Hart v R [2013] NSWCCA 13

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Hart v R [2013] NSWCCA 13 Hearing dates: 1 February 2013 Decision date: 11 February 2013 Before: Simpson J at [1] Johnson J at [2] Grove AJ at [3] Decision: 1. Leave to appeal against sentence granted. 2. Appeal dismissed. Catchwords: APPEAL - application for leave to appeal against sentence - robbery whilst armed with dangerous weapon - whether good prospects of rehabilitation Cases Cited: R v Elyard [2006] NSWCCA 43 Category: Principal judgment Parties: James Andrew Lloyd Hart Regina Representation: Counsel: K.H Averre (Applicant) J. Dwyer (Crown) Solicitors: B. Sandland - Legal Aid NSW (Applicant) S. Kavanagh - Solicitor for Public Prosecutions (Crown) File Number(s): 2011/184356 Decision under appeal Date of Decision: 2012-03-02 00:00:00 Before: Garling DCJ File Number(s): 2011/184356

Judgment 1SIMPSON J: I agree with Grove AJ. 2JOHNSON J: I agree with Grove AJ. 3GROVE AJ: This is an application for leave to appeal against sentence imposed by Garling DCJ on 2 March 2012 at Sydney District Court. The applicant was committed for sentence from the Local Court following a plea of guilty to a charge of robbery whilst armed with a dangerous weapon. His Honour was asked to, and took into account on a Form 1, a charge of possessing restricted substance (Xanax). In relation to this, the applicant was in possession of six tablets when arrested and the offence could, at most, contribute only slight weight to sentence assessment for the principal offence. It is clear that his Honour treated it so. 4The robbery offence carried a prescribed maximum penalty of 25 years imprisonment. The applicant was sentenced to a non-parole period of 2 years 8 months and a balance term of 1 year 10 months. Given the undisputed discount of 25 per cent for a plea of guilty at the earliest opportunity, it can be calculated that his Honour assessed a total term of 6 years prior to application of the discount. 5The facts revealed that at about 5:15am on 3 July 2011 the applicant and a male companion caught a taxi and directed the driver to take them to Mascot. Both passengers were dressed in female clothing, the applicant was wearing heavy make up, a blonde long haired wig, a pink t-shirt, a black hooded jacket and high-heeled boots. He was carrying a purse. His Honour found that the "way he was dressed was (not) anything to do with the planning (of the offence)" and that is accepted. 6On the journey the taxi driver was directed to enter a service station at Chippendale and to stop at the far end of the driveway where the applicant alighted and entered shopping aisles within the retail building of the service station. A console operator was alone, seated behind a wire security barrier. The subsequent events were summarised by his Honour: " [The applicant] approached the victim and produced a square shaped black taser, activating it and causing it to arc. He said, "Open the drawer and give me the money." The offender again activated the taser, causing it to arc. The offender replied, "Grab these notes and put them there." The victim, fearing for his safety, opened the till and moved a quantity of notes, and placed them on the counter. The victim then crouched down behind the counter. The offender picked up the notes, and said, "Sit down". The victim said, "I'm not going to do anything, but don't hurt me." The offender said, "All right, don't move. Count until twenty." The offender then left, returned to the taxi, and the taxi driver drove the offender and his companion to an area where they exited the taxi. Police carried out various investigations and eventually arrested the offender, who at first denied any involvement. He was subsequently shown various CCTV images and also text messages, and admitted to the offences..." 7The applicant was aged 26 at the time of the offence and 27 when sentenced. He had an inconsequential prior record consisting only of the imposition of fines in 2004 for offensive language and resisting an officer in the execution of duty. 8His subjective case included a pre-sentence report, a report dated 29 February 2012 from Doctor Watson-Munro, a consultant forensic psychologist, and various references from friends and colleagues. He gave evidence himself in the proceedings. 9Principally from the reports, a history of the applicant's life experiences can be gleaned. His Honour noted Dr Watson-Munro's observation that the applicant described "one of the most troubling histories that I have encountered in thirty years of clinical practice". Some salient circumstances were that he was born and raised in the Newcastle general area but when he was aged 13 a sister, at age 21, committed suicide at a time that she was evidently addicted to drugs and suffering post-natal depression. This tragedy followed events several months earlier when a brother had engaged in a fight with the applicant's mother and that brother then hanged himself from a tree in the yard. His dead body was discovered by the applicant who cut him down from the tree. 10The applicant's parents' marriage had broken down when he was about 4 years old and over the next 10 years he resided from time to time with one or other of them. 11After the suicides of his siblings the applicant did not continue with education and drifted into serious drug use, including, at times, heroin, cannabis, cocaine and ecstasy. He has described auditory and visual hallucinations as well as delusions and, although not hospitalised, he has been placed on anti-psychotics. Dr Watson-Munro also recorded the use of crystal amphetamine, commonly referred to as "ice", as part of the applicant's poly-substance abuse. 12His Honour noted Dr Watson-Munro's diagnosis that the applicant was suffering a post-traumatic stress disorder as well as poly-substance abuse disorder, although it can be remarked that the doctor recorded that "due to time constraints no formal psychometric testing was taken on this occasion". There is only a single report. 