Collier v The Queen [2018] VSCA 47

1 I agree with Hargrave JA, whose reasons I have had the advantage of reading in draft.

1. On 2 March 2017, the appellant pleaded guilty in the County Court to threatening to inflict serious injury (charge 1), criminal damage (charges 2 and 3), aggravated burglary (charge 4) and contravening family violence intervention orders (charges 5, 6 and 7).
2. The judge sentenced the appellant on 24 March 2017 to be imprisoned for five years and nine months, with a non-parole period of three years and six months, in accordance with the following table:

Contravention of a family violence order intending to cause harm or fear for safety[4] [mother]

Contravention of a family violence order intending to cause harm or fear for safety [father]

Contravention of a family violence order intending to cause harm or fear for safety [son]

7 years' imprisonment with 4 years and 6 months non-parole

• Compensation order for $330 in favour of Amber Johnstone
• Compensation order for $370 in favour of Carolan Collier
• Forfeiture and disposal order (knife)
• Forensic sample order pursuant to s 464ZF Crimes Act 1958

1. The appellant sought leave to appeal against sentence on two grounds:
   1. That the sentence imposed was manifestly excessive, in particular that it gave insufficient weight to:

(a) the circumstances of the offending;

(b) the mental condition of the Applicant at the time of the offending;

(c) the efforts of the Applicant to rehabilitate herself prior to and subsequent to the offending; and

(d) the fact that the Applicant had never previously been sentenced to a term of imprisonment.

1. The learned trial judge erred in categorising the rehabilitation of the Applicant as 'guarded' taking into account:

(a) the prior criminal history of the Applicant;

(b) the efforts of the Applicant prior to the offending and in custody to rehabilitate herself; and

(c) the Applicant's remorse for the offending and acceptance of full responsibility of the offending.

5 Leave to appeal has been given on the first proposed ground, alleging that the total effective sentence was manifestly excessive. Leave to appeal was refused in respect of the second proposed ground.[5] Since obtaining leave to appeal, the appellant has sought to add two additional grounds of appeal as follows:

3. That the learned sentencing judge erred in :

1. Characterising the offending as confrontational aggravated burglary of a serious kind
2. Regarding herself as bound by Hogarth and subsequent authorities to impose a relatively high sentence without giving due regard to factors and circumstances particular to the appellant's case

1. The sentencing discretion miscarried because the learned sentencing judge failed to apply the principles in Verdins

6 The new proposed ground 3 arises from the reasons granting leave to appeal, and leave will be given to raise that new ground. The new proposed ground 4 was in substance before the sentencing judge and leave should also be granted in respect of it. In any event, the addition of these grounds was not opposed.

7 The appellant was born on 23 March 1974. At the time of this incident, she was 42 years old. She was unemployed and lived in Benalla.

8 The appellant's parents, Carolan and Laurence Collier, are two of the victims in this matter.

9 At the time Carolan Collier was 68. Laurence Collier was 70. They lived at 117 Appin Street, Wangaratta, along with the appellant's son, Jess-Laurence (Jessie) Collier who was 23 at the time. The other victim in this matter is Amber Johnstone. Ms Johnstone also lived in Wangaratta and was 42 years old at the time. They had gone to school together and she knew the appellant for some 30 years.

10 In June and July 2016, three family violence intervention orders were made against the appellant in the Wangaratta Magistrates' Court as follows. On 1 June 2016, an intervention order was made protecting Carolan Collier. That order was served on the appellant on the day that it was made. On 8 June 2016, an intervention order was made protecting Jessie Collier. That order was served on the day that it was made. On 6 July 2016, an intervention order was made protecting Laurence Collier. That order was served on the appellant on 7 July 2016 (collectively the intervention orders).

11 Each of those orders included conditions that the appellant must not, amongst other things, commit family violence against the protected persons, intentionally damage any of their property, or go within 200 metres of 117 Appin Street, Wangaratta.

