Shaun Paul Hardcastle v R [2011] NSWCCA 87

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Shaun Paul Hardcastle v R [2011] NSWCCA 87 Hearing dates: 28 March 2011 Decision date: 15 April 2011 Before: Simpson J at 1; Davies J at 2; Grove AJ at 3 Decision: 1. Leave to appeal granted. 2. Appeal dismissed. Catchwords: CRIMINAL LAW - appeal against sentence - whether failure to give proper weight to applicant's mental condition - whether too much weight to issue of general deterrence - mental handicap - whether ambiguity of remarks concerning personal and general deterrence - appeal dismissed. Legislation Cited: s 21 A of the Crimes (Sentencing Procedure) Act 1999. Cases Cited: R v Smith (1958) 75 WN (NSW) 198 R v Engert (1995) 84 A Crim R 67 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 R v Henry (1999) 46 NSWLR 346 Category: Principal judgment Parties: Shaun Paul Hardcastle (Applicant) Regina (Respondent) Representation: Counsel: I. McLachlan (Applicant) P. Ingram SC (Respondent) Solicitors: S. O'Connor, Solicitor for Legal Aid Commission (Applicant) S. Kanavagh, Solicitor for Public Prosecutions (Respondent) File Number(s): 2009/6621 and 2009/6622 Decision under appeal Date of Decision: 2010-06-17 00:00:00 Before: Neild A/DCJ File Number(s): 2009/6621 and 2009/6622

JUDGMENT 1SIMPSON J: I agree with Grove AJ. 2DAVIES J : I agree with Grove AJ. 3GROVE AJ : This is an application for leave to appeal against sentence imposed by Neild A/DCJ in Sydney District Court on 17 June 2010. 4The applicant had pleaded guilty to two counts of an indictment as follows: "1. On or about 19 March 2005 at Jesmond in the State of New South Wales being armed with an offensive weapon, did rob Gang Wang of a sum of money, a quantity of cigarettes, a laptop computer and an OMP3 player. 2. On or about 8 May 2008 at Merewether in the State of New South Wales, being armed with an offensive weapon, did rob Ian Harris of a sum of money." 5His Honour was also asked to take into account two further charges namely: "1. Breaking and entering and stealing on 27 April 2008 and 2. Robbery whilst armed with an offensive weapon on 8 May 2008." 6On Count 1 the applicant was sentenced to imprisonment consisting of a non-parole period of 2 years commencing on 12 February 2010 and expiring on 11 February 2012 with a parole period of 1 year 9 months and on Count 2 (taking into account the scheduled further charges) to imprisonment consisting on a non-parole period of 1 year 9 months commencing on 12 May 2011 and expiring on 11 December 2013 with a parole period of 2 years. 7The total sentence was therefore a term of 5 years with a non-parole period of 3 years. 8The applicant seeks to reply upon on a single ground of appeal: "1. the sentencing judge failed to give proper weight to the applicant's mental condition (including giving too much weight to the issue of general deterrence)." 9It was conceded in written submissions and confirmed orally by counsel that "but for the applicant's mental condition, such total sentence could not be challenged on appeal." 10The facts in relation to the indicted counts were put before the Court in an agreed statement which was substantially incorporated in his Honour's remarks on sentence. 11At about 2.20 am on 19 March 2005 the applicant and a co-offender, each masked in a balaclava, entered a service station in a suburb of Newcastle. The co-offender was armed with a rifle. He remains unidentified. Under menace of the weapon the service station console operator was forced to hand over various items nominated in the indictment. 12An attempt was made to remove a tape from a security camera. DNA swabs were taken from it by investigators. On 5 January 2009 a match identifying the applicant was made. On 26 February 2009 he was arrested and charged in respect of these facts which became Count 1 on the indictment. 13At 3.50 pm on 8 May 2008 the applicant, wearing a hooded top and wearing sunglasses, entered Merewether Post Office where two employees were behind a counter serving customers. The applicant was wearing gloves and brandishing a metal pistol. It was accepted that this was probably a replica rather than a genuine firearm. One of the customers was an elderly gentleman whom the applicant grabbed and pushed to the floor. He then pointed the pistol at the employees and demanded the contents of their cash drawers. He received $1,053 and then decamped. The victim nominated in Count 2 was one of the two employees. 14The applicant was driven from the scene in a vehicle which was occupied by several others. It is not necessary to recount details of the flight from the Merewether area but in due course police investigation led to the arrest and interview of some of the occupants of the car as a result of which the applicant was identified as the offender who had entered the Post Office. He was arrested and charged on 14 October 2008. 15As I shall describe in greater detail, the applicant sustained a major head injury on 2 June 2008. When invited to participate in interview after each of his arrests (14 October 2008 and 26 February 2009 respectively) he said he had no recollection of the events concerning either offence. 