Masters v R

1. [1]

   BATHURST CJ: I have read the judgment of Hamill J in draft. I agree with the orders proposed by his Honour and with his Honour’s reasons.

2. [2]

   MACFARLAN JA: I agree with Hamill J.

3. [3]

   HAMILL J: Russell Lee Masters (the applicant) seeks leave to appeal against an aggregate sentence imposed on him by Acting Judge Marien SC in the District Court on Friday, 31 August 2018. The applicant was sentenced in relation to two offences which occurred sequentially and also asked the sentencing Judge to take into account three further offences on a Form 1. [1] Those further offences were committed at around the time of, or during the course of, his commission of the two offences for which he stood to be sentenced. As the sentencing Judge said, the facts and circumstances surrounding the offences were "somewhat extraordinary and, in some respects, bizarre”.

4. [4]

   His Honour imposed an aggregate sentence of 5 years with a non-parole period of 2 years and 6 months. The sentences commenced on 3 October 2017. The sentencing Judge also made a compensation order and there is no suggestion that this Court should interfere with that order. The applicant relies on the following grounds of appeal:

   1. (1)

      The sentencing Judge erred by failing to consider the applicant’s reduced moral culpability arising from his mental condition at the time of the offending.

   2. (2)

      The sentencing Judge erred by failing to consider the applicant’s prospects of rehabilitation and likelihood of reoffending.

5. [5]

   The first offence was one of detaining a taxi driver for advantage. The facts of that offence were extremely serious and the experience for the vulnerable victim must have been a terrifying one. It attracted a maximum penalty of 14 years imprisonment: see s 86(1) of the Crimes Act 1900 (NSW). The second offence, committed immediately after the detention of the taxi driver came to an end, was attempting to destroy property by fire. It carried a maximum penalty of 10 years imprisonment: see s 195(1)(b) Crimes Act.

6. [6]

   The facts of the attempted arson charge were bizarre on their face but, in light of the applicant's limited criminal history, the entire incident commencing from the detention of the taxi driver and concluding with a wholly unsuccessful attempt to set fire to a petrol station was extraordinary. I interpolate that the applicant had a criminal history limited to two minor offences (offensive behaviour and resisting arrest) in 2003 and two offences of driving with the prescribed concentration of alcohol. He presented with impressive character references.

7. [7]

   In that context, the following undisputed facts found by the sentencing Judge were remarkable:

8. [8]

   The evidence disclosed that the applicant had been treated for some form of psychiatric or psychological illness, and he had a minor criminal history, but there was nothing in his behavioural history of a similar nature to the present offending.

9. [9]

   The applicant's case on sentence included a body of evidence going to these mental health issues. This included the contents of a pre-sentence report which referred to the fact that there was no formal diagnosis but that he had been treated for “anxiety and depression” since 2010. The report also referred to the fact that the applicant was “weaning off” one medication and changing to another but that he did “not follow the GP’s directions for the change in medication”. A report from a psychologist, Kris North, was tendered. It referred to a relevant history going back to the applicant’s school years when he had symptoms of Attention Deficit Hyperactivity Disorder (ADHD) resulting in “poor frustration tolerance and general impulsivity”. At the time of the offending (and sentence), Ms North expressed the opinion that the applicant was suffering from social anxiety disorder, major depressive disorder (severe recurrent episode, with anxious distress) and alcohol use disorder.

10. [10]

    Each of these diagnoses was based on the applicant’s history and presentation, and reference was made to the relevant parts of the standard and current diagnostic tool (DSM-5). In his judgment, the sentencing Judge questioned the psychologist’s expertise to provide those diagnoses “other than to say that the offender meets the criteria” and noted that Ms North was “not a trained medical practitioner (such as a psychiatrist)”.

