Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Convery v R [2014] NSWCCA 93 Hearing dates: 27 May 2014 Decision date: 27 May 2014 Before: Simpson J at [1] Adams J at [2] McCallum J at [5] Decision: Leave to appeal granted; appeal allowed; sentence imposed at first instance for the offence of assaulting a police officer occasioning actual bodily harm quashed and in lieu thereof applicant sentenced to a term of imprisonment with a non-parole period of twenty months commencing on 1 October 2012 and expiring on 31 May 2014 and a balance of term of thirty months expiring on 30 November 2016. Catchwords: CRIMINAL APPEAL - sentence appeal -where pleas of guilty entered at earliest opportunity - sentencing judge's remarks on sentence silent as to plea or discount - length of head sentence revealing discount must have been miscalculated, not allowed or overlooked - Crown conceding appeal should be allowed Legislation Cited: Crimes Act 1900, s 60(2) Crimes (Sentencing Procedure) Act 1999, s 54A Cases Cited: Collier v R [2012] NSWCCA 213 R v Thomson; R v Houlton [2000] 49 NSWCCA 309; (2000) 49 NSWLR 383 Texts Cited: Judge Peter Berman SC, 'The Art of Sentencing' (Paper presented at Local Court Annual Conference, 2013) Category: Principal judgment Parties: Amanda Convery (applicant) Regina (respondent) Representation: Counsel: H Cox (applicant) J Girdham SC (Crown) Solicitors: Aboriginal Legal Services Ltd (applicant) Solicitor for Public Prosecutions (respondent) File Number(s): 2012/102298 Publication restriction: None Decision under appeal Date of Decision: 2013-02-28 00:00:00 Before: Berman DCJ File Number(s): 2012/102298 Judgment 1SIMPSON J: I agreed with the orders of the Court for the reasons stated by McCallum J. 2ADAMS J: I agreed with the orders of the Court for the reasons set out in the judgment of McCallum J. I wish, however, to add the following remarks. This case presents, in a stark way, a conundrum with which sentencing judges have to deal in many cases where an offender has serious mental problems of one kind or another and causes serious injury to the victim. Often that injury is the more serious because of the irrational judgment and lack of self control of the offender. Here, the victim was a police officer who was attacked by the offender because she was doing her duty, making the offence even more serious. The applicant had stopped taking her medication and her symptoms were exacerbated, perhaps induced, by methylamphetamine and alcohol. Her addiction to drugs commenced in early childhood, as shown in the history set out by McCallum J. In light of her long-standing schizophrenia and damaged intellect (her overall intellectual functioning was in the Very Low range, at a level less than 1 per cent of her peers), it is not reasonable to treat her taking of drugs as though, despite her addiction, she was making a real choice about it. 3In the end, it must be moral culpability that determines the correct level of punishment. Of course this necessarily involves the commission of the particular acts themselves, which were very serious indeed. As Dr Furst concluded, the applicant was aware of the wrongness of her actions. She had some, though limited, ability to control her actions. These factors justified the imposition of punishment, which must also involve the protection of the public and, in particular, police officers. Not surprisingly, when not affected by illicit drugs, her behaviour has been reported on positively and there have been times when, assisted by almost daily contact with case-workers from The Crossing (a long-term, intensive case management service for homeless young persons), she has been able to maintain her tenancy of public housing and address her drug and alcohol use and mental health needs. She had disengaged a little time before the offence. This support continues to be available for her on release. She was able to give evidence in the sentencing proceedings and appeared to be quite articulate. She expressed remorse for the offence, saying she felt disgusted with herself. It appears she had tried to have a blood test so she could reassure the officer that she had no diseases. 4The offences were committed on 1 April 2012, when she was arrested and she has been in custody ever since. Whether, in light of the applicant's mental state at the time of the offence, a sentence which would have resulted in further imprisonment was either necessary or desirable is a matter which has been overtaken by events. She has been in prison since 1 April 2012, though she was managed in the Mental Health Screening Unit at Silverwater Women's Correctional Centre for about three months, then in a "step down" unit (for an unknown period) where she continued to receive psychiatric treatment and support; return to the mainstream was unsuccessful for a time. The Court was required to consider what now should be done, given that it was necessary to re-sentence her. In my view the appropriate course was to make orders which will permit her release on parole as soon as is practicable. It is obvious that a period of supervision is essential. 