New South Wales Court of Criminal Appeal CITATION: Watts v R [2010] NSWCCA 315 HEARING DATE(S): 3 November 2010 JUDGMENT DATE: 16 December 2010 JUDGMENT OF: McClellan CJatCL at 1; Schmidt J at 36; Howie AJ at 1 DECISION: (a) application for leave to appeal is granted and the appeal allowed; (b) the sentence imposed in the District Court is quashed and in lieu the applicant is sentenced to a term of imprisonment consisting of a non-parole period of 4 years 1 month and a balance of term of 1 year 5 months. The sentence is to date from 21 August 2008. CATCHWORDS: CRIMINAL LAW - whether the sentencing judge erred in assessment of the seriousness of the offence - whether the effect of the offender's mental condition was properly taken into account - whether sentence was manifestly excessive - failure by sentencing judge to take into account in an appropriate manner the psychiatric evidence of the offender - offender re-sentenced Crimes Act (NSW) 1900 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Mental Health Act CATEGORY: Principal judgment DPP (Cth) v De La Rosa [2010] NSWCCA 194 Georgopolous v R [2010] NSWCCA 246 CASES CITED : Markarian v R [2005] HCA 25; (2005) 228 CLR 357 Okeke v R [2010] NSWCCA 266 R v Hemsley [2004] NSWCCA 228 Sivell v R [2009] NSWCCA 286 PARTIES: David Michael Watts (applicant) The Crown FILE NUMBER(S): CCA 2008/11324 COUNSEL: J Manuell SC (applicant) J Pickering (Crown) SOLICITORS: Legal Aid Commission of New South Wales (applicant) Director of Public Prosecutions (Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2008/11324 LOWER COURT JUDICIAL OFFICER: Syme DCJ LOWER COURT DATE OF DECISION: 11 September 2009 IN THE COURT OF CRIMINAL APPEAL 2008/11324 McCLELLAN CJ at CL SCHMIDT J HOWIE AJ THURSDAY 16 DECEMBER 2010 WATTS, David Michael v R Judgment 1 McCLELLAN CJ at CL and HOWIE AJ: The applicant was tried and convicted of an offence contrary to s 195(1)(b) of the Crimes Act (NSW) 1900. The indictment was in the following terms: "On 16 November 2007 at Bidwill in the State of New South Wales did maliciously damage by means of fire certain property, namely a dwelling house situate at 8 Capparis Circuit, the property of the New South Wales Department of Housing." 2 The offence carries a maximum penalty of 10 years. The applicant was sentenced to imprisonment for 6 years and 6 months with a non-parole period of 4 years and 10 months to commence on 21 August 2008 and expire on 20 June 2013 with a balance of term of 1 year and 8 months to commence on 21 June 2013 and expire on 20 February 2015. 3 The applicant seeks to raise three grounds of appeal being: Ground 1: Her Honour erred in assessment of the seriousness of the offence. Ground 2: Her Honour failed to properly consider the effect of the applicant's mental condition. Ground 3: The sentence was manifestly excessive The relevant facts 4 The applicant and his de-facto were tenants of the premises. They had both lived at the property since December 2005. It was the Crown case that they had grossly neglected the maintenance of the house which, with its surrounds, were in complete disarray and barely fit for habitation. 5 Shortly prior to 16 November 2007 the Mt Druitt Office of the Department of Housing had scheduled an inspection of the premises. On Thursday 15 November 2007 the applicant went to the Quix Service Station at Hassall Grove. At the service station he filled a container with petrol, and, after paying his bill, returned to his home. 6 Thereafter the applicant or his de-facto, or both of them, poured petrol in the hallway and rear bedroom areas of the house. The premises were then set on fire. The fire caused significant structural damage to the house predominantly in the hallway and rear bedroom side of the house. The damage was estimated at $70,000. 7 The sentencing judge found that the applicant had used the debris and rubbish in the home to assist in starting the fire. The applicant made no attempt to call 000. 8 Her Honour found that the applicant was motivated to light the fire because of difficulties he was having with the Department of Housing over the Department's attempts to have the property cleaned up. 9 Her Honour found that the applicant and his de-facto believed that, if they set fire to the house, they would be eligible for emergency housing assistance which would obtain for them a new house and get them away from the filthy conditions they were living in, which her Honour described as being "like a rubbish dump." Ground 1 10 When considering the nature of the applicant's offence, the sentencing judge identified the fact that there was no relevant standard non-parole period. However, her Honour proceeded to instruct herself that she was required to make findings as to matters of objective seriousness. Her Honour indicated the matters to which she would have regard and then concluded: "The objective seriousness is high. The need for general deterrence is significant. The damage was substantial and the required sale of the house depleted public housing required for the community at large." 