Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Zuccarini v Regina [2013] NSWCCA 228 Hearing dates: 25 September 2013 Decision date: 14 October 2013 Before: Hoeben CJ at CL at [1]; Bellew J at [2]; Barr AJ at [3] Decision: (1)Grant leave to appeal, (2)Dismiss the appeal. Catchwords: CRIMINAL LAW- Sentence appeal- break and enter- whether mental illness reduced moral culpability- whether applicant's drug use was a mitigating factor. Cases Cited: Director of Public Prosecutions (Cth) v De la Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 R v Engert (1995) 84 A Crim R 67 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 Category: Principal judgment Parties: Jordan Zuccarini (Applicant) Regina (Respondent) Representation: Counsel: M Dennis (Applicant) S Herbert (Respondent) Solicitors: Legal Aid (NSW) (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2012/131272 Publication restriction: None Decision under appeal Jurisdiction: 9101 Date of Decision: 2013-01-18 00:00:00 Before: Lerve DCJ File Number(s): 2012/131272 Judgment 1HOEBEN CJ at CL: I agree with Bar AJ and the orders which he proposes. 2BELLEW J: I agree with Bar AJ. 3BARR AJ: The applicant, Jordan Zuccarini, has applied for leave to appeal against a sentence imposed in the District Court. He pleaded guilty to one account of an aggravated form of breaking, entering and committing a serious indictable offence, namely stealing. The aggravation was that he was in the company of another. The maximum penalty for that offence is 20 years' imprisonment. There is a standard non-parole period of 5 years. Lerve, DCJ set a non-parole period of 1 year and 6 months and a balance of term of 1 year and 6 months. The non-parole period is due to expire on 17 April 2014 and the head sentence on 17 October 2015. The Facts 4The facts were agreed. This extract comes from his Honour's remarks on sentence. The facts reveal that the premises of Smartphone are owned and operated by the person nominated in the averment in the court attendance notice, namely Phillip Zivojinovic. The shop was located at premises at shop 11/19-29 Marco Street, Revesby. Within the Crown tender bundle is a photograph of the premises which clearly indicates that it is a complex with retail shops on the street level with residential units above the shop premises. The hours of business ordinarily operated are nine to five Monday to Saturday. The premises consist of a glass front security door that leads into the display area of the store. In the display area are many phones on display, there is also a front service counter. A wooden door separates the display area from the storage area. A wooden exit door is located at the rear of the premises and leads to an open car park. The store has a twenty four hour closed circuit television surveillance coverage. At about 5pm on Saturday18 February 2012 the shop was closed and secured, the owner ensured that all premises were locked and alarm was activated. He went to bed at about 2am on 19 February 2011, his residence being above the commercial premises. At about 3.10am on 19 February 2011 the owner was awoken by several loud banging noises which appeared to be coming from downstairs. He got out of bed and his phone began to light up. The store alarm system was connected to the owner's telephone. The owner noted that the alarm had been triggered, he alerted his brother who was in the residence and they went to investigate. Upon arrival at the commercial premises they noticed that there had been a break-in into the store with the front glass panel smashed. He ran into the store and yelled swear words to scare anyone inside. As the owner was yelling he heard a noise coming from the back storeroom; he could hear some shuffling noises and heard the back exit door slam. The owner said he was too scared to investigate which reaction is perfectly understandable. The police were called. A hammer was located in the storage area of the store that did not belong to the owner and was given to police. The following morning the closed circuit television was reviewed and the owner located a black garbage bag inside the storage area near the rear exit door that he had not seen before. Within the garbage bag was a 3G Optus Home signal booster and a red Nokia phone that belonged to the store. The owner contacted police who attended and the police examined the bag. The value of the property stolen was $300 but the facts clearly indicate that the property was recovered seemingly unharmed and returned to the owners. A review of the closed circuit television footage depicted two males smashing the glass front door of the premises and entering the store. Consistent with the plea of guilty, one of those males was this offender. The two males seemed to be carrying a hammer and black garbage bags upon entry. The closed circuit television footage also showed two males kicking the wooden door that leads to the storage room and then gaining entry to that room. On 14 March 2012 police received notification that fingerprints located on the black garbage bag belonged to this offender. A DNA profile consistent with this offender was subsequently located on the handle of the hammer that was recovered at the premises. The owner of the premises did not give this offender permission to enter the store. On the 25 April last year, the offender was located and arrested. One thousand dollars worth of damage was done to the store in the course of the break-in 5No oral evidence