11. [11]

    There are no doubt cases in which the existence and nature of an offender’s mental condition is controversial, or where the evidence of a psychiatrist may be more persuasive than that of a psychologist and this is reflected in various judgments of this Court. [2] However, there is no suggestion that the prosecution required Ms North for cross-examination, objected to her report or challenged her expertise. [3]

12. [12]

    Further, in some cases, in spite of the absence of a medical degree, a sentencing Judge may find a psychologist’s opinion more persuasive than that of medically qualified experts. [4] Even so, the sentencing Judge accepted the applicant was being treated for depression by his GP, Dr Rachel Coelho, and found Dr Coelho’s opinion “of much more assistance in determining what caused the offender to act in the extraordinary way he did that night”. The sentencing Judge accepted that:

13. [13]

    His Honour also accepted that “to some extent his mental condition contributed to the commission of these offences” although he said the applicant “largely contributed to that situation” by failing to follow his doctor’s instructions. His Honour had “no doubt that the changing of his medication together with some alcohol consumption that night played a role in the commission of the offences.”

14. [14]

    The sentencing Judge, correctly, came to the view that his mental condition was such that the weight to be given to general deterrence was reduced: see, for example, R v Israil [2002] NSWCCA 255 at [22]; Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]. In R v Letteri (Unreported, New South Wales Court of Criminal Appeal, 18 March 1992), Badgery-Parker J (with whom Gleeson CJ and Sheller JA agreed) said:

15. [15]

    Kirby P (as he then was) adopted this passage in R v Champion (1992) 64 A Crim R 244. His Honour explained the rationale behind the principle while noting:

16. [16]

    The sentencing Judge appeared to be conscious of these principles and said:

17. [17]

    However, his Honour did not, at least in clear terms, indicate that the mental condition might (or did) impact on the applicant’s moral culpability: contra Israil at [23]; De La Rosa at [177]. This is the subject of the first ground of appeal.

18. [18]

    There were a number of other mitigating features in the applicant’s case on sentence.

19. [19]

    The applicant received a reduction in his sentence of 25% for the utilitarian value of his early plea of guilty. The applicant also gave evidence on sentence and wrote letters to the victim of the kidnapping and to the Court. He expressed his remorse. The letters are in handwriting and have a genuine feel about them. He told his victim that he was “in prison for what I done that night, [a]nd I know I deserve to be”. The sentencing Judge held that the applicant was truly remorseful.

20. [20]

    The report from Dr Coelho described him as a “mild mannered gentlemen” and a generally compliant patient. She expressed the opinion that “with the right medical and psychological care in the community”, he would have a “great recovery”. There were a number of character references that spoke very highly of the applicant. For example, the CEO of the local Aboriginal Land Council said that the applicant was a “reliable, honest, hard worker” and a “trustworthy mentor to young Aboriginal men”. He described an incident where the applicant helped out on short notice and described Mr Masters as a “model citizen”. The applicant’s brother said that the applicant could work as a fencer upon his release and that the working hours would be flexible to enable the applicant to attend medical and other appointments.

21. [21]

    The sentencing Judge made a finding of “special circumstances” and imposed a non-parole period of 2 years and 6 months (50% of the total sentence). This was a substantial adjustment to the non-parole period but was one that was well warranted in the individual circumstances of the case. The basis of the finding was that it was the applicant's first gaol sentence and that there was a need for an extended period of supervision when the applicant was released to the community.

Ground one: the sentencing Judge erred in failing to consider the applicant's reduced moral culpability arising from his mental condition at the time of the offending

1. [22]

   It is well established that where an offender’s mental health or intellectual disability contributes to the commission of an offence, it is open to a sentencing Judge to find that their moral culpability is thereby diminished. There are many cases to this effect and the principle is not in dispute. In the course of the sentencing hearing the applicant relied on written submissions which included:

2. [23]

   In the course of oral submissions, counsel for the applicant repeated this submission saying that "your Honour can take into account those mental conditions as a matter that go to reducing Mr Masters’ moral culpability." Counsel referred to the causal link between the mental health issues and the offending. The sentencing Judge said:

3. [24]

   In the remarks on sentence delivered two days later, the learned sentencing Judge made no reference to the impact of the applicant's mental health on his moral culpability. This was the case in spite of his Honour accepting there was a causal link between the condition and the offending. His Honour took the view that "the offender must take some responsibility for bringing the situation about” (by failing to follow his doctor’s advice) but did say that the “mental condition does to some extent mitigate the offences”.