11 Her Honour then immediately proceeded to describe the damage, which she said was substantial, identified the fact that there was evidence of planning and that the applicant had abused a position of trust in relation to the property. Her Honour also identified the fact that the applicant was on bail for other offences when he committed this offence. 12 It is not entirely clear but her Honour's remarks may indicate that she carried out the process of sentencing in two distinct stages. This would be a breach of the approach required to sentencing of offenders which was discussed by the High Court in Markarian v R [2005] HCA 25; (2005) 228 CLR 357. When an offence attracts a standard non-parole period a court is required to determine the objective seriousness of the offence as a distinct step in the sentencing process. The position is otherwise in relation to offences that do not carry a standard non-parole period. The issue is addressed by McClellan CJ at CL in Sivell v R [2009] NSWCCA 286. See also the comments of Howie AJ in Georgopolous v R [2010] NSWCCA 246 at [31]-[32]; Okeke v R [2010] NSWCCA 266 at [32] per Howie AJ. 13 Although her Honour approached sentencing of the applicant using the language appropriate to an offence attracting a standard non-parole period, we are not persuaded that as a consequence the sentence, which her Honour imposed, was in error. On any view of the matter the criminality of the applicant was significant. The objective circumstances not being in dispute, the difficulty for the sentencing judge was in defining the appropriate sentence having regard to the apparent psychological difficulties. Ground 2 14 The applicant submitted that, because of the Judge's approach to the objective seriousness of the offence, her Honour did not have appropriate regard to the evidence concerning the applicant's mental state. That the applicant suffered from an impairment of his mental functioning was apparent from the evidence of Professor Greenberg and of Dr Ellis. 15 Although Professor Greenburg concluded that the applicant did not suffer from a "mental illness or mental disorder as defined within the meaning of Chapter III of the Mental Health Act 1900", he did find that the applicant suffered from a severe Personality Disorder associated with Poly Substance Depression, and that he "probably would qualify for the diagnosis of Chronic Dysthymia (low-grade chronic depression) and Post Traumatic Stress Disorder". He thought that the applicant would probably benefit from a continuation of prescribed medication and further counselling. He recommended psychiatric assistance from a Community Mental Health Service on the applicant's release. 16 Dr Ellis found that the applicant did not suffer from "a major mental illness such as a psychotic disorder". However, he did diagnose a Post-traumatic Stress Disorder, polysubstance dependence, and an anti-social personality disorder. The doctor stated, as to the applicant's mental state at the time of the offending: "It is likely that he was abusing substances that would have exacerbated any underlying impulsivity and irritability that he experiences as part of his personality dysfunction……….It is likely given his underlying personality structure, possible cognitive impairments and substance use that his ability to reflect on decisions was impaired compared to the average person….." 17 He thought that the applicant's psychiatric medication "may be of some benefit in moderating impulsivity and aggression". He also thought it might moderate "post-traumatic symptoms". The doctor made other suggestions for treatment on the applicant's release. 18 However, her Honour did not consider these matters to be of particular significance in the ultimate determination of the sentence. Her Honour said: "It is suggested that there are psychiatric factors that are relevant. The psychiatrist report from Dr Ellis which referred to and reviewed other reports was relied upon. There has been no diagnosed mental illness or psychiatric disorder. The report suggests that the reporting of hearing voices may be an invention, although not a skilful one. On being questioned about this in court, Mr Watts agreed that he had been looking up books on mental illness and stated that he was looking up symptoms of depression because he thought that that might apply to him. His explanation makes no sense in the light of the report tendered and really throws doubt on the symptoms reported to the doctor by him. It would appear that Mr Watts is trying to manipulate the reports or the report writer. It is considered that any symptoms he is experiencing are as the result of substance abuse. The report writer, Dr Ellis, suggests Mr Watts has elaborated on other people's probably real symptomology