DPP v Arvanitidis [2008] VSCA 189

Court of Appeal (Vic)|2008-09-24|Before: BUCHANAN, NETTLE and REDLICH JJA

CRIMINAL LAW - Practice - Crown appeal - Particulars in support of ground of manifest inadequacy - Whether raising discrete allegations of fact or law.

SENTENCE - Reckless conduct endangering life of police officer on duty - Recklessly causing injury to ambulance officer - Drug induced psychotic state - Crown contending an aggravating circumstance - Whether Crown permitted to rely on circumstance of aggravation not raised on plea - Whether a mitigating circumstance - Level of awareness as to effect of drug - Knowledge of probable consequences of drug use - Whether principle in and applies.

Violence to police and ambulance officers in the execution of their duty - Whether an aggravating circumstance - Absence of knowledge as to the victims' status.

Cumulation - Failure to order any cumulation between counts of violence on different victims because of self-induced mental state - Sentence manifestly inadequate and disproportionate to the objective gravity of the offences.

Mr S Ward, Acting Solicitor for Public Prosecutions

1 I have had the considerable advantage of reading the draft reasons prepared by Redlich JA.

2 I agree with Redlich JA, for the reasons he has stated, that the appeal should be allowed and the respondent re-sentenced as his Honour proposes.

3 I wish only to add some observations as to the relevance of the fact that the victims of the counts of reckless conduct endangering life and recklessly causing injury were a policeman and an ambulance officer.

4 It is clear that generally it is an aggravating circumstance that the victim of a physical attack is a police officer acting in the execution of his or her duty.[1] The purpose of sentencing offenders more severely because their victims are police officers is to deter others and thereby protect the police. In R v McCormack,[2] the Full Court said:

Because the duty of the police to maintain the law and to protect the community from unlawful conduct exposes them to attack, courts have commonly regarded an attack on the police in the execution of their duty as calling for a custodial sentence with a deterrent component.[3]

I would readily conclude that ambulance officers, who are attacked when carrying out their duty of attending the wounded, are also to be protected by the courts by the imposition of sentences that operate as a general deterrent.

5 Punishment will only be effective as a general deterrent if it induces those contemplating the commission of a similar crime to think that they, too, will be punished in a like manner. In my view the persons to be deterred must be able to liken their position to that of the offender whose punishment sets the example.

6 There is a significant difference between an assailant who knows his victim is a police or ambulance officer and an assailant who is ignorant of his victim's occupation. The former is in a position to respond to the additional element of the status of the victim; the latter is not.

7 Punishing the unwitting assailant of a police officer more severely because of the added element of the identity of his victim does have a deterrent effect in that it emphasises the gravity of the extra element.[4] Yet it is not necessary to do so and is unfair in that an offender is punished for something which he cannot help. I do not think that punishment should be increased beyond the needs of a particular case in the hope of producing a larger reduction in the rate of offending in the rest of the population, particularly when little appears to be known in concrete terms about the deterrent effect of particular sentences. Additional severity of punishment is inappropriate to the circumstances. As Lush J said in R v Mooney:

A sentence imposed with deterrence in view will not be acceptable if its retributive effect on the offender is felt to be inappropriate to his situation and to the needs of the community.[5]

8 Further, in my view the respondent is not to be treated as if he knew that his victims were a policeman and an ambulance officer because his delusional state was self-induced. In the light of the findings made by the sentencing judge, the respondent could not establish on the balance of probabilities that he did not know that the drugs he ingested would produce a psychotic state and random violence. On the other hand, the Crown could hardly prove beyond reasonable doubt that the respondent foresaw that he would be unable to react properly when confronted by a policeman.

9 Accordingly, I would not increase the sentence because the respondent's victims were a policeman and an ambulance officer.

10 I have had the advantage of reading in draft the reasons for judgment of Redlich JA and I agree with what his Honour has written.

11 On the 10 September 2007 the respondent pleaded guilty in the County Court to reckless conduct endangering life (Count 1), use of an unregistered general category handgun (Count 2), recklessly causing injury (Count 3), two counts of common assault (Counts 4 and 5), trafficking in methylenedioxymethamphetamine ('ecstasy') and methylamphetamine (Count 6 and 7), possession of a drug of dependence, namely steroids (Count 8), possession of a drug of dependence, namely methylamphetamine (Count 9).[6] The respondent also pleaded guilty to the summary offence of possessing the proceeds of crime.

12 The respondent was sentenced to three years imprisonment on Count 1, 15 months' imprisonment on Count 2, 12 months' imprisonment on Count 3, four months' imprisonment on each of Counts 4 and 5, two years and six months imprisonment' on Count 6, 12 months' imprisonment on Count 7, three months' imprisonment on Count 8, six months' imprisonment on Count 9 and six months' imprisonment on the summary offence. It was ordered that 12 months of Count 6 be served cumulatively upon Count 1 making a total effective sentence of four years' imprisonment. It was ordered that the respondent serve a minimum of two years and six months before becoming eligible for parole.

