Gardener v R

1. [1]

   PRICE J: I agree with R A Hulme J.

2. [2]

   R A HULME J: Guy Pearce Gardener ("the applicant") was sentenced by her Honour Judge Murrell SC (as her Honour then was) in the District Court at Sydney on 18 January 2013 for offences of robbery whilst armed with an offensive weapon and allowing himself to be carried in a car which he knew to have been taken without the owner's consent.

3. [3]

   These are offences against s 97(1) and s 154A(1)(b) of the Crimes Act 1900 (NSW) and the maximum penalties are imprisonment for 20 years and 5 years respectively.

4. [4]

   The applicant was sentenced to imprisonment for 7 years, with a non-parole period of 3 years 6 months, and a concurrent term of 1 year 6 months with no non-parole period. The sentences were backdated to 12 December 2011. Accordingly, the applicant became eligible for release on parole on 11 June 2015. (The State Parole Authority (“SPA”) has refused to allow release on parole and will reconsider the issue next year.)

5. [5]

   The applicant seeks leave to appeal on four grounds which are concerned with mental health, drug addiction and rehabilitation issues. At the hearing of the application, leave was granted to add a fifth ground asserting that the sentence is manifestly excessive.

Facts

1. [6]

   The applicant was released on parole on 1 December 2010. Twelve days later, on 13 December 2010 at about 1.50pm, he and an unknown man and woman attended a jewellery store in Crows Nest. The man and woman remained outside, appearing to look at items in the window, while the applicant entered and spoke to a sales assistant about necklaces. She produced some from the safe to show him. He said he would return with his mother.

2. [7]

   About an hour later, the applicant returned with the unknown male. The applicant was carrying a bag from which he took a claw hammer. The male removed an axe from a bag he was carrying. A male and two female sales assistants were present in the store. The applicant brandished the claw hammer at them whilst the male jumped over the counter and used the axe to gain access to the window display, taking several trays of rings. The applicant demanded that the safe be opened and he took from it three rolls of gold and silver chains.

3. [8]

   One of the sales assistants ran out of the shop and raised the alarm although the applicant tried to stop her. He then brandished the hammer at the remaining two assistants and told them to remain in the store. The applicant and the male ran to a car which was parked nearby (which had been stolen three days earlier) and drove away.

4. [9]

   The total value of the items stolen was about $10,000.

5. [10]

   On 20 December 2010, police went to the applicant's mother's home and arrested him. In a subsequent interview he denied committing the robbery but agreed that he was shown on CCTV footage speaking to a sales assistant at 1.50pm on the day it was committed. Subsequent DNA analysis of the bag he had left in the store established his involvement.

An "appalling" criminal history

1. [11]

   The learned sentencing judge said that the applicant had "advanced very strong subjective circumstances" but described his criminal history as "long", "complex" and "appalling". His first appearance in the Children's Court was when he was 10 years of age. His first experience of incarceration was when he was aged 11. He has been dealt with on a great many occasions for offences of dishonesty (stealing; stealing cars or driving or being in stolen cars; burglary; and the like) and violence (assault; assault occasioning actual bodily harm; assaulting and resisting police officers). He was sentenced in 1991 for robbery whilst armed and in company (and possession of a shortened firearm). There was an offence of robbery and three offences of robbery in company for which he was sentenced in 1998. In 2002 he was sentenced for four robberies whilst armed with dangerous weapons and one robbery whilst armed with an offensive weapon. He has been dealt with for a variety of other offences, including multiple instances of escaping or attempting to escape from custody.

2. [12]

   The applicant is currently aged 35. He spent a good part of his adolescent years in juvenile detention and has spent the vast majority of his adult years in gaol.

3. [13]

   On 11 April 2003, this Court upheld a Crown appeal against manifestly inadequate sentences imposed in 2002 for the various armed robbery offences I have referred to. A total effective sentence of 9 years 3 months with a non-parole component of 6 years 6 months was imposed. He became eligible for release on parole on 4 September 2008.