and claimed them as his own. I accept this observation. It was not challenged. Prior reports do not support a finding of mental illness or a condition related to the offending behaviour or any condition that appears to be related to the offending behaviour, or indeed any condition that on Mr Watts' current presentation appears to be capable of treatment or improvement. He is diagnosed as having an anti-social personality disorder. This diagnosis is associated with substance abuse. The offender is not amenable to involvement in any steps toward resolving this disorder that would require initially him to address his substance abuse issues. There is no evidence of developmental or intellectual disability. It is suggested he may have sustained some cognitive impairment from sustained alcohol abuse but that does not apparently stop him from attempting to manipulate the court report writer. It is observed that he displayed similar fanciful reports to previous report writers and I have referred specifically to the August 2007 report from Justice Health prepared by Doctor Greenburg." 19 Later her Honour said: "There is no support for the proposition that Mr Watts displayed or is diagnosed with any psychiatric or mental illness conditions relevant to the causation of this offence." 20 Her Honour was referred during submissions to the decision of this Court in R v Hemsley [2004] NSWCCA 228. That case is authority for the impact of the mental disorder of an offender on the sentencing of that offender. In particular it is not unusual for reference to be made to the following part of the judgment of Sperling J: "[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]." 21 As might be expected counsel for the applicant before the sentencing judge relied upon the first three factors set out in that part of the judgment. 22 With respect, her Honour seems to have misunderstood the submission being made. She treated reliance on that decision as a type of parity argument comparing the position of Ms Hemsley with that of the applicant, rather than as being a case relied upon simply as revealing a matter of sentencing principle. As a result her Honour rejected that decision as having any relevance because "the cases cannot be compared". She came to that conclusion taking into account factors such as that Ms Hemsley had not served a period in custody before being sentenced, that she had a "different personality disorder" to the applicant and that she had used her period in custody "most productively". None of those matters was relevant to an application of the matters set out in the quote above. 23 The most recent statement of the significance of an offender's mental disorder is to be found in DPP (Cth) v De La Rosa [2010] NSWCCA 194 where McClellan CJ at CL stated: 177 Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing: see, eg, R v Engert (1995) 84 A Crim R 67; R v Tsiarias [1996] 1 VR 398 at 400; R v Fahda [1999] NSWCCA 267 at [40] – [48]; Lauritsen v R [2000] WASCA 203; (2000) 114 A Crim R 333 at [43] – [51]; R v Harb [2001] NSWCCA 249 at [35] – [45]; R v Israil [2002] NSWCCA 255; R v Hemsley [2004] NSWCCA 228 at [33] – [36]; R v Verdins [2007] VSCA 102 at [32]; Courtney v R [2007] NSWCCA 195 at [14]-[18]; and R v Henry [2007] NSWCCA 90 at [28]. They can be summarised in the following manner: Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry at [28]. It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50 – 51; Israil at [22]; Pearson at [42]; Henry at [28]. It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28]. It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192]. Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] - [24]. 178 I should stress that the mental health problems of an offender need not amount to a serious psychiatric illness before they will be relevant to the sentencing process. The circumstances may indicate that when an offender has a mental disorder of modest severity it may nevertheless be appropriate to moderate the need for general or specific deterrence: R v Skura [2004] VSCA 53; R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at [5]." 24 None of these considerations was addressed by her Honour. This was chiefly because her Honour saw the applicant's mental disorders, whatever they be, as relevant only to the existence or otherwise of the mitigating factor under s 21A(3)(j) of the Crime (Sentencing Procedure) Act 1999: that "the offender was not fully aware of the consequences of his or her actions because of the offender's age or any disability". Clearly this factor did not apply, but the relevance of an offender's mental disorder transcends a matter of mitigation under this provision. 