13 The Director has appealed against the sentences on the grounds that the individual sentences, the total effective sentence and the non parole period are manifestly inadequate. The Director has provided particulars which are in a form commonly employed by the Crown to support contentions that sentences are manifestly inadequate. The particulars alleged that the individual sentences, the total effective sentence and the non-parole period were manifestly inadequate in that the sentencing judge:

(a) failed to adequately reflect the gravity of the offences generally and in this case in particular;

(b) failed to take into account or sufficiently to take into account the aspect of general deterrence;

(c) failed to take into account or sufficiently to take into account the aspect of specific deterrence;

(d) gave too much weight to factors going to mitigation, in particular the respondent's lack of prior convictions for violence;

(e) gave insufficient weight to the maximum penalties applicable;

(f) gave insufficient weight to the aggravating factor that the victims of Counts 1, 4 and 5 were police officers lawfully executing their duties;

(g) gave insufficient weight to the aggravating factor that the victim of Count 3 was an ambulance officer executing her duties;

(h) failed to order any cumulation as between the groups of counts relating to different victims; and

(i) failed to give sufficient weight to the impact of the offending upon the victims.

14 The respondent contends that particulars (f), (g) and (h) all improperly raise discrete error and that the Court should not contemplate such particulars under the umbrella of manifest inadequacy as the Director in effect seeks to rely upon them as though they were grounds of appeal. Furthermore, the respondent says of the other particulars, which he accepts are 'the usual particulars,' that the relevant enquiry is not whether any of these particulars are made out but whether, synthesising all of the relevant circumstances, the appellant can demonstrate in the impugned sentence, something more than manifest inadequacy.[7]

15 Crown appeals, like other appeals against sentence, require the Court to undertake an assessment of whether the sentence imposed was reasonably open to the sentencing judge. The particulars furnished by the Director usually identify matters such as the objective gravity of the offence, the aggravating and mitigating circumstances of the offence, the relative importance of general and specific deterrence, whether there was a need for any cumulation between counts and factors personal to the offender,[8] which it is contended have been given undue or inadequate emphasis in the instinctive synthesis.[9] Accordingly, the argument on appeal will focus on those sentencing principles which in their application to the facts, inform the conclusion as to the adequacy of the sentence.[10] Hence it is sometimes said that manifest inadequacy must be such as to 'constitute error of principle'.[11]

16 It has, as counsel for the respondent accepted in oral argument, been a long standing practice in this Court to act upon particulars of this nature in support of a ground of manifest inadequacy. But the respondent specifically complained as to the presence of particular (h), which alleged a failure to make orders for cumulation.

17 A cursory examination of Crown appeals over recent years shows that the particulars provided frequently included a particular of a failure to order cumulation between counts. Significantly, many of this court's decisions on Crown appeals in which the sole ground was manifest inadequacy, contain reasons which identify a failure to cumulate between counts as a factor contributing to a manifestly inadequate sentence.[12]

18 In my view, particulars which set out why a sentence is alleged to be manifestly inadequate by reference to the failure of the sentencing judge to properly apply identified sentencing principles remain a desirable procedure, which the Director should continue to follow. None of the present particulars are objectionable. They are to be distinguished from allegations of specific errors of fact or law made by the sentencing judge which should generally be the subject of separate grounds.[13]

19 At the time of the offending the respondent was living at 77 Burlington Street, Oakleigh with his mother and his brother, who were largely dependent on him. It was not in issue on the appeal that the respondent was addicted to crystallised methylamphetamine ('ice'). On the 12 July 2006, a week prior to the date of the present offences, the respondent's mother observed him acting irrationally. At this time the respondent obtained an unregistered .32 Smith & Wesson revolver handgun from an unnamed acquaintance and expressed a particular concern about the threat of terrorist attack.

20 On Monday 17 July 2006, the respondent's mother observed the respondent smoking powder through a pipe. The respondent told his mother that the house was his and she was dead if she stayed there. His mother and brother then left the house and did not return that day. On Tuesday 18 July 2006, at 9.30 am they returned to the house but the respondent would not let them inside. He pointed the handgun at his mother's head and said that he had real bullets. They left and returned at 3 pm but the respondent still refused them entry. The respondent's mother then called the ambulance service and because a gun was involved, (the respondent's mother had obviously reported that to the 000 operator) the police were called. She then warned the respondent that the police were coming to which the respondent replied that the government gave him the gun 'to kill police'. At about 4.30 pm uniform police contained the area around the house. The Special Operations Group were then called because a possible gunshot was heard coming from inside the house.

21 At about 6.20 pm the Special Operations Group surrounded the house. The Crown accepted on the plea that the respondent was at this time delusional, paranoid, feared being attacked by terrorists and considered himself licensed by the Government to posses a gun and shoot police. The respondent exited the house via the back door. He had the handgun with him. He walked down the driveway to the front of the premises and pointed it in the direction of Special Operations Group members. Special Operations Group members demanded that he drop the gun. The accused refused, saying, 'you put your gun down.' The respondent turned around and went back up the driveway. As the respondent walked up the driveway, Special Operations Group Operator 66 confronted him by standing on a wheelie bin and leaning over a neighbours fence. The respondent and Operator 66 were about seven or eight metres apart. Operator 66 told the respondent to drop the gun a number of times. The respondent came a metre or two closer, raised his gun and fired at Operator 66. Fortunately the shot did not hit Operator 66 who fired two shots in response, one of which hit the respondent in the left upper chest.

