THE QUEEN v GLENN DAVID ROSS [2001] NZCA 248 (27 September 2001)

IN THE court of appeal of new zealand

ca 199/01

THE QUEEN

V

GLENN DAVID ROSS

Hearing:	27 September 2001
Coram:	Blanchard J Goddard J Heron J
Appearances:	J A Farrow for Appellant J M Jelas for Crown
Judgment:	27 September 2001

judgment of the court DELIVERED BY HERON J

[1] This is an appeal against a sentence of three and a half years imprisonment.The appellant pleaded guilty to earlier offending of attempted burglary and being found without reasonable excuse on premises and was sentenced to six months and two months respectively, those terms to be concurrent.He was also sentenced to two months imprisonment for breach of bail.For the later more serious offending of aggravated robbery and wounding with intent he was sentenced to three years imprisonment, and on a burglary charge, two years imprisonment, cumulative on the earlier series of concurrent sentences.The Judge was right to accumulate in the circumstances because the later offences were committed whilst on bail.

[2] The circumstances were that on January 2001 the appellant and one other, after a drinking session, decided to burgle commercial premises and were on the premises when the complainant who lived there returned home.The other offender escaped but the appellant was arguably restrained by the complainant from escaping and a fight developed.The appellant demanded money and threatened the complainant who at the time agreed to show him where the money was kept.On reaching the office he went to where the money was but when it came to the point of handing the money over and having regard to the amount, some $2000, the complainant bravely resisted handing it over.The fight continued outside and at the point where the complainant seemed to be getting the better of it the appellant seized a hammer and used it on the complainant. Having been hit once on the head, he told the appellant to take the money and go.The appellant entered the office, took the money and escaped.

[3] The complainant suffered lacerations to his scalp, bruising and went to hospital for approximately five hours.He has had some ongoing difficulties as a result of the attack, suffering difficulty in communicating with people, including being unable to concentrate on his work.

[4] Following the earlier offences to which the appellant pleaded guilty in October 2000 he was remanded on bail to undertake some treatment at Waikari Hospital and was still an informal patient at that hospital at the time of the January 2001 offending.It seems that the probation service referred him to the Intellectual Disability Service at that hospital.At first he was admitted as an inpatient because it was thought he had a depressive illness. Subsequently his condition was such he remained a patient at Waikari but free to go when he wished.He was gradually taken off medication and was awaiting placement in the community.On the day concerned he says he met a friend and the friend suggested that they get some money.He had had a lot to drink and became involved in the incident just described.

[5] Reports on the appellant aged 30 conclude he was in the mild range of intellectual disability and his demeanour and social skills lead people to often underestimate his difficulties with information processing and problem solving.He is easily influenced and particularly vulnerable to peers who exploit his social friendliness and his naive trust.He has a long list of mainly burglary offending but some assaults.It is to be noted that the present violent offending was to some extent a by-product of a burglary.As Ms Jelas submits, further violence is likely if the appellant is again surprised whilst committing an offence.

[6] According to the reports prepared in advance of his sentencing he is not mentally disordered nor inherently anti-social and violent.The hospital considered that he required support and behavioural management appropriate to his intellectual functioning, and the service thought that it was highly likely that he would learn further unhelpful behaviours if he went to prison and developed alliances with any group that might exploit him.

[7] The Court was invited by the hospital to work with the Department of Corrections to put together a suitable programme of rehabilitation.That programme was presented for the Judge's consideration and the report from Health Care Otago said this:

We have no evidence that Mr Ross was psychotic (out of touch with reality) at the time of the offending.His mild intellectual disability would mean that he would be more likely to panic and act impulsively and without thought for the consequences in a situation which he had not anticipated than would a person without an intellectual disability.However, his voluntary intoxication needs also to be taken into account.

Mr Ross will need ongoing support, in order to live in the community because of his intellectual disability and his difficulties with substance use and offending.Mr Ross has some awareness of his need for support, as do his family, and I anticipate that he will accept support even once there is no statutory requirement that he should do so.However once there is no statutory requirement (for example, a sentence of supervision) that he accept support, it is likely that support will mitigate against further offending significantly, but it will not be possible to constrain him in such a way as to prevent reoffending, and given his very long history of offences against property, there may still be some further incidents of such behaviour, although we would expect a reduction in frequency and severity.

Mr Ross has been under the care of Intellectual Disability Services at Healthcare Otago since 12.01.01.During this time he has been able to come off psychiatric medication without difficulty, no longer complaints of `hearing voices' or threatens suicide, and is making good progress overall towards better social and interpersonal skills, more appropriate choice-making and the eventual understanding of a risk management and relapse prevention strategy for which he can take principle responsibility, rather than staff imposing limits on him.There has been a recent relapse into some inappropriate use of substances, occurring in response to some peer group influence, and it is this long-standing problem which we would see as most likely to slow his progress.