4. [14]

   The applicant was released on parole on 30 July 2009. His parole was revoked and he was returned to custody 3 months later. He was again released on parole on 1 December 2010 but returned to custody following his arrest for the present matters on 20 December 2010 and served the remainder of the sentence imposed by this Court until 1 July 2011. He was released on bail in respect of the present matters on 16 September 2011 but was arrested on 8 November 2011 and charged with damaging property. He was released pursuant to the Mental Health (Forensic Provisions) Act 1990 (NSW) the following day but was again arrested on 10 November 2011 and charged with damaging property and assaulting police officers. He has been in custody since.

5. [15]

   The applicant served sentences totalling 3 months 19 days for the November 2011 offences (10 November 2011 to 28 February 2012). This meant that his custody solely referable to the present matters was in the periods 1 July 2011 to 16 September 2011 and from 28 February 2012. To allow credit for this, the judge back dated the sentences to 12 December 2011.

6. [16]

   The applicant's custodial history discloses that he has been dealt with for disciplinary offences on a great many occasions throughout the time he has been in prison. They include drug and drug implement possession; failing urine testing for drugs or failing to submit to same; damaging property; using insulting, abusive or threatening language; failing to comply with routine or supervision; disobeying directions; behaving in a threatening manner; assault; fighting; and intimidation.

The applicant's personal circumstances

1. [17]

   The judge noted that the applicant is of Aboriginal heritage. He was raised in an environment of extreme domestic violence. His father had a serious problem with alcohol. The applicant witnessed what her Honour described as "horrific violence, including sexual violence towards his mother". He and his siblings were also the victims of serious physical and emotional violence amounting to "extreme cruelty" at the hands of their father. Her Honour cited as an example his mother's recollection of an occasion when the applicant was aged six or seven and he was "literally strung from a clothesline, tarred and feathered". She had no doubt that the applicant and other members of his family retained unresolved feelings of anger.

2. [18]

   The applicant was subjected to sexual abuse in a juvenile institution at an early age. Her Honour observed that he had not been treated or counselled to any extent in relation to that trauma.

3. [19]

   The applicant commenced the use of alcohol and cannabis at the age of about 11. He progressed to heroin at the age of 14. He has been a binge user of cocaine and has used other drugs. He was using methamphetamine at the time of the offences in December 2011.

4. [20]

   A report by an Alcohol and Other Drugs worker, Ms Christine Bridekirk, included an opinion that there was a nexus between the applicant's drug use and his criminal behaviour. He committed crime to support his drug habit and it was considered that his drug use had inhibited his ability to have consequential thinking.

5. [21]

   Dr Christopher Lennings, a clinical psychologist, expressed the opinions that the applicant's "cognitive ability is better than the bottom 5% of the population and is best described as either very low or borderline intellectual ability" and "he has significant impairment of cognitive ability". His literacy abilities were largely commensurate with these assessments and with his limited educational experience. Dr Lennings considered the applicant to be chronically institutionalised.

6. [22]

   The judge accepted that the applicant had a "very low cognitive ability" and a "severe personality dysfunction which manifests itself in very disruptive behaviour". She referred to Dr Stephen Allnutt, forensic psychiatrist, reporting that there was a probable bipolar disorder and a tendency to paranoia as well as symptoms of hypomania. There was also a differential diagnosis of a very severe ADHD. It may be noted that Dr Allnutt also opined that the applicant had a personality disorder with mixed narcissistic, histrionic and antisocial traits and had developed a substance abuse and dependence disorder.

7. [23]

   The judge referred to the applicant's "difficult time in prison" but commented that "quite likely he has been, in one sense, the cause of a lot of his problems". She accepted that he had spent a considerable proportion of his time in custody in segregation. She referred to his evidence in the sentence proceedings that he was in "isolation" for up to about 21 hours per day and had always been held in maximum security. She added:

Rehabilitation prospects

1. [24]

   Since the focus of Ground 4 is upon the applicant's rehabilitation it is appropriate to provide further detail on the subject.

2. [25]

   Dr Lennings said that the applicant "represents a severe rehabilitation challenge". He explained:

3. [26]

   Ms Bridekirk's report included that the applicant had not experienced any treatment in the community and, due to his difficulties in prison, he had not had much opportunity there as well, although he "has accessed AOD services where possible".

