Palijan v R [2010] NSWCCA 142

New South Wales Court of Criminal Appeal

CITATION: Palijan v R [2010] NSWCCA 142

HEARING DATE(S): 23/06/2010

JUDGMENT DATE: 14 July 2010

JUDGMENT OF: McClellan CJatCL at 1; Hislop J at 2; Barr AJ at 3

DECISION: Leave to appeal against sentences granted but the appeal is dismissed.

Crimes Act 1900 - s 112(2) LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 - s 21A(2)(eb) Mental Health Act

CATEGORY: Principal judgment

R v Engert (19915) 84 A Crim R 67 R v Scognamiglio (1991) 56 A Crim R 81 CASES CITED : R v Letteri (NSWCCA 18 March 1992, unreported) Veen v The Queen (No 2) (1988) 164 CLR 465 R v Binnie [2010] NSWCCA 14

PARTIES: Darko Palijan, Regina

FILE NUMBER(S): CCA 2009/6266

COUNSEL: D O'Neil - Applicant S Dowling - Crown

SOLICITORS: S O'Connor - Applicant S Kavanagh - Crown

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2009/6266

LOWER COURT JUDICIAL OFFICER: Knox DCJ

LOWER COURT DATE OF DECISION: 21/07/2009

IN THE COURT OF CRIMINAL APPEAL 2009/6266

McCLELLAN CJ AT CL HISLOP J BARR AJ

WEDNESDAY 14 JULY 2010 Darko PALIJAN v REGINA Judgment 1 McCLELLAN CJ at CL: I agree with Barr AJ 2 HISLOP J: I agree with Barr AJ. 3 BARR AJ: Darko Palijan also known as David Palijan, seeks leave to appeal against sentences imposed in the District Court. He pleaded guilty in the Local Court to one charge of aggravated breaking and entering and committing a serious indictable offence namely intimidation, in circumstances of aggravation, namely that he used corporal violence on the victim. He also pleaded guilty to a charge of assault occasioning actual bodily harm. 4 The first charge was laid under s 112(2) Crimes Act 1900 and attracted a maximum penalty of imprisonment for 20 years. A standard non-parole period of 5 years applied. The maximum penalty for assault occasioning actual bodily harm was imprisonment for 5 years. There was no standard non-parole period. 5 The applicant maintained his pleas of guilty in the District Court. On 21 July 2009 Judge Knox of Queens Counsel sentenced the applicant to a non-parole period of 3 years' imprisonment and a balance of term of 2 years. On the second count his Honour sentenced the applicant to a concurrent fixed term of 12 months' imprisonment. 6 The applicant was a man of about 50 years of age who had had a long and troublesome history of involvement with illegal drugs and alcohol and had built up a serious record of offending, commencing in his mid teens and including a large number of offences of violence and dishonesty. He had a history of anxiety and depression under stress. He had overdosed in 1992 when he was suffering personal difficulties. He was diagnosed as suffering from depression in 1999 and was treated with drugs. Later on he began to exhibit psychotic symptoms. 7 For a period of about 4 years until February 2007 the applicant was involved in an intimate relationship with the complainant, Mrs Robinson. The relationship came to an end when the applicant was sentenced once again to serve a period of imprisonment. After that Mrs Robinson resolved to have nothing more to do with him. 8 The applicant was released from gaol in November 2008 and got in touch with Mrs Robinson, but she made it clear that she did not wish to have any further intimate relations with him. A number of phone calls followed and Mrs Robinson repeated her reluctance to speak to him. She did not return his calls. 9 On 2 January 2009 the applicant made a number of telephone calls to the residence where Mrs Robinson and her 19-year old son were living. She would not speak to him and did not return messages he left demanding that she call him. The applicant telephoned Mrs Robinson's son and told him about his love for her. At about 6 o'clock on the following morning the applicant sent a text message to Mrs Robinson, saying that he was on his way to her house and asking her to telephone him. She was not there but got in touch with her son, who was, and warned him that the applicant might be on his way there. Her son locked the door but later realised that the applicant had forced entry to the premises by breaking a flyscreen. Mrs Robinson arrived home and saw the applicant sitting on the lounge. He stood up and produced a knife which he had taken from the kitchen. He took hold of Mrs Robinson by the hair, yanked her head backwards and held the knife to her neck. It had a slightly irregular blade about 15 centimetres long. Mrs Robinson thought that the applicant was going to cut her throat. Her son came into the room and she begged the applicant not to do this in front of him. The applicant desisted and put the knife in his trousers. There followed a series of conversations between the applicant and Mrs Robinson which indicated some degree of self-control by the applicant. In the end Mrs Robinson escaped from the building with her son. The applicant followed them, still with the knife in his trousers. They tried to get away in their car but the applicant took hold of Mrs Robinson once again and dragged her back towards the residence by the arms, the body and the hair. Mrs Robinson was screaming and neighbours began to respond. At that, the applicant released his hold and Mrs Robinson got away a second time. 10 The first charge was based on the events that had happened inside the house and the second on the assault outside. 