was taken on sentence. A report of Dr Anna Lee, consultant psychiatrist, was received. It included these statements: Brief History Jordan was referred to the Bankstown Eariy Intervention in Psychosis Team on 5/11/10 by his GP. He had recently been released from Cobham Juvenile Detention around 4 weeks ago. He presented with distress around experiencing auditory hallucinations sometimes commanding him to hurt others. He showed a degree of insight recognising these were not real and was able to have control over not acting out on these hallucinations. He also reported paranoia and feelings that 'people were out to get me'. His mood was fiat and anxious. He reported difficult sleep patterns. Previous medication treatment reported in his fife from Cobham include Largadil 5Gmg, Zyprexa 20mg (he reported this calmed him down), and Fluoxetine 30'mg for 6 months (he reported getting headaches daily and this was ceased after 6 months). Jordan was commenced on Seroquel 400mg and Epilim 600mg prescribed by Dr. Lee. He was also started on Escitaiopram 10mg on 29/11/10 for tow mood and low motivation but Jordan ceased the Escitalopram reporting no benefits, but continued with tie Seroquel. Vocational In mid November 2010, Jordan's father Daniel found him casual work of full time hours at Guildford as a Fibreglass mould and fitter which Jordan managed to maintain for 3 months. His mother reported a period of stability with Jordan during this time and Jordan reported improved sleep. However Jordan didn't fern up to work one day in early February 2011 and was sacked the next day. Jordan reported he was hearing voices to hurt his supervisor so he felt safer not to work there. Jordan showed signs of depression following this with decreased appetite, loss of weight, loss of motivation, and increased sleeping. He refused to start on an anti-depressant recommended by Dr. Lee and he was not motivated to engage in any vocational rehab activities. There was no active symptoms of psychosis. From March 2011, Jordan continued to present with tow motivation, with fluctuating periods reporting auditory hallucinations and paranoia. From April/May, Jordan appeared to have increasing contact with his friends, and his father believed that he had not been taking his medication for a few weeks, though it is possible that Jordan did not carry his medication with him when he stayed over at his father's. 6Dr Lee diagnosed dysthymia/depression, social anxiety and social psychosis. 7Also before the Court was the report of Dr Richard Furst, consultant forensic psychiatrist. The report included these passages: DEMOGRAPHIC DETAILS Mr Zuccarini is a 19-year-old single male with no dependents who lives with his mother in Bankstown. He is unemployed and is in receipt of a Youth Allowance. His father is an accountant and his mother stays at home. He has one younger brother and one younger sister. PSYCHIATRIC HISTORY He generally felt anxious and nervous growing up, with low self-esteem and a pattern of using drugs help him cope in social situations. He has deliberately self-harmed on about 10 previous occasions. He was admitted to Cumberland Hospital when he was 17 years of age in the context of depression and deliberate self-harm. Mr Zuccarini said he felt suicidal "coming down off Xanax," remaining in hospital for about 2 weeks. There was a history suggestive of paranoid thinking, often feeling scared, "seeing things and hearing things,'' which would last for weeks or months on end. He said that he first heard voices when he was 17 years of age, "two voices fighting in my head...it's like one was myself." He said he was also hearing voices in January 2012. Mr Zurcarini took an overdose on New Years Eve, ending up in Banks House, the psychiatric unit at Bankstown Hospital, for a few days. He said, "I hadn't slept for 7 days...I took an LSD trip and woke up a day later." There was no suggestion of delusions of reference. He denied ever feeling controlled by an outside agency. He denied ever having thought broadcasting. There was a history of past treatment when in the care of Juvenile Justice and in the community through the Bankstown Community Mental Health Service with several different medications, including Risperidone, Seroquel, Aropax, Fluoxetine, and Epilim. He found Seroquel most helpful in controlling his mood. DRUG AND ALCOHOL HISTORY Mr Zuccarini drank alcohol since he was about 14-15 years of age, mostly with his friends. He drank in a binge pattern. There was a history of cannabis abuse from the age of age of 14-15 years until he was about 15-16 years of age. He used the sedative benzodiazepine pills Xanax (Alprazolam) from the age of 15-16 years, often in combination with alcohol. There have been past problems with his behaviour when intoxicated, leading to police charges and periods of detention in Juvenile Justice facilities. Mr Zuccarini attended the Ted Noffs Foundation 'Palms' on two occasions, which is meant to be a 3-months program. He lasted about 1-month on the first occasion and 1 day on the second attempt. He said that he "used drugs to feel different." Mr Zuccarini used amphetamines and 'ice' (crystal methyl-amphetamine) over the last 12-18 months, coinciding with the offending behaviour before the court. Although his pattern of use was variable, he reported difficulty in sleeping or socialising without using stimulant drugs or Xanax, consistent with, a dependence on drugs. He used anywhere between 1 to 20 pills per day. There