4. [27]

   Ms Bridekirk referred to the applicant being assessed and accepted into the Wayback rehabilitation program. A letter confirming such acceptance was before her Honour. In relation to the applicant's rehabilitation prospects, Ms Bridekirk stated:

5. [28]

   In a letter read to the court by the applicant he said:

6. [29]

   In a letter addressed to the victims of the robbery the applicant said:

7. [30]

   The applicant's mother, Ms Joy Gardener, gave evidence. It was her belief that he was genuine in wanting to change. She said that he had never been in a rehabilitation centre before and had never had any assistance with any form of counselling. In cross-examination, however, she confirmed that he had completed a Getting Smart drug and alcohol program in 2010. She said:

8. [31]

   The applicant's sister also perceived that he was motivated to rehabilitate and understood the need to engage with a structured program.

9. [32]

   The judge alluded to the evidence on this subject and said about the applicant's prospects of being able to change:

10. [33]

    Later in her sentencing remarks, her Honour said that rehabilitation was a very important consideration "because his long history of incarceration, institutionalisation and offending conduct is a matter of grave concern". She observed that rehabilitation was in the interests of the community as well as of the applicant.

Other matters taken into account in the assessment of sentence

1. [34]

   The judge found that the armed robbery offence was of considerable seriousness. She referred to there being "some level of planning involved", indicated by the applicant’s attendance at the jewellery store an hour before the robbery, and later equipping himself with a hammer concealed in a bag. It was an aggravating feature that the robbery was committed in company. The fact that there were three victims was relevant. The manner in which they were threatened and told that they should not leave, with weapons being brandished, supported a conclusion that "it would have been an extremely frightening experience" for them. A further relevant matter was the significant value of the property taken.

2. [35]

   Another aggravating feature (not relevant to objective seriousness) was the fact that the offending occurred while the applicant was on conditional liberty, having just been released on parole.

3. [36]

   Her Honour referred obliquely to principles relating to sentencing persons with a mental condition. (She indicated during submissions that she was well acquainted with cases such as R v Hemsley [2004] NSWCCA 228). She found that "there is no clear causal connection established between the offender's issues and the commission of the offences". She did accept, however, that the applicant's intellectual and psychological problems rendered him less able to exercise the judgment and self-discipline that other people might exercise.

4. [37]

   Her Honour referred to the armed robbery guideline sentencing case of R v Henry [1999] NSWCCA 111; 46 NSWLR 346. Some of the features of the typical case there described were present whilst others were not.

5. [38]

   General and specific deterrence were held to be important. Her Honour acknowledged that persons with mental disorders are "often not seen as appropriate vehicles for general deterrence" but immediately added, "but given the nature of this offence that observation is not strongly applicable in this case". Of the other purposes of sentencing (s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW)), protection of the community was considered to be important, having regard to the applicant's criminal history. Accountability, denunciation and recognition of harm were also considered to be important.

6. [39]

   Her Honour regarded the applicant's criminal history as something disentitling him to leniency. Cf Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465 at 478 and R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 at [20].

7. [40]

   The applicant's remorse was accepted as a mitigating feature which was also regarded as indicating some potential for rehabilitation. Her Honour accepted that he was motivated to rehabilitate but she could not find that his prospects were good. She noted in this context that he had good family support.

8. [41]

   The applicant entered pleas of guilty two days after the date fixed for his trial. Counsel for the applicant submitted that a discount in recognition of the utilitarian value of the plea between 10 and 15 per cent was appropriate. Her Honour determined that it should be "probably closer to ten per cent". (She in fact allowed 12.5 per cent.)

9. [42]

   Her Honour found special circumstances which justified a shorter non-parole period for the following reasons:

10. [43]

    Towards the end of her sentencing remarks the judge referred to a submission made by counsel for the applicant that the proceedings should be adjourned pursuant to s 11 of the Crimes (Sentencing Procedure) Act for the purpose of allowing him to undertake the program at Wayback. She referred to counsel having accepted that the applicant "would almost certainly have to come back into prison to serve a period of imprisonment". She concluded:

11. [44]

    Her Honour said that "the question of the non-parole period is a vexed one" and "after considerable deliberation", set a period of 3 years 6 months against a total term of 7 years. She made a recommendation that upon being released to parole he should enter a residential rehabilitation program such as Wayback.