11 The police arrived and arrested the applicant. They searched and found the knife, which the applicant had thrown into a vacant block next door. 12 No oral evidence was taken on sentence but a number of documents were tendered, including a summary of the facts, the statements of Mrs Robinson and her son and of neighbours who had responded to Mrs Robinson's cries for help, the applicant's record and, importantly, a copy of a report dated 6 April 2009 of Dr Richard Furst, a psychiatrist. 13 Dr Furst was consultant forensic psychiatrist at the Long Bay Hospital and at Cumberland Hospital. He had been asked to assess the applicant to determine whether he was fit to be tried and whether he had available the defence of not guilty on the ground of mental illness. Dr Furst considered that the applicant was fit to be tried but concluded that the presence of delusions and associated psychotic symptoms at the time of the acts giving rise to the charges made it unlikely that he was aware of the wrongfulness of his actions and made it unlikely that he was able to reason about his actions with a moderate degree of sense or composure. On that evidence the practitioner representing the applicant before the sentencing judge was entitled to apply, if so instructed, to withdraw the plea of guilty and to enter a plea of not guilty on the ground of mental illness. That was not the course taken, however, and the sentencing proceedings continued, based upon the pleas of guilty originally entered in the Local Court. 14 Dr Furst's report and opinions may be summarised thus. He noted that the applicant had been admitted to the Cumberland Hospital on 12 March 2007. He was psychotic and believed that police were trying to kill him. He was hearing voices. He was treated with Risperidone and was discharged after two weeks with plans for follow-up with a mental health team. He was examined by another psychiatrist, Dr White, on 13 April 2007. Dr White noted the presence of persecutory ideas, some auditory hallucinations and what was believed to be a paranoid psychosis. In July 2007 Dr Reid, a medical officer at the Dundas Mental Health team noted that there were symptoms of paranoia. The applicant was thinking that people were trying to set him up and were talking about him. He thought that Mrs Robinson was saying things about him. These symptoms continued and antipsychotic treatment continued into the following year. In February 2008 there were still auditory hallucinations and paranoid delusions. He thought his food was being poisoned. He was being set up. Police wanted to harm him. 15 Another psychiatrist, Dr Samuels, reported the continuation of auditory hallucinations and visual disturbances. There were ideas of reference. Dr Samuels noted the long history of polysubstance problems and antisocial behaviour as well as psychotic symptoms. He thought it unclear whether there was a drug induced psychosis or late-onset schizophrenia. Dr Samuels noted a family history of schizophrenia. 16 The applicant continued to be treated throughout 2008. He was released from custody in November 2008, and that was when the approaches were made to Mrs Robinson which resulted in the events and the offences with which the Court is now concerned. 17 Dr Furst summarised the position thus. The applicant had had a difficult childhood with onset of behavioural problems. He was dependent on cannabis in his teens. Although he had struggled to maintain employment he had spent a considerable time in custody as a consequence of drug-related crimes. There was a family history of schizophrenia. Dr Furst noted the persistency of symptoms over the last two years before his release in November 2008, with no period of complete resolution of delusions and auditory hallucinations. Dr Furst was of the opinion that the applicant struggled to cope following his release in November 2008, stopping his medication within a couple of weeks, drinking heavily and relapsing with gross symptoms of psychotic illness. In the weeks preceding these offences he believed that the police were trying to kill him, that people were trying to poison him and that he was being "set up". He developed a delusional belief that his nephew and his brother were sleeping with Mrs Robinson and he thought that his niece had taken his money. He also believed that Mrs Robinson had set the whole thing up and "had the bikies after him". Dr Furst noted that the applicant was noted to be acutely psychotic on his arrest and attempted to hang himself at Parklea. He had there presented as suicidal, thought disordered, paranoid and depressed in mood. He was covertly observed to exhibit odd behaviour, including listening at the door and refusing to sleep in his bed as he apparently believed that a monster was there. He exhibited other bizarre behaviour. 18 Dr Furst strongly recommended that the applicant continue treatment with the current or an alternative anti-psychotic medication under the supervision of his treating psychiatrist whilst in custody. He considered the level of risk of self-harm to be high and thought that stabilisation might be required under the Mental Health Act. Dr Furst recommended the commencement of drug and alcohol rehabilitation while the applicant was in custody, in view of the entrenched pattern of polysubstance dependence and the difficulties the applicant had had coping in the community. He considered that such rehabilitation might be achieved through a residential programme. Dr Furst also recommended that a local health team be involved in the ongoing assessment and treatment of the applicant upon his release from custody and that some thought be given to the use of a Community Treatment Order, given the applicant's limited insight and failure to take medication the last time he was released from custody. 