DPP v L'Eveille [2018] VSCA 60

1 The respondent, Louis L'Eveille, was charged with one count of intentionally causing serious injury contrary to s 16 of the Crimes Act 1958. The offence carries a maximum term of imprisonment of 20 years. The respondent pleaded guilty on 4 August 2017 before a County Court judge and was sentenced on that day to two years and four months' imprisonment with a non-parole period of 14 months'. The sentencing judge declared under s 6AAA of the Sentencing Act 1991 that, but for the respondent's plea of guilty, she would have sentenced him to three years' imprisonment with a non-parole period of 20 months.

2 On the same day, the respondent also pleaded guilty to contravention of a community correction order (CCO) which was current at the time of his offending. That order related to the respondent's earlier conviction for the offences of assault and criminal damage, which had arisen out of the same motivating factors which resulted in his plea of guilty to the subject offence. By reason of his contravention of the CCO, the respondent was re-sentenced on the original offences to six months' imprisonment with two months cumulative on the sentence for the subject offence. This resulted in a total effective sentence of two years and six months' imprisonment with a non-parole period of 16 months.

3 The Director of Public Prosecutions has appealed against the total effective sentence on two grounds:

(1) Ground 1 - The sentencing judge erred in finding that the respondent's psychological state (compromised by substance abuse) was a mitigating factor.

(2) Ground 2 - The sentence imposed on the charge of intentionally causing serious injury is manifestly inadequate in all the circumstances.

4 The following account of the circumstances of the offending is taken from the sentencing reasons:

Just after midnight on 2 January 2017, you were present at the home of your sister, Mary Goda and her husband, Cedric, and their two year old daughter, Grace at Unit 8, 71 Hammond Road, Dandenong South. There had been an occasion involving neighbours and two friends coming over for dinner on New Year's Day, where everybody had been drinking. The guests had just left after midnight and you and your brother-in-law went to the garage to sit and talk.

It appears you were, on the observations of your sister, drug-affected. She did not see you smoking but she could smell smoke on you and you had been drinking earlier. She could sense you were getting angry. She heard the start of a conversation between the two of you which appeared to be heading towards an argument and she tried to calm you down because you were angry and breathing heavily.

At that stage, you pushed Cedric to the wall. Your sister tried to separate the two of you. She then saw you punch Cedric Goda to the side of his head and he fell to the ground and hit his head on the concrete floor. You then kicked your brother-in-law to the face area, your sister stating that she was not sure how many times but that it was 'a lot of times.' During this, she was trying to pull you off her husband and calling for help. She managed to push you away after you picked up some sort of implement from the garage and prepared to hit Cedric with it. You went into the house and started smashing things.

Eventually, police were called and when they arrived, they could hear banging, crashing and vocal noise coming from inside the unit. They went inside, where they found you in the kitchen throwing things out of the fridge and cupboards onto the floor. Police said you appeared to be either drug or alcohol affected or to be experiencing a psychotic episode or similar.

You refused to obey police directives to lie on the ground. Eventually, capsicum spray was successfully applied. You were handcuffed and taken back to the Dandenong police station.

Initially, you were assessed by a doctor as unfit to be interviewed. Eventually, when you were interviewed later that afternoon, you made admissions to attacking your brother-in-law, that you told police you had drunk five or six glasses of whiskey and smoked synthetic cannabis. You admitted to hitting your brother-in-law as he was on the ground and unconscious. You said you did not remember anything more but eventually did recall kicking Cedric two or three times.

You said you had been smoking cannabis throughout the year, presumably referring to 2016, and that in January 2016, you had fought your brother-in-law. It would appear that this fight occurred because of a continuing delusion you had that your brother-in-law, Cedric, and your former wife, Cynthia Gresler, were having an affair.

...

Mr Goda suffered serious injuries including brain injury and a fractured skull which required surgical intervention, admission to the intensive care unit of the hospital and the use of life preserving measures such as breathing apparatuses.