25 But with respect the passage from the sentencing remarks quoted above, fails, in our opinion, to give due weight to the uncontested psychiatric opinions in evidence before her Honour. True it is that the applicant was not diagnosed with a mental illness or a psychiatric disorder as her Honour recognised, but that was only so far as those terms are relevant to the provisions of the Mental Health Act. We do not believe that either Professor Greenburg or Dr Ellis would agree that the applicant was not suffering from at least one mental disorder. Although the applicant may have been endeavouring to manipulate the psychiatrists, he failed in that attempt. There is no suggestion that the opinions of either psychiatrist were reached as a result of any false reporting made by the applicant. Nor do we understand her Honour's finding that the applicant's condition "appears to be capable of treatment or improvement". This is inconsistent with the reports of both psychiatrists. 26 Further, contrary to her Honour's statement that there was no support for a contention that the applicant psychiatric state was relevant to the causation of the offence, we have set out above a passage from the report of Dr Ellis in which he gives the opinion that the applicant's mental condition may have resulted in his having less capacity than a normal person to reflect on his decisions. There is, in our opinion, some evidence of that in the applicant's apparent reasoning that he would be in a better position with the Department if he burned down the house in which he was living. 27 In our opinion her Honour failed to take into account in an appropriate manner the psychiatric evidence. Minds might differ as to the severity of the applicant's mental disorders, but it seems to us they were relevant both to an assessment of the applicant's culpability for his actions and the degree to which the sentence should reflect general deterrence. This ground of appeal is made out. A lesser sentence is warranted 28 Her Honour imposed a total sentence of 6 years and 6 months imprisonment. The maximum penalty is imprisonment for 10 years. The question that now arises is whether some lesser sentence is warranted. 29 The statistics from the Judicial Commission indicate that 90 offenders were sentenced for this offence between January 2002 and December 2008. Of these approximately two thirds were sentenced to a period of full time imprisonment. The middle 80th percentile of offenders for this offence were sentenced to total terms of between 2 and 4½ years with non-parole periods of between 1 and 2½ years. Accordingly the total term and the non-parole period imposed on the applicant exceed the highest sentence which has been recorded during that period. Having regard to these statistics it was submitted that given the actual loss suffered by the Department the sentence imposed on the applicant was erroneously excessive. 30 In response to the applicant's submissions the Crown submitted that her Honour was required to have regard to the applicant's motivation in attempting to burn down his dwelling. He sought by this act to benefit himself and obtain alternative premises. It was submitted that her Honour was also required to have regard to damage to the property and potential risk to the community if the fire had spread to adjoining premises. The Crown emphasised that the offence was planned and premeditated. 31 The applicant has a significant criminal history revealing a life of dishonesty with a number of failed attempts at rehabilitation. The Crown submitted that the applicant's record did not justify any leniency. 32 The penalty imposed is greater than any penalty which has been recorded as having been imposed for the commission of this offence. The offence was a serious one because the applicant's conduct was both planned and deliberate and occasioned significant damage to the premises. There was a real risk that the fire would spread to other property causing further damage and putting occupants' lives at risk. 33 However, we are of the opinion that the sentence should have been mitigated to some extent by reason of the applicant's mental condition. Yet the penalty should be a significant one and the deterrent effect of the sentence, while mitigated to some degree, should still be substantial. 34 We do not believe that there are special circumstances notwithstanding the applicant's need for assistance on release. The applicant can receive treatment in custody and the parole period will be sufficient for him to further that treatment in the community if he is minded to do so. 35 We propose the following orders: (a) application for leave to appeal is granted and the appeal allowed; (b) the sentence imposed in the District Court is quashed and in lieu the applicant is sentenced to a term of imprisonment consisting of a non-parole period of 4 years 1 month and a balance of term of 1 year 5 months. The sentence is to date from 21 August 2008. 36 SCHMIDT J: I agree with McClellan CJ at CL and Howie AJ. ********** 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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