Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: HAMMOND, Brian John v R [2013] NSWCCA 28 Hearing dates: 13 November 2012 Decision date: 19 February 2013 Before: McClellan CJ at CL at 1 Rothman J at 2 Bellew J at 25 Decision: (1) Leave to appeal granted; (2) Appeal dismissed. Catchwords: CRIMINAL LAW - sentence appeal - self represented appellant - no issue of principle - sentencing judge not in error - appeal dismissed Legislation Cited: Crimes Act 1900 Criminal Procedure Act 1986 Mental Health (Forensic Provisions) Act 1990 Mental Health Act 2007 Cases Cited: Ayoub and El Masri v R [2010] NSWCCA 196 Category: Principal judgment Parties: Brian John Hammond (Applicant) Crown (Respondent) Representation: Counsel: Self Represented (Applicant) J Dwyer (Respondent) Solicitors: Self Represented (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2009/10693 Decision under appeal Date of Decision: 2009-10-14 00:00:00 Before: Woods ADCJ File Number(s): 2009/10693 Judgment 1McCLELLAN CJ at CL: I agree with Rothman J. 2ROTHMAN J: Brian John Hammond, hereinafter the applicant, seeks leave to appeal the sentence imposed on him in the District Court on 14 October 2009. On that date, the applicant was sentenced to a term of imprisonment of 6 years, including a non-parole period of 4 years and 6 months. 3The foregoing sentence was imposed for the offence of aggravated assault with intent to take/drive motor vehicle (armed with an offensive weapon), contrary to s 154C(2) of the Crimes Act 1900, which carries a maximum sentence of 14 years' imprisonment and a standard non-parole period of 5 years' imprisonment. Pursuant to the terms of s 166 of the Criminal Procedure Act 1986, the District Court also dealt with a summary offence and sentenced the applicant to a fixed term of imprisonment of 9 months to be served wholly concurrently with the indictable offence. The charge dealt with under s 166 was a failure to submit to breath analysis. Grounds of appeal 4The applicant was self-represented. The applicant raised two grounds of appeal, namely: (i) "I was not sentenced under the Mental Health Act"; (ii) "There was no finding of 'special or mitigating circumstances'." Circumstances of offence 5On 4 March 2009, the complainant was driving his Mazda car in Dubbo with friends. They pulled over and were speaking with a group of people whom they knew. The applicant was amongst that group. The applicant appeared intoxicated. 6The group asked for a lift. The applicant threatened to assault the complainant, physically, if the complainant did not give them a lift. The complainant agreed and the group got into the car, as the other passengers alighted. The applicant sat in the front seat and ordered the complainant to drive them to a park in East Dubbo. During the journey, the applicant continued to threaten the complainant. 7At the park, the passengers got out of the car. The applicant walked to the driver's door, opened the door and pulled the complainant out of the car. The applicant was holding a knife to the complainant's throat. One of the applicant's friends punched the complainant in the mouth. The applicant got in the driver's seat and drove off holding the knife to the complainant's stomach. 8The applicant's friends asked to get out of the car. The complainant could not leave the car, because the safety lock was engaged. The applicant received a phone call, during which call he said, "I have some white boy's car and he's doing everything I say to do or I will kill him". Later that day, the applicant was arrested. The police observed him to be well affected by drugs. The applicant refused to undertake a breath test. Consideration of grounds of appeal 9Because the applicant is self-represented, I take a broader view of the first ground of appeal than might otherwise be appropriate. It seems that the applicant seeks to have the court find that his psychiatric condition was not appropriately taken into account by the sentencing judge. No occasion arises for the applicant to be sentenced under the Mental Health Act 2007. 10Psychiatric evidence was tendered to the sentencing judge. The evidence before the court was a report by Dr Allnutt dated 11 September 2009. I summarise Dr Allnutt's findings. The Aboriginal Legal Service ("ALS") qualified Dr Allnutt on behalf of the applicant. The ALS represented the applicant on sentence. 11Dr Allnutt expressed the opinion that when he saw the applicant: "... he was not manifesting active symptoms of a significant psychiatric condition, that is, either a psychotic, mood or anxiety disorder. He however did provide a history of long-term psychotic symptoms characterised by auditory hallucinations, referential ideas and persecutory delusions; he stated that he had previously been diagnosed with schizophrenia and on previous occasions had been prescribed Seroquel; while he had abused cannabis and alcohol from adolescence, he had only commenced using methamphetamines and amphetamines in August 2008; notwithstanding this, he described psychotic symptoms preceding that date; in my view, there would be reasonable grounds to be of the view that he likely suffers from a chronic psychotic disorder that occurs independent of substances but aggravated by substances such as a schizoaffective disorder or chronic paranoid schizophrenia. He describes a long history of alcohol and cannabis abuse and more recently the abuse of amphetamines and methamphetamines consistent with a polysubstance abuse disorder and probable dependence which is currently in partial remission as a consequence of his incarceration. He derives from difficult developmental circumstances; ... I would not diagnose him however with a personality disorder. He does not manifest any major medical problems... The most significant stressor affecting him and which has been affecting him for the past two years has been separation from his children; ... His functioning currently is adequate. ... However in the absence of a clear account it is difficult to determine the relative contribution that the symptoms might have made to the offending; the alcohol and substances would have served as disinhibitors and probable aggravating factors with regard to his mental state; I am unable to provide any specific opinion with regard to the thought processes in relation to the offences and consequences of his actions because of his poor memory. ... 