He was required to undertake rehabilitation and still suffers some slight memory loss, however in his victim impact statement notes that he has largely recovered and returned to work.[1]

5 As we have said, this offending occurred in the context of an earlier offence committed by the respondent in January 2016. It is necessary to set out the circumstances leading to the respondent's prior conviction and imposition of the CCO. Again, the circumstances described below are taken from the sentencing judge's reasons for sentence:

In March 2016, you were placed on a [CCO] on charges of assault and criminal damage, whereby after smoking, presumably, synthetic cannabis in the garage of your home in Dandenong, which you shared with your then wife, Cynthia Gresler, you came inside and accused her of having an affair with your brother-in-law, insisting that you had seen him come into the house. Ms Gresler denied this and you punched her a number of times until your sister and her husband, Cedric, arrived and separated the two of you.

You, at your wife's request, you left the house but returned several days later. Your wife had gone to stay with her sister. You entered the empty unit and caused what would seem to be extensive damage to the property, including $8000 worth of damage to fixtures such as flyscreens, shower screens, kitchen cabinets and walls. You also caused $2500 worth of damage to your former wife's property, including a TV, fridge, microwave, stereo and TV cabinet.

At the time that you appeared before the Magistrates' Court you had no prior convictions. You were placed on a [CCO] which included conditions to undertake unpaid community work, to attend for psychological assessment and treatment and to attend treatment for drug use.

At the time of this offending, you had just begun a second round of the drug treatment organised by Corrections because you were continuing to use synthetic cannabis. It is quite clear, in my view, that your use of the synthetic cannabis meant that the delusion about your brother-in-law and your former wife continued.

You had not been able to undertake a psychological assessment and treatment because you were in Australia [on] a spousal [visa], were not entitled to Medicare benefits and hence, would have had to pay for such treatment which you could not then afford. Corrections were in the process of seeking a grant to pay for such treatment.

You had completed, and this is to your credit, most of your community work which was carried out between April 2016 and January 2017. Of course the offending that has brought you here before this court is an escalation or more serious example of the offending that you engaged in in 2016 and appears to have arisen from the same cause which was not resolved despite your participation in what had been able to be provided by the [CCO].[2]

The respondent's history and personal circumstances

6 The sentencing judge then set out the respondent's history and personal circumstances:

I now turn to your personal circumstances. You are 31 years of age and were born in Mauritius, the youngest of four children. Your father was apparently extremely violent and alcoholic. Your sister, Marie, who attended court wrote a reference confirming the violence of your father and noted that you were the one most affected by this.

So bad was the effect upon you apparently that you were moved out of your family home to live with your grandparents. You were apparently very afraid of your father during your childhood. According to psychologist, Dr Aaron Cunningham, whose report dated 27 July 2017 was tendered on the plea, 'this led to a general paranoid and anxious orientation to the world'.

You attended school to the age of 18, then studied carpentry and joinery but had difficulty finding work in Mauritius. You relocated to Australia when you were 21 to live with your wife who you met through the internet. You described her to Dr Cunningham as a 'nice good person'.

Unsurprisingly that marriage collapsed following your assault upon her in January 2016 and you have no further contact with your wife who is seeking to divorce you. At the time of this offending you were living with your sister and brother-in-law.

Dr Cunningham said that you have been prescribed the anti-psychotic drug, Risperidone, in gaol. You described previously having distressing memories about your father's violence. You told Dr Cunningham you experienced auditory hallucinations when you used synthetic cannabis or kronic which because you are now in gaol and have no access to drugs have stopped.

You had also begun abusing alcohol when your marriage ended. Dr Cunningham said you presented with insight into how irrational your thinking was at the time you offended in January this year. ...

...

You maintain the support of your sister who as I have said wrote a reference in support of you and attended court to support you, as did your mother who has flown from Mauritius to support you. You have remained in custody since January this year being held on remand at Marngoneet Prison but being unable to access rehabilitative programs because of your remand prisoner status.