19 The first ground of appeal asserts that his Honour erred when finding that the fact that the home broken into was the victim's home was aggravating feature. In the remarks on sentence, his Honour referred to s 21A(2) Crimes (Sentencing Procedure) Act and continued - However, I think I should take into account as an aggravating factor that these offences occurred in the victim's own home. 20 It was submitted on appeal that, given that the offence was break and enter and that the aggravating feature was the use of corporal violence on the victim there was no increased criminality by virtue of the fact that the home broken into was the home of the victim. 21 The element of breaking and entering in s 112(2) Crimes Act does not require that the premises be the home of the victim. S 21A(2)(eb) Crimes (Sentencing Procedure) Act 1999 provides that the aggravating factors to be taken into account in determining the appropriate sentence for an offence include - (eb) the offence was committed in the home of the victim or any other person. 22 It seems to me that a law-abiding member of the community is entitled to feel safe in his or her own home. There is to my mind something particularly repugnant about the forced entry of an offender into a house and violating the safety of that place by carrying out an attack like that of the applicant. In my opinion his Honour was entitled to take that matter into account as aggravating the applicant's criminality. 23 The second ground of appeal asserts that his Honour failed to give sufficient weight to the applicant's mental condition. It may be considered together with the third ground, which asserts that the sentence was manifestly excessive. 24 It was submitted that although he referred extensively to Dr Furst's report, his Honour did not give the applicant's mental condition sufficient weight and that it was clear that the occurrence of the offence was "due totally to the applicant's poor mental health at the time". It was submitted that although he noted the principles which applied to persons like the applicant when consideration was given in sentencing to the need for general and personal deterrence, his Honour failed to say why, as against those principles, he was not prepared to reduce the measure of penalty applicable to specific deterrence. It was submitted that the applicant's mental illness, properly considered, impacted upon his moral culpability and consequently reduced the need for general deterrence and a specific or personal deterrence. It was submitted, relying on portion of Dr Furst's report, that the applicant's mental condition would weigh more heavily upon him in custody and would have a significant adverse effect on his mental health. Although it was open to his Honour to recommend that drug and alcohol rehabilitation which, commenced in custody, might be continued upon the applicant's release, his Honour did not embark on any full and proper analysis of the relevant factors. In summary, proper weight was not given to the applicant's mental condition. 25 Reference was made to other cases in which persons suffering from mental illness or intellectual deficit have received sentences significantly less than those imposed by his Honour. It was submitted that sentencing statistics issued by the Judicial Commission showed that 70 per cent of all offenders received less than 24 months' non-parole for offences committed under s 112(2) Crimes Act. For those reasons the Court should interfere and reduce the sentences imposed. 26 Having referred to the pleas of guilty made in the Local Court his Honour continued as follows: The other matter I think Mr Lynch has properly submitted is that the offender's psychiatric condition very much militates against what would otherwise be a full application of the principles of general and specific deterrence and indeed denunciation. Those matters have been referred to in a series of decisions, Scognamiglio v The Queen (1919) 56 A Crim R, The Queen v Letteri (1992) Court of Criminal Appeal, 18 March 1992, and also the relatively recent decision of Basten JA in Courtney v The Queen (2007) NSWCCA 195. I do not propose to reiterate all those principles save and except to say that the persons in the position of the offender where their mental illness is as I have described it earlier with the benefit of Dr Furst's report, should not be the vehicle for the full application of the principles of general and specific deterrence. Nevertheless a matter that I need to consider is, as I have said a number of times during the course of submission, the future, to ensure that there is no further repetition of it and also to make sure the offender understands that he simply cannot make contact with Mrs Robinson – or indeed (the son) for that matter – although there is no application in that respect. 27 It is well established that persons suffering from an intellectual deficit or from a mental illness may be considered not to be suitable media for the imposition of sentences which pay ordinary regard to the need for general or personal deterrence: R v Engert (1995) 84 A Crim R 67; R v Scognamiglio (1991) 56 A Crim R 81; R v Letteri (NSWCCA 18 March 1992, unreported). However, such cases do not mandate the entire disregard by a sentencing judge of the need in any particular case for recognition of the need for general or personal deterrence. The degree to which the need for such consideration will be reduced is bound to depend upon the circumstances which attend each individual case. So it was here. I have recorded the submission made by counsel for the applicant to the effect that the applicant's offending was due entirely to his mental condition, but I am not prepared to accept that submission at face value. It seems clear that his attack on Mrs Robinson was affected by the mental illness that he was suffering, but the facts also show that he was able to act rationally and had a measure of self-control. When Mrs Robinson entreated him to stop treating her as he was in the presence of her son, he desisted. 