Griffin v R

1. [1]

   BEAZLEY P: I have had the advantage of reading in draft the reasons of McCallum J. I agree with her Honour’s reasons and proposed orders.

2. [2]

   McCALLUM J: Rodney Griffin seeks leave to appeal against the sentence imposed upon him in the District Court for three offences relating to two fires deliberately lit in commercial premises in Goulburn.

3. [3]

   There is some confusion in the record of the proceedings as to the first charge, which related to a fire lit in a Centrelink building. In respect of his involvement in that fire, the applicant was originally committed for sentence on a charge under s 111(2) of the Crimes Act 1900 (NSW), which relates to entering a dwelling house. That was inappropriate as the premises in question were commercial premises.

4. [4]

   Accordingly, an indictment was presented in the District Court. It contained a reference to s 115 of the Crimes Act, which may for present purposes be described (loosely) as an aggravated form of the offences under s 114. Section 114(1)(d) creates an offence of entering a building with intent to commit an indictable offence and carries a maximum penalty of imprisonment for 7 years. Section 115 provides for increased punishment for that offence in the case of an offender with a serious prior conviction; the offence created by s 115 is “whosoever, having been convicted of any indictable offence, afterwards commits any offence mentioned in section 114, shall be liable to imprisonment for ten years.”

5. [5]

   The applicant was liable to be charged under s 115 because he had a prior conviction for an indictable offence whereas the co-offender (his brother) did not. However, the language of that count on the indictment omitted any reference to the element of aggravation and reflected the less serious charge for which the brother was indicted, namely, an offence under s 114(1)(d) of the Crimes Act.

6. [6]

   The parties may have been at cross purposes as to which charge was intended. The Crown sentence summary tendered at the sentencing proceedings referred to the offence under s 115 whereas the applicant’s written submissions referred to the lesser offence, that is, the offence under s 114 carrying a 7 year maximum.

7. [7]

   To complicate matters, the transcript (AB 135) reveals that both boys were arraigned jointly in the language of s 114 and that is the charge to which the applicant pleaded guilty. However, in his sentencing judgment, the judge referred to a charge contrary to s 115 and the 10 year maximum.

8. [8]

   None of these issues were addressed at the hearing in this Court. In light of the conclusion I have reached as to the first ground of appeal, it will be necessary to re-sentence the applicant in any event. I propose to re-sentence him by reference to the charge to which he pleaded guilty on arraignment, which was a charge for an offence contrary to s 114(1)(d). The prior conviction is of course relevant in the usual way.

9. [9]

   The other two offences to which the applicant pleaded guilty were:

   1. (1)

      intentionally damaging property by fire whilst in company of another, contrary to s 195(1A)(b) of the Crimes Act. That offence carried a maximum penalty of 11 years imprisonment;

   2. (2)

      breaking and entering property and causing damage by fire in circumstances of aggravation (namely that he was in the company of another), contrary to s 112(2) of Crimes Act. That offence carried a maximum penalty of 20 years imprisonment with a standard non-parole period of 5 years.

10. [10]

    The applicant was sentenced to an aggregate sentence of imprisonment for 8 years with a non-parole period of 5 years commencing on 27 June 2016. The indicative sentences are identified below in the discussion of the facts. The applicant’s brother was sentenced to an aggregate sentence of 7 years with a non-parole period of 4 years. There is no appeal against that sentence.

Circumstances of the offending

1. [11]

   The applicant was sentenced by the same judge and at the same time as his brother. At the time of the offences, the applicant was 19 years old and his brother was 17 years old but there was evidence to suggest the brother had the stronger personality of the two. The Crown relied on a statement of agreed facts, the contents of which are summarised below. In addition, oral evidence was adduced at the hearing from the informant as to the estimated cost of the damage to each building.

2. [12]

   In the days leading up to the offences the brothers had entered the Centrelink building in Goulburn via a rooftop door. They fled after an alarm was activated. On 27 June 2016, the brothers returned to the building and entered by the same rooftop door. The applicant’s brother had a multi-tool knife which he had obtained from Kmart on the way. A fire was lit using paper stored in the building.

