Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Regina v Field [2011] NSWCCA 13 Hearing dates: 16 December 2010 Decision date: 16 February 2011 Before: McClellan CJ at CL at 1 Hall J at 2 Garling J at 3 Decision: (1) Appeal dismissed. Catchwords: CRIMINAL LAW - Appeal against sentence - Appeal by Crown - Robbery armed with an offensive weapon - Whether the sentencing judge was required to determine "objective seriousness" for an offence for which there is no standard non-parole period - Whether there was any failure to take into account personal deterrence - Whether there was any error in the finding of special circumstances - Concession made by the Crown at sentencing hearing - Whether sentence was manifestly inadequate Legislation Cited: Crimes (Appeal and Review) Act 2001 Crimes Act (Sentencing Procedure) Act) 1999 Crimes Act 1900 Criminal Appeal Act 1912 Cases Cited: Georgopolous v The Queen [2010] NSWCCA 246 Hili v The Queen; Jones v The Queen [2010] HCA 45 (8 December 2010) R v Henry (1999) 46 NSWLR 346 R v JW [2010] NSWCCA 49 Markarian v The Queen (2005) 228 CLR 357 R v Thomson (2000) 49 NSWLR 383 Sirell v The Queen [2009] NSWCCA 286 Category: Principal judgment Parties: Crown (Applicant) Troy Field (Respondent) Representation: Counsel: V. Lydiard (Crown) B. Rigg (Respondent) Solicitors Department of Public Prosecutions (Crown) Legal Aid Commission NSW (Respondent) File Number(s): CCA 2010/034725 Decision under appeal Citation: R v Troy Field Date of Decision: 2010-09-03 00:00:00 Before: Neilson DCJ File Number(s): 2010/34725 Judgment 1MCCLELLAN CJ at CL: I agree with Garling J. 2HALL J: I agree with Garling J. 3GARLING J: The Crown appeals pursuant to s 5D of the Criminal Appeal Act 1912 in respect of a sentence imposed by Neilson DCJ on 3 September 2010. 4The respondent, Mr Troy Field, pleaded guilty to one count of a robbery armed with an offensive weapon, contrary to s 97(1) of the Crimes Act 1900. 5The offences related to an incident on 22 January 2010, in which Mr Field, armed with a shotgun, robbed the victim FS at her home of a mobile phone and a packet of cigarettes. 6The maximum penalty for the offence is 20 years imprisonment. There is no standard non-parole period. A guideline judgment for an offence against s 97(1) of the Crimes Act has been delivered: R v Henry (1999) 46 NSWLR 346. 7His Honour imposed a sentence of 3 years and 9 months imprisonment, with a non-parole period of 2 years, to commence from 8 February 2010, the date upon which Mr Field was arrested and refused bail. Facts 8At the sentencing proceedings a short statement of agreed facts was tendered to Neilson DCJ. His Honour essentially repeated those facts in his remarks on sentence, and made some additional factual findings. They are together summarised below. 9On Friday, 22 January 2010, Mr Field and Mr Paul Mafi (who is still at large), attended FS's address at Rosemeadow in order to buy prohibited drugs. Mr Field claimed that he had previously obtained drugs from FS. 10Neilson DCJ found that, at the time, Mr Field was intoxicated and armed with a firearm that was owned by Mr Mafi. Mr Field had also, on the instigation of his mother, been taking psychotropic medication that had been prescribed to him. 11When Mr Field and Mr Mafi arrived at the house, FS and her 10-year old daughter were inside, watching a movie. FS heard a knock on the door, and, assuming that it was her former partner, opened it. 12On opening the door, FS saw Mr Field poking the barrel of his firearm through the opening. There was no evidence at the sentencing hearing that the firearm was loaded at the time, and Neilson DCJ accepted that it was not. 13Mr field and Mr Mafi then barged into the house. Mr Field demanded money and drugs from FS whilst pointing the firearm at her. FS recognised Mr Field, having known him for over nine years and having lived in the same area. 14FS became very fearful for herself and for her daughter, and said to Mr Field: "You know me Troy, how long have you known me?" She told Mr Field that she did not have any money. 15Mr Field then took a packet of cigarettes and a mobile phone, which belonged to FS and were on the coffee table, before leaving the premises together with Mr Mafi. 16Shortly afterwards, one of FS's neighbours discovered the mobile phone on a nearby street and returned it to FS. 17Police officers arrested Mr Field on 8 February 2010 and he has been in custody since that date. 18The actual firearm was not recovered. I have used the term firearm because in the evidence before Nielson DCJ, the weapon was variously described as a rifle and a shotgun. There was no specific agreement on whether the weapon was a rifle or a shotgun. Subjective Features 19Mr Field was born on 17 September 1981, and was aged 28 years at the time of the offence. 