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[2011] VSCA 253
Court of Appeal (Vic)
2011-08-25
Ashley JA, Redlich JA, Hansen JA
Original judgment source is linked above.
CRIMINAL LAW - Intentionally causing serious injury - Sentence of six years imprisonment with non-parole period of four years - Whether sentence manifestly excessive - Expert evidence of applicant's mental state at time of offending - Connection between mental disturbance and offending - Continuing mental disturbance - Burden of imprisonment unusually onerous - Verdins principles applied - Application granted, appeal allowed - Appellant re-sentenced.
1 On 21 April 2010 the applicant, Simon Bennett, pleaded guilty before a judge in the Supreme Court to a count of intentionally causing serious injury. The maximum penalty for the offence is 20 years' imprisonment. On 17 June 2010 he was sentenced to be imprisoned for six years. The judge fixed a non-parole period of four years.
2 The applicant was refused leave to appeal against sentence by a single judge of this Court on 12 May this year. He renewed his application. It was that application which was listed before the Court as presently constituted. The parties having consented, the Court decided to entertain at the one time the renewal application and the appeal which would ensue if the application was granted. That was appropriate to the circumstances of this matter.
3 The offending can be simply described. The applicant is a man born 13 March 1979, and thus now aged 32. The victim, a man whom it is sufficient to refer to as W, had been known to the applicant since the mid 1990s. Some few weeks before the assault, which took place on 29 April 2009, the applicant went to live at W's rented premises in East Malvern. There was an issue whether the applicant requested W to provide accommodation, or whether W extended an invitation to the applicant to stay with him. Nothing immediately turns on it.
4 In any event, for reasons which must be later discussed, the applicant was drinking alcohol to excess at the time. There was increasing unhappiness between them, to some of the detail of which we will later refer. On the day of the offending, there was argument about the applicant drinking on the premises. The argument escalated. The applicant invited W to hit him. W declined. There was then a threat by the applicant to kill W. The latter rang the police and reported an emergency. The applicant made further threats to kill. Then, very shortly before he assaulted W, according to the Crown case, the applicant said 'you killed my sugar daddy, now it's time to kill you'.
5 The attack consisted of the applicant punching W to the stomach and rib areas, wrestling with W, using a ceramic pot in a failed attempt to hit W on the head, putting his hands around W's throat, bashing W's head into the concrete floor, and hitting W to the head with the broken-off head of a statue.
6 W suffered a number of injuries: a tiny[1] subarachnoid haemorrhage, a closed head injury with loss of consciousness and post-traumatic amnesia, a laceration to the left ear, a laceration to the left hand requiring mallet finger splinting and being such as would leave permanent disability of a finger, scalp lacerations, and left eye contusions.
7 W complained, at the time of the plea, of ongoing psychological upset. The sentencing judge accepted the existence of such upset.
8 The single articulated ground of appeal was that the sentence was manifestly excessive.
9 On the application for leave heard by the single judge, however, argument was pressed for the applicant that the sentencing judge had under-weighed the application of the Verdins[2] principles in the circumstances of the case - albeit that this was advanced under cover of the manifest excess ground.
10 Before us, the applicant appeared, unrepresented, by video-link. His submissions, together with those raised by his counsel on the leave application, raised a concern that there should be before the Court, so that the application and any appeal could be fully considered, a ground specifically directed to the application of Verdins. With the consent of counsel for the Crown, the Court resolved to deal with the matter as if there was a second ground of appeal, namely, that the learned sentencing judge failed to give sufficient weight to the principles set out in Verdins in the circumstances of the case.
11 In sentencing the applicant, the judge accurately described the circumstances of the offending. About that there is no issue. His Honour characterised the attack as 'fierce and sustained'. He recognised, however, that 'viewed objectively', the injuries which the victim sustained were 'not at the higher end of the range', although there were 'ongoing consequences' - we assume that he meant the likely finger disability and 'psychological and psychiatric difficulties'. His Honour stated that the fact that the injuries were not at the 'higher end' was 'largely fortuitous'. That may be accepted. But, of course, the applicant was to be punished for what he did and what its consequences were, not for what the consequences might have been.