3. [13]

   The boys then ran from the building and scaled a wire fence into the premises of the old St Patrick’s School, which was then a secured construction site. They forced entry to those premises through a boarded-up doorway where they lit a fire in the corner of the room by setting alight roof insulation bats that had been left on the premises.

4. [14]

   The applicant fled from those premises. His brother remained after hearing sirens and was arrested a short time later. He made “certain admissions” but denied starting either fire.

5. [15]

   The applicant was arrested at his home and later participated in a recorded interview. He made admissions in relation to lighting the fire at Centrelink and admitted attending the old St Patrick’s School but denied entering the building where the second fire was lit. He stated that he had waited outside while his brother was inside going to the toilet. The statement of facts did not permit resolution of the issue as to who lit that fire.

6. [16]

   The informant gave evidence that the Centrelink building was “virtually destroyed” and had to be rebuilt at an estimated cost of $3 million. The damage to the building on the construction site was considerably less, being estimated in the order of $20,000.

7. [17]

   Each offender pleaded guilty in the Local Court and was allowed a discount of 25% to reflect the utilitarian value of the pleas. The indicative sentences were: for count 1 (entering the Centrelink building with intent to damage property by fire), 3 years; for count 2 (intentionally damaging the Centrelink building by fire), 6 years and for count 3 (breaking and entering the building at the construction site and damaging it by fire), 4 years. The indicative sentence for count 2 was particularly stern, having a starting point (before discount) of 8 years against a maximum penalty of 11 years.

8. [18]

   As already indicated, the judge imposed an aggregate sentence of 8 years with a non-parole period of 5 years.

Grounds of appeal

1. [19]

   The applicant relies on 3 grounds of appeal as follows:

Ground 1 – alleged error concerning the applicant’s mental condition

1. [20]

   There was cogent, uncontradicted evidence that, as a result of an appallingly dysfunctional childhood, the applicant suffered from significant psychological problems including major depressive disorder and post-traumatic stress disorder (PTSD). He had also been assessed to have extremely poor emotional and intellectual function.

2. [21]

   The evidence was all one way on those issues. The Crown tendered a pre-sentence report from Corrective Services. There was also detailed material tendered by the applicant including a psychological assessment report by Ms Danielle Hopkins (a clinical psychologist) and a letter from Dr Matthew Hearps (a psychiatrist with Justice Health).

3. [22]

   The pre-sentence report stated that the applicant was removed from his biological parents at the age of four against a history of chronic neglect and abuse, including sexual abuse. There were records of another adult male living in the family home who also sexually abused the applicant and his siblings. Without descending into detail, other recorded material reveals that the applicant’s biological parents had an aberrant approach to parenting in which sexualisation of the children was normalised.

4. [23]

   After being removed from his parents the applicant was placed in foster care where he again became the victim of sexual abuse. He described being given alcohol by his foster brother during periods of sexual abuse. He was removed from that foster home at the age of 5 or 6. He was later placed in a second foster home with a foster mother he described as an alcoholic and a foster father who inflicted corporal punishment.

5. [24]

   When he turned 18, the applicant returned to his biological father and then his biological mother. He described his father as a heavy consumer of alcohol and his mother as a stranger to him until his recent reconnection with her.

6. [25]

   The applicant told the author of the pre-sentence report that reconnecting with his family was detrimental to his wellbeing, saying “my family is no good for me. Bad things happen when I am with them and I know I need to stay away from them.”

7. [26]

   As to his relationship with his brother, the applicant said they had only recently reconnected when he was living with his mother. His brother “showed up and was on the run”.

8. [27]

   The pre-sentence report concluded:

9. [28]

   The psychological report tendered by the applicant at the proceedings on sentence provided similar detail of that background. The author, Ms Hopkins, undertook the cognitive testing which identified the poor intellectual function to which I have referred. Ms Hopkins reported her results as follows:

10. [29]

    Ms Hopkins considered that the information provided to her by the applicant suggested some form of psychotic disorder which she thought should be further assessed. She formulated her conclusions in the following terms:

11. [30]

    There was also a letter from Dr Hearps, a psychiatrist who has assessed the applicant in prison. He recorded the unsurprising conclusion that the applicant suffers from major depressive disorder and PTSD. As at the date of Dr Hearps’ letter, the applicant was being treated with both anti-depressant and anti-psychotic medication.