22 The respondent ran back inside the house still armed. At about 6.30 pm the respondent again came out of the house via the back door. He refused demands by Special Operations Group members to get on the ground. Special Operations Group Operators 14 and 75, attempted to restrain him. He waved his arms around making karate moves. Operator 75 then shot him with a Taser, at which point he fell to the ground and was taken into custody. An ambulance officer then sought to treat the respondent and while doing so he bit her on the arm. As a consequence the ambulance officer suffered an abrasion and required months of serological testing. The respondent was taken to the Alfred Hospital. The gunshot wound to the respondents left chest wall required surgery but was not life threatening.

23 When Police entered the respondent's house after his arrest, they found the front door had been barricaded and discovered a loaded .32 calibre handgun and ammunition in the kitchen. Police also found 300 tablets (86 grams in total) of ecstasy, 7.4 grams of methylamphetamine, 19.9 grams of crystallised methylamphetamine, various steroids and $12 320 which was money suspected to be the proceeds of the respondents' drug trafficking.

Drug induced psychotic state and moral culpability - a mitigating or aggravating circumstance?

24 The respondent's conduct at the siege was 'aggressive and agitated'.[14] The respondent's reported psychotic symptoms on the day of the offending were consistent with amphetamine intoxication.[15] The evidence established to the sentencing judge's satisfaction that the respondent was seriously affected by the drug 'ice', and was in a delusional, paranoid and psychotic state at the time of these offences.

25 In a psychiatric report tendered on the plea on behalf of the respondent, it was reported that in the months leading up to the offending the respondent was smoking large quantities of ice. He was smoking about a quarter of an ounce (approximately seven grams) of ice a day which the psychiatrist, Dr Sullivan, noted 'was at the highest end of usage especially given that the median price of ice in 2005 was $300 per gram'.[16] Dr Sullivan found that the respondent's conduct was consistent with amphetamine intoxication.[17] Accordingly, the sentencing judge found that at the time of the offending the respondent was 'grossly affected by an ice induced psychosis with paranoiac overtones'. His Honour noted that the respondent was 'not completely acting in the real world' and was 'no doubt affected considerably in [his] decision making and [his] ability to make any rational judgments at the time'.

26 A key issue on the plea, which his Honour addressed in his sentencing remarks, was whether the respondent's moral culpability should be reduced because he was in an ice induced psychotic condition at the time of his offending. His Honour noted that the respondent had already received some benefit from his drug induced state as the Crown was not proceeding with a charge of attempted murder because of the inability of the Crown to prove that the respondent had the necessary intent. His Honour was of the view that the respondent's moral culpability should not be reduced because of his mental state. His Honour then said:

It is not quite as black and white as that as I will explain later on, but in general terms I do not consider that the community would accept the position that somebody who is a frequent and long term user of a drug, and who is well acquainted with its likely consequences in terms of its effect on your psyche and your judgment and decision making, one who is well aware of those features and factors, who takes ice, I do not consider that the community would readily accept the proposition that you should then be treated as having a reduced culpability because in that mental state you commit an act that you perhaps otherwise would not do and an act that is in fact a serious criminal offence.[18]

27 His Honour, citing R v Wright,[19] equated the circumstances of an offender 'who drinks himself to a state where he can no longer control his primal instincts' with one 'who uses ice to a state where he can no longer control his rational behaviour, and in that state commits offences' observing that neither are able to 'expect leniency from the courts'. His Honour referred to R v Verdins[20] and concluded that the respondent had failed to discharge the onus of demonstrating that his psychiatric state, consequential upon his use of ice, reduced his moral culpability or the seriousness of his offending.

28 Both parties asserted that that the sentencing judge fell into error in the manner in which he treated the self-induced psychosis by drug taking. The Crown contended that the self-induced psychosis was an aggravating circumstance as the sentencing judge should have been satisfied beyond reasonable doubt that the respondent was aware that the drug made him behave irrationally. The respondent contended it was a mitigating circumstance as it was only in hindsight, after he was incarcerated and drug free that he had gained an insight into his drug induced psychosis. The respondent submitted that as there was a causal connection between his mental impairment and his offending, he should not be denied the benefit of the application of the principle stated in R v Verdins.[21]

29 The relevance of a drug induced psychosis was discussed in the recent case of R v Martin,[22] the Court there upholding the conclusion of the trial judge that the fact that the offender was suffering from a self-induced psychosis at the time of committing the offences was an aggravating factor. The critical factor which led to that conclusion was the degree of knowledge possessed by the offender as to the effect the drug would have on his mental state.[23] In Martin the offender had forewarning that the taking of the drug was likely to make him a danger to others. Martin was not directly concerned with the question whether a self-induced mental condition may be mitigatory, but Martin makes clear that the fact that a psychiatric illness that has been induced by the offender's own illegal act will not always prevent the mental condition from constituting a mitigating circumstance.[24] In each case the Court must consider 'what the probable consequences of the ingestion of the particular drug by the particular offender were and whether the offender foresaw those consequences'.[25]

The offender's foreknowledge of the probable consequences of drug use

30 The respondent's submission that his self-induced psychosis was a mitigating circumstance rested upon the proposition that the respondent did not have foreknowledge that he would become dangerously psychotic and violent. I do not agree that the absence of knowledge that the drug would cause a psychotic reaction of the type that led to these offences is sufficient to entitle the respondent as he submitted to the 'full benefit of Verdins.'

