Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: FIELD v R [2011] NSWCCA 70 Hearing dates: 13 April 2011 Decision date: 21 April 2011 Before: CAMPBELL JA [1] RS HULME J [2] HOEBEN J [28] Decision: Leave to appeal granted. Appeal dismissed Catchwords: Criminal Law - Sentence - armed robbery armed with an offensive weapon - recidivist - mental condition Cases Cited: R v Henry & Ors (1999) 46 NSW LR 346 R v Letteri unreported, NSWCCA, 18 March 1992) R v Engert (1995) 84 A Crim R 67 R v Hemsley [2004] NSWCCA 228 R v Thomson and Houlton (2001) 49 NSWLR 383 Veen v R [No.2] (1987-1988) 164 CLR 465 at 477 Category: Principal judgment Parties: Kirt Raymond FIELD Regina Representation: Counsel: N Steel Ms V Lydiard Solicitors: S O'Connor Legal Aid Commission S Kavanagh Solicitor Public Prosecutions File Number(s): 2009/2850 Decision under appeal Date of Decision: 2009-10-13 00:00:00 Before: Woods ADCJ File Number(s): 2009/2850 Judgment 1CAMPBELL JA : I agree with RS Hulme J. 2RS HULME J : On 13 October 2009 the above named Applicant for leave to appeal was sentenced by Woods ADCJ in respect of seven offences. The offences and the sentences imposed were:- 1. Stealing a motor vehicle - imprisonment for a fixed term of 12 months from 7 November 2008. 2. Stealing a motor vehicle - imprisonment for a fixed term of 12 months from 7 November 2008. 3. Assault police - imprisonment for a fixed term of 12 months from 7 May 2009. 4. Assault police - imprisonment for a fixed term of 12 months from 7 May 2009. 5. Resist police - imprisonment for a fixed term of 12 months from 7 May 2009. 6. Drive in a manner dangerous - imprisonment for a fixed term of 9 months from 7 November 2009. 7. Robbery whilst armed with an offensive weapon - imprisonment for 6 years, including a non-parole period of 4 years, both such periods commencing on 7 May 2010. 3The effective sentence was thus imprisonment for 7.5 years including a non-parole period of 5.5 years both such periods commencing on 7 November 2008. 4The circumstances of the offending are conveniently summarised in the remarks on sentence of his Honour about which there was no criticism and from which I quote:- On 31 October 2008 the offender was released from custody to undertake a community treatment program. He was still subject to a number of sentences with current non-parole periods up until July 2010. He failed to attend the treatment program. He stopped taking his prescription medication for depression and psychosis. On 4 November 2008 he attended at JG Autos in Orange and asked to test drive a Mitsibishi Magna. Once given the keys he sped off. The car was found the next day near a farmhouse at Trangie. This is the first matter of steal a vehicle on the s 166 Certificate. At about 12.26am on 5 November a Jeffrey Chase was woken from his sleep when on his farm near Trangie and his wife told him there was a car in his driveway near the shed. Mr Chase drove to the shed and saw a car that looked like and turned out to be his son's Subaru Forrester. The car took off and Mr Chase tried to follow but could not keep up with it. Mr Chase phoned his son who lived nearby and his son confirmed that his Subaru Forrester was missing but that another car was parked in his driveway. The other car turned out to be the vehicle stolen in Orange. The stealing of the Subaru is the further steal motor vehicle in the s 166 Certificate. The blue Subaru was seen by a Highway Patrol officer at about 1.25pm on 5 November near Geurie and was clocked at 111 kilometres and to be driving in a manner dangerous. The officer attempted to chase the vehicle but had to terminate the chase. This is the drive in a manner dangerous which is on the s 166 Certificate. At 8.30pm on 5 November the offender parked the Subaru at Domino's Pizza store in Dubbo and entered. There were a number of witnesses in the store. The offender entered the store waving a knife saying, "Give me the money, give me the money". The manager came out and hit the panic button. A witness noted that the knife was like a serrated steak knife with a seven to eight inch blade. The manager handed the offender a total of $238.20 from the till. ... Police saw the Subaru later that evening on the highway near Geurie and followed it reaching speeds of 160 kilometres an hour. They lost sight of the car over a crest in the road. The offender was arrested on 7 November in Orange. He resisted arrest and assault two police at the time. These are the assaults and resist officers matter on the s 166 Certificate. In his interview with the police he conceded that he was not taking his medication and that he had "flipped out" and claimed to have no memory of the incidents. 5Following the Applicant's arrest he was conveyed to Bloomfield Psychiatric Hospital where he remained for a few days. On his release from there he returned to the police station where his interview occurred on 11 November 2008. In the course of that interview the Applicant said that he stopped taking medication one day after his release, "flipped out", "something... me off... and I started hearing voices and stuff like that". He started using speed, cannabis and alcohol although he could not remember on what days he used those drugs. Asked whether he had committed the offences for which he was sentenced, he said, in effect, that he had no memory of what he had been doing. 