A point not taken below

1. [31]

   The Crown submitted that the significance of the applicant’s mental condition was not advanced on the plea and that the applicant should not be permitted to reformulate his case in this Court. Specifically, the Crown noted that no submission was made in the Court below that the applicant’s mental condition was causally related to his offending or that it operated to reduce his moral culpability.

2. [32]

   It should be acknowledged that the sentencing judge received almost no assistance on that issue. While detailed written submissions were provided on behalf of the co-offender, the written submissions for the applicant were brief and confusing. The applicant’s subjective circumstances were addressed cursorily and in terms that were unhelpful:

3. [33]

   Surprisingly, no oral submissions were made on behalf of either offender, each electing to rest on what had been put in writing. In the case of the co-offender, that was not inappropriate. In the case of the applicant, it left the judge with inadequate and in some respects obscure submissions. In my respectful opinion, however, that did not obviate the need for the judge to make an assessment of the significance of the evidence as to the applicant’s mental health in accordance with established principle.

4. [34]

   The Crown relied in this context on the decision of this Court in Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 at [79]-[81] per Johnson J, McClellan CJ at CL agreeing; but cf [142] per Rothman J. The relevant passage from the judgment of Johnson J is lengthy but, in the circumstances, warrants consideration in full:

5. [35]

   The reference to a “practical expectation” that factors relied upon in mitigation will be identified cannot be elevated to a principle subverting the entitlement of an offender to be sentenced according to law. I would not understand his Honour to have intended to express any such principle.

6. [36]

   The submission put for the first time in the appellate court in Zreika was that the sentencing judge erred by failing to have regard to the possibility that the matter could have been prosecuted in the Local Court. As the Court unanimously held, that is the kind of point which, if not expressly raised by counsel, may appropriately be put to one side by the sentencing judge. Abject disadvantage of the kind seen in this case, with all the psychological harm it produced, is in a different category. While counsel’s failure to address the issue in any helpful way was unfortunate and may go some way to explaining how the process may have miscarried, I do not think the observations made in Zreika should preclude the Court from entertaining the present ground. The ultimate question in sentence appeals is whether the applicant was sentenced according to law. That issue is not necessarily determined, as an issue raised in a civil appeal might be, by the answer to the question whether the point was taken in the court below.

7. [37]

   In my respectful opinion, in circumstances where there was cogent evidence before the Court as to the applicant’s mental condition, the sentencing judge was required to consider the significance of that evidence in assessing the applicant’s moral culpability for the offence and in considering the objects of sentencing. That is consistent with the proper approach to sentencing described by McHugh J in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51], as follows:

8. [38]

   For those reasons, I do not think the fact that the issue was inadequately developed in submissions at first instance warrants our refusing to entertain the issue as a ground of appeal in this Court. Indeed, for this Court to refuse to have regard to the evidence of the applicant’s mental state on that basis would perpetuate a serious injustice in the circumstances of this case: cf Zreika at [81].

Reasons for concluding that ground 1 is made out

1. [39]

   The Crown submitted that, in any event, the sentencing judge did take the evidence as to the applicant’s mental health into account and give careful consideration to that evidence. I accept that the judge did recite parts of the evidence in his ex tempore judgment, principally by reference to the pre-sentence report and the report of Ms Hopkins. His Honour made passing reference to the letter from the psychiatrist (which recorded the diagnosis of severe depression and PTSD) but said “I do not propose to go into the detail of that.”

2. [40]

   The judge also noted that he had “some documents from Pacific Wellness”, identifying the relevant reports by date. His Honour did not discuss the contents of those reports. They revealed that the applicant had been referred by Ageing, Disability and Home Care for assessment as to whether Pacific Health and Wellness, an organisation providing training, therapy and disability care, had capacity to provide accommodation support for the applicant upon his release from prison in respect of these matters. The report stated that the applicant had been assessed as suitable to enter an accommodation program which would provide intensive support services to address his “complex formative trauma” and facilitate his return to the community.