31 The respondent had considerable experience with drugs and in particular ice, prior to his offending. The various reports tendered on the plea indicate that the respondent commenced using drugs at a reasonably early age and had thereafter continued to use a variety of drugs.[26] His use of amphetamine began when he was 18, at which time he was inhaling amphetamine approximately three times per week. In 2004 he started smoking the stronger type of amphetamine, crystal methamphetamine, 'ice'. He was initially using four to five points (approximately .01 gram) of ice per day but his use increased until he was using quarter of an ounce (approximately seven grams) daily. It was not disputed by either side in the course of the plea that the respondent's continued use of crystal methamphetamine resulted in him repeatedly experiencing substantial psychotic symptoms. Dr Sullivan recorded that the respondent had reported psychotic symptoms including a sense of paranoia, persecutory delusions, disorganised thoughts (manifest in notes found in his house immediately after the siege) and repetitive motor activity (picking and punding).[27] In two psychological assessments tendered at the plea hearing, similar observations and conclusions to those of Dr Sullivan were drawn in relation to the respondent's use of crystal methamphetamine.[28] The respondent reported to Ms Lechner that he would stay in the house for long periods of time (sometimes a month at time) and as the respondent became increasingly paranoid his friends stopped visiting because of his bizarre behaviour.[29] The respondent reported that he quit taking ice periodically for a couple of months but would relapse and when this occurred the addiction would become more severe.[30] He reported that when he resumed taking the ice his psychotic symptoms would return.

where the offence is committed in the course of the experiencing by the offender of a psychotic state, which is brought on by voluntary drug ingestion, in circumstances where the offender well knows the likely effects upon him of that drug use, I do not consider that such a psychotic state reduces the moral culpability of the offender ...

33 The material tendered on the plea was strongly supportive of the conclusion reached by his Honour that the respondent appreciated the general effect of taking the drug on his mental state. The evidence showed that the respondent, during periods when he intermittently ceased taking ice (between 2004 and his offending in 2006), recalled a number of the psychotic symptoms he had experienced and recognised that they were a consequence of his taking the drug. The evidence warranted the conclusion that the respondent was aware that his use of ice would result in him experiencing psychotic symptoms consistent with amphetamine intoxication. Accordingly the only conclusion reasonably open was that when the respondent resumed taking ice he did so in the knowledge that he would experience psychotic symptoms. This was a choice he made. He was aware that it would affect his judgment and control. As Dr Sullivan recorded, the respondent 'persisted in his use despite adverse consequences'.[31]

34 To lose the benefit of Tsiaras[32] and Verdins, it was not necessary that the respondent have foreknowledge that the psychotic symptoms would cause him to behave in the precise manner in which he offended or make him generally dangerous or violent. If the respondent was aware that by taking the drug, his judgment would be so affected that he would behave irrationally or that it would effect his ability to exercise control, his self-induced mental state would not constitute a mitigating circumstance.[33] It was for the respondent to establish on the balance of probabilities that he did not know that the drug would have such effects. This he failed to do. The respondent's foreknowledge regarding the potential for paranoia, persecutory delusions, and other forms of disorganised thought was sufficient to preclude the operation of the principle stated in Tsiaras and Verdins. The sentencing judge correctly found that the respondent's drug induced psychosis at the time of offending was not a mitigating circumstance which reduced his moral culpability. The respondent's submission must be rejected.

35 That is not to say that the Director's submission must succeed. It is not open to this Court, to treat the self-induced psychosis as an aggravating circumstance.

Crown adopting a different position on appeal

36 First, the question arises as to whether the Director should now be permitted to advance such an argument.

37 The Director initially maintained that the sentencing judge should have concluded, beyond reasonable doubt, that the respondent's self-induced psychosis was an aggravating circumstance. The Director had not suggested during the plea in mitigation that the self-induced psychosis was an aggravating circumstance. The sole argument on the plea was whether it could constitute a mitigating circumstance.

38 It was conceded by the Director during oral argument that as the sentencing judge had not been invited to find that the respondent's self-induced mental state was an aggravating factor, it could not now be relied upon to the support the Director's contention that the sentence was manifestly inadequate. That concession was, in my view, correctly made.[34] But counsel for the Director maintained that if the Court found the sentence to be manifestly inadequate, he could then rely upon the self-induced psychosis as an aggravating circumstance for the purpose of re-sentencing the respondent. In my opinion there is no basis in principle to distinguish between the Crown's right to alter its position on the question of whether the sentence is manifestly inadequate or, if manifest inadequacy or error is made out, on the question of re-sentencing the respondent.

39 There is a great reluctance to permit the Crown to adopt one attitude upon a plea and to adopt a different opposing attitude upon a Crown appeal.[35] This Court will act with caution and circumspection before permitting the Crown to advance a submission on appeal which was not advanced before the sentencing judge.[36] In DPP (Vic) v Bulfin,[37] Winneke P referred with approval to a passage from the judgment of King CJ in R v Wilton[38] in which he said that an appellate court should only allow the prosecution to put contentions not put to the sentencing judge in exceptional circumstances, which appear to justify that course.