[8] A probation officer's report remarked on the progress that he had made and describes the offending and the long term support being offered through the health system.That was a reference to the residential/community based programme put before the sentencing Judge.The probation officer thought it was now much more likely he would comply with and benefit from a further sentence of supervision should the court be able to consider such an option.

[9] The community based programme involved confinement for some months in a secure unit at Waikari Hospital similar to his treatment prior to the offending.The probation officer recommended two years supervision with a condition that he reside at Waikari Hospital until positively discharged, and to attend other programmes as directed by the probation service.The plans for this man who has obvious difficulties were carefully put together and confronted his immediate personality and medical problems.

[10] On sentencing the Judge said:

While there is a wealth of documentary material before the Court today about your situation, and a comprehensive programme which has been designed by Doctor Du Fresne, the difficulty that this Court has is that there are provisions in the Criminal Justice Act which direct the Court to impose a full-time custodial sentence where crimes involving serious violence take place.

It has not been argued by Mr Miller today that s5 of the Criminal Justice Act does not apply to the offences that occurred in January when you went to Jaco's Timber Yard and there used an offensive weapon to rob the complainant and to cause him injury.

I accept that s5 does have a proviso which indicates that if there are special circumstances relating to the offence or the offender then the Court may consider not imprisoning a person on offences of that kind.However, the Court of Appeal have made it clear, time and again, that there must be special circumstances, something that really and truly takes it out of the ordinary case or course of offending.

Mr Miller has sought to persuade me today that your mild intellectual disability is a special feature of yours, as the offender, and that the offences perhaps should be looked at in the light that at least now you have been diagnosed and that a community programme can be put in place to assist.I have to view that, of course, against the fact that at the time these offences were committed you were at Wakari Hospital, that there has been ongoing family support for you prior to these offences, and that the Court is required to have some regard to the protection of the community for people that commit violent offences.

While I accept that you did not go into the timber yard with a premeditated view that you were going to cause serious violence to anybody there, the fact remains that you have committed burglaries on a number of occasions in the past, and you have been sentenced to imprisonment.

I do not believe that it is firstly appropriate to suspend any prison sentence today while a community programme is put in place.More particularly, I say that because the appropriate range of sentence is outside the two years which the Court is entitled to look at in suspending a sentence.

[11] The Judge felt that the protection of the community was paramount and that the programme put forward would not completely address that.

[12] On appeal it is said that initially the appellant was prepared to leave the premises but was prevented from doing so.There was reference to the fact that the complainant at one stage, when the appellant was climbing the fence, pulled him back.It is said that the appellant was not armed when he demanded money, nor was he armed when he entered the premises.He only armed himself with a broom when the complainant refused to hand over the money.The suggestion is that the complainant to some extent contributed to the ongoing violence by attempting to restrain him from leaving.Weight is placed on a guilty plea after a preliminary hearing and the various other matters that have been referred to so far as the appellant's mental health is concerned.Counsel for the appellant points out that he is prone to act impulsively without comprehending the consequences.A sentence other than imprisonment, on the grounds of special circumstances relating to the offence and the offender particularly the latter, is submitted to be appropriate.

[13] The good progress that the medical reports reveal prior to the offending, is to be regarded with some degree of scepticism.The conclusion that the safety of the public is better served if he is in prison, is countered with the assertion that imprisonment will put the community at eventually greater risk. We note that the opportunity of having him sent to Dunedin prison where the Waikari Hospital Intellectual Disability Services could liaise with the prison for ongoing treatment purposes was in the event thwarted by his being sent to Invercargill prison.

[14] In Dr de Fresne's report a recent relapse relating to use of substances since the offending and before the sentencing is reported.We agree with the Judge in the Court below that the programme put forward as part of the recommendation by the probation service does not sufficiently protect the community but the need for the treatment is nonetheless well and truly indicated.

[15] Counsel properly accepted that the appropriate range for violent offending such as this was between 3-5 years and the starting point of four years selected by the Judge was within the range.The sentence also had to reflect the multiple offending.In essence the appellant's submissions were confined to the proposition that the special circumstances provision of s5 of the Criminal Justice Act 1985 be invoked, and he be given a sentence of supervision on condition he complete the programme earlier mentioned.

[16] The suggestions and treatment in that programme have to be, so far as they can, part of his offender management programme in prison.The appropriate reports are therefore to be made available to the prison authorities and we strongly recommend that he be transferred to Dunedin prison so the alternative suggestion made by Intellectual Disability Services be a practical option.

[17] We have found this case difficult because of the undoubted individual needs which are required to be addressed but we see no alternative to those being addressed in prison given the possibility of further violent offending if he is left in the community albeit subject to the programme proposed.

[18] The appeal is accordingly dismissed but accompanied by the firm recommendations already made.

Solicitors:

Webb Farry, Dunedin for Appellant

Crown Law Office, Wellington