20He had a history of offences and convictions as follows: (a) In September 1997, when he was barely 16 years old, he was convicted of a break, enter and steal and of being carried in a conveyance taken without consent of its owner. He was given recognisance for 6 months under the supervision of Juvenile Justice. (b) In April 2002, at the age of 19, he was convicted of stealing in a dwelling house and was given a suspended sentence of 5 months imprisonment. (c) In the course of 2008, he was convicted for possessing a prohibited drug, two counts of common assault arising on different occasions, damage to property by fire, possessing implements to enter a conveyance, and contravening a prohibition or restriction in an apprehended domestic violence order. He received fines and bonds for some of the offences. He breached one of these bonds and was imprisoned for 4 months between 20 June 2008 and 19 October 2008. For the offence of possessing implements he was sentenced to 10 months imprisonment and served a non-parole period of 4 months between 20 October 2008 and 19 February 2009. 21Mr Field tendered at the sentencing hearing a report prepared on 15 August 2010 by a psychologist, Mr W. John Taylor. The report contained a fairly detailed history, some results of psychometric testing that Mr Taylor performed on Mr Field, and some conclusions. 22The history, which was based on information Mr Field gave to the psychologist, revealed that Mr Field suffered a childhood of regular abuse from an intoxicated father, sexual assault by older girls when he was 5-6 years old, and a diagnosis of a schizophrenic illness and depression by the time he was 14 years old. 23He struggled in school, which he left at the end of year 10. He obtained no further academic or trade qualifications. He is semiliterate and has only obtained occasional and brief employment. He has been on a disability pension due to his intellectual impairment, and has had a history of alcohol and drug abuse since he was a teenager. 24At the time of sentencing he had four young children. The youngest was born while he was on remand for the current offence. His de-facto partner, who is the mother of his children, remains supportive of him. 25Mr Taylor expressed this opinion in his conclusion: "The results of this assessment are consistent with the history he provided of his education in indicating that he is mildly intellectually handicapped. There are also indications that he has inadequate personality functioning and some instability in his functioning with antisocial characteristics being present. He tends to have inadequate impulse control and may be easily influenced by antisocial friends and acquaintances. He also has an above-average predisposition to engage in substance abuse... ...I am of the opinion that Mr Field has a low-moderate risk of recidivism providing he does not abuse alcohol or drugs and continues with his treatment for his schizophrenic illness. However he is in need of ongoing medical treatment, and review, and would benefit from counselling to assist him with substance abuse relapse prevention." 26Mr Field's mother gave evidence at the sentencing hearing. She confirmed that he had suffered regular abuse from his father, a man from whom she too had suffered abuse. She also confirmed that Mr Field suffered sexual violation as a child, and was taken to hospital for treatment. She gave evidence that she made sure that Mr Field took his medication for schizophrenia. She then gave the following evidence: "Troy's a loner. He's very much a loner and he doesn't interact with very many people. If anything, people come to him. He doesn't leave the house. He stays around the house. Doesn't go nowhere. He doesn't even go to the shops. He's done that all his life, even since he was a kid - when he was a kid I had to take him away with me because ... he just couldn't live without me being with him. He's got to have that security with him." 27She was asked by Neilson DCJ whether Mr Field had expressed anything to her about being sorry for his offence: "Q: ... but has he indicated anything to you that says he was concerned about the potential upset he caused the victim and the child? A: Well the next day the boyfriend come up and Troy was crying to him and he wanted to apologise to her and she wouldn't have nothing to do with it - because I've known her for years and I said - I even spoke to her and I said, "Troy is so bad, so upset, he cried to Jason," and Jason said, "Mate, well you know what, you are sincere, I'm gonna go and speak to her." And she just wouldn't listen." 28Mr Field did not give evidence at his sentencing hearing. No pre-sentence report from the probation and parole service was tendered. Remarks on Sentence 29In remarks on sentencing Neilson DCJ identified the following aggravating features present in Mr Field's offence: (a) It was committed in company. (b) It was committed in the presence of a child under 18 years of age, being the 10-year old daughter of FS. (c) It was committed at the home of the victim FS. (d) The offence was not spontaneous. In choosing to go to FS's house on the basis that he had previously obtained drugs there, Mr Field displayed at least some limited degree of planning. 