40 The Crown will necessarily be debarred on appeal from taking a stance different from that adopted at first instance. The Court may, in the exercise of its discretion, consider it just to permit the Crown to do so having given due consideration to the principle of double jeopardy, to any prejudice that would be sustained by the respondent in now raising the issue for the first time, to the degree of the Crown's departure from it original position, to the seriousness of the crime being punished and to the magnitude of the sentencing error identified on the appeal.[39]

41 I do not consider that the Director should be allowed to now submit that the respondent's drug induced state should be viewed as an aggravating circumstance when such an argument was not advanced on the plea. The respondent would be prejudiced by such a change in the Crown's position. For the Director to argue that it was an aggravating circumstance, puts in issue the respondent's level of awareness of the effects of taking the drug when that fact may have been contested on the plea. The other discretionary factors also militate against allowing the Crown to change its position on such an issue in relation to these offences.

Drug induced psychosis - an aggravating circumstance?

42 Secondly, even if the Director should be allowed to now advance this argument, the state of the evidence did not permit a finding that the respondent's drug induced psychosis was an aggravating circumstance. The present circumstances are readily distinguishable from those in Martin. In that case the trial judge considered the seriousness of the offending was aggravated by the fact that the applicant knew or ought to have known that the probable consequence of taking the drug would be that he would become dangerously psychotic.[40] The applicant had been warned repeatedly that if he consumed illicit drugs he was likely to become psychotic and then would be a danger to himself and other.[41]

43 Where there is foresight as to the probability of consequences of the general type constituted by the offending conduct, the offender's premeditation or recklessness[42] may become an aggravating feature of the offence. It is the degree of deliberation or awareness that taking the drug will predispose the offender to such conduct which aggravates the offence.

44 In the present case there was insufficient evidence that the respondent foresaw that by taking ice he would become dangerously psychotic. On the plea, there was no evidence adduced that suggested there was anything in the respondent's background to indicating he was inherently violent or anti-social when he took ice. Furthermore, none of the reports tendered disclosed that during the respondent's history of addiction to ice he had become dangerous or violent whilst in a delusional state. The Crown could not discharge its onus of establishing to the criminal standard, that the respondent had the requisite foreknowledge that his use of ice would cause him to be dangerously psychotic.

Absence of any order for cumulation on counts 1 to 5

45 The Director submits that there should have been some cumulation of each of the sentences involving violence to different victims. It draws attention to those counts involving the police officers who, in the execution of their duty, were seeking to contain and arrest the respondent in an extremely dangerous and volatile situation. It also relies upon the significant suffering experienced by the ambulance officer and one of the operators (and his family) in the period after the incident and which his Honour recognised in the reasons for sentence.[43]

46 The Director submitted that the sentencing judge's failure to order any cumulation rendered the sentences imposed on counts 2 to 5 of no effect and failed to take account of the fact that there were four discrete victims. His Honour gave the following reason for refraining from making such orders for cumulation:

You will also get the benefit that because I consider that Counts 1 to 5 were committed in the course of the same drug induced state, I do not propose to order any cumulation of any of those counts. So that is another indirect way in which you will receive some recognition of the mental state that you possessed when you committed those offences.[44]

47 Counsel for the Director contended that the sentencing judge, having concluded that the respondent's moral culpability was not to be reduced because of his drug induced psychotic state, should not have treated the respondent's impaired mental function as a reason for not making any such orders , and by doing so had elevated his drug induced state to a mitgatory circumstance. I agree. The self-induced psychotic state which contributed to the commission of each of these offences could not in law provide a justification for the absence of any order for cumulation.

48 An order for cumulation is often ordered where sentences on different counts represent separate episodes, transactions or incidents 'which ought to be recognised'.[45] Cumulation may also be ordered where the offending arises out of one episode or incident but involves violence or injury to separate victims raised in separate counts.[46] To require that the total sentence be no more than the appropriate sentence for one count, has been described as 'reducing human victims to mere numbers'.[47] While all of the violence may be regarded as occurring within one episode, there were a number of separate incidents of violence to separate victims. Accordingly, some measure of partial cumulation was appropriate in recognition of the four discrete victims of the respondent's offending in relation to counts 1, 3, 4 and 5.

Police and ambulance officers assaulted - whether aggravating factor - respondent's delusional state

49 The Director submitted that the fact that the victims were police officers and a ambulance officer was an aggravating circumstance that was not recognised by the sentencing judge in his sentencing remarks and that the individual sentences and total effective sentence were as a consequence manifestly inadequate.

50 It is a serious offence to assault police officers in the execution of their duty ordinarily requiring a significant element of deterrence in the sentences to be imposed.[48] The courage of police officers in protecting lives and property is something upon which the community depends. It is incumbent on the Court to impose appropriate sentences to demonstrate support for the authority of police officers who undertake a difficult, and dangerous task in the execution of their duties in maintaining law and order.[49] Ambulance officers, and others performing such essential public duties, are to receive a similar measure of support and protection. Where the offender knows or ought to have known that the victim was discharging a public duty of this sort, a more severe sentence will usually be imposed to deter such persons from violent assaults on them when performing their duties.[50] But the question which arises on this appeal is whether the circumstances required the sentencing judge to adopt such an approach in fixing the sentences.