1.I believe your client is suitable for rehabilitation in particular drug and alcohol rehabilitation; in my view, the drug and alcohol rehabilitation should occur in a residential setting. 2.Your client should be referred to a psychiatrist; he has a chronic psychotic disorder and would benefit from psychiatric treatment. 3.Your client should abstain from the use of substances absolutely." 12While it is possible, given the foregoing, that the applicant was suffering from some psychosis at the time of the commission of the offences, it could not be established, even on the balance of probabilities, that the psychosis had any effect on the commission of the offence or affected the applicant's decision-making at that time. Further, the foregoing establishes that at the time of sentencing the applicant was not affected by any psychosis in his behaviour or mental functioning. 13The applicant submits that evidence should have been adduced from a "trained psychiatrist", because that may have been more favourable than the opinion and recommendations of Dr Allnutt. No opinion is adduced on appeal to support the possibility of a more favourable outcome. 14To the extent that the ground of appeal raises the question of the competency of the efforts made on behalf of the applicant by his legal representative below, no relevant or appropriate criticism can be made of those efforts. 15The sentencing judge made extensive reference to Dr Allnutt's report and the pre-sentence report. His Honour was of the view that there was no "real correlation between the circumstances of the offence and the offender's intoxication or ... mental situation" (ROS 6). Such a finding was open to his Honour and is not challenged on appeal. 16As to the submission concerning the operation of the Mental Health Act, as already stated, there is no occasion, and was none at the time of sentencing, for the operation of Part 2 of the Mental Health (Forensic Provisions) Act 1990. 17Further, as to the issues subsequently raised by the applicant regarding the quality or competence of his legal representation, an affidavit of his legal representative has been filed, being the legal representative representing the applicant at the Local Court, relating to fitness to be tried. The applicant's representative in the District Court attended Court during the appeal but was not questioned by either the applicant or the Crown. That representative did not provide an affidavit because of concerns relating to legal professional privilege, about which the applicant had not received independent advice. 18The transcript of the sentencing proceedings has been studied. There is no basis for a submission that it was conducted other than properly and competently. Further, there is no basis for suggesting that Dr Allnutt's opinion, qualified, as it was, by the ALS on behalf of the applicant, was any less helpful to the applicant then any other opinion would have been. 19The first ground of appeal, including any ground relating to the competence of the legal representative, must fail. 20The second ground of appeal relates to the absence of a finding as to special or mitigating circumstances. As earlier stated, the sentencing judge relied significantly upon the opinion of Dr Allnutt, which refers to the childhood of the applicant. 21The "special circumstances" to which reference is made are the circumstances warranting a longer period on parole than might otherwise be imposed. The sentence is significant and the period for which the applicant is eligible for parole is, likewise, significant. The material before the sentencing judge disclosed that there were no good prospects of rehabilitation, particularly in light of the applicant's age. Nevertheless, the applicant has 18 months during which rehabilitation can be effected and under which the applicant would be supervised. On the material before the Court below, and before this Court, that time period is sufficient time to effect the rehabilitation process to which Dr Allnutt refers. 22There is no warrant to interfere with the non-parole period imposed by the sentencing judge. It does not disclose error. Further, the absence of circumstances warranting a longer period of parole was recognised below, and no application was made for a finding of special circumstances. This Court in Ayoub and El Masri v R [2010] NSWCCA 196 held that a finding as to special circumstances was a matter of discretion and would be the subject of intervention by this Court only on one of the well-known bases for the overturning of an exercise of discretion. In the absence of a manifest requirement for a lengthier period of potential parole, it is not an error for a sentencing judge not to find special circumstances, particularly where the judge has not been requested to make such a finding. 23This ground of appeal must also fail. 24For the foregoing reasons, I propose that the Court make the following orders: (1)Leave to appeal granted; (2)Appeal dismissed. 25BELLEW J: I agree with Rothman 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: 20 February 2013