30His Honour then proceeded to consider the guideline judgment of R v Henry (1999) 46 NSWLR 346. 31His Honour identified the following characteristics of this case as being similar to those identified in R v Henry : (a) There was a limited degree of planning. (b) There was no actual violence in the commission of the offence, but a real threat thereof. (c) The victim was in a vulnerable position, as a woman alone in her home with a child. (d) Only a small amount of property was ultimately taken from the victim. 32His Honour identified the following characteristics of this case as being different from those identified in R v Henry : (a) Mr Field was 28 years old, and was not a "young offender with no, or little, criminal history". (b) The weapon wielded was a shotgun, rather than a knife. Even though the firearm was not loaded, the victim would not have known that. (c) Mr Field had pleaded guilty to the offence at the earliest available opportunity. His Honour noted that, as held in R v Thomson (2000) 49 NSWLR 383, the guideline judgment in Henry should be understood as involving a late plea of guilty. 33His Honour then set out at some length the mitigating features present in this case, and in particular some of Mr Field's personal circumstances, which his Honour said "excite some sympathy". In short, his Honour had regard to the following of Mr Field's subjective features: (a) He had four young children, and a long-term de-facto partner who remained supportive of him, as did his mother. (b) He suffered from mild intellectual handicap, and had been on a disability pension due to this impairment. (c) As a child he suffered domestic violence from his father, and was sexually molested by others. (d) He had a long history of alcohol and drug abuse. (e) He suffers from mental illness and requires medication. 34His Honour found that Mr Field demonstrated true contrition and remorse, and that his prospects of rehabilitation were fair, although they could not be described as good. On his criminal history his Honour said that: "[it] shows that he is capable of dealing with his intellectual dysfunction, his psychiatric condition and his substance abuse without offending for lengthy periods of time in the past which augurs well for the future and increases the prospects of rehabilitation and reduces the risk of recidivism." 35It should be noted that his Honour appears in setting out these mitigating factors to have accepted the history set out in Mr Taylor's report. His Honour also appears to have accepted the evidence of Mr Field's mother, particularly in relation to Mr Field's expressions of remorse. 36On the question of deterrence, his Honour noted that whilst this was a relevant consideration in every sentencing exercise, less weight should be given in the case of an offender, such as Mr Field, who suffers from a mental disorder or "severe intellectual disability": "In every case it is a matter of balancing the relevant factors in a manner no different from that which is involved in every other sentencing exercise. It is permissible to mitigate a sentence in circumstances where the Offender has suffered from a mental condition which rendered him or her more vulnerable to commit the crime ... ...I accept that the Offender's mild intellectual handicap and his persisting psychiatric illness coupled with substance abuse which probably results from his mental condition and poor experiences in his teenage years made the Offender more inclined to commit a crime of the nature which he did commit." 37His Honour determined that Mr Field's objective criminality required that a sentence greater than the four to five years prescribed by R v Henry ought be applied. His Honour suggested that, were it not for the mitigating circumstances in this case, he would consider a head sentence of 6 years. This suggests that his Honour found the criminality of this case to be slightly above that of the guideline features set out in R v Henry , a finding which would be consistent with his Honour's findings that are summarised at paras REF _Ref280107420 \w \h 31 and REF _Ref280108963 \w \h 32 above. 38However, given the mitigating circumstances present in this case, his Honour determined that a head sentence of 5 years was the appropriate starting point. His Honour then applied a discount of 25 per cent for the utilitarian value of the guilty plea, and arrived at a head sentence of 3 years and 9 months imprisonment. 