51 The Director's submission, though not amplified in oral argument, appeared to rest upon the proposition that the victim's status, even if one that was not recognised by the respondent, was to be treated in law as an aggravating circumstance and if, as the Director contended, the respondent's position should be equated with one who recognised the victim's status, the circumstance of aggravation was the greater.

52 The consequence of conduct is punishable, though not intended or foreseen, where an element of the offence is the consequences of the act.[51] The law has for some time distinguished such offences from those which had unintended and unforeseen consequences which were not an ingredient of the offence. Where the offence is of the latter kind, if the consequences of the offender's acts are not such as would reasonably have been foreseen, the consequences are not generally to be used against the offender.[52] Hence such cases as have treated violence towards a police officer on duty as an aggravating circumstance are all cases in which the evidence disclosed that the offender knew or ought to have known the status of the victim. Cases where the offender was reckless as to whether the victim was a police officer on duty would plainly fall within this principle. But no cases have been referred to which support the Crown contention that, absent knowledge by the offender of the victim's status, the victim's status was, in isolation, an aggravating circumstance.

53 The respondent submitted that as a consequence of the delusions from which the respondent was then suffering, the respondent could not be said to have knowingly targeted police performing the duties of their employment and that the Crown submission was at odds with the concession that was operative throughout the plea as to the respondent's state of mind.

54 It is violence displayed towards the victim with the requisite knowledge of their status which constitutes the aggravating circumstance.[53] An increased level of moral culpability depends upon awareness by the offender that the victim is a police officer or ambulance officer acting in the course of their duty. The respondent did not have that knowledge.[54] The trial judge found that the applicant was in a delusional state at the time of these offences.

55 To disregard the respondent's lack of knowledge of the victims' status and role because it was the consequence of a self-induced mental state, does not sit easily with the conclusion we have reached, that his self-induced mental state was not to be regarded as an aggravating circumstance because it was not established that he had any forewarning that he was likely to become predisposed to violence by taking the drug.

56 For these and the reasons given by Buchanan JA, with which I agree, I do not consider the respondent was an appropriate vehicle for treating the fact that the victims were acting in the course of their duties as an aggravating circumstance. But the actual consequences for these victims as reflected in their victim impact statements are matters which the sentencing judge was bound to take into account. No suggestion is made that his Honour did not do so.

57 The Director took issue with a number of the individual sentences that were imposed. On the count of reckless conduct endangering life, his Honour imposed a three year term of imprisonment. The respondent had discharged the firearm at Operator 66 at very close quarters. The Director submitted that having regard to the objective gravity of the offence, this was a manifestly inadequate sentence which did not reflect the proper application of the sentencing principles enumerated in s 5 of the Sentencing Act 1991 (Vic). The appellant also argued that the 12 month sentence imposed on count 3, involving the attack on the ambulance officer, failed to reflect the seriousness of the attack by the respondent on a person who was trying to assist him after his arrest.

58 In relation to the two counts of drug trafficking, the Director contended that the sentences imposed were manifestly inadequate as the maximum on each count was 15 years. It was submitted that the respondent was trafficking in drugs at a substantial level which was evidenced by the possession of $12 320 at the time of arrest and his capacity to support himself, his mother and his brother when he was unemployed.

59 The Director contended that as a result of the inadequacy of the individual sentences and the failure of the sentencing judge to make appropriate orders for cumulation, the resultant total effective sentence and non-parole period were each manifestly inadequate. Counsel for the respondent urged the Court to consider the total effective sentence rather than give too much regard as to how the total effective sentence had been calculated.

60 There were a number of mitigating circumstances that the sentencing judge took into account in sentencing the respondent. His Honour considered the fact that the respondent was not a violent or anti-social offender. The respondent had relatively minor prior convictions for theft and dishonesty related offences. His Honour also took into account that the respondent had been in custody for 14 months and that time in custody had been positively used by the respondent in relation to work performed. He had remained drug free during his incarceration. His Honour took into account that the respondent had the gunshot wound to remind him of this incident. Material tendered on the plea indicated that the respondent had developed a considerable insight into the problems that had led to his offending. His Honour referred to the respondent's plea of guilty at the earliest time and his significant remorse for his actions. He adverted to the level of family support and the respondent's capacity for work. His Honour considered that there were reasonably good prospects for the respondent's rehabilitation.

61 Something more than manifest inadequacy is required to warrant appellate intervention.[55] Crown appeals must not be permitted to unduly circumscribe the sentencing discretion of judges.[56] Where the sentence is shown to be so inadequate that it 'plainly demonstrates serious error in sentencing principle'[57] or the sentence involves a 'gross departure from what might in experience be regarded as the norm'[58] so as to 'shock the public conscience'[59] the Crown may succeed. But there are other well recognised constraints on the circumstances in which this Court may interfere with a sentence on a Crown appeal.[60] In DPP (Vic) v Bright it was said:

When re-sentencing the offender the appellate court must pay careful heed to the factor of double jeopardy, inherent in a Crown appeal, arising from the respondent's exposure to sentencing on a second occasion for the same crime. Because of the element of double jeopardy, Crown appeals are regarded as having a 'rare and exceptional' character which calls for restraint, even where manifest inadequacy may be present, the Court having an overarching discretion not to interfere. Double jeopardy is a factor which must be considered in both the Court's determination of whether this Court should exercise its discretion to allow the Crown appeal and, where the discretion is exercised, as to the sentence which should be imposed. Any different sentence to be imposed must allow for double jeopardy.[61]

62 The sentence on count 1 was manifestly inadequate. I find it unnecessary to express any concluded view as to whether each of the individual sentences on counts 3, 6 and 7 should be so described but they were lenient sentences. The combination of these sentences and the failure of the sentencing judge to make appropriate orders for cumulation produced a manifestly inadequate total effective sentence and non-parole period which was so disproportionate to the seriousness of the crimes as to 'shock the public conscience'[62] and demonstrate serious error in sentencing principle. They failed to reflect the objective gravity of the respondent's conduct in relation to his drug induced psychotic violent behaviour and also his drug dealing.