12 His Honour gave the applicant credit for pleading guilty, and stated that the applicant had shown some remorse. But he regarded the question of remorse and the applicant's prospects of rehabilitation as matters to be treated with caution.
13 His Honour's conclusion as to the applicant's prospects of rehabilitation is readily explicable, and justifiable. He focused upon the applicant's long-time problem of alcohol abuse, upon the fact that the applicant had a prior history of offences of violence apparently committed whilst alcohol affected, and the uncertainty of the applicant overcoming abuse of alcohol. On the other hand, we consider, with respect, that his Honour's remarks do not really explain his qualification about the applicant's remorse.
14 We turn to the applicant's personal history. It was disclosed by submissions made by his counsel and histories recorded by an examining psychiatrist and an examining psychologist. The history so disclosed was not the subject of challenge by the Crown on the plea. It was not rejected by the judge in his sentencing remarks. It must be accepted as accurate for the purposes of the present application.
15 The applicant was born and raised in Adelaide. Both his parents suffered from depression. His father was also an alcoholic. His parents separated when he was aged 11.
16 From an early age the applicant began to use, then abuse, alcohol and cannabis.
17 Aged about 13 or 14, he was taken to a psychologist, and was prescribed dextamphetamine (which is a drug used to treat ADHD) for a year.
18 Aged 15, he was found in a drunken condition in a gutter by a married couple from Melbourne, then visiting Adelaide. They took him to a Salvation Army premises to undergo detoxification.
19 During and after treatment, contact was maintained with the couple, and it continued after they returned to Melbourne. In time, the applicant being increasingly rejected by his parents, he was invited by the couple to come and live with them, and he did so.
20 He lived with the couple and their son from about 1995 to 1998. In that period, on the applicant's account, the husband (who we will call 'D') and the applicant engaged in sexual activities which would justify the description of sexual abuse by D. He did not suggest, however, that the family had otherwise been other than a true family to him - by contrast with what he had experienced in childhood, and as a young person; and this, as will be seen, was reflected in his later ambivalent feelings about D.
21 It was in the period that he was living with the family that the applicant met W. The latter was a friend of the couple's son.
22 It appears that W never lived with the family; but he later alleged that he had been a victim of sexual abuse by D.
23 Aged about 19, the applicant returned to Adelaide to see his father, who had become terminally ill. After his father's death, he returned to Melbourne for seven to eight years.
24 Whilst in Adelaide, the applicant incurred a conviction for assault. It involved, it was said on the plea, a fight with a 'bouncer'. He was given a suspended sentence. A special condition was imposed that he obey a probation officer's directions, particularly respecting medical assessment/counselling/treatment directed to anger management.
25 Between the ages of about 20 to 26 the applicant lived and worked in Melbourne. He continued to see the family with which he had lived very often. In addition, for the first three years after his return, he worked for D. In that period, he alleged, the abuse resumed.
26 Once during that period, it appears, the applicant was admitted to the Alfred Hospital Psychiatric Unit. No details of that admission were provided on the plea.
27 On three occasions between November 2004 and November 2006, the applicant sustained convictions in the Magistrates' Court at Melbourne. One of the appearances is presently beside the point. The others were in respect of - (1) being on premises without lawful excuse, causing injury recklessly and criminal damage; and (2) theft, and failing to appear.
28 The first of those appearances arose out of the applicant, being alcohol affected, entering the flat of a past girlfriend, and passing out. She arrived home, was outraged, called her male flatmate and there was a fight. A door was damaged. The second appearance related to the theft of cigarettes, cigar cases and a lighter, this misconduct taking place in the early hours of the morning at a convenience store when the applicant was intoxicated, and after he had been refused service.
29 The applicant was employed by Coles for a period of some years after leaving D's employ. But such stability as the Coles' employment provided was lost when he was retrenched.
30 The applicant then returned to Adelaide. At some point thereafter he entered into a relationship with a woman who was considerably older, and whose husband had recently suicided. She was a nurse by occupation.
31 In October 2007, W made a complaint of sexual abuse against D to the Medical Board ('the Board'), D being a medical practitioner.