4. [25]

   In very fair and reasoned submissions, the respondent accepted that there was no specific reference to moral culpability in the remarks on sentence but relied on the observation that the condition “does to some extent mitigate the offences”. Viewing the remarks on sentence as a whole, I am not satisfied that the reference to the offence being mitigated was a reference to the fact that the applicant’s moral culpability was reduced, or a determination of the applicant’s submission. The remark was made in the context of the purposes of punishment and not in the course of an assessment of objective criminality.

5. [26]

   In view of the clear submission made on the applicant's behalf, and the remarks concerning the applicant failing to follow the doctor's advice, I am satisfied that this ground of appeal is established and that the sentencing Judge fell into error in failing to consider whether the applicant's moral culpability was reduced. There was solid evidence from Dr Coelho, upon whose evidence the sentencing Judge generally looked favourably, as to the potential impact of the change in the applicant’s medication and drug regime. Further, and importantly, there was nothing in the material that would have given the applicant warning that a failure to act in accordance with his doctor's advice would result in his behaving in such a violent and bizarre manner, quite divorced from his earlier character and conduct.

6. [27]

   The first ground of appeal is made out.

Ground two: his Honour erred in failing to consider the applicant's prospects of rehabilitation and likelihood of reoffending

1. [28]

   The applicant submitted at first instance that the sentencing Judge should make a finding that he had good prospects of rehabilitation and was unlikely to re-offend. This submission was not resolved in his Honour’s judgment although it was subject to comment in the course of oral submissions. In the course of submissions, his Honour made reference to the fact that the offence appeared to be out of character and that this could lead to a finding that the applicant had good prospects of rehabilitation. However, there was no clear finding that the prospects of rehabilitation were good or how that would impact upon the sentence. The applicant submits that this was not sufficient, particularly in view of the fact that these are mitigating features pursuant to the sentencing statute: see s 21A(3)(g) and (h).

2. [29]

   The respondent submitted that the remarks made by the sentencing Judge in the course of argument would be sufficient to enable the Court to find that his Honour did take the matter into account. It is well established that things said in argument can be considered in some cases but that, generally, a Judge is not bound (one way or the other) by such judicial utterances: Gal v R [2015] NSWCCA 242 at [39]. For example, if a Judge made a negative comment in respect of counsel’s submissions on a particular topic, that observation would not ordinarily be sufficient to found a ground of appeal that an adverse finding was made in respect of that topic. The comments in the present case were ostensibly favourable. However, they were couched in terms suggesting that they were matters that would “go towards” a positive finding and also conditional upon the applicant’s compliance with future medical advice. The exchange with counsel was as follows:

3. [30]

   The respondent also submitted, with appropriate circumspection, that the finding of special circumstances and the "generous" adjustment to the non-parole period suggests that his Honour was satisfied that the applicant had good prospects of rehabilitation and that he was unlikely to reoffend. However, his Honour did not suggest that this was the basis of the finding of special circumstances. The finding was based on the fact that the applicant had not been to gaol before and the need for a lengthy period of supervision. There is nothing in the judgment to suggest that his Honour reduced the non-parole period because of a finding pursuant to s 21A(3)(g) or (h). In any event, a finding that an offender had good prospects of rehabilitation is relevant to the total sentence imposed. It may also be a factor to take into account in adjusting the non-parole period (provided this does not result in what is sometimes referred to as “double counting” of the same factor). [5]

4. [31]

   The evidence before the sentencing Judge was not completely consistent on the issue of rehabilitation. The pre-sentence report suggested the applicant represented a “medium risk of re-offending”. The evidence called by the applicant was far more positive. These differences in the evidence required clear and transparent resolution.