63 I would allow the appeal and resentence the respondent. I have taken into account double jeopardy, both in my determination that the appeal should be allowed and in fixing the sentences. I propose that the respondent be resentenced as follows:

64 I would order nine months of count 3, three months of count 4, three months of count 5 and one year and three months of count 6 be served cumulatively upon each other and the sentence imposed on count 1 making a total effective sentence of six years and six months. I would fix a minimum period of four years before the respondent is eligible to be released on parole.

[1] See, for example, R v Kane [1974] VicRp 90; [1974] VR 759; R v Baker (1966) 51 Cr App R 74; R v Howard [1968] 2 NSWLR 429; R v Caird (1970) 54 Cr App R 499; Warrell v Kay (1995) 83 A Crim R 493, 497-8 (Owen J).

[3] Ibid, 109. See also R v E (1993) 66 A Crim R 14, 18 (Malcolm CJ); DPP v Debs and Roberts [2003] VSC 30; R v Smith (1981) 7 A Crim R 253, 262 (Street CJ); R v Good (1989) 38 A Crim R 37, 44; R v Howard [1968] 2 NSWLR 429, 430 (McClemens, Brereton and O'Brien JJ).

[4] In the same way, punishing an offender suffering from a psychiatric disorder is capable of having a deterrent effect, yet to the extent that the offender's culpability is reduced by his condition, he is regarded by the courts as an inappropriate medium for deterring others. See, for example, R v Yaldiz [1998] 2 VR 376, 383 (Winneke P); R v Wright (1997) 93 A Crim R 48, 51 (Hunt CJ at CL).

[5] Unreported, Supreme Court of Victoria, 21 June 1978.

[6] The maximum penalties for each count were as follows: Count 1 - 10 years' imprisonment (Crimes Act 1958 (Vic) s 22); Count 2 - seven years' imprisonment (Firearms Act 1996 (Vic) s 7B(1)); Count 3 - five years' imprisonment (Crimes Act 1958 (Vic) s 18); Counts 4 and 5 - five years' imprisonment (Crimes Act 1958 (Vic) s 320); Counts 6 and 7 - 15 years' imprisonment (Drugs Poisons and Controlled Substances Act 1981 (Vic) s 71AC); Counts 8 and 9 - 400 penalty units and five years' imprisonment (Drugs Poisons and Controlled Substances Act 1981 (Vic) s 73).

[7] DPP (Vic) v Bright [2006] VSCA 147; (2006) 163 A Crim R 538, [10] (Redlich JA).

[8] See, for example, DPP (Vic) v Johnston [2004] VSCA 150; (2004) 10 VR 85, [44]-[45] (Ormiston, Batt and Chernov JJA).

[9] Ibid [25] (Ormiston, Batt and Chernov JJA).

[10] DPP (Vic) v Josefski [2005] VSCA 265; (2005) 13 VR 85; DPP (Vic) v Brown [2004] VSCA 133; (2004) 10 VR 328, [36], [43] (Vincent JA); DPP (Vic) v SJK [2002] VSCA 131; DPP (Vic) v Muliaina [2005] VSCA 13, [15] (Chernov JA); DPP (Vic) v Bridle [2007] VSCA 173; Petroulias v The Queen [2007] NSWCCA 154; (2007) 176 A Crim R 302.

[11] Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295, 300 (Brennan, Deane, Dawson and Gaudron JJ); R v Clarke [1996] VICSC 30; [1996] 2 VR 520, 522 (Charles JA).

[12] DPP (Vic) v Bulfin [1998] 4 VR 114; DPP (Vic) v Truong [2004] VSCA 172, [3] (Batt JA); DPP (Vic) v Johnson [2004] VSCA 150; (2004) 10 VR 85 [2], [25], [43]-[55] (Ormiston, Batt and Chernov JJA); DPP (Vic) v Fraser [2004] VSCA 145, [20] (Eames JA), [26] (Batt JA), [28] (Vincent JA); DPP (Vic) v Mobbs [2003] VSCA 148, [12] (Vincent JA); DPP (Vic) v Toomey [2006] VSCA 90; DPP (Vic) v Sims [2004] VSCA 129; DPP (Vic) v Gany [2006] VSCA 148; (2006) 163 A Crim R 322.

[13] R v Clarke [1996] VICSC 30; [1996] 2 VR 520, 523 (Charles JA).

[14] Dr Sullivan, Psychiatric Report (8 November 2006) [30].

[15] Ibid [46] consisting of persecutory delusions and disorganised thoughts (manifest in notes found in the house) and repetitive motor activity.

