Egan v Regina

1. [1]

   BATHURST CJ: I agree with the orders proposed by McCallum J and with her Honour’s reasons.

2. [2]

   McCALLUM J: Dale Egan seeks leave to appeal against the sentence imposed upon him in the District Court after he pleaded guilty to an offence of specially aggravated breaking and entering a dwelling-house and committing a serious indictable offence contrary to s 112(3) of the Crimes Act 1900 (NSW). The offence carries a maximum penalty of imprisonment for 25 years and a standard non-parole period of 7 years.

3. [3]

   After allowing a discount of 25 per cent for the utilitarian value of an early plea, the judge sentenced the applicant to a term of imprisonment of 7 years with a non-parole period of 4½ years and a balance of term of 2½ years. The structure of the sentence reflects a departure from the statutory ratio between the non-parole period and the balance of term; the effect of the adjustment is that the applicant will be eligible for release on parole 9 months earlier than would have been the case had the statutory ratio been applied: see s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

4. [4]

   The applicant relies upon a single ground of appeal as follows:

5. [5]

   I am of the view that the appeal should be dismissed for the following reasons.

Circumstances of the offence

1. [6]

   While the facts clearly established the specially aggravated offence, it should be noted that the charge sheet did not distinguish (as it ought to have) between circumstances of aggravation and circumstances of special aggravation. Each of those terms (in its application to s 112) is defined in s 105A of the Crimes Act.

2. [7]

   In any event, it is clear enough that the “serious indictable offence” relied upon was armed robbery in company contrary to s 97 of the Crimes Act and that the circumstance of special aggravation of the offence under s 112 was intentional wounding.

3. [8]

   The applicant was sentenced principally on the strength of a Crown case statement tendered at the proceedings on sentence. However, there was a contest as to an important fact included in that statement, namely, whether it was the applicant who carried a sawn-off .22 calibre rifle carried by one of the four offenders. After a separate hearing, the sentencing judge determined that issue in favour of the applicant, concluding that she could not be satisfied beyond reasonable doubt as to who carried the rifle. The detail of her Honour’s findings is considered below.

4. [9]

   Subject to that qualification, the Crown case statement may be summarised as follows. Jacob Huxstep, Blake Wood and Daniel Gravenall lived together in a house in Banora Point. They were all unemployed and regularly consumed prohibited drugs and alcohol. In early 2014 they began to discuss plans to commit home invasion offences targeting suspected drug suppliers. They planned to use weapons including a sawn-off .22 calibre rifle owned by Wood as well as other weapons (there is no suggestion that the applicant was included in that discussion). The plan was to steal drugs and money from drug suppliers who it was thought would be unlikely to report such offences to police.

5. [10]

   On 17 March 2014 the applicant was at the house of the three men socialising with another man, Daniel Stelfox, and his girlfriend, Tonisha Dujela. The four men questioned Stelfox and Dujela as to whether they knew anyone in the area who was supplying prohibited drugs. Dujela nominated a family friend named Kelly and her partner David. Dujela told the men Kelly and David’s address and told them they supplied cannabis in the area and had a large quantity of cash in the order of $20,000 at their house. She agreed to show them where the house was (the Crown case statement records the unlikely fact that she provided that information not knowing the “true intention” of the group).

6. [11]

   The applicant, Wood and Huxstep got ready to commit the offence, dressing in concealing clothing including face coverings and surgical gloves and arming themselves with the sawn-off rifle together with two aluminium batons. Daniel Gravenall refused to take part in the offence and made an excuse to leave.

7. [12]

   The address the offenders had been given was in Murwillumbah. On the way to that address, the three offenders collected a fourth person, Jordan Burrows. Wood explained that they needed a fourth person to make themselves look more “formidable”. Burrows agreed to assist on the basis that he would receive a share of the proceeds.

8. [13]

   The offenders were led to the address in Murwillumbah, where Dujela pointed out house number 55 of the relevant street, which she knew to be the residence of Kelly and David. She and her partner then drove away leaving the four offenders in the street. The offenders then mistakenly entered the house at number 57, which was occupied by an elderly couple (aged in their early seventies). The mistake must have been immediately obvious. The four offenders nonetheless proceeded with the robbery.

9. [14]

   In light of the dispute as to who was carrying the rifle, it is not possible to give a precise account of the applicant’s role in the offence. The Crown case statement records that the applicant and Huxstep entered the house first; that the applicant was armed with the rifle; that Huxstep was armed with one of the two batons and that one of them yelled “get on the fucking floor”. The factual contest raised by the applicant at the proceedings on sentence entailed disputing that he was carrying the rifle but accepting that he was armed with a baton. Unsurprisingly, neither of the victims was able to give clear evidence as to which of the four men did what. The Crown’s contention that it was the applicant who carried the rifle was based on the evidence of Jordan Burrows, the one member of the group as to whom it was common ground that he was unarmed. The judge did not find his evidence to be implausible but noted the uncertain terms in which he had expressed himself; he said only that he “believed” it was the applicant who carried the rifle. Her Honour recorded that the applicant was “a thoroughly unimpressive witness” but concluded that the Crown had not discharged its onus of proof to establish beyond reasonable doubt that he carried the rifle. In saying so, her Honour recorded, however, that the applicant was “not the docile and gentle creature that he claimed to be during the course of the offence”.