12 At approximately 6:20 am on Monday 22 August 2016, the appellant telephoned her brother Dean Collier. When he answered the call, the appellant told Dean that she'd had enough of their mum, meaning Carolan Collier, and that she was going to cut her mother's throat [charge 1 - making a threat to inflict serious injury].

13 Dean told the appellant to calm down and relax. She hung up on him, but he called her back on her mobile phone. The appellant answered the call, but was screaming and carrying on and said she was driving to Wangaratta. She then hung up a second time. Dean tried to call her back again, but she didn't answer, so he called the Wangaratta Police Station to alert them. He also telephoned Carolan Collier to warn her.

14 At approximately 7:15 am, the appellant arrived in Manly Crescent, Wangaratta, at the home of Ms Johnstone. She got out of her car and approached the house, yelling and screaming. The appellant picked up a paving block from in front of Ms Johnstone's car in the driveway, then threw it through Ms Johnstone's front bedroom window where she was sleeping. She then picked up a second paving block and threw it through a second bedroom window [charge 2 - criminal damage].

15 The appellant then went back to her car, continuing to yell and scream and drove away, revving the car's engine loudly and skidding its wheels. A short time later the appellant arrived at 117 Appin Street, Wangaratta, where her parents and son lived. She parked her car a short distance away and then walked up to the house holding a large serrated knife with two prongs at the end of the blade. The blade was approximately 20 centimetres long.

16 The appellant stopped at the front of the property and dug up a brick from the front yard near the letterbox. She then approached the front door yelling and screaming at her family inside. The appellant threw the brick through a lounge room window and kicked another lounge window, causing them both to smash [charge 3 - criminal damage].

17 She then crawled through the bottom broken window armed with the large serrated knife in her hand.

18 The appellant yelled threats towards her mother as she entered the house saying, 'I'm going to cut your throat' [charge 4 - aggravated burglary].

19 Once the appellant was inside the house, Laurence and Jessie Collier restrained her by getting on top of her on the floor. Jessie Collier punched her in the back of the right hand several times to make her drop the knife, which fell to the ground and he put it on the kitchen table. Moments later, the police arrived and arrested the appellant.

20 The appellant's actions in attending 117 Appin Street, Wangaratta, and engaging in the conduct described above, breached the intervention orders [charges 5, 6 and 7 - contravening an intervention order, intending to cause harm or fear].

21 The appellant was interviewed at the Wangaratta Police Station later that morning. However, the interview was suspended shortly after it was commenced and did not address the allegations in any detail. The appellant was seen by a forensic medical officer who deemed that she was not fit to be interviewed any further that day.

22 The offending took place following long term acrimony between the appellant and her mother resulting from her belief that she had been constantly ill-treated by her mother when she was a child, and the appellant's belief that her mother failed to take appropriate action in response to the appellant's claims of having been sexually assaulted.[6]

23 The sentencing judge was of the view that the offending was precipitated by the appellant suffering a breakdown at the time of the offending.[7] Her Honour also noted that the psychologist who reviewed the appellant and prepared a report, Carla Lechner, was of the view the appellant was 'in a parlous state of mind at the time of the offences',[8] the appellant's son advised police the appellant was suffering 'from extreme anxiety',[9] and the appellant's brother (who she had telephoned giving a warning of the offending) said her actions were in his view an instance of the appellant 'crying out that [she] finally needed help in [her] life'.[10]

24 Ms Lechner stated in her report that the appellant presented with 'Stimulant & Cannabis Disorder, complex and persistent Post-Traumatic Stress Disorder'.[11] Ms Lechner noted that the appellant gave a history of: starting smoking cannabis at 14 years of age, consuming two grams a day; using 'ice' intravenously from 2011; and stopping her use of ice in December 2015, but relapsing prior to the offending at issue - in combination with binging on alcohol. Ms Lechner summarised her view of the appellant in the following terms:

She has abused drugs as a means of coping with her emotional distress. In recent years she has become addicted to Ice and now presents with symptoms of a Stimulant & Cannabis Use Disorder. [Her] offending appears to have arisen in the setting of long-standing family difficulties, a sense of despair about her own life and poor judgment and impulse inhibition on account of poly-substance abuse.[12]

25 The sentencing judge also noted that the appellant had never received any assistance with dealing with the problems she was facing as a result of her 'complex family dynamics',[13] despite previously having been before the courts with intervention order breaches.