5McCALLUM J: Amanda Convery sought leave to appeal against the sentence imposed upon her in the District Court after she pleaded guilty to an offence of assaulting a police officer occasioning actual bodily harm contrary to s 60(2) of the Crimes Act 1900. On 27 May 2014, the Court allowed the appeal, reserving its reasons. These are my reasons for joining in the orders made. 6Ms Convery pleaded guilty to two offences. One was an offence of using an offensive weapon to commit an indictable offence (actual bodily harm) contrary to s 33B(1)(a) of the Crimes Act. The maximum penalty for that offence is imprisonment for 12 years. It carries no standard non-parole period. The learned sentencing judge imposed a fixed term of two years for that offence. There was no appeal against that sentence. The sentence commenced on 1 April 2012 and accordingly Ms Convery has finished serving that sentence. 7The second offence was the offence of assaulting a police officer occasioning actual bodily harm. The maximum penalty for that offence is imprisonment for 7 years. The offence carries a standard non-parole period of 3 years under s 54A of the Crimes (Sentencing Procedure) Act 1999 (item 5 of the Table). 8There were two grounds of appeal. They were that the sentencing judge erred in failing to allow the applicant a discount for the plea of guilty and that both the sentence for the offence against s 60(2) and the aggregate sentence were manifestly excessive. The Crown accepted that the first ground was made out and that the appeal should be allowed on that basis. 9The matter presented the sentencing judge with an extremely difficult task. The objective seriousness of the offences was high but the offender, an Aboriginal woman, had a compelling subjective case. 10The circumstances of the offence were that, at about 5am on 1 April 2012, two police officers were performing traffic control duties next to Redfern Police Station, guiding traffic and pedestrians past a large crane parked in the street. Ms Convery was walking along the street singing, swearing and holding a glass tumbler. She was well-affected by alcohol and drugs and had not taken her anti-psychotic medication for some time. She was approached by police and told that she could not drink on the concourse of the station. For about an hour, Ms Convery remained on the concourse, shouting and swearing at the two police officers and beckoning for them to come to her. She called them "white cunts" and "white dogs". At times, she was blocking pedestrian access to the station. 11Eventually one of the police officers went to where Ms Convery stood. Ms Convery asked why the other officer (which was the victim, Constable Flood) had not come over as Ms Convery was "going to smash her". 12Constable Flood then went over to Ms Convery. She asked her to quieten down and informed her that, if she did not, they would have to arrest her. Ms Convery reacted angrily. She took a syringe from her dress and stabbed Constable Flood approximately 1cm from her left eye. As she did so, she also punched Constable Flood to the face a number of times causing severe pain to her nose and bruising and swelling. Ms Convery was arrested immediately. She was too affected by drugs and alcohol to be interviewed by police. 13The offence had a devastating effect on Constable Flood. In a victim impact statement she read at the proceedings on sentence she was anxious to dispel any apprehension as to the nature of her approach to Ms Convery. She said that she was simply concerned for Ms Convery's safety and well-being. Constable Flood explained that she had, prior to the assault, been actively engaged in community policing in Redfern and enjoyed strong relations with Aboriginal leaders in that area. Fortunately, she has been sensible enough not to perceive the offence as one which should impair those relations but she is nonetheless extremely traumatised. She had several months of anxiety as to whether she may have contracted any disease from the syringe, with which she had not only been punctured but also scratched down the length of her cheek. 14Ms Convery was then aged 22 years. The evidence before the sentencing judge revealed that she had an appalling background of violence and deprivation. The circumstances of her upbringing were such as to deprive her of any real opportunity for normal development. She was introduced to petrol sniffing at the age of five. Her parents separated when she was seven and she has not seen her father since. At the age of nine she was introduced to cannabis by a well-meaning uncle who thought it would be less harmful to her than sniffing petrol. 15Throughout her childhood she was sent from relative to relative. In unsettled family circumstances, she was subjected to sexual abuse, violence and other forms of emotional and physical abuse and neglect over an extended period. Her only employment has been as a sex worker. She began hearing voices at the age of 13 and has been diagnosed with paranoid schizophrenia. An aspect of her delusional thinking is fear of police. Her intellectual functioning is borderline. A psychiatrist has expressed the view that her petrol-sniffing may well provide an organic explanation for her low level of intellectual functioning. She has an extensive history of drug and alcohol abuse. 16There were several reports before the sentencing judge as to the applicant's mental state. A Mental Health Nurse who assessed the applicant on 2 April 2012, the day after the offence, formed the view, in consultation with Professor Greenberg (a consulting and forensic psychiatrist) that the applicant would be found to be a "mentally ill person" in accordance with s 14 of the Mental Health Act 2007, requiring care, treatment and control. 