10. [15]

    The judge’s summary of the relevant facts, which is not challenged on appeal, faithfully summarised the substance of the Crown case statement as qualified by her Honour’s determination of the contested fact. The circumstances of the offence were recorded in the sentencing judgment as follows:

Circumstances of the offender

1. [16]

   The applicant was aged 23 years at the time of the offence. He stood to be sentenced effectively as a person with no prior criminal history (he had one drink driving conviction which the judge appropriately considered irrelevant for the purpose of the sentence proceedings).

2. [17]

   The principal evidence before the Court at the proceedings on sentence regarding the circumstances of the applicant was the report of the psychiatrist, Dr Allnutt. The applicant gave evidence confirming the truth of the information he gave Dr Allnutt. The Crown did not object to the admission of the report but noted that her Honour would need to consider the weight of that evidence having regard to the findings she had already made at the separate hearing.

3. [18]

   At the time Dr Allnutt saw the applicant, the applicant had been in custody for five months. Dr Allnutt recorded a history of depression. At the age of 19, the applicant had consulted a psychologist at a point when he was struggling and was in a “dark hole”. He had been cutting himself for a period of about a year following the breakdown of the relationship with his girlfriend and “a lifelong tendency to feel as though he didn’t fit in”. He said that he had been emotionally bullied in the past and was depressed. The psychologist gave him ways to help himself feel better but did not believe he was suffering from depression and did not suggest prescription medication at that stage.

4. [19]

   From the age of about 16, the applicant got into a pattern of binge drinking. He later began to use prohibited drugs including methamphetamines, cocaine, cannabis and MDMA. He had tried to stop using prohibited substances six months prior to his offending but had fallen back into drug use because “he felt depressed and hated himself”.

5. [20]

   In the period leading up to the offence, the applicant was depressed. He was undergoing significant financial difficulties owing to his increasing drug use. He estimated that he owed debts in the order of $40,000 and faced the prospect of having his car repossessed. He told Dr Allnutt that, when he arrived at Blake Wood’s house that night, they asked him to come along to steal cannabis from someone and that he agreed because he thought it would solve his situation. He had been partying the night before and was coming down from the effect of methamphetamines.

6. [21]

   Dr Allnutt recorded his opinion in the following terms:

7. [22]

   In addition to the report of Dr Allnutt, the applicant relied on a pre-sentence report which was largely positive, so far as it went. The author recorded that the applicant felt “horrible” about his offending. He had read the victim impact statement and said “I know 100% I deserve gaol”, adding that he would “never forget the look on the elderly female victim’s face, she was absolutely petrified and in panic” as to the attack on her husband. The applicant said “I can’t honestly say why I did not stop it”. He had expressed his willingness and intention to address his “issues” and appeared genuine in his remorse and willingness to seek treatment. He had inquired about expressing his contrition to the victims and had been referred to the Restorative Justice unit for that purpose.

8. [23]

   In oral submissions at the proceedings on sentence, counsel for the applicant relied on those two reports, submitting that both authors, who had had an opportunity to interview the offender at some length, had formed the view that he had insight, remorse and empathy.

Sentencing judge’s consideration of the psychiatric evidence

1. [24]

   As already noted, the applicant appeals on a single ground relating to the sentencing judge’s treatment of the evidence regarding the applicant’s mental health. Before turning to the relevant parts of her Honour’s judgment, it is important to consider the way in which that evidence was relied upon at the proceedings on sentence.

2. [25]

   Counsel addressed the issue of mental health expressly by reference to the principles stated by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177]. For convenience, the relevant passage is set out in full below:

3. [26]

   Counsel made four submissions concerning the applicant’s mental state. First, addressing the first principle set out above, he submitted that there is a relationship in the present case between the applicant’s mental condition and the commission of the offence. He submitted that the applicant was suffering from depression at the time of the offence and that, according to Dr Allnutt’s report, there was a degree of impaired judgment. He further submitted that the applicant’s involvement in drugs appeared to stem from a desire to “self-medicate” which clearly had a causal relationship with the offence.

4. [27]

   Secondly, addressing the third principle set out above, he submitted that a custodial sentence would weigh more heavily on the applicant because, as recorded by Dr Allnutt, the applicant had experienced panic attacks and social difficulties going back to childhood and that those would be relevant to his experience of a gaol term.

5. [28]

   Thirdly, addressing the fourth principle stated in De La Rosa (that the state of a person’s mental health may “reduce or eliminate the significance of specific deterrence”), counsel submitted “the Court could accept that at this point in time this offender has insight in relation to what has occurred and that, in my submission, is clearly relevant to that issue”.