28 Moreover, the applicant's long and troublesome history of offending, including a large number of offences of violence to the person, most of which occurred before he was ever recorded as exhibiting symptoms of psychosis, shows that he was motivated by much more than the psychosis which he was undoubtedly suffering at the time of the events giving rise to these offences. 29 The matter does not stop there, for general and personal deterrence are not the only objects in sentencing. The need to protect the public is significant. In R v Engert Gleeson CJ, with whom Allen and Sully JJ agreed, said this at [68] - A moment's consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. That was the particular problem being examined by the court in the case of Veen (No 2). Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender. 30 At [71] his Honour said this - In truth however, for the reasons given at the commencement of this judgment, the question of the relationship, if any, between the mental disorder and the commission of the offence, goes to circumstances of the individual case to be taken into account in the application of the relevant principles. The existence of such a causal relationship in a particular case does not automatically produce the result that the offender will receive a lesser sentence, any more than the absence of such a causal connection produces the automatic result that an offender will not receive a lesser sentence in a particular case. For example, the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or of the need to protect the public. By the same token, there may be a case in which there is an absence of connection between the mental disorder and the commission of the offence for which a person is being sentenced, but the mental disorder may be very important to considerations of rehabilitation, or the need for treatment outside the prison system. 31 In dealing with the applicant's criminal record the sentencing judge said this - Tendered in the proceedings were the offender's prior records of imprisonment. They are set out over some 24 pages. They include acts of violence, acts of resisting arrest, and, unfortunately, the use of knives. There are also charges for common assault. This is not a situation where the offender is entitled to any leniency in accordance with what has come to be known as the Veen principles. 32 His Honour's reference to "the Veen principles" was to Veen v The Queen (No 2) (1988) 164 CLR 465. It seems to me that what was engaging his Honour's mind was precisely the conundrum discussed by Gleeson CJ in R v Engert. 33 It was submitted on appeal that his Honour did not deal in adequate detail with Dr Furst's evidence, but I do not think that that criticism was justified. Dr Furst's report ran for ten pages. In the Remarks on Sentence his Honour gave a fair and succinct summary of Dr Furst's appreciation of the applicant's symptoms. As to the consequences for sentencing, I have extracted above his Honour's references to the authorities and to the principles as they apply to an offender in the applicant's position. 34 I have considered the serious facts of the case, the undoubted entitlement of the applicant to have his mental condition considered with a consequent modification of the generally and personally deterrent effect of the sentence as well as the requirement for a proper regard to the need to protect members of the public. 35 In my opinion his Honour was correct to regard the applicant's troublesome history of criminal violence and more recent exhibition of symptoms of mental illness as combining to give rise to the need for the imposition of a sentence which had particular regard for the need to protect the public. His Honour was required to bear in mind Dr Furst's report that the applicant had on his last release from custody ceased taking his prescribed medication and had resorted again to illicit drugs and alcohol and had returned to his previous violent ways. His Honour was also required to bear in mind the standard non- parole period applicable to the first count. 36 I have considered the sentences imposed in other cases and drawn to the attention of the Court. Particular reliance was placed on R v Binnie [2010] NSWCCA 14. However, the offender in that appeal had been found to be unlikely to re-offend and that case is for that reason alone quite unlike the present one. The facts of the other cases mentioned are all different from the facts in the present case and are of no assistance. 37 His Honour was obliged to weigh and apply the competing provisions which I have identified, the one requiring the imposition of a more lenient sentence and the other a less lenient sentence. The sentences themselves do not suggest to me that his Honour gave too little weight to the consequences of the applicant's mental condition or too much to the need to protect the public. 38 I am not persuaded that the total effective sentence imposed, or either of the individual sentences, fell outside the proper range of his Honour's sentencing discretion. 39 I would grant leave to appeal against the sentences but would dismiss the appeal. **********