17There was also a report from Dr Furst, a forensic psychiatrist, who had assessed the applicant's mental health at a later point in time. Amongst other things, he reported: [The applicant] recalls "sitting there for ages" on the day in question. She said that she was "trying to control myself" but a voice said, You've got to do it." She also claimed that the voices were saying "Bash her or something" and that she believed Steven [a friend of her uncle, who had sexually abused her] was trying to kill her at the time. She acknowledged drinking alcohol (about one 6-pack) and using "ice" (about one gram) on the night ... stating she was "singing and swearing to myself because of the ice." [The applicant] said that she was "worried about Police in general" at the time. She said that the officer in question "embarrassed her at first" when she tried to walk through the traffic but had to walk around. She then thought to herself, "This bitch needs a hiding ... her attitude." She regretted her actions, stating, "I didn't mean to do it ... I should have walked home." She has spent a lot of time thinking about her actions since her arrest, feeling angry with herself and expressed remorse. She said, "I feel very sorry for what I've done. I've normally got a big heart. I don't go round harming people." She was relieved that the victim's blood tests for Hepatitis C were apparently negative. She also said, "I wasn't thinking at the time ... I was on ice and thinking stupid things." 18Dr Furst considered the applicant's post-arrest paranoid thoughts, psychiatric treatment and medication. He was of the opinion that the applicant had a long history of paranoid schizophrenia with only borderline intellectual function. As to her mental state at the time of the offence, Dr Furst considered that she was acutely intoxicated by both alcohol and crystal methylamphetamine and was exhibiting psychotic symptoms. He noted that she was found to be psychotic on the day after the offence and thought she remained psychotic when he interviewed her. 19Dr Furst concluded that the applicant "probably suffered from a relapse of her schizophrenia at the time [of the offence] and was acutely psychotic as well as acutely intoxicated". However, he thought "it was more likely than not that she was aware of the wrongfulness of her actions" and that her statements to the police before the offence "indicated some knowledge of the wrongfulness of her actions and potential consequences for her actions". Dr Furst concluded that the applicant was disinhibited and that her judgment was impaired at the time of the offence because of her schizophrenia and acute intoxication, together with her chronic low level of function in the community and limited mental intellectual abilities which would tend to make her more impulsive. 20There was also evidence before the sentencing judge of the support that could be made available to Ms Convery upon her release from custody. The judge raised the question whether he should "be the person that makes the decision as to the conditions of her parole", presumably alluding to the terms of s 50 of the Crimes (Sentencing Procedure) Act (which requires the Court to make a parole order when imposing a term of imprisonment for 3 years or less). Counsel for the applicant appeared to acknowledge that the structure of any sentence of less than 3 years would not allow adequate time for supervision on parole. 21As already noted, for the offence of using an offensive weapon to commit an indictable offence, the judge imposed a "fixed term" (that is, one in which the court declines to set a non-parole period as allowed under s 45 of the Crimes (Sentencing Procedure) Act). The term of the sentence was two years commencing on 1 April 2012. 22For the offence of assaulting a police officer occasioning actual bodily harm, his Honour sentenced Ms Convery to a term of imprisonment with a non-parole period of two years and a balance of term of three years and six months, giving a total sentence of five years and six months. That sentence was fixed to commence on 1 October 2012, six months after the first. 23The aggregate sentence was accordingly a total sentence of six years with an aggregate non-period of two years and six months. In describing that as the aggregate non-parole period, I am assuming his Honour intended that a so-called "fixed term" (not an expression used in the Act) should be equivalent to the non-parole period for that offence, in accordance with the prevailing law. The correctness of that approach has been doubted: see the remarks of R A Hulme J in Collier v R [2012] NSWCCA 213 at [56] to [58] where his Honour noted that s 45 simply permits the court to decline to set a non-parole period. Hulme J observed that neither s 45 nor its predecessor conferred, in terms, any discretion to reduce a sentence by not including within it an additional term or parole period. There is force in those observations. Extra-curially, the sentencing judge in the present case has expressed his agreement with them, evidently accepting however that the prevailing law is that a fixed term will represent the non-parole period for the offence: see "The Art of Sentencing", a paper presented by Judge Peter Berman SC at the Local Court Conference in 2013. 24In any event, it is clear enough from the judge's remarks on sentence in the present case that his Honour intended to impose sentences of an aggregate non-parole period of two and a half years and a total aggregate sentence of six years (ROS at 7). 