Kizzy McCLAIN v R [2011] NSWCCA 191

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Kizzy McCLAIN v R [2011] NSWCCA 191 Hearing dates: 30 June 2011 Decision date: 30 June 2011 Before: McClellan CJ at CL at [1], [15] & [25]; Hidden J at [2]; Hall J at [18] Decision: Leave to appeal granted, appeal dismissed. Catchwords: CRIMINAL LAW - application for leave to appeal against sentence - attempted armed robbery - plea of guilty - whether issue of mental health arose - whether applicant's intoxication taken into account appropriately - no question of principle Cases Cited: R v Engert (1995) 84 A Crim R 67 R v Henry (1999) 46 NSWLR 346 Category: Principal judgment Parties: Kizzy McClain (applicant) Regina (Crown/respondent) Representation: Barristers G Brady (applicant) S Dowling (Crown/respondent) Solicitors S E O'Connor - Legal Aid Commission (applicant) S Kavanagh - Solicitor for Public Prosecutions (Crown/respondent) File Number(s): 2009/205869 Decision under appeal Jurisdiction: 9101 Date of Decision: 2010-06-25 00:00:00 Before: Keleman DCJ File Number(s): 2009/205869

Judgment 1McCLELLAN CJ at CL: The Court does not want to hear from you madam Crown. We are in a position to give judgement and I will ask Hidden J to give the first judgement. 2HIDDEN J: The applicant, Kizzy McClain, pleaded guilty in the District Court to attempted armed robbery. She was sentenced to imprisonment for 3 years with a non-parole period of 18 months to commence on 4 January 2010. She is to be released on parole on 3 July 2011, that is, in three days time. She seeks leave to appeal against her sentence. 3She is a young aboriginal woman. She was 21 years old when the offence was committed. On 23 August 2009 she went into a store in Belfield, where she was a regular customer, presented a knife and demanded money. Staff at the store resisted and she was forced from the premises and made her escape. She was affected apparently by a cocktail of drugs, methadone and benzodiazepines. The offence was anything but sophisticated, but was, nonetheless, a serious one. 4She has a minor criminal history but it is of significance that she was on a s 9 bond at the time for stealing from a dwelling. She has a very disturbed background, which elicits sympathy. It need not be recited. In the light of that background it is not surprising that she developed, from a young age, a major drug and alcohol problem. She has exhibited symptoms of depression and anxiety and, from time to time, has been treated for them. 5Put shortly, the application before us complained that the sentencing judge failed to give the weight it deserved to evidence of the applicant's mental condition, both as a matter bearing upon the objective gravity of the offence and as a matter in her subjective background properly to be taken into account in mitigation of the sentence. 6The material bearing upon mental illness is spare, to say the least. There was a psychological report before his Honour, which records that shortly before the offence the applicant had been admitted to Macquarie Hospital, apparently having taken an excess of Xanax tablets. The psychologist suggests that this indicated that her psychological state at the time of the offence may have been unstable and she may have been suffering from mental health symptoms shortly before the offence. To the psychologist the applicant said that at the time of the offence she was "no way in her right mind," her head was "all over the place," it was "scattered," it was "hopeless." She described herself as being in a stage of life where she did not know what she was doing. 7Upon her arrest and being taken into custody, she was placed on anti-depressant and anti-psychotic medication. What is urged upon us is that this material raises the principles governing the bearing of mental illness upon sentence examined in familiar authorities such as R v Engert (1995) 84 A Crim R 67. 8The sentencing judge noted that the applicant described experiencing some mental health issues at the time of the offence but expressed himself satisfied, on the material before him, that she committed the offence as a result of her intoxication by the substances to which I have referred. That finding was clearly open to his Honour. 9It is complained in this application that his Honour did not adequately express his reasons for that finding, given the limited evidence of psychological or mental disturbance emerging from the material. It appears to me that his Honour's reasons were entirely adequate. The material really did not raise the principles of mental health bearing upon sentence. There was no need for his Honour to expand upon his reasons any more than he did, and it is important to bear in mind the pressure under which District Court judges work when dealing with sentence matters and the need for them to be succinct and brief in giving their reasons. 