New South Wales Court of Criminal Appeal CITATION: Troy LITTLE v R [2009] NSWCCA 113 HEARING DATE(S): 08/04/2009 JUDGMENT DATE: 21 April 2009 JUDGMENT OF: Grove J at 1; Howie J at 2; Buddin J at 24 DECISION: Application for leave is granted but the appeal is dismissed. CATCHWORDS: Criminal Law - Appeal against sentence - Evidence of psychologist rejected by sentencing judge - whether erroneous - whether brain injury mitigating or whether significance of general deterrence should have been reduced. LEGISLATION CITED: Crimes Act 1900 - ss 86(1)(b), 111(2) CATEGORY: Principal judgment R v Engert (1996) 84 A Crim R 67 CASES CITED : R v Hemsley [2004] NSWCCA 228 R v Dagwell [2006] NSWCCA 98 PARTIES: Troy Little v Regina FILE NUMBER(S): CCA 2008/00000953 COUNSEL: V Lydiard - Crown F Coyne - Applicant SOLICITORS: S Kavanagh - Crown Burston Cole and Mulock - Applicant LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2008/0953 LOWER COURT JUDICIAL OFFICER: English DCJ LOWER COURT DATE OF DECISION: 14/08/2008 IN THE COURT OF CRIMINAL APPEAL 2008/953 GROVE J HOWIE J BUDDIN J TUESDAY 21 APRIL 2009 Troy LITTLE v R Judgment 1 GROVE J: I agree with Howie J. 2 HOWIE J: The applicant was sentenced in the District Court for three offences arising from an incident that occurred when he entered his former girlfriend's premises and bound her hands for a short period. This conduct resulted in three offences to which the applicant pleaded guilty in the Local Court. The first offence was contrary to s 86(1)(b) of the Crimes Act, that is detaining a person for advantage. That offence carried a maximum penalty of imprisonment for 14 years. The second was an offence of assault contrary to s 61 of the Act and for which a maximum penalty prescribed is imprisonment for 2 years. The third offence was an aggravated enter dwelling house with intent to commit a serious indictable offence, the offence alleged being intimidation. That is an offence contrary to s 111(2) of the Crimes Act and carries a maximum penalty of 14 years. 3 The applicant maintained his pleas of guilty in the District Court and was sentenced by Judge English (the Judge) on 14 August 2008. For the assault offence the applicant was sentenced to a fixed term of imprisonment for 12 months from 14 August 2008 and to expire on 13 August 2009. In respect of each of the other two offences the applicant was sentenced to a term of imprisonment comprising a non-parole period of 12 months and a balance of term of 18 months. The sentences commenced on 14 August 2008 so that the applicant is to be released to parole on 13 August 2009. 4 There was an agreed statement of facts and it can be summarised briefly. The applicant and the complainant, who was aged 29, had been in a relationship for about 5 years but it had soured on her part and she had informed the respondent that she no longer wished to see him. The complainant arrived at her unit, where she resided with a flatmate, at about 4.55pm. She left the sliding door partially open after letting the cat outside and went to have a shower. The applicant entered the flat through the open door and went to the bathroom. He demanded in an aggressive manner that the complainant leave the shower. He then handed her a towel and told her to dry herself. 5 The complainant told him to calm down and asked how he got into the unit. He replied through the back door and then slapped her across the face. He pushed her roughly to the bed. He grabbed her hands and tied them behind her back using cable ties that he had with him. He said, "Why the fuck do you lie to me?" He told her to get dressed but she said she could not with her hands tied. He handed her some clothes and took her mobile phone to prevent her summoning help. He attempted to place tape over her mouth but it would not stick. He told her that if she stopped screaming he would untie her. He went out of the room and returned with a knife that he used to cut the ties. 6 The complainant's flatmate came home and heard the complainant crying. She warned the applicant not to harm the complainant and left the premises. 7 The applicant asked the complainant why she kept lying to him and threatened to kill himself. He then produced a page printed from the complainant's computer site that he believed was a reference to another man. There was further conversation and the applicant told her that she would not see him again. He requested one last cuddle, which the complainant reluctantly gave him, and he then left the premises. 8 The complainant contacted police and showed them the various items used by the applicant including the ties, tape and knife. On 18 August police spoke to the applicant and he made admissions in an ERISP. 9 There was a pre-sentence report. It noted that the applicant, aged 28, resided in Victoria with either his parents or other relatives. He was a professional sprint car driver but because of an existing AVO was forced to race in Victoria as the complainant raced vehicles in NSW. There was nothing of relevance in his background. He admitted that he had been drinking alcohol on the day of the offences but denied drinking was a problem. He was aware of the seriousness of his conduct. The author of the report noted that he had "no mental health issues". 