26 For some time prior to the offending, the appellant had been receiving assistance from the Salvation Army including counselling from Mr Terance Long who gave evidence on her behalf. This led to the appellant becoming involved in the church and the Court was advised of continuing assistance for the appellant available upon her release.[14] She had moved to a city as far as possible from her family problems[15] and had settled down peacefully for a period before this breakout.[16]

27 The sentencing judge accepted the views of Mr Long[17] and Ms Lechner[18] that the appellant has used her time in custody fruitfully by pursuing courses and becoming involved with a prison fellowship.

28 The sentencing judge summarised the appellant's mental state in the following terms:

Carla Lechner describes your history and presentation as being consistent with exposure to complex developmental trauma that has given rise to persistent post-traumatic stress disorder.

...

Her opinion, overall, was that you were in a parlous state of mind at the time of the offences and that, as I have said, you have expressed regret and shame for your actions and are now well-motivated to participate in rehabilitation.[19]

29 Finally, as to contextual matters, it should be noted that the appellant has previous convictions for recklessly causing injury (2003 and 2014), throwing a missile (2014) and contravening family violence orders (three offences in 2016). Each of these prior convictions involved aggressive behaviour by the appellant against her immediate family.

30 The sentencing judge commenced her sentencing reasons by noting that a substantial part of the appellant's acrimonious relationship with her mother related to her claim that she was sexually molested by her grandfather, and her belief that her mother was to blame for that conduct continuing because she did not take the appellant's claim seriously.[20]

31 Next, the sentencing judge noted that the appellant, perhaps because of the abuse and her acrimonious relationship with her mother, became involved with drugs in her teenage years 'and this involvement appears to have precipitated some mental problems'.[21]

32 The sentencing judge then noted that the fact the appellant's son, Jessie, preferred living with the appellant's mother (his grandmother) rather than the appellant was another cause of antagonism within the family.[22]

33 The sentencing judge then noted the existing intervention orders and the circumstances of the offending and emphasised the following relevant matters:

(1) the appellant's early guilty plea and consequent expression of remorse;[23]

(2) the 'tragic' victim impact statements;[24]

(3) Ms Lechner's evidence that the appellant is 'well-motivated to participate in a rehabilitation program [and is] extremely remorseful';[25]

(4) Ms Lechner's 'overall' opinion that the appellant has 'expressed regret and shame for [her] actions and [is] now well-motivated to participate in rehabilitation';[26]

(5) the continuing risk to the appellant's family if she is unable to 'release' herself from drug addiction;[27]

(6) the need for general and specific deterrence, with weight being attached to specific deterrence because of the risk to the safety of the appellant's parents;[28]

(7) the need to respect family violence intervention orders;[29] and

(8) although it was not possible to resolve the conflicting accounts of the appellant's childhood, the issues which have arisen remain unresolved.[30]

34 Against the background of these principal sentencing remarks, together with other mitigating factors, the sentencing judge concluded in the following terms:

This was a confrontational aggravated burglary of a serious kind. It was committed in the context of several prior efforts to harm your mother, it was committed immediately after a threat to inflict serious injury on your mother. For you to go to your mother's house entailed a long drive from Benalla to Wangaratta, during which you would have had ample time to reflect on the stupidity of what you had in mind. Had you not been restrained by your father and son, as I have said, this incident could have been catastrophic.

I am told that on your release, you wish to relocate to another country town, well away from your family and the Salvation Army will assist you to do this. This will be a good start to your rehabilitation but on any estimate, your prospects of rehabilitation must be guarded.