10His Honour also said that the applicant's use of drugs at the time of the offence was not a mitigating matter, although it provided an explanation of how the offence came to be committed. Again, in my view that was all that was required to be said in the circumstances. No doubt the applicant's addiction to drugs was a matter arising from her personal circumstances and her background, matters outside her control, and entitled her to a measure of mitigation of sentence on that account, but it appears to me, looking at his Honour's remarks as a whole, that he was sensitive to her background and the contribution that it made to the drug and alcohol addiction which bedevilled her at the time of this offence. No more was required in his reasons to deal with that issue, in my view. 11In other respects his Honour appears to have had appropriate regard to the applicant's background. He noted encouraging signs, notwithstanding that terrible background, pointing to the prospects of her rehabilitation. He took account of her need for counselling and drug and alcohol rehabilitation and found special circumstances, he observed her to be remorseful and he gave appropriate recognition to her plea of guilty. In arriving at the sentence his Honour expressly had regard to the guidelines of R v Henry (1999) 46 NSWLR 346 and counsel for the applicant in this Court acknowledged that the sentence which his Honour passed is relatively low when one has regard to that guideline. 12Mr Brady, who appeared for the applicant in this Court, did not appear in the sentence proceedings. He has urged, competently and fully, certain matters on the applicant's behalf and I note that those matters do not appear to have been raised before his Honour by way of submission in the sentence proceedings. 13Put shortly, I can find no error in his Honour's approach to the question of sentence. I have already observed that the applicant will be released on parole in a matter of days and she will then have the benefit of 18 months of supervision at liberty to aid in her rehabilitation. In no way has justice miscarried in this case. 14I would grant leave to appeal but dismiss the appeal. 15McCLELLAN CJ at CL: This is yet another case in which counsel, who did not appear at the sentence hearing, comes to this Court to raise issues which were not raised before the sentencing judge. 16This Court is a court of error. It has had to make clear on many occasions in relation particularly to sentence appeals that it is important to bear in mind that this Court will be mindful of the way a case was presented to the sentencing judge below. Furthermore, it is necessary to say in this case that the sentencing judge both heard the sentence matters and delivered his remarks on sentence and sentenced the applicant on the same day. In that context his Honour has referred to the relevant material and this Court will assume when reference is made to that material that, having regard to the submissions made before the sentencing judge, the matter has been appropriately considered. 17This Court will not apply a fine toothed comb approach and "pick" over the remarks on sentence delivered by a District Court judge in the course of a day when, undoubtedly, more than one sentence matter came before the judge. Hidden J has analysed the submissions and I am grateful for his reasons in that respect. However, this is an application which, in my view, must be rejected and firmly rejected. It is an application which, in my view, should not be given leave to appeal. I would refuse leave. 18HALL J: I agree with the order proposed. I would only add the following, that the issue of mental health of the applicant at the time of the offence was one addressed to the court in a report by the psychologist on 21 May 2010. 19There was evidence, firstly, of the applicant's admission to Macquarie Hospital on two occasions in 2009 and again some days before the offence after the applicant had engaged in what was described as a binge of Xanax tablets, followed by the assessment made by mental health staff at Mulawa Correctional Centre. Additionally, there is the fact that the medical staff prescribed, amongst other medication, antidepressant medication for the applicant. 20I have been concerned in this application as to whether there was any appellable error and have considered, particularly, whether the failure by the sentencing judge to find mental illness as a causal element was an appellable error and, if so, whether this Court should intervene . 21It is clear, however, that the sentencing judge did consider the issue of the applicant's mental health at the relevant time and I refer in that regard to the observations made about that subject on p.7 of the remarks on sentence. The brevity of the sentencing judge's reference and comments to the mental health issue is explicable when regard is had to the nature and the manner in which the issues were pursued at the hearing before the sentencing judge. 22There was no submission made that the sentencing judge was required to apply the R v Engert (supra) principles in favour of the applicant. 23In all the circumstances I do not consider that appellable error has been made out in respect of Ground 1. 24In respect of Ground 2 I respectfully agree with the remarks that have been made by Hidden J. Accordingly, I concur with the orders proposed. I would agree that, in the circumstances, leave to appeal should be granted and the appeal dismissed. 25McCLELLAN CJ at CL: That will be the order of the court.