10 There was a report from a psychologist who performed a neuropsychological assessment upon the applicant. The contents of that report and her Honour's findings are the subject of grounds of appeal so I will defer consideration of them. 11 The applicant gave evidence. He was asked what he thought about his conduct and stated: I had a chance to go through all the paper work that was provided, the victim impact statement and so forth and I believe it was more of a wake-up call when I read all about that. I didn't think I had – I would have – I wanted to apologise to [the complainant] and I was grateful enough that she gave me the opportunity but I was never – nothing I do can actually make up for the actions I did on that day. I'm remorseful of course but - every morning I wake up and I think about it, I can't - there's nothing I can do to change what I've done. 12 There were three grounds of appeal filed as follows: 1. The sentencing judge erred in rejecting the opinion of the psychologist, Norman Rees, that the offender results (sic) of the tests performed indicated a deterioration of cognitive functioning on the basis of an absence of medical evidence. 2. The sentencing judge erred in rejecting as a mitigating circumstance the opinion of the psychologist that there was evidence of deterioration in cognitive functioning. 3. The sentencing judge erred in not finding that the offences were not planned and by not resolving the issue as to whether the offence of detained for an advantage was pre-planned. The Court was advised on the hearing of the appeal that the third ground had been abandoned. 13 The written submissions of the applicant addressed the first two grounds together. As has already been noted, there was in evidence a psychological report. The applicant was subjected to a barrage of tests in order to assess his "cognitive functioning which may have relevance to the offences which he committed on 17 August 2007". The psychologist reported: The results indicate an overall level of intellectual functioning in the Average Range. The results do however indicate deterioration of cognitive functioning in several areas including, processing speed, complex attention, planning skill, delayed visual recall and verbal learning. The deterioration is consistent with that seen in persons with mild generalized brain injury. The pattern is consistent with that commonly seen in persons such as professional footballers, boxers and motor racing drivers who have repeated insults to their brain. The frequent brain injury leads to a mild generalised brain damage and diverse deterioration of cognitive functioning such as seen in [the applicant's] results. The results are most likely due to repeated physical trauma but alcohol abuse may have played some part in the deterioration seen, the major part of the deterioration is likely to be due to repeated injuries from sprint car crashes. Unfortunately there is a high likelihood that the damage is permanent and is unlike brain damage from a single event where there is typically some recovery of functioning in the six month period post injury. Because of the mild nature of the injury, MRI and CT scanning may not indicate cerebral changes but nonetheless the more sensitive nature of neuropsychological testing does indicate significant deterioration. His reading skill is significantly lower than his general intellectual functioning but this is most likely to be due to him not responding well to formal education rather than brain injury. The generalised nature of the injuries he has suffered to his brain is likely to have compromised the mechanisms of mood production and mood inhibition. He has provided a history of impulsiveness and poor control over his temper. Both of these factors are likely to be due to brain damage. I understand that he is to attend court shortly for sentencing. I have read the material he provided to me about the various offences and I consider that his behaviour is most likely to have been adversely affected by his brain injury. The brain injury is likely to have resulted in difficulty with impulse control, increased emotionality, difficulty with control of his emotions and difficulty with foresight and ability to maintain attention on more appropriate courses of action. Furthermore consumption of alcohol would further potentiate problems with impulse control and emotional control. The applicant gave evidence that he had been admitted to hospital as a result of at least two sprint car crashes. 14 Defence counsel initially failed to mention the psychological report when addressing her Honour. However he later raised its relevance in additional submissions. He said this: I'm sorry, your Honour, would you allow me to just point one other matter out to you and I have neglected to refer you to the psychologist's report, that's the only evidence before the Court today in relation to his mental condition and that is evidence of a mild generalised brain damage and diverse deterioration of cognitive functioning. What use would the Court make of that psychologist's report? Well one use is that the psychologist links that report of his to the conduct of the offender on that afternoon and if the Court accepted that link and in accordance with the cases this would not necessarily be a case for general deterrence and it would perhaps limit the role of specific deterrence of this individual offender in the sentencing of the offender. Those were the matters I neglected to put. 15 The prosecutor contended that the Judge should not act upon the report chiefly because there was no evidence that the applicant had suffered head trauma giving rise to brain injury. He also contended that such an injury was inconsistent with the applicant's professional skills as a sprint car driver. 