In my view, the appropriate sentence for you today, taking into account the severity of your actions, the need for your rehabilitation, the need for some structure in your life and all of the other sentencing matters which I have identified in these reasons, is for me to sentence you to a significant prison term, followed by a period of parole which will enable you to be closely supervised and assisted on your release.[31]

35 In the absence of the guilty plea, the sentencing judge stated that she would have sentenced the appellant to a period of seven years' imprisonment with a minimum period of four and a half years before eligibility for parole. Her Honour repeated the statement that she viewed the offending as 'a serious example of the offence of aggravated burglary'.[32]

36 The sentencing judge's statements in her reasons that she viewed the appellant's offending as a serious example of aggravated burglary arose in the context of the following statements in argument on the plea, in response to the appellant's counsel seeking a community corrections order:

Well, I'll hear what the prosecutor has to say, but I'm very aware of the authorities past Hogarth about the sentencing for aggravated burglary. I've got a 25 year sentence here. You got a florid family situation and you've got an extremely frightening incident where it seems quite clear that each one of the people in the house that day thought that your client was going to kill her mother. I notice she's only been charged with a threat to inflict serious injury but it's really right up the top there with one of the most serious of that offence. I can't really see how you could argue for a community corrections order in those circumstances.[33]

37 At the core of the appeal grounds are the overlapping complaints that the sentencing judge:

(1) gave too much weight to her characterisation of the aggravated burglary as confrontational and of a serious kind, and that Hogarth thus required her to impose a severe sentence [ground 3]; and

(2) gave insufficient weight to the appellant's mental condition and rehabilitation efforts [grounds 1 and 4];

with the result that a manifestly excessive sentence was imposed.

Grounds 1 and 3 - characterisation of the aggravated burglary led to manifest excess

38 In Hogarth v The Queen,[34] this Court concluded that the sentences generally imposed for 'confrontational aggravated burglary' were too low, and that sentencing practices needed to change to reflect the objective gravity of this kind of offending.[35]

39 In Director of Public Prosecutions v Meyers,[36] this Court explained that:

... the task of applying Hogarth does not require the classification of offences into categories. Put simply, Hogarth established that current sentencing practices ('CSP') for serious forms of aggravated burglary needed to change, as they did not reflect the objective seriousness of such offending. Aggravated burglaries which involve confrontation and violence, or threats of violence, should be viewed very seriously, whether the target of the attack is a former domestic partner or a person against whom some other grievance is held.[37]

40 As these and other statements in Meyers make clear,[38] each case will depend on its own facts and the seriousness of the offending must be viewed in the context of those facts. Classification or labels are of marginal significance and may distract from the instinctive synthesis of the sentencing task.

41 The appellant contends that the sentencing judge was in error in her characterisation of the aggravated burglary as both confrontational and serious, and on that basis imposing a severe sentence. Reliance is placed upon differences between this case and the facts in Hogarth v The Queen.[39] That case involved a 'home invasion' committed by multiple offenders carrying weapons intending to rob or injure victims who were the parents of the person against whom a grievance was held. The appellant had relevant prior convictions, including for aggravated burglary, had served a term of imprisonment and had recently completed parole at the time of the offending. In this case, the appellant points to the 'unique context of complex and difficult family dynamics' arising from a long standing acrimonious relationship between the appellant and her mother which, from the appellant's perspective, arose from ill-treatment towards her by her mother. Moreover, the appellant points to the fact that her offending was not committed in company, and arose in the context of her persistent post-traumatic stress disorder, depression and consequent substance abuse.

42 The appellant contends that her 'parlous state of mind' at the time she offended is closer to facts considered by the Court of Appeal in Suckling (Shortis) v The Queen.[40] In that case, the aggravated burglary and making a threat to inflict serious injury occurred in the context of a belief by the offender that the victim had sexually abused her daughter. The offence was committed in the context of 'extreme emotional distress' which had built up to the extent that the offender was 'overwhelmed by her emotions'. In those circumstances, Neave JA (Coghlan JA agreeing) considered that the sentencing judge in that case had erred in considering he was bound by Hogarth to impose a relatively high sentence for the aggravated burglary and then discount it by reference to mitigating factors.[41] A sentence of three years for aggravated burglary was reduced to 15 months.