32 The applicant learned from D that this complaint had been made by W.
33 The applicant's partner winkled out from him his account of abuse at the hands of D. She contacted the Board.
34 In May 2008, an officer of the Board travelled to Adelaide and interviewed the applicant. He made certain allegations against D.
35 Soon after that interview, the applicant's mental state deteriorated to the point that he attempted to take his life more than once. He was admitted to a psychiatric institution on two occasions - once after he had first been interviewed, and later after he refused his permission for professional misconduct charges to be brought against D in reliance on his interview. No report from either institution was provided on the plea. But the history given by the applicant to an interviewing psychiatrist in January 2010 was that he recalled feeling depressed at the time of those admissions.
36 The applicant's apparent psychiatric reaction to making the complaint against D, which was not of his institution, seems to have reflected his ambivalent attitude towards D; and, as well, his affection for the family generally.
37 The applicant returned to Melbourne in the latter half of 2008. Whilst in South Australia, we note, he had been before the Magistrates' Court on two occasions. On each occasion, street offences were involved. The applicant had been put on a bond on one occasion, with conditions in respect of counselling about alcohol; and on the other occasion he had been discharged without penalty.
38 When back in Melbourne, the applicant saw a member or members of the family most days.
39 In January 2009, events took a turn. W was interviewed by a radio program, and made public his concerns about lack of action against D. It seems that the police, who already had taken a statement from W, ascertained the applicant's name from the Board. But, however it came about, the police interviewed the applicant. He made a statement on 19 January 2009 concerning the alleged abuse. He did so after having initially refused to make a statement.
40 On 20 January 2009, D was found dead. He had committed suicide.
41 The applicant's reaction was one of grief and guilt. His use - abuse - of alcohol markedly increased.
42 It was his perception, which is definitely not to say that it was the fact, that W reacted in a quite different way to D's death. What were stated as matters of fact on the plea were that W - (1) sought legal advice about bringing a proceeding for damages against D's estate, (2) told the applicant about it, and (3) took the applicant, as a prospective witness, to a solicitor and to a conference with counsel. These events necessarily occurred in the period between D's death and the criminal act for which the applicant had to be punished.
43 It was in this context that - it matters not just how it eventuated - the applicant came to be living at W's flat in April 2009. It can be said with hindsight that because of the applicant's own feelings about D's death, his serious overuse of alcohol following the death, and what he perceived was the different attitude of W to the death, that an explosion of violence was well on the cards.
44 Respecting his overuse of alcohol, we should mention that the applicant was at the time subject to a community based order with an alcohol counselling condition. It had been imposed in October 2008 for breach of the disposition on the theft charge to which we have earlier referred.
45 The relationship between the applicant and W deteriorated in the passage of weeks. Several days before 29 April, W called the police when the applicant would not leave. The applicant was taken to a police lock-up for the night. The applicant decided to move out. He had made arrangements to do so later on the 29 April. His criminal act, however, intervened.
46 We turn from this account of events to the reports of the psychiatrist and psychologist.
47 It is important to understand that the report of Dr Walton, consultant psychiatrist, dated 19 January 2010, addressed an issue which was then still alive - whether the applicant was subject to mental impairment, as that term is understood in the criminal law, at time of offending.
48 Dr Walton made a number of points in his report to which we should refer:
(1) The applicant exhibited continuing ambivalence towards D, one
aspect being that he disputed the allegations made by W.
(2) The applicant perceived that W had contributed to D's death.
(3) The applicant nonetheless denied that he harboured particular ill-will towards W on that account.
(4) The applicant had not had a sustained attempt at alcohol or drug rehabilitation.
(5) The applicant gave an account of having had auditory hallucinations in the period leading up to the assault.
While Mr. Bennett does speak of recurring bouts of auditory hallucinations in the months preceding the incident, as best he could remember that phenomenon was not occurring at the time of the incident and, in any event, I could not state that Mr. Bennett was actually suffering from a disease of the mind as defined legally.
That said, clearly Mr. Bennett was far from being in a state of mental equilibrium at the time. His behaviour generally was deteriorating in the context of the mounting alcohol abuse and he was prone to at least intermittent psychotic episodes. Thus while I could not state that he has a formal defence of mental impairment available to him, it does seem that his capacity to exercise proper social judgement likely was eroded.