3. [41]

   The report concluded:

4. [42]

   An updated report dated 15 May 2017 confirmed those arrangements and expressed the opinion that the applicant would benefit from “a therapeutic approach to deal with the complex and multiple emotional, trauma informed and family of origin issues underpinning his behaviours in the community.”

5. [43]

   The reports were signed by Mr Webber Roberts who, as the judge was informed, had attended the proceedings on sentence to support the applicant.

6. [44]

   As already noted, the judge focused primarily on the psychological reports and did not discuss the contents of the psychiatrist’s letter or Mr Webber’s post-release accommodation support plan. In my respectful opinion, although he recited parts of the relevant evidence, the judge did not proceed to analyse the significance of that evidence in assessing the applicant’s moral culpability for the offence. After reciting highlights of the psychological evidence (at pages 4-7 of the judgment), the judge said (at page 7):

7. [45]

   The Crown submitted that this finding was open, since it followed a discussion of the evidence. However, the effect of the finding is to set the evidence at nothing, without explanation or analysis.

8. [46]

   The judge then referred to the written submissions, saying “I do not propose to refer to all the submissions because I do not have time.” That was understandable having regard to the unhelpful presentation of the submissions, which included a formulaic recitation of uncontroversial legal propositions with no real analysis of the significance of the factors relevant to sentence in the particular case. The judge did recite aspects of those submissions but omitted any reference to the part of the submissions addressing deprived background and the negative influence of family members. Having recited a selection of the matters listed in the written submissions, his Honour said (pages 7-8):

9. [47]

   There was no elucidation of that last remark. In my assessment, the evidence overwhelmingly established that the applicant had no avenues of support available to him. He was aged 19 years; his life up to that point had been damaging and detrimental. He had not enjoyed anything of the nurturing and education required to support good decision-making.

10. [48]

    As noted by the Crown, the psychiatric and psychological evidence did not go so far as to assert, in terms, that the applicant’s mental condition was “causally related” to his offending but it is well-recognised that evidence of the kind outlined is relevant, serving to reduce an offender’s moral culpability.

11. [49]

    The only specific finding made by the judge concerning the applicant’s dysfunctional upbringing was to the applicant’s detriment. In considering a submission that the applicant had good prospects of rehabilitation (supported by reference to Mr Roberts’ reports), the judge said (pages 7-8):

12. [50]

    The reference to the offender’s being “fully aware of the consequences” misquoted the applicant’s written submissions. What had been referred to (albeit in confusing terms) was the mitigating factor listed in s 21A(3)(j) of the Crimes (Sentencing Procedure) Act 1999 (NSW) that the offender was not fully aware of the consequences of his or her actions because of the offender’s age or any disability.

13. [51]

    I should acknowledge that, towards the end of the judgment, his Honour said there would be “some diminution of the objective gravity” for each offender “by reason of their condition as a result of the profound disadvantage.” However, the glib treatment of the issue in the discussion of the applicant’s subjective circumstances is at odds with that remark.

14. [52]

    The applicant submitted that the sentencing judge’s treatment of the issue of the applicant’s mental problems failed to have regard to the principles summarised in the well-known passage from the judgment of McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177], as follows (citations omitted):

15. [53]

    Justice McClelland further emphasised at [178] that the mental health problems of an offender “need not amount to a serious psychiatric illness before they will be relevant to the sentencing process” and that a mental disorder of “modest severity” may nevertheless be appropriate to moderate the need for general or specific deterrence.

16. [54]

    I acknowledge that the judge was not taken to the decision in De La Rosa but the application of those principles was essential to a fair sentencing process in the present case. In my respectful opinion, the judge failed to undertake the required analysis of the significance on sentence of the applicant’s dysfunctional upbringing and its psychological consequences.