5. [32]

   For those reasons, I am satisfied that ground two is established. This Court has considerable sympathy for the workload of the Judges sitting in the District Court in places like Taree. While there were two days between the argument and delivery of judgment, it is almost certain that the sentencing Judge was dealing with many other matters, perhaps conducting a criminal trial, whilst also preparing to sentence the applicant. Judgments or remarks on sentence ought not to be examined with a fine tooth comb. Even so, the applicant’s plain submission that he had good prospects of rehabilitation and was unlikely to re-offend, the differences in the opinions provided in the evidence and the fact that there is a specific mitigating feature referred to in s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW), meant that there was an obligation to record a clear finding as to the applicant’s prospects of rehabilitation and whether he was unlikely to reoffend.

Re-sentence

1. [33]

   The grounds having been established, it is necessary to consider the sentencing discretion afresh in accordance with the decision in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. Having considered the maximum penalties, the seriousness of the objective facts and the peculiar and individual circumstances of this particular applicant, I am satisfied that a different, less severe sentence is warranted and ought to have been imposed: Criminal Appeal Act 1912 (NSW), s 6(3).

2. [34]

   I will adopt the sentencing Judge’s approach of imposing an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act. Because of the close connection between the offences, there would have been a substantial degree of concurrency if an aggregate sentence was not imposed. However, because of the different types of offending and the existence of two distinct types of criminality, there would have been some degree of accumulation.

3. [35]

   Even allowing for the diminution of the applicant’s moral culpability arising from his mental health issues, the kidnapping matter was an extremely serious offence of its kind. As I have said, it must have been a terrifying experience for the victim even though he demonstrated considerable stoicism and resourcefulness. The attempt to set fire to destroy or blow up the service station was also on its face serious, although there was no rational or wicked motive and the attempt was spontaneous, amateurish and somewhat farcical. The putative sentence for the kidnapping will be higher than that indicated for the attempted arson because it is a far more serious offence.

4. [36]

   The applicant's mental health issues played a very significant role and, as his Honour found, was the underlying cause of the applicant’s conduct. Like the sentencing Judge I would reduce the weight to be afforded to general deterrence. Unlike the sentencing Judge, I would not moderate that reduction based around the applicant’s failure to seek medical advice. In assessing the applicant’s moral culpability I have taken into account his mental health issues and the impact of the change in his medication. These issues are significant in coming to the conclusion that a less severe sentence is warranted.

5. [37]

   I would allow a discount of 25% for the utilitarian value of the plea of guilty. The plea also reflects the genuine remorse otherwise demonstrated in the applicant’s evidence and letters to the Court and victim.

6. [38]

   Based on the lack of prior record for similarly serious offences, the evidence presented on sentence and the affidavit read in these proceedings, I am satisfied that the applicant has good prospects of rehabilitation and that he is unlikely to re-offend, at least in a serious manner.

7. [39]

   For the reasons expressed by the sentencing Judge, there are special circumstances under s 44 of the Crimes (Sentencing Procedure) Act and I propose to adopt a similar proportion between the head sentence and non-parole period to that taken in the District Court. The applicant has been in custody since the day of the offence and the sentence will commence on that date, being 3 October 2017.

8. [40]

   For the purpose of s 53A(2)(b), I indicate the following individual sentences that would have been imposed if an aggregate sentence were not imposed:

   1. (1)

      For the kidnapping offence, a sentence of 4 years reduced by 25% for the plea, resulting in a sentence of 3 years.

   2. (2)

      For the attempted arson, a sentence of 2 years, reduced by 25%, resulting in a sentence of 18 months.

9. [41]

   I propose an aggregate sentence of 4 years with a non-parole period of 2 years.

10. [42]

    Accordingly, the orders I favour are these:

    1. (1)

       Application for leave to appeal granted.

    2. (2)

       Appeal allowed.

    3. (3)

       Quash the sentence imposed in the District Court, and in lieu thereof:

    4. (4)

       Confirm the compensation order made in the District Court.