39On the question of the appropriate non-parole period, his Honour found special circumstances for the following reasons: (a) Although Mr Field had previously received a short period of imprisonment which was served at an afforestation camp, this would be his first lengthy period of imprisonment in a correctional centre in Sydney. (b) A lengthy period of probation is called for to allow Mr Field to be under the direction and supervision of the Probation and Parole Service to ensure that he stays free of alcohol and drug use, and to undergo any residential rehabilitation course that might be provided to him. 40For those reasons his Honour imposed a non-parole period of 2 years. Grounds of appeal 41The Crown relies on six grounds of appeal: "(1) His Honour erred in failing to properly identify the objective seriousness of the Respondent's offending. (2) His Honour erred in giving too much weight to the Respondent's mild intellectual disability and his subjective case. (3) His Honour erred in failing to take into account personal deterrence. (4) His Honour erred in the manner in which he determined the sentence. (5) His Honour erred in finding special circumstances on the basis nominated and in varying the statutory ratio to such an extent that the non-parole period in no way reflected [the] objective seriousness of the offence. (6) His Honour erred in imposing a sentence which in all the circumstances is manifestly inadequate." Applicable principles for Crown appeals on sentence 42Section 5D of the Criminal Appeal Act provides: "5D Appeal by Crown against sentence (1) The Attorney-General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any sentence pronounced by the court of trial in any proceedings to which the Crown was a party and the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the said court may seem proper. ...". 43Section 68A of the Crimes (Appeal and Review) Act 2001 further provides: " 68A Double jeopardy not to be taken into account in prosecution appeals against sentence (1) An appeal court must not: (a) dismiss a prosecution appeal against sentence, or (b) impose a less severe sentence on any such appeal than the court would otherwise consider appropriate, because of any element of double jeopardy involved in the respondent being sentenced again. (2) This section extends to an appeal under the Criminal Appeal Act 1912 and accordingly a reference in this section to an appeal court includes a reference to the Court of Criminal Appeal." 44In R v JW [2010] NSWCCA 49 at [95], Spigelman CJ (Allsop P agreeing, McClellan CJ at CL, Howie and Johnson JJ agreeing on this point) said this in regard to s 68A: "... s 68A, whilst removing the double jeopardy element from the exercise of the discretion to intervene, leaves other aspects untouched. On this basis, there remains a residual discretion to reject a Crown appeal, notwithstanding the abolition of the double jeopardy principle. The Court of Criminal Appeal must continue to recognise in a real and practical way the Crown's responsibility for the proper administration of the criminal justice system." Ground 1 45The first ground of appeal upon which the Crown relies is that Nielson DCJ erred in failing to properly identify the objective seriousness of the respondent's offending. 46It is correct that nowhere in his remarks on sentence does the learned sentencing judge specifically describe any finding which he makes on the objective seriousness of the offence. However, his Honour's remarks, which it must be said are detailed and careful, does record the submission by the Crown that: "... this is a case which involves greater criminality than the typical case described in the guideline judgment of R v Henry (1999) 46 NSWLR 346." 47His Honour then reviewed the characteristics set out in Henry and seeks to identify whether they are applicable in this case. His Honour then goes on having reviewed other objective and subjective circumstances to express his conclusion in this way: "22. On the objective criminality, clearly a sentence greater than the 4 to 5 years prescribed by R v Henry ought be applied. That will cause me to consider a head sentence of 6 years, however bearing in mind the mitigating circumstances of the offender's mild intellectual disability and his psychiatric illness, I believe that the starting point should be a head sentence of 5 years imprisonment." 48It can be seen from those extracts that his Honour, in light of the way in which the Crown had put its submissions to him, determined that the case would fall at the upper end of the range prescribed as a guideline in Henry . 49It is productive of confusion, and potentially error, in considering the extent of criminality, when considering an offence for which a standard non-parole period is not determined by the legislature to describe an offence by the use of the term "objective seriousness" and which description is then related to the concept of a mid-range for such an offence: see Georgopolous v R [2010] NSWCCA 246 at [3] per Allsop P, at [30] per Howie AJ; Sirell v R [2009] NSWCCA 286 at [2]-[5] per McClellan CJ at CL. 50The way in which Ground 1 is expressed is inapt. That is because there is no standard non-parole period fixed by the legislature for the offence. 