50 As we perceive it, Dr Walton considered that the applicant suffered from chronic anxiety and depression, running 'in parallel' with alcohol abuse. He was not thereby opining that the chronic anxiety and depression was other than a free-standing mental illness.
51 Next, whilst Dr Walton stated that 'precisely what motivated' the applicant to commit the assault 'remains obscure', he opined that 'in many respects, the final outcome can be seen as the culmination of this build-up' - that is, the increasing arguments between the applicant and W in the context of alcohol abuse. In all, he was not saying that the cause of the attack was obscure, but only that the immediate trigger was obscure.
52 Next again, Dr Walton opined that the applicant's capacity to exercise proper social judgment was likely eroded at time of offending - although it could not be said that a defence of mental impairment was available. So to say was consistent with the doctor's conclusion that the applicant's 'mental disturbance' did make 'some contribution' to the offending.
53 All in all, we consider it is clear that Dr Walton sought to separate out, so far as possible, the impact of 'chronic anxiety and depression', 'mental disturbance' on the one hand, and abuse of alcohol on the other, as contributors to the erosion of the applicant's capacity to exercise proper social judgment at time of offending.
54 The clinical and forensic psychologist, Dr Kennedy, provided reports dated 13 April 2010 and 3 May 2010. By the time that he interviewed the applicant, the mental impairment question was no longer alive.
55 Although Dr Kennedy was informed by the applicant that he had been prescribed antidepressants 'for years', and that one of his admissions to a psychiatric unit had been provoked by an overdose of antidepressant medication, the doctor appears to have arrived, in his first report, at diagnoses of 'personality disorder with borderline features', with 'past episodes of paranoia and suicidality'; or at very least 'significant personality difficulties and associated substance abuse'.
56 In that report, in which he twice stated that he was inhibited by not knowing what plea the applicant was going to enter, the only explanation that Dr Kennedy offered with respect to the cause of the offending was reference to conflict between the applicant and W concerning complaints to the Board and W's statement to the media in January 2009.
57 In his second report, Dr Kennedy expressed these opinions:
It is clear that the sexual abuse had immediate effects on him and his behaviour.
...
The sexual abuse has led to marked personality disturbance. Mr. Bennett had previous conduct problems in the context of having grown up in a rather disturbed family environment. Nevertheless, the sexual abuse has led to substantial psychological problems. In addition, the emotional manipulation that has been an important part of the abuse and Mr. Bennett's involvement in the abuse, was psychologically very damaging to him.
...
As with many individuals who have personality difficulties as a result of such experiences, Mr Bennett has had marked confusion regarding himself and also has experienced ongoing depression.
...
Based on his self report, Mr. Bennett would drink regularly to excess and use 'party drugs' on a sporadic basis. He reported that sometimes he would use them every weekend for three months at a time, and then not touch them for a year. It would appear that he did not use a large amount of these drugs, but it was, as with the alcohol, a form of escape in attempting to block out the confusion in his life.
...
... his behavioural disturbance related to the current offending appears to be directly caused by his personality functioning and exacerbated by situational factors, especially the reporting of the above to [the Board] and the abuser subsequent suicide. Mr Bennett's mental state deteriorated in this context, and his substance abuse.
It is inevitable, in my opinion, that the sexual and emotional abuse experienced by Mr. Bennett has led, by way of his disturbed personality functioning and substance abuse, to the current offending.
58 It is notable that in this second report, Dr Kennedy identified ongoing depression, and that he drew a connection between the applicant's disturbed personality functioning, substance abuse, and the offending - the link being the reports made to the Board and D's suicide.
59 Having now reviewed the entirety of the evidence placed before the judge, we must refer to what the learned judge said in his sentencing remarks concerning the application of the Verdins principles. First of all, he set out a number of passages in the reports of Dr Walton and the second report of Dr Kennedy. Then he said this:
[35] In the context of the psychological and psychiatric material, I was urged to give weight to the principles set out in R v Verdins. If these principles were to operate, they would do so to reduce your moral culpability, lessen the need for you to be a vehicle for both general and specific deterrence, and I would be obliged to have regard to what Dr Walton has said about the effect of imprisonment upon you.