16The learned sentencing judge said he did not "know the circumstances in which the offender committed the breaking and entering and stealing offence on 22 (sic 27 th ) April 2008". The Form I signed by the applicant on 22 March 2010 contained this short description: "On Sunday, 27 April 2008 the offender gained entry to Whittaker's Jewellers located at 2/93 Darby Street, Cooks Hill by smashing the glass on the front door. Inside the premises a cement block was used to smash a display case, to gain access to a large amount of jewellery housed therein. The total value of items stolen was $71,688.95. During the offence bloodstains were left on the display cases that matched with the DNA of the offender." 17The second charge on the schedule related to the robbery at Merewether Post Office nominating the second employee who had been behind the counter as the victim. 18The mental condition of the applicant, in central focus of the ground of appeal, was evidenced in a report by Professor David Greenberg who examined the applicant (then in custody) on 19 February 2010. Professor Greenberg had reference to reports and other documentation which are recorded in his report of 9 March 2010. His Honour's findings in these regards were as follows: "10. On 2 June 2008, the offender was the victim of a vicious assault. He was quite severely injured. He was admitted into the brain injury clinic of John Hunter Hospital at Newcastle. He was found to have suffered: (1) bilateral fracture of the skill, (2) a right temporal extradural haemorrhage, (3) a left temporal lobe extra-axial haematoma, (4) a fracture of one of his ribs. He underwent emergency surgery. He was in the intensive care ward from 2 June 2008 to 15 June 2008 and the neurological ward from 15 June 2008 to 24 June 2008, and the Rankin Park Inpatient Rehabilitation Centre from 24 June 2008 to 31 July 2008. He has been left with (1) a right-sided hemiparesis, (2) impaired memory, (3) impaired balance, (4) slurred speech, (5) impaired hearing, and (6) depression." 19He further found: "However, whatever the future holds for him, he will need considerable care and supervision in his day-to-day living, whether provided for by his mother, the Probation and Parole Service, or the brain injury unit of a hospital, or a community mental health team." 20It is convenient to note at this point that the ground of appeal does not contend that there were physical consequences of injury which constitute an incapacity which should have led to amelioration of sentence. His Honour was not provided with any information as to why the supervision of the mother was required but the implication would seem to be that any such need was founded in mental deficit. 21His Honour referred again to the applicant's mental state when determining to alter the statutory apportionment between non-parole period and total term to the advantage of the applicant. 22In a somewhat formulaic style which could scarcely be perceived to discharge an obligation to convey to the offender in language that he could understand the reasons for the sentences being passed upon him, his Honour made reference to s 21 A of the Crimes (Sentencing Procedure) Act 1999 and stated: "(32) As to the first offence, the aggravating factors are those letters E, J, L, M, N and O in s 21A(2). (33) As to the second offence, the aggravating factors are those lettered B, L, N and O in s 21A(2). (34) As to both offences, the mitigating factors are those letters A, I and K in s 21A(3)." (Above paragraphs quoted as transcribed). 23His Honour continued: "(35) One factor not mentioned in s 21A is deterrence. I consider that, although the offender is not an appropriate vehicle for personal deterrence, as he has suffered organic brain damage and has been left with significant disabilities, general deterrence is important. It is something which cannot be ignored or under-valued. People who think of doing what the offender had done - and what he did was relatively easy to do - must be deterred from doing so by sentences imposed upon offenders." 24It has long been recognised that mental handicap, short of providing a defence of mental illness, is a basis for reduction of sentence, for example R v Smith (1958) 75 WN (NSW) 198. To be relevant it is not necessary that there be a causal connection between the handicap and the offending ( R v Engert (1995) 84 A Crim R 67). Both the indicted and both the scheduled offences occurred before the applicant was injured. 25However a significant but not exclusive focus of case law has been upon the possible diminution in the weight to be given to general deterrence in sentence assessment where mental handicap is present. His Honour's remarks about general deterrence gave rise to the principal contention of error argued by the applicant. 