It was the view of Dr Cunningham that you had protective factors reducing the risk of re-offending, including a supportive family and your own awareness of your irrational thoughts and need for mental health support.[3]

7 The sentencing judge then turned to consider Dr Cunningham's report in more detail. Reading the sentencing reasons and plea transcript as a whole, her Honour obviously accepted that Dr Cunningham's report established a causal link between the respondent's offending and his psychological condition at the time:

... Dr Cunningham stated,

'Mr L'Eveille's presentation is consistent with the presence of a substance induced psychotic disorder. He experienced paranoid delusions and auditory hallucinations in the context of synthetic cannabis abuse. These paranoid delusions formed on a background of his own experiences of trauma.' I should note that you have used cannabis from the age of 14, this becoming abuse of synthetic cannabis in Australia which in Dr [Cunningham's] opinion was used by you to regulate a paranoid and anxious emotional state that you developed as a result of your father's violence.

Dr [Cunningham] continued, 'In my opinion Mr L'Eveille's prior experiences of trauma led to increased risk of paranoid delusions when abusing significant amounts of substances.' He believed that your loss of emotional control and violence when you assaulted your brother-in-law 'was precipitated by the disinhibiting effect of his drug and alcohol abuse'.[4]

8 Having set out the above circumstances of offending, history and personal circumstances of the respondent, the sentencing judge gave reasons for sentence as follows:

In sentencing you I take into account your cooperation with police, your early plea of guilty, which I accept is a genuine expression of remorse for your offending. You have also pleaded guilty to breaching your [CCO].

I accept you had an extremely difficult childhood which left you with an anxiety condition which you have dealt with by way of self-medication using cannabis and then synthetic cannabis since the age of 14. Ultimately this has led to a psychotic delusion which has lasted for a considerable period of time and which, as I have said, underlay both the offending before this court and the offending in January 2016 for which you were placed on a [CCO].

I also accept that your English is limited and that any term of imprisonment, and (I note it is conceded by defence that only a term of imprisonment is appropriate in this case), will be more difficult for you than the normal prisoner.

I note that on your release from prison you will be returned to Mauritius because of the demise of your marriage and hence this spousal visa which allowed you entry here in the first place. I regard you as having reasonable prospects for rehabilitation as long as you do not engage in cannabis use.

It is pretty straightforward, Mr L'Eveille, you use marijuana, you become paranoid and hear voices, they get you into an agitated state about something happening that actually is not and you act on those voices and attack someone. I hope you understand that. If you had not been using cannabis and alcohol you may still be married, working, staying in Australia and not living day to day in gaol and awaiting deportation.

Cannabis has not been any sort of answer to your problems, it has only made them worse. I therefore sentence you as follows. Could you stand up please? I should also add I hope you realise that had you kept going and attacking your brother-in-law you might have killed him. If that had been the case you would be spending at least 15 or 16 years in gaol.

Again, this all because you were using kronic. Do you understand how dangerous that drug is for you? It literally makes you go mad.

... Because of the circumstances I have referred to I accept your counsel's submission that there be a more lengthy period than usual between the maximum and minimum term and I order that you serve 14 months before becoming eligible for parole.[5]

9 Earlier in her sentencing reasons, the sentencing judge referred to the respondent's breach of the CCO for his prior offending and stated that she regarded that breach as being mitigated by the respondent's psychological problems:

Your offending breaches that order but I regard it as a mitigatory factor that the psychological problems you were experiencing arising from your continued drug addiction underlay both sets of offending.[6]

10 The sentencing reasons were preceded by the following relevant exchanges between counsel and the sentencing judge, set out below.

11 First, an exchange between defence counsel and the sentencing judge as follows:

HER HONOUR: All right then. Okay, look, I note Dr Cunningham's report, which is that your client has expressed remorse to you. Mr L'Eveille presents with a substance-induced psychotic disorder, traumatic childhood reported, he ... was afraid of his father, 'This led to a general paranoid and anxious orientation to the world'. His use of synthetic cannabis increased following his separation from his wife. He began to abuse alcohol.