[23] Ibid [21] (Maxwell P, Nettle and Redlich JJA).

[24] Ibid [19] (Maxwell P, Nettle and Redlich JJA).

[26] Dr Sullivan, Psychiatric Report (8 November 2006) [18].

[28] Ms Warren, Psychological Report (18 December 2006) 5-6; Ms Lechner, Psychological Assessments (3 September 2007) 3-4.

[29] Ms Lechner, Psychological Assessments (3 September 2007) 3.

[30] Dr Sullivan, Psychiatric Report (8 November 2006) [18]. See also Ms Warren, Psychological Report (18 December 2006) 5.

[31] Dr Sullivan, Psychiatric Report (8 November 2006) [46].

[33] R v Martin [2007] VSCA 291, [18]-[30] (Maxwell P, Nettle and Redlich JJA); R v Gagalowicz [2005] NSWCCA 452, [36] (Studdert, Whealy and Howie JJ).

[34] R v Sari [2008] VSCA 137, [14] (Ashley JA).

[35] DPP (Vic) v Coleman [2001] VSCA 59; (2001) 120 A Crim R 415, [18] (Tadgell JA).

[40] R v Martin [2007] VSCA 291, [3] citing R v Martin [2005] VSC 497, [23].

[41] R v Martin [2007] VSCA 291, [50].

[42] R v Hay [2007] VSCA 147, [18] (Buchanan JA), [33] (Maxwell P); R v Coleman (1990) 19 NSWLR 467; R v Gordon (1994) 71 A Crim R 459; The Queen v Sewell and Walsh v R (1981) 29 SASR 12, 14-15 (Zelling J).

[43] This was recognised by the sentencing judge: R v Arvanitidis (Unreported, Victorian County Court, Judge Williams, 10 September 2007) [21].

[45] DPP (Vic) v Grabovac [1998] 1 VR 664, 680 (Ormiston JA), R v O'Rourke [1997] 1 VR 246, 252 (Winneke P, Brooking and Callaway JJA); R v Mantini (1998) 3 VR 340, 349-350 (Callaway JA); R v Musson [1997] 1 VR 656, 660-61 (Hedigan AJA). See also R v Adam Clarke [2007] VSCA 254, 11 (Neave JA).

[47] DPP (Vic) v Towle [2008] VSC 101, [25] (Cummins J).

[48] R v Edigarov [2001] NSWCCA 436; (2001) 125 A Crim R 551, [42]-[43] (Wood CJ at CL); R v Stone (1995) 84 A Crim R 218.

[49] R v Hamilton (1993) 66 A Crim R 575; Re Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 2 of 2002 [2002] NSWCCA 515; (2002) 137 A Crim R 196, [22] (Spigelman CJ).

[50] R v Nagy [2003] QCA 175; [2004] 1 Qd R 63, [46]-[47] (Williams JA), [72]-[74] (Muir J). It has been suggested that the decision in R v Reynhoudt [1962] HCA 23; (1962) 107 CLR 381 may be applicable. See Colin Howard, Australian Criminal Law (1st ed, 1965) 109, 116.

[51] See, for example, the offences of violence to the person in the Crimes Act 1958 (Vic) which contain as an element, the seriousness of the injury.

[52] R v Boyd [1975] VicRp 16; [1975] VR 168, 172 (Gowans, Nelson and Murphy JJ).

[53] R v Hay [2007] VSCA 147, [16] (Buchanan JA), [31]-[32] (Maxwell P). It is unnecessary to here consider when constructive knowledge may suffice.

[54] See for example 'Sentencing in Victoria' - K Warner 11.314 (2nd ed).

[55] DPP (Vic) v Bright [2006] VSCA 147; (2006) 163 A Crim R 538, [10] (Redlich JA).

[57] DPP (Vic) v Bright [2006] VSCA 147; (2006) 163 A Crim R 538, [1] (Chernov JA); R v Clarke [1996] VICSC 30; [1996] 2 VR 520.

[58] Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293, 310 (Barwick CJ); DPP (Vic) v Johnston [2004] VSCA 150; (2004) 10 VR 85, 96 (Ormiston, Batt and Chernov JJA); DPP (Vic) v Oversby [2004] VSCA 208.

[59] DPP (Vic) v Bright [2006] VSCA 147; (2006) 163 A Crim R 538, [10] (Redlich JA).

[60] R v Ciantar [2006] VSCA 263; (2006) 16 VR 26; DPP (Vic) v Fevaleaki [2006] VSCA 212; (2006) 165 A Crim R 524, [25] (Coldrey AJA).

[61] DPP (Vic) v Bright [2006] VSCA 147; (2006) 163 A Crim R 538, [10] (Redlich JA); Malvaso v The Queen [1989] HCA 58; (1989) 168 CLR 227; DPP (Vic) v Scott [2003] VSCA 25; (2003) 6 VR 217, 225 (Vincent JA); DPP (Cth) v Gaw [2006] VSCA 51.

[62] DPP(Vic) v Bright [2006] VSCA 147; [2006] 163 A Crim R 538, [1] (Chernov JA), [10] (Redlich JA).

Poisons and Controlled Substances Act 1981

(Sentencing Procedure) Act 1999

At a glance

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Judgment (137 paragraphs)

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Cases Cited (15)