6The Applicant was born in January 1986 and has an appalling record commencing in 2001. It includes, prior to the Applicant turning 18, numerous offences of stealing or driving a conveyance and goods in custody. There are also at least four occasions when he has been convicted of driving recklessly or otherwise in a manner dangerous to the public and at least five when he was driving whilst disqualified. 7As one of the grounds of appeal relates to the Applicant's mental condition it must be recorded that it was the subject of an appreciable degree of evidence, in particular reports from Anna Robilliard a psychologist who had interviewed the Applicant on 27 March 2009, Dr Allnutt who had interviewed the Applicant on 31 March 2008 and again on 6 April 2009, and Professor Greenberg who had interviewed him on 26 August 2009. 8Dr Allnutt records that the Applicant first saw a psychiatrist in about October 2007 when he was placed on anti-depressant and anti-psychotic medication, that on or prior to 2 April 2008 the Applicant had been admitted to Long Bay hospital with severe depression and psychotic symptoms, being auditory hallucinations commanding him to kill himself. The Applicant told him that on release in October 2008, he stopped using medication and started using cannabis and speed and in this context "the voices worsened, they became louder, clearer and commanding; he started hearing the voice of his 'mate' who had killed himself; he said that voice told him where to go and what to do; the voice tried to send him on a mission to kill people ..." 9Dr Allnutt reported that the Applicant had informed him that on coming into jail, presumably in November 2008, he had been hearing voices but this situation had improved subsequently. The Applicant informed Dr Allnutt that the voices were telling him to harm others including, during the interview, Dr Allnutt. Dr Allnutt diagnosed the Applicant as manifesting active symptoms of psychosis characterised by hallucinations and delusions believing the voice was the voice of a dead friend of his. Such symptoms were aggravated by a history of substance abuse, depression and post-traumatic stress disorder. 10Ms Robilliard also records the Applicant having a history of psychotic presentations. To Ms Robilliard the Applicant indicated that the voices he had heard following his release on 31 October were advising him to cease his medication because the pills were going to kill him. The voices also instructed him to kill people and, during Ms Robilliard's interview with the Applicant, to harm her. She said his predominant presentation was consistent with depression but he was not then obviously experiencing hallucinations albeit he had for the preceding 4 months been receiving anti-psychotic and anti-depressant medication. She opined that the Applicant manifests symptoms consistent with a chronic psychotic disorder. 11Both Dr Allnutt and Ms Robilliard record being told by the Applicant that he had ceased taking his medication, which would appear to have been anti-psychotic - after his release on 31 October and prior to the offences presently under consideration. 12Professor Greenberg noted a report that the Applicant had been admitted to Bloomfield Psychiatric Hospital on 25 January 2008, 2 weeks later was diagnosed as suffering from major depression, and that on 9 May 2008 he was diagnosed at Bloomfield as suffering major depression with psychotic features. 13Professor Greenberg said that at the time of his examination the Applicant denied then having hallucinations, there was no evidence of delusions and there were then no reasonable grounds to believe he suffered from a mental illness or mental disorder as defined in the Mental Health Act 2007 (NSW). Professor Greenberg diagnosed him as, inter alia, suffering from Major Depression with psychotic features, in remission, from Poly-Substance Abuse/Dependence and Borderline Intellectual Functioning. 14Professor Greenberg also recorded that the Applicant informed him that he had discontinued his psychiatric medication approximately 4 weeks prior to the interview and felt better off having done so and that the auditory hallucinations had dissipated. 15Professor Greenberg also observed that the Applicant's previous psychotic symptoms may have been related to his use of various illicit substances including crystal methamphetamine and his significant personality difficulties may have related to the use of such substances and alcohol. 16One matter which might be noted is that the Applicant told Dr Allnutt that "he last took drugs about 2-3 days prior to the alleged offending", told Ms Robilliard that he used "a couple of grams of speed the day of the armed robbery in Dubbo" and told Professor Greenberg that he was not abusing alcohol or illicit substances prior to his offences. 17The Applicant gave evidence during the sentencing proceedings and again said he was not on any medication at that time whilst in custody and was feeling a lot better. 18The grounds of appeal are:- 1. The sentence imposed for the offence of robbery, armed with an offensive weapon, is manifestly excessive. 