26A useful collation of principle and authority has been provided by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194: "[ 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 [1999] NSWCCA 111; 46 NSWLR 346 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 [2007] NSWCCA 90 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]." 27As the above extract from his Honour's remarks on sentence demonstrates, he did not elaborate upon why he considered that the applicant was not an appropriate vehicle for personal deterrence. As the Crown Prosecutor pointed out, the applicant committed further offences, although of considerably less seriousness than those presently under consideration, subsequent to his injury. 28However his Honour did expressly take into account that, due to disabilities, the applicant was vulnerable to harm and may find prison life therefore more onerous. That finding would seem to operate as some counter weight to the reflection in sentence assessment of the negative expression concerning personal deterrence. 29His Honour's remarks about general deterrence, whilst, of course, they do not contain any measurement of the weight which he attributed to this factor, suggest that he might have attributed some significance to it, or on the other hand, bearing in mind the contextual statement that the applicant had suffered significant brain damage, he was attributing such weight as would be appropriate to an offender whom he recognised was so affected. 30The absence of clarity however leads me to conclude that the applicant's ground should be considered to have been made out. Nevertheless the question remains whether this Court should intervene. 31The applicant was born in 1986. He had a disruptive and unstable childhood. He was introduced to illicit drugs within the familial environment. He is the estranged father of a four year old daughter. 32By the time he appeared for sentence on these matters the applicant, although young, had accumulated a considerable record of offending commencing with nine appearances in Children's Courts between February 2001 and March 2004 resulting in convictions for some thirty offences of various kinds. Between June 2004 and February 2007 he had eight appearances before Local Courts acquiring convictions for some twenty-five offences. None of these offences, it should be acknowledged, approached the elevated criminality involved in those currently being examined. 33I have already observed that the applicant continued to offend after the injury sustained in June 2008. 34Count 1 involved the production of a firearm by the co-offender and the balaclavas worn by them both clearly showed that the robbery was planned. Count 2 involved the menacing of victims with a pistol which they would have had no means of knowing whether it was lethal or otherwise. Importantly to the assessment of the seriousness of this offence was the collateral act of striking to the floor the elderly customer of the Post Office. 35As his Honour noted, he was not provided with detail about the breaking and entering and stealing of the jewellers at Cooks Hill which was the first charge in the schedule. He was informed however that the value of items stolen was $71,688.95 and the identity of the applicant as the offender was not established until a DNA match was made. It can fairly be deduced that this would have been some time after the occurrence of the offence and there has been no suggestion that any recovery of the stolen jewellery had been achieved. 36His Honour assessed a sentence of 4 years 6 months for each offence on the indictment (taking into account the scheduled offences on Count 2) and applied a discount of 15% (rounded off) for the pleas of guilty which had been indicated for the first time in the week before a trial was listed to commence. He observed that the applicant was subject to a bond to be of good behaviour when the first offence was committed. The guideline judgment in R v Henry (1999) 46 NSWLR 346 indicated a range of sentences (after utilitarian discount of 10%) for a "typical" armed robbery at 4 to 5 years. The facts of these offences would classify them as more serious than a "typical" case. There were, of course, two offences and there was need in particular to give account to the far from minor breaking, entering and stealing of the jewellery store. 37As has been authoritatively pointed out Henry establishes guidelines not "tramlines". Nevertheless it should be noted that this applicant could not qualify under the very first expression of a young offender with no or little criminal history. I have already mentioned the applicant's continuing adverse encounters with the criminal law. Nor would I include the forcing to the floor of the elderly customer at the first offence as "limited" actual violence. 38Whilst as I have indicated, there is at least some ambiguity about his Honour's remarks concerning personal and general deterrence, I am unpersuaded that, giving full weight to the applicant' handicaps consequent upon his injury, any lesser sentence than that imposed by his Honour is appropriate. 39I would grant leave to appeal against sentence but dismiss the appeal.