was some past opiate abuse, but no ongoing pattern of use. He has never been prescribed Methadone. ... SOCIAL AND DEVELOPMENTAL HISTORY Mr Zuccarini attended Illawong Public School and Menai High School to Year 10. There were no apparent learning difficulties; however, he was suspended and expelled in relation to problematic behaviour such as truanting, being rude in class and being late to school. He did not gain his School Certificate. He has never been employed. He said that he gets on well with his parents and denied any history of parental drinking, domestic violence or abuse. He has struggled to find direction in his life despite previous support from counsellors at Centrelink. ACCOUNT OF INDEX OFFENCE In relation to the offence in question before the court on 19/02/12, Mr Zuccarini stated that he was abusing a lot of Xanax and was "bad on pills...like it was a dream." He said that it was "a big blur". He was unable to recall any specific details of the offence in question, attributing this to the Xanax he had taken that night. He regretted his actions. He deliberately burnt himself on his left forearm with a 'jet lighter', leading to Ms presentation to Sutherland Hospital in April 2012, claiming that he burnt himself because he was "in his own world." Mr Zuccarini said that he was very depressed in April and thought about committing suicide. He was homeless. ... MENTAL STATE EXAMINATION Mr Zuccarini presented as a 19-year-old Caucasian male with brown hair and brown eyes. He was depressed in mood and anxious about his upcoming court appearance; however, there were no indications that he was thought disordered, paranoid or experiencing auditory hallucinations. He was not suicidal and was not threatening. His cognition was intact but his manner and general use of language was consistent with Mr Zuccarini being of low-average intellect He some insight into his emotional problems and substance abuse issues. 8Having reviewed reports of the applicant's history of symptoms and treatment Dr Furst diagnosed: Axis I Substance Use Disorder (Benzodiazepines, alcohol, amphetamines) Previous drug-induced psychosis Chronic dysthymia Differential diagnosis: Schizophrenia, paranoid type Axis II Conduct disorder Axis III No major medical problems Axis IV Effects of substance abuse on mental health Previous non-compliance with medication Unstable social circumstances Axis V Global Assessment of Function = 30/100 9Dr Furst continued: PSYCHIATRIC AND PSYCHOLOGICAL MITIGATING FACTORS The medical records from Bankstown Community Health Service and the history available from Mr Zuccarini were consistent with chronic mood and anxiety problems, low self-esteem, and general difficulties in coping with the demands of life without resorting to drugs of abuse. It js probable that his previous use of cannabis^ and more recent use of amphetamines have caused recurrent episodes of drag-Induced psychosis. He was discharged from the community mental health service at Bankstown shortly before the offence in question and was admitted to Banks House in January with an apparent drug-induced psychosis. I note a long history of mood and behavioural problems, consistent with chronic dysthymia and personality dysfunction. He has a history of previous suicide attempts, self-neglect and impulsive disorganized behaviour. Your client appears to have been erratic in his behaviour at the time in question, was itinerant, and was abusing both benzodiazepines and stimulant drugs. He was probably depressed in mood in February 2012 at the time of the offence in question, as he has chronic dysthymia and high levels of anxiety. There was evidence of ongoing mood disturbance and problematic behaviour, as noted by Mr McPherson in his report to the Court dated 26/04/12 and his behaviour of burning himself with a 'jet lighter' in April, requiring treatment at Sutherland Hospital. Mr Zuccarini reported being intoxicated with Xanax at the time in question before the Court on 19/02/12, with an incomplete memory of the offence. His poor recollection is likely to be fee product of his intoxication with benzodiazepines, which often induce amnesia. His intoxication with Xanax and his underlying mood instability probably contributed to the poor judgement and impulsivity he displayed at the time in question before the Court. Mr Zuccarini was remorseful for his actions, stating "There was no reason for it." ... PROGNOSIS Mr Zuccarini has problems with substance abuse issues, conduct disorder, impulsivity, and difficulties with his independent living skills. There is a family history of depression, he is prone to depression and anxiety, and he is often in trouble with police. His prognosis is poor if he is unable to stop abusing drugs. Drug and alcohol rehabilitation with a period of prolonged abstinence and the structure offered by those services would appear to offer him the best chance of achieving prolonged abstinence and promoting his mental health The Grounds of Appeal 10Three grounds of appeal were argued. The first two may be dealt with together. They asserted that his Honour erred in finding that there was no causal nexus between the condition of the applicant's mental health and his commission of the offence and in failing to consider whether the condition of the applicant's mental health reduced his moral culpability. 