16 The Judge stated: A report from a psychologist has now been obtained and tendered. Test results reveal the offender to be at the lower end of the average range of intelligence, consistent in some instances with his responses to formal schooling. There are said to be no significant deficits in his right frontal lobe function. In the opinion of the psychologist his overall level of intellectual functioning is in the average range. There is said to be a deterioration in his cognitive functioning in several areas consistent with someone with mild generalised brain damage consistent with sportsmen and women who have repeated insults to their brain. The psychologist refers to repeated injuries from sprint car crashes. There is no medical evidence before me of repeated brain injury or repeated sprint car crashes. At its highest the offender says he's been admitted to hospital on two occasions that he can recall. In the opinion of the psychologist that the generalised nature of injuries suffered to his brain are likely to have compromised the mechanism of mood production and mood inhibition. He is said to have poor impulse control and an inability to control his temper. I find that opinion somewhat surprising, first because there is a lack of medical evidence referred to by the psychologist and there is none before this court, and secondly, because of the nature of his profession as an elite sportsman. And later: I am asked to find that his mental health is such that the issue of deterrence should be given less weight. I am not persuaded that that is so. The offender himself denies suffering from any form of mental illness and denies having mental health issues. The state of the psychological evidence is such that it can be given little or no weight. There is no medical evidence that supports the opinion of the psychologist. 17 The submission of the applicant before this Court is that there was no basis for the Judge to reject the opinion of the psychologist expressed in the report. It was noted that there was no objection to the tender of the report by the prosecutor and the validity of the psychologist's opinion was based upon tests he had performed rather than upon whether or not the applicant had been subject to brain trauma. 18 I agree with this submission. The fact that the applicant may have been an elite sportsman capable of skilfully driving a sprint car to championship level had absolutely nothing to do with whether he had generalised brain injury that was likely to have affected his ability to control his emotions or his anger or to make him more impulsive. In fact so far as the injury affected his impulsivity that may have been of positive assistance to him in risk taking during racing. The fact that the applicant did not believe he had mental health issues is also of no relevance to the question whether he had such issues, especially given the nature of the brain injury and the possible effect it had upon his emotional state. 19 But even if it were accepted that his brain injury was likely to have had some part to play in the offending, it was of little moment. I do not understand how it made him more likely to tie her hands behind her back or to try to tape up her mouth to stop her screaming. I do not know if the psychologist had read the recorded interview between the applicant and police, but it does not seem to have the hallmark of a person with poor impulse control or the inability to control his anger. Rather it presents the not-unusual scenario of a man who simply will not accept the right of a partner to bring a relationship to an end. There are long rambling answers in which the applicant reveals his frustration and deep disappointment with the complainant's conduct in finishing, without any justification that he could see, an intimate relationship that he hoped would end in marriage. He denied that he had slapped her. 20 Further, there was little in the evidence suggesting that these offences were impulsive. There can be no real suggestion that the applicant just happened to turn up at the back door minutes after the complainant had arrived home. He knew the routine and that the back door would be left open because of the cat being let out. It also cannot be the case that he just happened to have with him a printout of the complainant's Internet site. He clearly planned to confront the complainant in her own home by entering the house when he had no permission to do so. He knew that she would find his presence unwelcome. He may not have planned what would actually occur during the confrontation and his reaction to her screaming might have been impulsive. But those findings do little to mitigate the offences when considered as a whole. 21 There was no merit in the submission made by defence counsel before the Judge and repeated in this Court that the mental disorder, from which the applicant suffered, was of a kind that would warrant less regard being paid to general deterrence. It simply was not of such severity, nor had it such an effect on the applicant's behaviour either in the commission of the offence or otherwise, that the principles considered in cases such as R v Engert (1996) 84 A Crim R 67 and R v Hemsley [2004] NSWCCA 228 applied. It is not every abnormal mental condition that will engage these sentencing principles: see R v Dagwell [2006] NSWCCA 98. 22 In my opinion the sentences imposed were moderate, if not lenient. They did little to reflect general deterrence in any event. The applicant was fortunate to receive concurrent sentences for the two more serious offences. I am far from satisfied that any lesser sentence is warranted simply because of the material in the psychologist report. 23 I propose that the application for leave be granted but the appeal be dismissed. 24 BUDDIN 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.