[36] Your life has been a difficult one, but I am not satisfied that the material before me would justify significant weight being accorded to your mental state when framing this sentence, but I do accord it some weight. The evidence is, at best, inconclusive, and your mental state cannot be separated from your abuse of alcohol.
60 Trial judges, and this Court, very often encounter pleas in which Verdins principles are called in aid. Often, it must be said, the factual underpinning for attachment of those principles is weak. As this Court has repeatedly said, even if mental disturbance (whether at time of offending or time of sentence) is demonstrated, the disturbance must be causally linked with the offending, or with the burden of prospective imprisonment, or both, before Verdins principles can have any application. Often enough, resort to those principles falls at the second, if not the first, hurdle.
61 It is thus right for a judge to be suitably cautious before concluding that at a relevant time an accused person was suffering from a mental disturbance, and before concluding that any such disturbance contributed to the commission of an offence, and/or was such as to increase the burden of imprisonment.
62 Here, the judge, despite his reference to the evidence being inconclusive, concluded both that the applicant did have a 'mental state' (which he did not characterise) at some relevant time (which he did not describe) and that such mental state required one or more of the Verdins principles (he did not say which) to be given 'some weight'. With great respect, those conclusions were incomplete. Further, in light of the entire history of events which we have described - they included several quite recent admissions to psychiatric institutions - and as well as the psychiatric and psychological opinions, it was in our view a necessary conclusion that the applicant's mental state at time of offending (it certainly included chronic anxiety and depression, the extent of which was, inferentially, at quite a high level in consequence particularly of events occurring in the latter half of 2008 and the entirety of 2009) was a substantial contributor to the offending. Contrary to the judge's conclusion, substantial weight must have been given to it as part of the instinctive synthesis. In his disturbed state, the applicant's perception of W's role in the unmasking of the alleged abuser, and D's death, together with his own perception of his role in the events, were likely to lead to an explosive outburst at some time, and do provide, contrary to the judge's view,[3] an explanation for what occurred.
63 The applicant's continuing mental disturbance at time of examination by Dr Walton, not shown to have altered at time of sentence, also required a finding, we consider, that the burden of imprisonment would be unusually onerous for the applicant, thus calling into operation the fifth principle stated in Verdins.
64 In all, in our view, the evidence was decisive that the applicant's mental disturbance was relevant, and substantially so, in respect of the first, third, fourth and fifth of those principles.
65 We should add this: just perhaps, the judge may have thought that the reports did not precisely align in their diagnoses of the applicant's mental condition at time of offending, and for that reason neither should be accepted. But his Honour did not say that he so concluded; and it would have been a difficult conclusion to reach in any event, particularly after Dr Kennedy identified the presence of depression at time of offending. Again, just perhaps, the judge may have thought that Dr Kennedy did not unequivocally associate the applicant's explosive outburst towards W with the applicant's perception, in his state of mental disturbance, that W had by his actions contributed to D's death. But his Honour did not say that he so concluded, and again that would have been a difficult conclusion to reach on consideration of Dr Kennedy's two reports.
66 It follows from what we have said that it has been demonstrated that the learned judge underweighed the Verdins principles as a sentencing consideration. In all the circumstances of this case, having regard to that matter, we consider that a different sentence should be passed. It is not necessary to discretely consider the manifest excess ground.
67 In our opinion, the applicant should be granted leave to appeal against sentence, the appeal should be allowed, and the applicant should be re-sentenced. We will impose a sentence of five years' imprisonment, and we will fix a non-parole period of three years. Such a sentence will, in our view, adequately cater for all the circumstances of the matter, which include the fact that the assault was a savage one, that the injuries inflicted were not at the high end, and that, despite the contribution to the offending made by the applicant's mental disturbance, vengeance for an imagined wrong was simply unacceptable.
[1] That was the description of it in the prosecution opening. Orally, the prosecutor referred to it as 'small'.
[2] [2007] VSCA 102; (2007) 16 VR 269, 276 [32].
[3] His Honour concluded that why the applicant 'turned on [W] in the way [he] did remains largely unexplained', though saying that it was 'born largely out of alcohol-induced anger'.
# Bennett
The Queen \[2011\] VSCA 253
(2007) 16 VR 269