Taylor v The Queen [2000] FCA 1749 (16 November 2000)

Last Updated: 4 December 2000

FEDERAL COURT OF AUSTRALIA

Taylor v The Queen [2000] FCA 1749

DALE THOMAS TAYLOR v THE QUEEN

A 31 of 2000

MILES, O'LOUGHLIN & MATHEWS JJ

16 NOVEMBER 2000

CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A 31 OF 2000

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:	DALE THOMAS TAYLOR APPELLANT
AND:	THE QUEEN RESPONDENT
JUDGE:	MILES, O'LOUGHLIN & MATHEWS JJ
DATE OF ORDER:	16 NOVEMBER 2000
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1 The appeal is dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A31 OF 2000

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:	DALE THOMAS TAYLOR APPELLANT
AND:	THE QUEEN RESPONDENT

JUDGE:	MILES, O'LOUGHLIN & MATHEWS JJ
DATE:	16 NOVEMBER 2000
PLACE:	CANBERRA

REASONS FOR JUDGMENT

THE COURT:

1 This is an appeal against the severity of a sentence imposed by Crispin J of the ACT Supreme Court on 14 April 2000. The appellant had previously pleaded guilty to one count of armed robbery. His Honour sentenced him to imprisonment for 7½ years from the date of sentence with a non-parole period of three years.

2 The circumstances of the offence were set out in a Statement of Agreed Facts tendered to his Honour. They showed that at approximately 5.00 pm on 7 March 1999 the appellant entered the Arygle General Store at Reid. The store is owned and operated by a male and female proprietor, both of whom were on the premises at the time. The appellant entered the shop and asked the male proprietor, for two bottles of beer. He then briefly left and returned carrying a knife in each hand. One was similar to a butcher's knife, with a blade approximately fifteen centimetres long. The second knife was similar to a kitchen knife with a blade approximately twenty-five centimetres long. The appellant stood approximately one metre from the male proprietor and held the knives so that their blades faced him. At one point the proprietor took the appellant's wrist and tried to steer him towards the door of the shop. However he became apprehensive about what the appellant might do with the knives and let go of him. The appellant then approached both the male proprietor and his wife with the knives pointing towards them. The male proprietor opened the till and took out a twenty-dollar note and eight ten-dollar notes which he handed to the appellant. During all of this time the appellant was apologising saying: "I am sorry about this but I am desperate". After the proprietor had handed the appellant the money, he said to him "Aren't you going to leave me with anything?" to which the appellant handed back a ten-dollar note. As the appellant walked towards the door he said "I'm really sorry about this. If you knew my missus ... I'll give it all to you back, I promise." He then left.

3 The proprietor of the shop then called the police. They conducted a search of the area and shortly afterwards located the appellant. They also found the two knives in bushes a short distance from the shop. The police formed the opinion that the appellant was intoxicated and did not seek to question him. He was subsequently declared to be medically unfit to take part in an interview.

4 As the sentencing judge observed, the appellant has what can only be described as an "appalling" criminal record. He was born on 7 September 1964. His first offence was committed in 1979. Between 1982 and 1993 he sustained convictions of many charges including eight offences which were directly drug-related, four offences involving assault, one being assault with intent to steal, approximately five house breaking offences and various other offences involving unruly behaviour, hindering the police and failure to abide by probation or bail conditions. Commencing in 1989 he sustained numerous sentences of imprisonment.

5 In March 1994 the appellant was sentenced to a total of eighteen months imprisonment, with a minimum period of six months, for break, enter and steal and assault with intent to rob by striking. Later that year he was sentenced in the Brisbane District Court to two years' imprisonment for break and enter with intent. In August 1996 he was sentenced to two years' imprisonment, suspended for a period of five years, for numerous charges including break and enter with intent, assaulting a police officer and false pretences.

6 On 17 July 1997, during the currency of this sentence, the appellant committed an armed robbery of a service station in circumstances which were very similar to those of the present offence. On 17 December 1997 he was sentenced in relation to this offence in the ACT Supreme Court. A sentence of three years' imprisonment was imposed, dating from 17 July 1997, with a non-parole period of eighteen months.

7 The appellant was released to parole from this sentence on 25 February 1999. The present offence was committed only ten days later on 7 March. He was taken into custody on the same day. On 17 March 1999 his parole was revoked for reasons unconnected with the present offence. The appellant has been in custody ever since. The sentence imposed by Gallop J was due to expire on 17 July 2000.

8 An unusual feature of the appellant's case is that he has a memory and cognitive deficit apparently sustained as a result of head injuries, and probably aggravated by a long history of alcohol and drug abuse. The sentencing judge had before him two lengthy reports, one from a psychiatrist, Dr William Lucas and one from a clinical psychologist, Dr Ann Delahunty. Dr Delahunty's reports showed the appellant's intellectual ability to be rated at borderline levels. His capacity for visual and verbal abstraction was borderline as was his immediate memory for most matters. His verbal learning ability was assessed as impaired. His planning was slow and was also rated as impaired. There was plentiful evidence of impulsivity, perseveration and disorganised behaviour.

