltime custody has substance to it. However the fact that the respondent has served 10 months of fulltime custody following his arrest for the subject offences cannot be ignored in the context of a Crown appeal. In these circumstances and in light of the cogent psychiatric evidence, I am not persuaded that the Crown has established error such as to justify the intervention of this Court. 35 For those reasons I propose that the appeal be dismissed. 36 BLANCH J: I agree. 37 HALL J: I agree. 38 BELL J: The order of the court is as I have proposed. ********** 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.