43 As can be seen, these contentions for the appellant involve overlap with the Verdins ground of appeal.

44 The respondent contends that the judge's characterisation of the offending was open to her and, indeed, appropriate in all the circumstances. The history of acrimonious relations, continuous breaches of intervention orders, the appellant's threat to cut her mother's throat coupled with committing the aggravated burglary with a large kitchen knife and the need to restrain her so as to prevent her using it, fit well within the description of a confrontational aggravated burglary of a serious kind. This is especially so where the appellant's professed purpose in entering her parents' home was to injure her mother in revenge for some actual or perceived wrong and while acting in anger and fuelled by drugs. This case is far more serious than Suckling.

45 I accept the appellant's contentions. Viewed as a whole, especially in the context of the offending described above and the appellant's mental state considered below on the Verdins ground, this was not as serious a case as Hogarth or Meyers. While serious, the offending is closer to the kind of case considered in Suckling. In all the circumstances, the five year sentence for aggravated burglary was wholly outside the range of sentencing options available to the sentencing judge.[42] The appellant should thus be resentenced. I turn to consider the Verdins ground.

Ground 4 - failure to apply principles in Verdins

46 The appellant contends that the sentencing judge was in error because she failed to reduce the appellant's moral culpability in circumstances where her offending was the result of impaired mental functioning. The respondent contends that the appellant's drug use was the primary cause of her offending, such that there is no sufficient nexus between her mental state and her offending.

47 In R v Verdins,[43] the Court of Appeal summarised the applicable principles in the following terms:

Impaired mental functioning, whether temporary or permanent ('the condition'), is relevant to sentencing in at least the following six ways:

1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.[44]
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment.[45]

48 In arriving at this summary, the Court emphasised that, for the mental impairment to reduce moral culpability, it must have been operative at the time of the offence,[46] in the sense that there be a 'real connection' between the mental condition and the offending in order for moral culpability to be lessened.[47]

49 The decision in R v Verdins involved the disposition of three appeals. In the second appeal, involving Mr Buckley, the Court considered the expert psychiatric reports as to Mr Buckley's mental state at the time he committed the offences. The first report noted that Mr Buckley was depressed because of his increasing use of amphetamines following a collapse in his business and personal life, and concluded that the offences were the result of 'a psychotic episode induced by amphetamines'.[48] The second report referred to Mr Buckley's lack of psychological dysfunction at the time of interview, and concluded that his offending was the result of a collapse in his personal and business life leading to gambling and a serious amphetamine addiction affecting his psychological state. However, the offences were 'based on a need to support an amphetamine and gambling habit'.[49] In these circumstances, the Court concluded that Mr Buckley's offending was not contributed to by any underlying mental impairment but was the result of his drug addiction.[50]

50 It is accordingly necessary to consider the terms of Ms Lechner's report in more detail. Ms Lechner is a clinical psychologist. Her report is comprehensive. Viewed as a whole, it contains an inherently plausible opinion that the appellant was suffering from both impaired mental functioning and her consequent drug use at the time of her offending. Ms Lechner's opinions include the following:

1. ... Ms Collier gives a history strongly suggestive of chronic developmental trauma that has resulted in symptoms of persistent Post-Traumatic Stress Disorder. She has abused drugs as a means of coping with her emotional distress. In recent years, she has become addicted to Ice and now presents with symptoms of a Stimulant & Cannabis Use Disorder. ... Ms Collier has settled quite considerably in custody, is now prescribed an anti-depressant and mood stabilising medication with an attendant in her mood state. ...
2. ... Ms Collier was raised in an intact but reportedly dysfunctional family environment characterised by domestic ... and sexual abuse ... [there is] a growing symbiosis between Ms Collier's mother and her son that she found extremely hard to tolerate.
3. ... [Ms Collier has] learnt to block out internal distress with drug use from an early age. Ms Collier presents with long-standing symptoms of PTSD and depression, although these symptoms are often masked by substance abuse. ...
4. In respect of these offences, at the time, Ms Collier appears to have been in a parlous state of mind on account of both her drug use and acute level of emotional distress and depression. She expresses regret and shame for her actions ... [51]

51 Although the sentencing judge referred to Ms Lechner's report during the course of her sentencing reasons, her Honour did not refer to Verdins principles and thus did not expressly consider whether the appellant's impaired mental functioning was capable of reducing her moral culpability for the offending.