11Mr Dennis, counsel for the applicant, drew the Court's attention to the well-established principles that apply in the sentencing of offenders whose mental health contributes to the commission of their offences in an a material way, with the consequently reduced need for denunciation, the inappropriateness of generally deterrent sentences where offenders suffer from serious mental illness or severe intellectual deficit and the expectation that such offenders may for those reasons find custodial sentences particularly hard to serve. To cite only a few, Mr Dennis referred the Court to Director of Public Prosecutions (Cth) v De la Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 and the authorities gathered in the judgment of McClellan CJ at CL at [177], R v Henry [1999] NSWCCA 111; 46 NSWLR 346 and R v Engert (1995) 84 A Crim R 67. 12Mr Dennis reviewed the evidence of the applicant's mental illness, his symptoms and treatment and referred to the diagnoses of Dr Lee and Dr Furst. He submitted that the report of Dr Furst supported a causal link between the applicant's mental health condition and his offending behaviour. He reviewed the evidence for that conclusion, in particular referring to Dr Furst's opinion that: His intoxication with Xanax and his underlying mood instability probably contributed to the poor judgement and impulsivity he displayed at the time in question before the Court. 13In fact what his Honour said in the remarks on sentence was this: Whilst there have been significant issues relating to the offender's mental health I do not understand the report of Dr Furst to make any causal connection between the offending and the mental health issues. There is some force in the Crown's submission that given the degree of planning, including arming themselves with a hammer and the preparation by taking the garbage bags that this offence was not one necessarily committed on impulse. I want to make it very clear however that although I am prepared to accept there was that limited degree of planning that planning most certainly does not extend to the degree of planning that would be necessary for planning to be an aggravating factor pursuant to the provisions of s 1A(2) of the Crimes (Sentencing Procedure) Act. It was put on behalf of the offender that there is a cluster of personality problems and ongoing psychiatric issues, of that there can be no doubt. And in that regard Ms Mayne relied upon the diagnosis of the drug induced psychosis. I accept that he was suffering from that psychosis at the time of commission of this offence. Accordingly although is no causal connection between the offending and the mental health issues I am prepared to ameliorate the effect of general deterrence to some extent because of those mental health issues. Ms Mayne put that I would find that although there is some need for general deterrence the weight to be given to general deterrence is not as significant as it might be in other cases given the mental health issues. I am also prepared to accept that submission and accede to that submission 14It seems to me that his Honour was entitled to find on the evidence that the applicant had engaged in a degree of planning that spoke against the notion of an offence committed on the spur of the moment. On that finding alone his Honour was entitled to discount Dr Furst's opinion about the impulsiveness of the applicant's offence. 15In my opinion his Honour used the evidence of the applicant's mental condition in a principled way, making some allowance for it, as his Honour expressed, to ameliorate the effect of general deterrence. 16I do not accept Mr Dennis's submission that his Honour failed to find whether the applicant's mental state reduced his moral culpability. His Honour took the applicant's mental state into account in the manner I have indicated. In considering whether the circumstances justified reducing the non-parole period, his Honour said- Given the fact that this is the offender's first adult offence, his age and the mental health issues in combination they must amount to a finding of special circumstances in my opinion. ... As I have indicated there should be a significant finding of special circumstances. I am prepared, given the significant mental health issues and the need for ongoing supervision, to reduce the ration 50/50 ... 17These grounds of appeal have not been made good. 18The final ground of appeal argued asserted that his Honour erred in failing to take into account the applicant's drug use as a mitigating factor. Mr Dennis referred the Court to the judgment of Wood CJ at CL in R v Henry at [273]. Mr Dennis drew attention to the applicant's long history of mental history and abuse of alcohol and other drugs. He submitted that his Honour did not properly consider whether the applicant's use of drugs mitigated his criminality. 19I do not accept this submission. As appears throughout Dr Furst's report and his Honour's remarks on sentence, the problems of the applicant's abuse of drugs and his mental condition were bound up together. In expressly ameliorating the effect of general deterrence his Honour was necessarily taking into account the applicant's abuse of drugs. Moreover, in finding special circumstances to justify the reduction of the non-parole period his Honour cited the need for ongoing supervision to ensure the applicant remained abstinent from illicit substances. 20This ground of appeal has not been made good. 21I propose the following orders: 1.Grant leave to appeal, 2.Dismiss the appeal. ********** 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: 14 October 2013