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Court of Criminal Appeal 15 March 2006

Ross v Regina

[2006] NSWCCA 65

Also reported as 160 A Crim R 526
Assault & violenceTheft & propertyFirearms & weapons
ARMED ROBBERY WITH AN OFFENSIVE WEAPON PLEA OF GUILTY TO ARMED ROBBERY FIRST TIME IN CUSTODY

Citation: Ross v Regina [2006] NSWCCA 65
Court: NSW Court of Criminal Appeal
Date: 15 March 2006
Judge(s): McClellan CJ at CL, Rothman J, Smart AJ

Background

The appellant was an 18-year-old man who pleaded guilty to armed robbery with an offensive weapon (a knife) following an incident on 27 March 2004. He and others followed a victim from a train station near Newcastle, demanded the victim's wallet under threat of knife use, and took the wallet and a mobile phone. The Crown conceded the knife was not brandished at or held against the victim, and the sentencing judge accepted there was no pre-planning.

The appellant had a severely troubled background. He was diagnosed with ADD and ADHD from age six, spent his schooling in special needs classes, left school during Year 9, and had been homeless from around age 15. He began using marijuana at nine, amphetamines at thirteen, and heroin at fifteen. A psychiatrist, Dr Nielssen, assessed him and concluded that he most likely suffered frontal lobe brain damage early in life, possibly from hypoxia at birth. This produced a mild developmental disability affecting intellectual function, emotional regulation, impulse control, planning, and social judgment, compounded by a drug-induced psychosis at the time of the offence.

In the District Court, the appellant received a total head sentence of five years, comprising a non-parole period of two years and six months and a balance of term of two years and six months. He sought leave to appeal, arguing the sentence was manifestly excessive and that the sentencing judge had incorrectly treated certain matters as aggravating features.

  • Whether the sentencing judge incorrectly classified certain matters as aggravating features under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999
  • Whether the combination of frontal lobe brain damage, developmental disability, drug-induced psychosis, dysfunctional upbringing, and lack of education should have reduced the head sentence
  • Whether the head sentence of five years was manifestly excessive in all the circumstances

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal. Smart AJ, with whom McClellan CJ at CL and Rothman J agreed, found that the sentencing judge had incorrectly classified certain matters as aggravating features. That error, combined with inadequate weight given to the appellant's significant subjective circumstances, infected the original sentence.

The Court accepted Dr Nielssen's assessment that the appellant's frontal lobe damage was longstanding and pervasive, affecting most areas of intellectual function and personality development. While those limitations did not provide a defence and the appellant knew his conduct was wrong, they materially reduced his level of culpability and had to be weighed in the sentencing exercise. The drug-induced psychosis present at the time of the offence added further mitigation.

The Court found the offence was serious and warranted a full-time custodial sentence, but a head sentence of five years was manifestly excessive. The correct head sentence was four years. Special circumstances also existed, justifying a departure from the standard one-third ratio between non-parole and balance of term: the appellant was a young, first-time prisoner with prospects of rehabilitation, and he needed structured drug rehabilitation and psychiatric treatment during the parole period.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal against sentence allowed; original sentence quashed
  • New sentence imposed: non-parole period of 2 years commencing 19 May 2004 and expiring 18 May 2006, with a balance of term of 2 years expiring 18 May 2008
  • Parole conditions imposed requiring supervision by the Probation and Parole Service, compliance with reasonable directions, and participation in drug rehabilitation and psychiatric treatment including medication

Key Takeaways

  • A combination of factors, including frontal lobe brain damage, developmental disability, drug-induced psychosis, dysfunctional upbringing, and lack of education, can collectively warrant a material reduction in a head sentence even where the offence is objectively serious.
  • Under the Crimes (Sentencing Procedure) Act 1999, incorrectly classifying a matter as an aggravating feature under s 21A(2) constitutes a sentencing error capable of vitiating the sentence on appeal.
  • Mild developmental disability arising from brain damage is not merely a background fact to be noted in passing; the Court of Criminal Appeal confirmed it carries real weight in the assessment of an offender's culpability and moral responsibility.
  • Special circumstances justifying a longer parole period relative to the non-parole period were established where the offender was young, serving his first custodial sentence, had prospects of rehabilitation, and required sustained therapeutic intervention for drug addiction and emerging psychiatric illness.
  • A plea of guilty, absence of pre-planning, and the offender's first time in custody remained significant factors in favour of a reduced sentence, even where the maximum penalty for the offence was 20 years imprisonment.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Children (Criminal Proceedings) Act (NSW)

Cases
- R v Engert (1995) 84 A Crim R 67
- R v Hathaway [2005] NSWCCA 368
- R v Henry (1999) 46 NSWLR 346
- R v Israil [2002] NSWCCA 285
- R v Shankley [2003] NSWCCA 253
- R v Solomon [2005] NSWCCA 158
- R v Street [2005] NSWCCA 139
- Veen v The Queen [No 2] (1988) 164 CLR 465