Ground 3 - Her Honour failed to appropriately weigh the considerations of specific deterrence, the prospects of rehabilitation, his conditions of custody and the protection of all the community

1. [45]

   Senior counsel for the applicant submitted that the applicant’s drug addiction and his offending conduct were consequences of his mental health. The written submissions then quoted large portions from the reports of Dr Allnutt and Dr Lennings; the salient points of which are summarised or quoted above.

2. [46]

   The applicant conceded that “the psychiatric and psychological evidence does not in clear terms state that his offending was as a direct result of his mental health”, but it was contended nonetheless that “when combined with his offending history and the circumstances of the subject offences it becomes compelling that the offending conduct was caused by his mental health”. The submissions continued: “his drug addiction is caused by his mental health and the two are inextricably linked accordingly”.

3. [47]

   The written submissions proceeded to quote a lengthy extract from the judgment of Hoeben JA in R v Chandler; Chandler v R [2012] NSWCCA 135 at [37]-[42], [51]-[65]. (This was simply an example of this Court referring to the principles relevant to sentencing an offender with a mental condition and discussing their application to the facts of the case at hand.) It was then submitted that, like in that case, the present was not one where general deterrence should have played a prominent role in the assessment of sentence.

4. [48]

   The applicant’s written submissions then quoted from the reports of Dr Lennings and Ms Bridekirk (see above under the heading “Rehabilitation prospects”) and from the judge’s sentencing remarks where she discussed the issue of special circumstances and rejection of the submission that the matter should be dealt with under s 11 of the Crimes (Sentencing Procedure) Act (see above at [42]-[43]).

5. [49]

   The applicant conceded that “protection of the community is an important consideration in the circumstances”. But it was submitted that incarceration in the past had not curbed the applicant’s offending and the best option for protecting the community and to personally deter him from further offending was to defer sentence and release him on the condition that he enter the Wayback program. Incarceration had not deterred him in the past. He would have no prospect of being released on parole. If he was released without supervision at the end of his total term he would most likely re-offend immediately and spend the best part, if not the whole, of the rest of his life in gaol.

6. [50]

   The written submissions concluded with a rather terse statement that fresh evidence “in this regard” would be relied upon at the hearing of the appeal. Those submissions were dated 4 April 2014. Further written submissions dated 3 June 2015 were filed. They addressed the “fresh evidence” and Ground 4 but said nothing about Grounds 1 to 3. No oral submissions were directed to Grounds 1 to 3 either. Accordingly, these grounds will be considered on the basis of the original written submissions alone.

7. [51]

   This case presented a number of difficult and conflicting issues. On the one hand there was a serious example of the offence of armed robbery committed by an offender who had just been released on parole for similar offences and who had an extensive criminal record. On the other hand, the offender had derived from a most unfortunate, deprived and dysfunctional background who had mental health and substance abuse problems and who had become institutionalised from a very early age.

8. [52]

   In Bugmy v The Queen [2013] HCA 37; 249 CLR 571 it was said by the majority:

9. [53]

   Ground 1 (error in not finding that the applicant's mental health had contributed to the commission of the offences in a material way) implicitly concedes that her Honour found there was some contribution but contends that it was not “material”. But the written submissions contend that her Honour found that there was no causal connection at all. I do not accept this.

10. [54]

    The judge referred, uncritically, to the applicant’s claim:

11. [55]

    True it is that the judge said that "there is no clear causal connection established between the offender's issues and the commission of the offences". But I have earlier referred (at [36]) to her acceptance that the applicant's intellectual and psychological problems rendered him less able to exercise the judgment and self-discipline that other people might exercise. This was recognition by her Honour that there were factors relating to the mental condition of the applicant that were relevant to his commission of the offences.

12. [56]

    This was an approach that was well open to her Honour in her assessment of the evidence that was before her.