13The applicant testified that at the time of arrest he was injecting crystal methamphetamine and taking "not many" xanax. He had withdrawal symptoms for two weeks when he commenced custody. He said that he had not taken drugs whilst in custody. 14The single ground of appeal is expressed in these terms: "The sentencing judge failed to have any or proper regard to the fact that the applicant was unlikely to re-offend and that the offender had good prospects of rehabilitation." 15The contentions incorporated in this ground were reformulated in written submissions: "The sentencing judge erred in that he: (i) failed to properly assess the evidence of the likelihood of re-offending or prospects of rehabilitation; (ii) failed to properly consider the likelihood of re-offending and prospects of rehabilitation; and (iii) impermissibly formed the conclusion that the applicant had poor rehabilitation prospects and failed, in particular, to identify any cogent basis for doing so." 16It is convenient to deal first with the third of these propositions. It is correct that the remarks on sentence contain no express reference to the applicant's prospects of rehabilitation, that is his Honour neither made a finding that there were good prospects of rehabilitation nor that there were poor prospects of rehabilitation. The applicant's submissions advert to some exchanges with counsel during submissions. It has been repeatedly said in this court that a sentencing judge's conclusions are to be derived from the remarks at the time of imposition and not from what might be said during exchanges with counsel. In this case, if anything, the exchange is consistent with the omission of reference in his Honour's remarks to either good or poor prospects. The applicant referred to remarks in which counsel for the applicant (who did not appear in the appeal) was apparently seeking a finding of good prospects said "One might think that he might not be back again based on the material you have before you". His Honour responded that he would not be making that finding and in the course of discussion mentioned that "unfortunately these people have a habit of coming back". It is apparent from the context that his Honour was referring to persons suffering from post-traumatic stress disorder and poly-substance abuse disorder. These general remarks do not translate into a finding that the applicant had poor prospects of rehabilitation and it is plain from the reading of the whole his Honour's remarks that he did not regard himself in a position to make a positive finding one way or the other as to whether the applicant's prospects were good or poor. 17The contention that the sentencing judge formed a conclusion that the applicant had poor rehabilitation prospects is not supported in any of the material. 18The ground, as initially stated, asserted as a fact that the applicant was unlikely to re-offend and that he had good prospects of rehabilitation. Whether that fact exists needs to be the subject of examination. 19The applicant referred to the observations of Basten JA in R v Elyard [2006] NSWCCA 43 where he said at [19]: "In assessing prospects of rehabilitation, the Court will generally have access to material falling within one or more of the following categories: (a) evidence of past conduct and behaviour of the offender; (b) professional opinions, taking into account past conduct and behaviour and expressing views as to the future prospects, and (c) at least in some cases, the opinions and expressions of intention of the offender himself or herself..." 20The categorisation can be utilised for the present examination. 21It is true that the applicant's past does not include convictions of any consequence but his conduct and behaviour, particularly in relation to drug use, was elaborately described in the reports, the contents of which were not the subject of controversy. The pre-sentence report recorded the applicant's own statements that he began using illicit substances from the age of 14, commencing with heroin on a daily basis. At age 15 in Sydney he experimented with ecstasy, cocaine, amphetamines, LSD, magic mushrooms, methylamphetamine, special K, liquid ecstasy and benzodiazepine but his "drug of choice" was methylamphetamine. Again, it was his own statement that he engaged in criminal behaviour and cross-dressing for prostitution to enable him to support his drug dependence and lifestyle. The pre-sentence report does not purport to forecast rehabilitation prospects but suggests that an individualised case plan be made for drug counselling, psychological counselling and mental health monitoring. 22In a similar fashion, Dr Watson-Munro summarised the applicant's history of drug taking but rather than forecasting, he observed that "work focused upon relapse prevention, social skills training and general behaviour change will enhance the prospects of a better prognostic outcome in this case". 23The evidence falls far short of proving the fact that the offender had good prospects of rehabilitation. 24The applicant's own evidence was brief. Significantly, he was only prepared to say that he obtained the taser from a "friend". He offered no explanation as to the why he had it with him in the journey in the taxi. 25The applicant's evidence included expressions of regret and shame and he said that "I wish I could take back what I could but I can't". He was asked how he intended to approach taking responsibility for managing the issues in his life and he responded by saying "I'm seeing a therapist on a weekly basis maybe, I don't know". 26The totality of evidence does not demonstrate that his Honour erred in failing to find that the applicant had good prospects of rehabilitation. The ground of appeal is not made out. It was not argued that the sentence imposed was excessive and it conveys an apparent lenience and the imposition as well within the range of the sound exercise of discretion. I would grant leave to appeal against sentence but dismiss the appeal.