2. The sentencing Judge erred in failing to take into account as matters of mitigation that the Applicant's moral culpability was reduced because of his mental illness and that he was also not an appropriate medium for general deterrence. Ground 1 19Putting aside the issue of the Applicant's mental condition which can more conveniently be dealt with under ground 2, the principal basis upon which this ground was argued was that the Applicant's sentence should have either fallen within, or more closely accorded with, the guideline promulgated in R v Henry & Ors (1999) 46 NSW LR 346. In that case the Chief Justice expressed the view that an armed robbery such as that with which the Applicant was charged should generally result in a sentence of imprisonment of between 4 and 5 years when it was characterised by:- (i) Young offender with no or little criminal history; (ii) Weapon like a knife, capable of killing or inflicting serious injury; (iii) Limited degree of planning; (iv) Limited, if any, actual violence but a real threat thereof; (v) Victim in a vulnerable position such as a shopkeeper or taxi driver; (vi) Small amount taken; (vii) Plea of guilty, the significance of which is limited by a strong Crown case. 20Attention was also drawn to the fact that in R v Henry the discount for a plea of guilty was of the order of 10% - see R v Thomson and Houlton (2001) 49 NSWLR 383 and that in the instant case the applicant had been granted a discount of 25% for an early plea. 21The argument based on R v Henry is not persuasive. The Applicant was aged 22, nearly 23 at the time of the offences, so if he comes within the description "young offender" he only just does so. Furthermore, at the time of his offending the Applicant was on conditional liberty. Numerous cases stress that this is a seriously aggravating factor in the cases of offences committed in those circumstances. That factor was not one in the Chief Justice's list. 22More significant is the Applicant's criminal history. He is a recidivist who has no regard for the standards required in any civilised society. While, of course, he is not to be punished again for past offending his manifestation of a continuing attitude of disobedience to the law leads to the conclusion that retribution, deterrence and protection of society all argue, and in his case argue strongly, for the imposition of a more severe penalty than does the circumstance of "no or little criminal history" referred to in R v Henry - see Veen v R [No.2] (1987-1988) 164 CLR 465 at 477. Furthermore, what the Chief Justice said in R v Henry was intended as a guideline, not an immutable rule even for cases falling squarely within paragraphs (i)-(vii) which I have quoted. Given the difference in circumstances, the decision in R v Henry does not demonstrate that the sentence imposed by Woods ADCJ for the Applicant's armed robbery offence was erroneous. Ground 2 23There is no doubt that mental illness may argue in favour of a lesser penalty than would be imposed on someone not so suffering - see e.g. R v Letteri unreported, NSWCCA, 18 March 1992), and R v Engert (1995) 84 A Crim R 67. In R v Hemsley [2004] NSWCCA 228 Sperling J identified three ways in which an accused's mental condition could be taken into account as a mitigating factor. One was where it contributed to the commission of the offence in a material way thus reducing an offender's moral culpability. A second was where it might render the offender an inappropriate or less appropriate vehicle for general deterrence. A third was where it would have the effect that a custodial sentence might weigh more heavily. 24On the other hand, his Honour also drew attention to the fact that a mental illness might indicate that the offender presented a level of danger greater than usual, thus requiring greater weight to be given to specific deterrence and, I may add, protection of the community. 25One difficulty which the Applicant faces in this case is in establishing that any mental condition from which he suffered at the time of his offending or suffers now is such as to attract any of the first three considerations to which Sperling J referred. It is the Applicant's statement to Dr Allnutt to the effect that it was after the ingestion of speed and cannabis that the voices became louder in telling him what to do and his statement to Ms Robilliard that he ingested speed on the day of the armed robbery. In the second place there is the Applicant's statements to Professor Greenberg and in evidence to the effect that the cessation of medication has made him feel better. Thirdly there is the point made by Woods ADCJ in the following extract from his remarks:- I cannot overlook the fact that while he says he did not take his medication and "flipped out" he still had the ability and presence of mind to present himself at a car dealer's yard, successfully arrange a test drive of a motor vehicle and then travel to various parts of the central west the way he did. 26No one can sit in this court for very long without also being conscious of how often offenders, who are said to suffer from some mental condition arguing for a lesser sentence seem, despite that condition, to be able to plan and execute with reasonably efficiency offences of dishonesty. 27Woods ADCJ considered the evidence of the Applicant's mental condition and against the background of it fixed the sentences which he did. I am not persuaded that his Honour erred nor that the Applicant's condition argued in any of the three ways adverted to by Sperling J for a lesser sentence. Indeed were one to accept the Applicant's statements to Dr Allnutt and Ms Robilliard that the voices he heard were telling him to kill people his condition argues for a higher sentence than would otherwise be the case. In my view the Court should grant leave to appeal, but dismiss the appeal. 28HOEBEN J: I agree with RS Hulme 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. Decision last updated: 21 April 2011