51What his Honour was obliged to do was to assess the seriousness of the offence and make a judgment about the extent of the criminality, both objective and subjective, which was involved. 52In my opinion, the judgment of his Honour adequately identified the criminality of the offence and Mr Field's offending. 53I would reject this ground. Ground 2 54The Crown seeks under this ground to complain that his Honour erred by placing too much weight on the mild intellectual disability, and subjective case, of Mr Field. 55It is clear from the Crown's submissions that it does not contend that no weight at all should have been given to these matters, but simply that in the overall sentence which was imposed, his Honour allowed these features to influence the sentence to an extent greater than was appropriate in the circumstances. 56This ground is more properly seen to be nothing more than a particular of the submission that in all the circumstances the sentence which was imposed was manifestly inadequate. 57It is appropriate to deal with these submissions in the context of Ground 6 because even if the Court were persuaded that his Honour had placed too much weight on various matters of a subjective kind relevant to Mr Field, that would not dispose of the case, unless the Court were persuaded that in all the circumstances the sentence was manifestly inadequate. Ground 3 58The Crown submits that his Honour erred in failing to take into account personal deterrence. 59If no account was taken of personal deterrence, then that would be an error. That is because s 3A(b) of the Crimes (Sentencing Procedure) Act specifically notes that one purpose for which a court may impose a sentence on an offender is "... to prevent crime by deterring the offender and other persons from committing similar offences ". 60The section, and in particular, the subsection, specifically identifies both general deterrence and specific, or personal, deterrence as being a purpose of the imposition of any sentence. 61To this extent, it reflects a long continuing practice of the common law. 62His Honour did not specifically refer, when enunciating the underlying facts and circumstances giving rise to the sentence, the words "personal deterrence". 63However, it is clear that his Honour gave extensive consideration to matters relevant to personal deterrence and took them into account. 64For example, his Honour noted that Mr Field's mild intellectual handicap, and his persisting psychiatric illness coupled with substance abuse, made him more inclined to commit the crime. He referred to the assessment made of Mr Field by Mr W. John Taylor, a clinical forensic psychologist. He noted Mr Taylor's assessment that Mr Field: "... has moderate risk of recidivism in general and a low to moderate risk of violent recidivism. The ultimate decision of Mr Taylor was that the offender has a low to moderate risk of recidivism providing he does not abuse alcohol or drugs and continues with treatment for his schizophrenia illness." 65His Honour went on to conclude: "The prospects of the Offender's reoffending and the prospects of rehabilitation can therefore be seen to be fair but one would not describe them as good. However, they would be greatly increased if the Offender was persuaded to give up drug and alcohol use." 66His Honour then reviewed factors which would reduce the likelihood of Mr Field reoffending and concluded his review in this way: "The Offender would benefit from doing courses in rehabilitation for alcohol and other drug abuse, for relationships management, for increasing his literacy and numeracy and therefore his employability and in particular when the Offender is released to the community again on parole, that a lengthy period of supervision by the Probation Parole Service would be necessary to ensure that the Offender remains abstinent from alcohol and other drugs." 67This was a clear indication, when one observes the ultimate sentence which his Honour pronounced, which included a period of supervision on parole of 1 year and 9 months, that his Honour took into account the issue of personal deterrence and fashioned a sentence having regard to it. 68I am satisfied that his Honour did take into account personal deterrence when pronouncing the relevant sentence and I would not uphold the appeal on this ground. Ground 4 69The Crown complains that his Honour erred in the manner in which he determined the sentence. 70The Crown submits that his Honour fell into error by applying an inappropriately mathematical approach to fixing the sentence and thereby offended against the principles enunciated by the High Court of Australia in Markarian v The Queen (2005) 228 CLR 357, in particular at [20]. 