25The judge noted that the effective non-parole period would be "less than half" the total term. Based on the aggregate of the sentences, the non-parole period is indeed 42 per cent of the total. His Honour accepted that this was unusual but said that these were "very special circumstances", finding that it was in the interests of the community that Ms Convery be supervised and closely watched for an extended period while she is on parole. 26In my respectful opinion, the sentence reflected a careful exercise of discretion in which acutely competing considerations were anxiously balanced. Unfortunately, however, his Honour omitted in his remarks on sentence to refer to Ms Convery's pleas of guilty. It was common ground that she had pleaded guilty at the earliest opportunity. Absent some contrary consideration, that would ordinarily have entitled her to a discount of 25 per cent to reflect the utilitarian value of the pleas, in accordance with the principles stated by this Court in R v Thomson; R v Houlton (2009) 49 NSWLR 383. 27It may be assumed that judges in this State are aware of the decision in Thomson and Houlton (the sentencing judge in fact appeared as counsel in that case). A consideration of the length of the head sentence reveals, however, that a discount of 25 per cent cannot have been applied. The head sentence was five years and six months. If that were the sentence reached after applying a discount of 25 per cent, the starting point would have been 7 years and 4 months, which is more than the maximum penalty for the offence. 28There does not appear to be any reason why his Honour would not have allowed a discount. Although the allowance of a discount is within the sentencing judge's discretion, a decision not to allow it in a case such as the present would have to be explained. I do not think that is what the judge had in mind. 29Further, as noted by the Crown, there does not appear to be any basis for concluding that his Honour intended to start at or close to the maximum penalty for the offence. The Crown did not submit that this was the worst category of case. The judge's acceptance that the applicant's moral culpability for the offence was reduced on account of her personal circumstances militates against that analysis of the sentence imposed. 30In all the circumstances, the only available conclusion in my view is that the sentencing judge erred in the mathematical aspect of determining the appropriate sentence, either overlooking the step of applying the discount or miscalculating it. In reaching that conclusion, I do not intend any criticism of his Honour, acknowledging the immense sentencing workload of the District Court. 31Patent error having been established, it remained necessary to consider, pursuant to s 6(3) of the Criminal Appeal Act 1912, whether any lesser sentence was warranted. On the evidence before this Court, I was of the opinion that a lesser sentence was warranted, having regard especially to the maximum penalty of seven years, the applicant's reduced moral culpability and her entitlement to a discount of 25 per cent for entering a plea of guilty at the earliest opportunity. 32I considered that the appropriate course was for this Court to intervene so as to impose approximately the sentence that would have been produced had the sentencing judge turned his mind to the calculation of the discount based on a starting point of five years and six months. In that event, the total sentence would have been in the order of four years and two months. The Crown submitted that this Court should preserve the ratio between the non-parole period and the balance of term for that individual sentence. That ratio was 36 per cent, which would give a non-parole period of eighteen months, but that overlooks the structure of the sentences. In my view it is clear that his Honour, having structured the sentence so as to include a fixed term, was more concerned with the aggregate ratio. I did not think it was appropriate to preserve the exact ratio of the individual sentence in the circumstances. To do so would have eliminated any accumulation between the two sentences. His Honour thought some degree of accumulation was appropriate and that view was plainly open. 33I considered that the appropriate sentence was a term of imprisonment with a non-parole period of twenty months commencing on 1 October 2012 and a balance of term of thirty months giving a total individual term of four years and two months. The result is that the applicant will first be eligible for release to parole on 1 June 2014. The aggregate sentence on that basis gives an aggregate non-parole period of two years and two months (previously two years and six months) and an aggregate total term of four years and eight months (previously six years). The ratio of those terms is 46 per cent, which means that the aggregate non-parole period remains less than half the total, as his Honour intended. The applicant will still have a considerable period of supervision on parole. 34For those reasons, the orders I proposed were: (1)That leave to appeal be granted. (2)That the appeal be allowed. (3)That the sentence imposed at first instance for the offence of assaulting a police officer occasioning actual bodily harm be quashed and in lieu thereof that the applicant be sentenced to a term of imprisonment with a non-parole period of twenty months commencing on 1 October 2012 and expiring on 31 May 2014 and a balance of term of thirty months expiring on 30 November 2016. ********** 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: 29 May 2014