6. [29]

   Finally, he submitted that there were “special circumstances” (for adjusting the statutory ratio of the balance of term to the non-parole period) being “the first occasion in custody and the depression and social anxiety condition from which this offender suffers”.

7. [30]

   The judge evidently rejected the first two submissions. Her Honour said:

8. [31]

   There is no challenge to those findings. The burden of the applicant’s ground of appeal is that the judge erroneously confined attention to those matters and so overlooked or excluded from consideration the additional matters to which the applicant’s state of mind was relevant. It was submitted that the applicant’s mental health was relevant to “an assessment of his prospects of rehabilitation including future dangerousness and the weight to be placed upon criteria related to general and specific deterrence”.

9. [32]

   The applicant relied in that context on the decision of this Court in Benitez v R [2006] NSWCCA 21. The error found in that case was that the sentencing judge had proceeded on the basis that the applicant’s depression, if not causative of his offences, was irrelevant to the sentencing process: at [39] per Simpson J (as her Honour then was); Hunt AJA and Rothman J agreeing at [1] and [50]. The judgment on appeal records at [34] that the sentencing judge “explicitly disclaimed any influence on his sentence of the applicant’s depression”.

10. [33]

    I do not think that is the approach the sentencing judge took in the present case. Her Honour expressly recorded that she had carefully considered what Dr Allnutt had said about the applicant’s mental health. As already noted, those remarks were followed by a specific finding expressed by reference to whether the applicant’s mental condition mitigated “the objective seriousness of the offence” but it does not follow that her Honour’s consideration of that evidence was confined to that issue.

11. [34]

    As noted in the Crown’s written submissions in this Court, it has been observed that none of the principles stated by McClellan CJ at CL in De La Rosa is stated as absolute. In Aslan v R [2014] NSWCCA 114, Simpson J (as her Honour then was) said at [34]-[35] (Adams J and I agreeing):

12. [35]

    The applicant submitted that the remarks of the sentencing judge in the present case reveal a failure to undertake an evaluative assessment of his moral culpability with due regard to the very significant subjective case to be found in the evidence of self-harm and social phobias addressed by Dr Allnutt and in the applicant’s own evidence.

13. [36]

    Counsel for the applicant in this Court noted in that context that moral culpability is to be distinguished from an assessment of objective seriousness, making brief reference to the decision of the High Court in Muldrock v R (2011) 244 CLR 120; [2011] HCA 39. I took that to be a reference to the statement at [27] of the judgment in Muldrock that “the objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending”.

14. [37]

    It does not follow that the assessment of moral culpability can be divorced altogether from the objective seriousness of the offence. Weighing the measure of a person’s moral culpability for the offence is the essence of the sentencing task but often not explicitly so. A failure to attach the label “moral culpability” to any specific finding or give it a precise value in reaching an appropriate sentence does not reveal error. Indeed, the decision in Muldrock disapproves that kind of approach.

15. [38]

    In my respectful opinion, it is clear in the present case that the sentencing judge undertook a thorough evaluation of the features of the case that informed an assessment of the offender’s moral culpability.

16. [39]

    Apart from the matters addressed above and the issue of special circumstances, the only other submission made about the evidence as to the applicant’s mental health was a brief reference to the fourth principle stated in De La Rosa, that the state of a person’s mental health may reduce or eliminate the significance of specific deterrence. The submission put in reference to that principle was that the Court could accept that the offender had shown “insight in relation to what has occurred”.

17. [40]

    The judge addressed that issue in the terms in which it had been addressed by counsel for the applicant. There is nothing in the sentencing judgment to suggest her Honour concluded that specific deterrence weighed heavily in the present case. On the contrary, her Honour accepted, notwithstanding the applicant’s initial (defiant) response to the prospect of being held accountable for the offence, that his most recent evidence revealed “a somewhat less arrogant and less immature approach” which appeared to be “more humble”. Her Honour said:

18. [41]

    As to special circumstances, it may be accepted that, in recording her reasons for making the relevant finding, the judge made no reference to the evidence concerning the applicant’s state of mental health. The basis for the finding of special circumstances was the applicant’s age (youth) and the fact that it was his first time in custody. The adjustment was not insubstantial. The application of the statutory ratio would have given a non-parole period of 5 years and 3 months and a balance of term of 1 year and 9 months. As already noted, the structure of the sentence imposed means that the applicant will be eligible for release on parole 9 months earlier than he would otherwise have been.

19. [42]

    The applicant’s submissions have not persuaded me that the sentencing judge erroneously confined her discretion. I do not think any proper basis has been established on which this Court should properly intervene.

20. [43]

    For those reasons, the orders I propose are that leave to appeal be granted but that the appeal be dismissed.

21. [44]

    BELLEW J: I agree with McCallum J.