71The ultimate submission by the Crown on this ground is that the process which his Honour adopted " reached a total sentence which in no way reflected the objective gravity of the offence ". 72Again, this ground may be seen to be a particular of the ultimate ground of manifest inadequacy. 73It is clear that the reasoning adopted by Nielson DCJ proceeded sequentially. In so doing, he pointed out that some allowance was being made in arriving at an ultimate sentence for the various features which he enunciated. I see no error in the approach in this case. 74Whether the ultimate result was one of manifest inadequacy is a matter which can be considered with respect to Ground 6. Ground 5 75Ground 5 complains that Nielson DCJ erred in finding special circumstances on the basis nominated and in varying the statutory ratio to such an extent that the non-parole period did not reflect the objective seriousness of the offence. 76It is appropriate to note that in his submission to the learned sentencing judge, the solicitor for the Crown accepted that special circumstances existed and his Honour ought on that account sentence Mr Field to a lengthier than normal parole period to ensure that he tried to remain abstinent from drugs and alcohol. What was actually said is instructive. It was as follows: "HIS HONOUR: No. Well do you accept that there are special circumstances Mr Crown? SFINAS: Certainly your Honour probably not as high as my friend puts it but I mean there are - the Crown would submit special circumstances. HIS HONOUR: Well one would have thought that a lengthier than normal non parole period, sorry parole period would be called for to ensure that he tries and remains abstinent from drugs and alcohol. SFINAS: Yes your Honour. HIS HONOUR: And undergo any you know rehabilitation, residential rehabilitation that might be provided to him. SFINAS: So your Honour in terms of it being the first time that he's in custody, I'm not quite sure that's accurate, my understanding is that he was - he received a sentence on the - HIS HONOUR: I haven't got his custodial movements. SHAW: The submission was first lengthy custodial term. SFINAS: Sorry. I withdraw that your Honour." 77Having regard to the clear discussion before the sentencing judge, and the concession there made, it is inappropriate to uphold this ground of appeal by the Crown. 78It is an appropriate, and an important feature of the role of the Crown during sentencing proceedings, to place before the Court all relevant evidence and submissions of law which are designed to assist the sentencing judge, and to ensure that, so far as possible, the judge does not fall into error. The sentencing judge is entitled to rely on any concession by the Crown as being a properly made one. That is what happened here. 79In the circumstances of this case, it can only be fair and appropriate, and in the interests of justice, to hold the Crown to the concessions made before the sentencing judge. 80I would reject this ground of appeal. Ground 6 81The Crown here contends that the sentence which was imposed was manifestly inadequate, and that the sentence was not commensurate with the seriousness of the crime. 82In Hili v The Queen; Jones v The Queen [2010] HCA 45 (8 December 2010), French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said: "59. As was said in Dinsdale v The Queen , '[m]anifest inadequacy of sentence, like manifest excess, is a conclusion' And, as the plurality pointed out in Wong , appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate 'is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases'. Rather, as the plurality went on to say in Wong , '[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons'. But, by its very nature, that is a conclusion that does not admit of lengthy exposition ... ... 60 ... But what reveals manifest excess, or inadequacy, of sentence is consideration of all of the matters that are relevant to fixing the sentence." (references omitted) 83It is correct as the Crown submits that the offence here under consideration was a serious one. It carried a maximum penalty of 20 years. But as Henry explains, the decisions of this Court in the factual circumstances which give rise to this offence vary widely. 84The sentence imposed commenced at the upper end of the guideline range in Henry . Although the ultimate sentence imposed might be regarded as residing at the low-end of the range of appropriate sentence, I am not prepared to accept, in the particular circumstances of this case, that it was manifestly inadequate. 85I would accordingly reject this ground of appeal. 86I propose that the appeal be dismissed. Orders 87I propose these orders: (1) 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. Decision last updated: 17 February 2011