9 Dr Lucas also noted the appellant's problems with memory and attention deficit. He commented that the appellant's cognitive impairment was of concern for a number of reasons. His judgment is likely to be impaired, particularly if he is intoxicated. In addition, his ability to adjust to life outside a structured situation such as prison is probably affected together with his ability to fully participate in or benefit from a rehabilitation program. Dr Lucas considered it likely that the appellant suffers from a personality disorder but commented that the picture is clouded by the appellant's drug and alcohol abuse and by his cognitive impairment, from whatever cause.

10 The sentencing judge described the findings of Dr Lucas and Dr Delahunty and commented that one must have "real sympathy for someone who has suffered head injuries and as a result has a significant cognitive disability, accompanied by a significant problem with his memory". However, his Honour noted that in sentencing the offender he was not able to act solely on the basis of sympathy. He proceeded to make the following observations:

"It seems to me that there is ..... a duty to impose some significant sentence of imprisonment in order to provide adequate protection for the community. I propose however to impose a sentence which will involve a non-parole period which is substantially lower than might otherwise be appropriate, and to recommend to the parole authorities that his release be conditional upon him entering into a full-time rehabilitation program, should that be thought to be appropriate at the time."

11 The Notice of Appeal contains two grounds: First, that his Honour erred in giving inadequate weight to the appellant's cognitive impairment. Second, that the sentence imposed was manifestly excessive. Mr Everson, who appeared for the appellant on the appeal, relied solely on the second ground, namely that the sentence was manifestly excessive. He sought to rely on the first ground only as particular of this second ground. Mr Everson handed up a sentencing table for armed tobbery offences, which had been obtained from the office of the Director for Public Prosecutions. The table sets out sentences imposed in the ACT for this offence between 1992 and April 2000. The table would appear to indicate that a head sentence of seven years is at or close to the top of the range of sentences imposed for armed robbery during that period. However, as the Director, Mr Refshauge SC, pointed out, the table suffers the defect of providing no information as to either the offence or the offender. It was his belief that most of the sentences listed in the table related to first armed robbery offences.

12 At first impression a head sentence of 7½ years, having regard to the circumstances of this offence, appears to be particularly high. Moreover the sentence would have had to be materially higher without the mitigating features of the appellant's plea of guilty and his cognitive disorder. But there are a number of other considerations which must be borne in mind. The offence had a serious impact on the proprietor of the business, as a victim impact statement which was before his Honour made clear. The appellant was, after all, armed with two knives which he was, by his actions, threatening to use against both male and female proprietors.

13 Moreover the appellant's record, which has already been detailed, gave no room for confidence that the appellant would respond in any meaningful way to rehabilitative measures. Indeed there was evidence that the appellant's cognitive deficits would probably affect his ability to benefit from any such measures. Protection of the community was thus an important consideration on sentence, as his Honour clearly recognised. This does not of course enable a sentencing court to impose a higher sentence than is justified by the objective circumstances of the offence and the personal circumstances of the offender. However the fact that a mental abnormality makes an offender more likely to pose a danger to the community can be balanced against any diminution in moral culpability by reason of the abnormality,

14 It is relevant here to return to the evidence relating to the appellant's cognitive deficit. Part of the appellant's case on appeal was that his Honour did not give sufficient weight to this factor. Mr Everson relied upon the line of authority that little or no weight should be given to general deterrence in the sentencing of an offender who suffers from a mental disorder or abnormality, as the offender is not an appropriate medium for making an example to others. But the sentencing judge did not refer to general deterrence at any point in his remarks on sentence. It must be assumed that he did not regard this as a significant factor, having regard to the appellant's mental state. His Honour certainly described the evidence as to the appellant's cognitive disabilities in terms which make it clear that he was treating this as an ameliorating feature. Moreover, it has to be borne in mind, as the Director pointed out, that the appellant's state of intoxication at the time of the offence cannot be availed of to reduce the seriousness of the offence, as it was caused by his own ingestion of alcohol, possibly combined with other drugs.

15 Other than Mr Everson's submission as to the appellant's mental condition and general deterrence, there is no suggestion that the learned sentencing judge made any error of fact or law or that he failed to take into account any relevant considerations. This Court will only interfere if it is convinced that the sentence was manifestly excessive. In the Court's view his Honour's sentence might have been at the top of the range, but it was plainly within it. It must be remembered that his Honour set a non-parole period which was significantly lower than would normally be attracted by a head sentence of 7½ years.

16 We consider that the appeal should be dismissed.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Miles, O'Loughlin & Mathews.

Associate:

Dated: 1 December 2000

Counsel for the Appellant	Mr C Everson
Solicitor for the Appellant	McGuinness Eley
Counsel for the Respondent:	Mr R Refshauge
Solicitor for the Respondent:	Director of Public Prosecutions
Date of Hearing:	16 November 2000
Date of Judgment:	17 November 2000