17. [55]

    For those reasons, I am satisfied that the sentencing process miscarried and that it is necessary to re-sentence the applicant. In expressing this conclusion, I acknowledge the significant burden placed on sentencing judges in a busy sentencing court such as the District Court and the pressures under which the judges of that Court operate, especially when proper assistance is not provided by counsel.

18. [56]

    In the circumstances, it is not necessary to deal with grounds 2 and 3. It will of course be necessary to have regard to the matter raised by ground 2 (the applicant’s youth) on re-sentence.

Re-sentence

1. [57]

   The Crown’s submissions did not address the issue of resentence.

2. [58]

   The circumstances discussed in detail above lead me to the conclusion that a significantly lesser sentence is warranted and should have been passed. For the reasons explained above, I consider that the applicant’s moral culpability for the offences was considerably less than the sentencing judge assessed it to be. The recognition that the applicant should have been capable of appreciating the damage his actions might cause over-simplifies the functional disadvantages he faced.

3. [59]

   I also respectfully do not share his Honour’s dire assessment of the applicant’s prospects of rehabilitation. The material provided by Webber Roberts (to which the judge did not refer) affords a sound basis for optimism in that respect. Affidavits relied upon on resentence establish that the offer of supported accommodation is still open to the applicant. An affidavit sworn by the applicant stated that Mr Roberts is his only visitor in prison. He states “my mother used to visit me but it is better for me to not see her at all”. Other material tendered on re-sentence establishes that the applicant has been progressing well as a prisoner, undertaking many employment and education opportunities.

4. [60]

   Since his imprisonment, the applicant has been receiving regular telephone counselling sessions organised through the Royal Commission into Institutional Responses to Child Sexual Abuse. A letter from the counsellor was provided to this Court to be relied upon in the event of resentence. She stated that she had built “a strong therapeutic relationship” with the applicant and that he has made significant progress, impressing her with the level of personal insight he has disclosed and his application to the task of his recovery using the techniques she has discussed with him.

5. [61]

   The applicant’s personal background was also relevant to the weight to be given to deterrence. When his offending is viewed through the prism of the psychological impact of being a victim of child sexual abuse, it is difficult to see any role for general deterrence. As to specific deterrence and his prospects of rehabilitation, his criminal history and the evidence of his being easily led certainly pose challenges for his prospects of rehabilitation. However, the program he is now offered upon his release will provide intensive support of a kind he has not previously had available to him and, in my view, will go a considerable way to addressing that concern.

6. [62]

   The applicant’s need for intense support and the availability of a community-based program specifically tailored to that end, which will undoubtedly be better adapted to securing his rehabilitation than time spent in prison, warrant a substantial adjustment to the statutory ratio of the non-parole period to the balance of term.

7. [63]

   In all the circumstances, I consider that a significantly lesser sentence is warranted. The sentence I propose is an aggregate sentence of imprisonment for 6 years with a non-parole period of 3 years. The indicative sentences (after allowing the discount of 25%) are, for count 1 (entering the Centrelink building with intent to damage property by fire), 3 years; for count 2 (intentionally damaging the Centrelink building by fire), 4 years and for count 3 (breaking and entering the building at the construction site and damaging it by fire), 4 years.

8. [64]

   I acknowledge that this sentence is less than that imposed on the applicant’s brother. It is, nonetheless, the sentence I consider to be appropriate. In circumstances where one offender has appealed and one has not, I do not think the appellate court is required to impose a sentence higher than that which it otherwise considers appropriate. To take that approach would subvert the principle of equality.

9. [65]

   The orders I propose are:

   1. (1)

      that leave to appeal be granted;

   2. (2)

      that the sentence imposed at first instance be quashed and, in substitution therefor, that the applicant be sentenced to an aggregate sentence of imprisonment for six years commencing on 27 June 2016 with a non-parole period of three years concluding on 26 June 2019 and a balance of term of three years concluding on 26 June 2022.

   3. (3)

      I note that the first day on which the applicant will be eligible for release to parole is 26 June 2019.

10. [66]

    DAVIES J: I agree with McCallum J.