Darmos v The Queen [2015] VSCA 312

Court of Appeal (Vic)|2015-11-23|Before: Mr J, Whelan JA, Redlich JA

The applicant should be re-sentenced in the light of fresh evidence now available that he is suffering from schizophrenia and not a drug-induced psychosis.

41 The 'significant new light' which the fresh evidence is said to throw on the pre-existing facts arises from the circumstance that the applicant suffered a psychotic episode whilst in custody. This is said to have real significance because it reveals that he suffers from a serious mental condition which is not related solely to his drug use and which has only now been diagnosed as schizophrenia. This, it is said, throws significant new light on both his culpability and the effect of incarceration upon his psychiatric health.

43 Dr Zimmerman does not diagnose schizophrenia herself. Rather, she repeats a diagnosis said to have been made by treating clinicians within the prison system. She does observe that the symptoms described are consistent with that diagnosis. He was not psychotic when she reviewed him.

44 The strong linkage between the applicant's mental health and his drug abuse remains in Dr Zimmerman's report. As to the linkage between drug abuse and the psychotic episode in prison Dr Zimmerman refers to the fact that this occurred in circumstances 'when he was hopefully not accessing illicit drugs'. The applicant has not been drug tested. It cannot be assumed that he was not accessing illicit drugs, at least prior to being placed in what was (presumably) a management unit of some kind.

45 Dr Zimmerman's own conclusion is that the applicant has a psychotic condition 'most likely to be schizophrenia but with episodes frequently precipitated by drug abuse'. She says that the psychotic episode in prison reveals that 'substance abuse is not the only stressor that can precipitate episodes of his illness'. She expresses the opinion that since a psychotic episode has been brought on by the stresses associated with surviving in a prison environment it will be important that he maintains links with prison psychiatric services during incarceration. She expresses a somewhat tentative opinion that the experience might have improved the applicant's motivation to engage with appropriate treatment if and when released on a non-custodial disposition.

46 Dr Zimmerman's report does contain relevant material, and it does include analysis of a factor, being the psychotic episode whilst in prison, which is new. I do not consider, however, that it throws 'significant new light' on the pre-existing analysis or demonstrates that the material before the sentencing judge did not reveal 'the true significance' of the applicant's psychiatric condition.

47 The strong connection between drug abuse and the applicant's psychiatric problems remains.

48 The material in Dr Zimmerman's report concerning schizophrenia is not entirely new. He has received diagnoses of schizophrenia in the past, and material to that effect was before the sentencing judge. The applicant in fact relied upon what was said to be a 'likely diagnosis of paranoid schizophrenia or delusional disorder' before Dr Zimmerman's assessment.

49 On any view, the applicant's psychiatric diagnosis is a very complicated issue, which has led, as Dr Zimmerman observes, to 'striking diagnostic uncertainty'. The recent incident has not resolved that uncertainty. Dr Zimmerman herself still refers to schizophrenia as the 'most likely' diagnosis.

50 The risk of deterioration in custody was a circumstance known at the time of sentence.

51 The past non-compliance with non-custodial dispositions remains a very relevant factor when assessing the appropriate disposition.

52 If the material in Dr Zimmerman's report had been available at the time of sentence it would have been relevant and no doubt would have been taken into account. It does not, however, throw significant new light on the pre-existing facts.

53 In any event, I consider that the submission of the respondent that Dr Zimmerman's report would not lead to the imposition of a different sentence is well-founded. The strong connection with drug abuse remains. The applicant's previous inability to comply with community based orders remains. If anything, the concerns expressed by Dr Zimmerman as to whether the applicant was compliant with his treatment exacerbates those concerns.

54 In my view the fresh evidence should not be admitted and leave to appeal should be refused on proposed ground 4.

55 There are three other proposed grounds of appeal:

The individual sentences imposed on the two counts are manifestly excessive for the following reasons:

(a) They do not accurately reflect the level of criminality involved;

(b) Not enough weight was placed on the applicant's mental health issues;

(c) The judge erred in failing to recognise that a CCO in itself could fulfil the need for punishment.

The combination of an 18 month term of imprisonment and a three year CCO breached the sentencing principle of proportionality.
The sentence of imprisonment imposed offended the totality principle in that the sentencing judge erred in failing to sufficiently take into account the sentence the applicant was already serving and the effect of the 3 year CCO on totality.

56 Counsel for the applicant submitted that insufficient weight had been given to the applicant's mental health issues. Counsel described the applicant as having a 'likely diagnosis of paranoid schizophrenia or delusional disorder' and that his mental issues were 'powerful mitigating factors'. Counsel submitted that the offending fell at the lower end of the range of seriousness having regard to the 'amateurish' nature of offending, including the applicant's failure to wear a disguise, and submitted that the offending 'calls for pity'. Counsel submitted that, despite the seriousness of the offence of armed robbery, the time already spent in custody before release on a CCO was sufficient to properly meet all relevant sentencing purposes.

57 Counsel for the respondent submitted that the term of imprisonment was well within range, that the judge had given sufficient weight to the applicant's mental health issues and that the judge had carefully considered Boulton.

58 In my opinion this sentence is clearly within the range open to the sentencing judge. I do not consider the contrary to be arguable. This was serious offending. Whilst they were not the most serious examples of armed robbery, they each nevertheless constituted serious criminal conduct. Community based dispositions in the past have not been successful. In all the circumstances, the sentences were merciful. I do not consider it to be arguable that they are outside the range of sentences open to the sentencing judge.

Proposed ground 2: Breach of principle of proportionality

59 Counsel for the applicant submitted that an 18 month term of imprisonment in addition to a three year CCO was disproportionate to the gravity of offending having regard to the circumstances of offending and the applicant's mental health issues.

60 Counsel for the respondent adopted the 'careful analysis and full reasons' of the sentencing judge.

61 For the reasons I have given in relation to proposed ground 1, I do not consider that this proposed ground is arguable and I would refuse leave to appeal.

Proposed ground 3: Breach of principle of totality

62 Counsel for the applicant submitted that insufficient weight had been given by the sentencing judge to the 106 days served in custody prior to sentence for breaches of the earlier CCOs.

63 Counsel for the respondent submitted this was a matter of weight, and so was properly to be considered as a particular of the ground of manifest excess, but that otherwise the judge had had due regard to the principle of totality.

64 Again for the reasons given in proposed ground 1, I do not consider this proposed ground to be arguable and I would refuse leave to appeal.

65 Leave to appeal should be refused on each of the proposed grounds.

[1] [2014] VSCA 342 ('Boulton').

[2] DPP v Darmos (Unreported, County Court of Victoria, Judge Chettle, 28 April 2015) [16]-[19] ('Sentencing Reasons').

[5] Schizoaffective disorder involves a combination of schizophrenia and a major depressive or manic episode: Diagnostic Manual of Mental Disorders: DSM-5 (American Psychiatric Association, 5th ed, 2013) 104.

[9] [2006] VSCA 184 [36]-[37] (citations omitted).

CRIMINAL LAW - Sentence - Admissibility of fresh evidence on appeal - Whether psychotic episode after sentence revealed diagnosis of schizophrenia rather than drug-induced psychosis at time of offending - Nguyen v The Queen [2006] VSCA 184 applied -Fresh evidence did not throw 'significant new light' on pre-existing analysis or demonstrate material before sentencing judge did not reveal 'the true significance' of applicant's psychiatric condition - Evidence not admissible - Different sentence would not have been imposed - Application for leave to appeal refused.

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