13. [57]

    Grounds 2 and 3 (general deterrence of lesser, or no, relevance; failure to appropriately weigh specific deterrence, rehabilitation prospects, conditions of custody, and protection of the community) refer to most difficult aspects of the exercise of the sentencing discretion in cases concerning offenders with mental health issues. It was rendered all the more difficult in this case because of the applicant’s history of long standing recidivist offending of a quite serious type. Considerations of personal deterrence and the protection of the community were significant factors and it would have been wrong for the judge to have ignored or downplayed them.

14. [58]

    No error has been established in her Honour’s regard to general deterrence. As previously noted (at [36] and [38]), she was conscious of the principles relating to this issue in sentencing offenders with a mental condition. But this case involved a relatively serious armed robbery committed by multiple offenders with a degree of forethought. It was certainly no opportunistic or spontaneous exercise of aberrant or desperate offending by a person not fully conscious of what they were embarking upon.

15. [59]

    It is apparent that her Honour was acutely aware of the applicant’s institutionalisation, his custodial conditions and of the importance of rehabilitation. This was demonstrated by her substantial reduction of the non-parole period from what would normally have been 75 per cent of the overall term to 50 per cent; or from a term of 5 years 3 months to 3 years 6 months. It was also reflected in her recommendation that parole release be conditional upon the applicant entering a program such as Wayback.

16. [60]

    I am not persuaded that there is any error in the manner in which her Honour assessed the issues relevant to these grounds.

Ground 4 - Her Honour erred in finding that in the circumstances it was not appropriate to release someone into a rehabilitation program on the basis that they are then going to be brought back into prison and deprived of the opportunity of progressing through rehabilitation to proper integration into the community (Judgment upon Sentence para [24])

1. [61]

   Two affidavits affirmed by the applicant's solicitor on 3 and 22 June 2015 were read at the hearing of the application. The Crown objected to this material being received as "fresh" or "new" evidence.

2. [62]

   In Khoury v R [2011] NSWCCA 118; 209 A Crim R 509 at [104]-[121], Simpson J (as her Honour then was) set out the principles relating to the reception of additional evidence on an application for leave to appeal against sentence. Her Honour referred to the important distinction between "fresh evidence" (evidence the party was unaware of at the time of the original hearing and which could not have been discovered with reasonable diligence) and "new" evidence (evidence that was available but not used at first instance, or which could have been obtained in the exercise of reasonable diligence). Fresh evidence will be received if it had a capacity to have affected the outcome of the proceedings at first instance.

3. [63]

   An important component of the principles is that evidence of events, facts or circumstances that have arisen entirely since sentencing cannot be taken into account as it has no bearing upon the fundamental consideration in a sentence appeal that error be established.

4. [64]

   Her Honour referred to a subsidiary principle. Where the evidence concerns something that existed at the time of sentencing but was not known, or imperfectly understood at that time, the Court may receive such evidence in the exercise of its discretion upon the basis that the sentencing proceeded upon an erroneous view of the factual circumstances. "Proper grounds" must be established as a foundation for the exercise of this discretion.

5. [65]

   The evidence proffered by the applicant in this case concerned or comprised the following:

6. [66]

   Senior counsel for the applicant disavowed in oral submissions any claim that the reports of Dr Allnutt and Dr McMahon amounted to "fresh" evidence (T8.50). But he pressed for reception at least of the opinion of Dr Allnutt as to the applicant's state of mind at the time of the offences (T9.17).

7. [67]

   None of this material is "fresh" evidence and no proper basis has been established for its reception in the Court's discretion. Moreover, there was very little put by way of explanation as to why material such as that contained in the reports of Dr Allnutt and Dr McMahon were not sought and obtained prior to sentencing. Senior counsel for the applicant said that he had an affidavit from counsel who appeared at first instance (which was not read). He simply indicated that counsel had taken a decision to rely upon the reports that were tendered, thinking that funding by Legal Aid NSW for further reports would be unlikely.

8. [68]

   The evidence provided in the two affidavits by the applicant's solicitor should only be received and taken into account in the event of resentencing pursuant to s 6(3) of the Criminal Appeal Act 1912 (NSW).