52 Having regard to the opinions expressed by Ms Lechner, I am satisfied that, although the appellant's drug addiction was a major cause of her offending, her underlying depression and post-traumatic stress disorder had a real connection with the offending. This is not a case of depression being the only mental impairment.[52] The appellant also suffers from Post-Traumatic Stress Disorder. Taking the evidence as a whole, I am satisfied that the appellant's mental impairments caused her to succumb to overwhelming mental distress and, combined with her drug-taking, contributed to her 'having no real sense of what ... she was doing'.[53] This finding is supported by Ms Lechner's statements that the appellant's mental state has 'settled' while in custody and subject to a new medication regime, and her apparently genuine feelings of regret and shame for her actions. This reduces her moral culpability.

Contravention of a family violence order intending to cause harm or fear for safety [mother]

Contravention of a family violence order intending to cause harm or fear for safety [father]

Contravention of a family violence order intending to cause harm or fear for safety [son]

4 years' and 6 months' imprisonment with 3 years non-parole

• Compensation order for $330 in favour of Amber Johnstone
• Compensation order for $370 in favour of Carolan Collier
• Forfeiture and disposal order (knife)
• Forensic sample order pursuant to s 464ZF Crimes Act 1958

[1] Crimes Act 1958 s 21. The maximum penalty is five years' imprisonment.

[2] Ibid s 197(1). The maximum penalty is 10 years' imprisonment.

[3] Ibid s 77. The maximum penalty is 25 years' imprisonment.

[4] Family Violence Protection Act 2008 s 123A. The maximum penalty is five years' imprisonment.

[5] Collier v The Queen (Unreported, Court of Appeal, Priest JA, 12 July 2017, determined on the papers).

[6] DPP v Collier [2017] VCC 311 [3] ('Sentence'); report of Carla Lechner, dated 16 December 2016 (Exhibit A) page 2 (Personal History).

[11] Report of Carla Lechner, dated 16 December 2016 (Exhibit A) page 7 (Treatment Considerations).

[18] Report of Carla Lechner, dated 16 December 2016 (plea Exhibit A) page 6 (Offending Behaviour).

[19] Sentence [34]-[36] (emphasis added).

[20] Sentence [3]. The appellant also claims other sexual abuse in her childhood.

[28] Ibid [41]-[42], [47]-[48].

[31] Ibid [59]-[61] (emphasis added).

[33] Emphasis added; referring to Hogarth v The Queen [2012] VSCA 302; (2012) 37 VR 658.

[34] [2012] VSCA 302; (2012) 37 VR 658 ('Hogarth').

[35] DPP v Meyers [2014] VSCA 314; (2014) 44 VR 486, 489 [4] ('Meyers').

[36] [2014] VSCA 314; (2014) 44 VR 486.

[38] Ibid 493 [32], 495-8 [38]-[46].

[39] [2012] VSCA 302; (2012) 37 VR 658.

[40] [2013] VSCA 278 ('Suckling').

[42] Clarkson v R (2001) 32 VR 361, 384 [89].

[43] [2007] VSCA 102; (2007) 16 VR 269.

[44] See, for example, R v Payne [2002] WASCA 186; (2002) 131 A Crim R 432, 444 [43].

[45] R v Verdins [2007] VSCA 102; (2007) 16 VR 269, 276 [32] (citation in original).

[46] Ibid 271-2 [5]-[13], 274-5 [23]-[26].

[47] Meyers [2014] VSCA 314; (2014) 44 VR 486, 501 [61], citing Arthars v The Queen [2013] VSCA 258; (2013) 39 VR 613, 622 [13].

[48] R v Verdins [2007] VSCA 102; (2007) 16 VR 269, 279 [45].

[52] Cf Meyers [2014] VSCA 314; (2014) 44 VR 486, 498-501 [52]-[61].