9. [69]

   It was submitted for the applicant that her Honour was in error in stating:

10. [70]

    Reference was made to my judgment in R v Farrell [2014] NSWCCA 30 at [48]-[61] where there is a review of principles relating to the deferral of sentence pursuant to s 11 of the Crimes (Sentencing Procedure) Act. I referred to R v Trindall [2002] NSWCCA 364; 133 A Crim R 119 in which Smart AJ had stated:

11. [71]

    It was also submitted that this case was an exceptional one having regard to the history of the applicant (as outlined in detail above), particularly given the offer of a placement at Wayback for a person with a powerful need to undergo a rehabilitation program, which made it a "wholly appropriate case for a s 11 order".

12. [72]

    I am doubtful that the statement by her Honour upon which the applicant relied amounts to an error of principle. Her Honour announced her reasons for sentence immediately upon the conclusion of submissions and it may well involve some infelicity of expression. What her Honour said immediately prior to the impugned statement suggests that she was not speaking generally about releasing "someone onto a rehabilitation program on the basis that they are then going to be brought back into prison" but was referring to the applicant himself. Her Honour said:

13. [73]

    Even if the impugned statement is interpreted literally and amounted to a misapprehension of principle, this was clearly a case in which deferral of sentence was entirely inappropriate. Deferral for nine months (as was sought) in order for the applicant to undertake the Wayback program would have been very unlikely to be successful in circumstances where her Honour had before her such pessimistic expert opinions on the applicant’s rehabilitation prospects. As mentioned earlier, Dr Lennings said that the applicant "represents a severe rehabilitation challenge"; "a rehabilitative quandary". Her Honour described rehabilitation as a challenge of "mammoth proportions" and "not … something than can be achieved in a year or two but will involve a number of years of support and supervision". More was required than just the availability of a program and motivation to undertake it.

14. [74]

    There is a further consideration and that is that to successfully undertake the Wayback program the applicant would need to forego his hitherto disruptive and confronting behavioural difficulties and adopt some life management skills, about which Dr Lennings spoke, at a very early stage. His history suggests that this would not be something achievable in the short term.

15. [75]

    A further consideration is that even if there was successful completion of the Wayback program and the applicant returned to court for sentencing nine months later, there would still likely be a need to view his long term rehabilitation prospects with circumspection. It is highly unlikely that he would qualify for a finding in mitigation of having "good" prospects of rehabilitation thereby warranting an assessment of sentence less than that which was imposed.

16. [76]

    For these reasons I would not uphold this ground.

Ground 5 - The sentence is manifestly excessive

1. [77]

   To establish such a ground it is necessary for the applicant to establish that the sentence was unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [25].

2. [78]

   The sentence for the offence against s 154A may be put to one side in the consideration of this ground, given that it was ordered to be served concurrently with the sentence for the primary offence.

3. [79]

   The submissions by senior counsel for the applicant were confined to the proposition that the sentence should have been deferred pursuant to s 11. He sought to rely upon the additional evidence in support of this ground. I have dealt with those issues.

4. [80]

   This was a serious example of the offence of robbery whilst armed. It involved the applicant, being in company and with a degree of planning, robbing three shop assistants of property of significant value whilst he brandished a claw hammer and his co-offender used an axe. It was committed a short time after the applicant had been released on parole in respect of sentences for armed robbery offences and he had a considerable history of violence and other serious criminal offending.

5. [81]

   Notwithstanding the need to give full weight to the circumstances of the applicant’s background, the head sentence of 7 years cannot be regarded as unreasonable or unjust. And the non-parole period of 3 years 6 months reflected a very careful and sympathetic assessment of the applicant's subjective circumstances. Even if error had been established, and the further evidence provided in support of the appeal was taken into account, in a fresh exercise of the sentencing discretion I would not determine that a lesser sentence was warranted. I am certainly not persuaded that the sentence is manifestly excessive.

Orders

1. [82]

   I propose the following orders:

2. [83]

   DAVIES J: I agree with R A Hulme J.