'In my opinion, Mr L'Eveille's stress and synthetic cannabis abuse precipitated his psychotic disorder. He experienced paranoid delusions with regard to his partner's infidelity, which contributed to him confronting his brother-in-law. In my opinion, Mr L'Eveille's loss of emotional control and violence was precipitated by the disinhibiting effect of his drug and alcohol abuse.'

And he says that your client has protective factors which may reduce his risk and improve his prospects for rehabilitation, in that he has a supportive family, he's aware of his irrational thoughts and the need for mental health support.

MR REARDON: Yes, Your Honour. And as I've outlined, my ultimate submission is that his moral culpability is reduced somewhat, but as a reason - by reason of his childhood, which led to an early exposure and dependency on cannabis, which grew into the kronic, which has had a causal influence on the offending, including the breach offending, I've

HER HONOUR: Yes. So when you say - are you looking at grounds 1 and 2 under Verdins?

MR REARDON: Well, reliance is placed more on Bugmy, Your Honour, and the effects of childhood disadvantage rather than a specific Verdins

HER HONOUR: So there's a sort of a causative train, if you like.

MR REARDON: Yes, Your Honour.

HER HONOUR: Arising out of a difficult childhood, leading to drug abuse, leading to psychotic delusion, leading to this offending, which appears somewhat to be out of character because he's not a person who's presented otherwise. All the offending has been in the context of a continuing delusion relating to this brother-in-law and his former wife.[7]

12 Second, the following exchange between the sentencing judge and the prosecutor:

HER HONOUR: Yes, thank you very much. Anything you want to say, Mr Regan?

MR REGAN: Just the Bugmy point, Your Honour, is of course - it's clear, but the difficulty with this is that it's the self-administered drug

HER HONOUR: Which is of course why Mr Reardon's gone for the Bugmy approach rather than the straight Verdins, which is why I asked the question.

MR REGAN: Exactly.

HER HONOUR: Whether he's relying on Verdins, because I don't think he can.

MR REGAN: Exactly, so the Bugmy - it is a valid Bugmy point, but the moral culpability is still high because of the fact that he's been on a program partially focused towards addressing these sorts of

HER HONOUR: It is, but it appears from the report that even though he's successfully undertaken that program

MR REGAN: Yes, but

HER HONOUR: an extension was sought because they knew it had - you know, he was still smoking this stuff.

MR REGAN: But then we have another complete meltdown of the kind that he did in January

HER HONOUR: Yes, that's right, but he's got an addiction to it too. I mean, look, it is in my view a legitimate mitigatory factor. When we're talking about moral culpability, ... it's a bit of a roundabout route to it. It does have some.

MR REGAN: Yes.

HER HONOUR: I mean Bugmy basically says if you've had a terrible childhood - difficult childhood, that should be taken into account.

...

HER HONOUR: In terms of what part it's [had] to play in the ultimate offending, and that's what I propose to do.

MR REGAN: Not disputing that, Your Honour.[8]

13 These exchanges bolster our previously expressed view that the sentencing judge accepted:

(1) Dr Cunningham's opinion that the respondent's traumatic childhood contributed to his drug addiction which, in turn, caused his psychotic delusion and then caused him to lose control and assault his brother-in-law; and

(2) the contention advanced on behalf of the respondent that his moral culpability was reduced on that basis 'somewhat', or to 'some' extent.

14 The exchanges also demonstrate that the prosecutor did not dispute either of these propositions. In these circumstances, the sentencing judge properly recognised that it was for her to assess the extent to which the respondent's moral culpability was reduced, and how that should be taken into account in her instinctive synthesis in arriving at an appropriate sentence.

Ground 1 - specific error in treating respondent's psychological state as a mitigating factor

16 The Director contends that the judge erred in her reliance on the respondent's psychological problems as a mitigating factor. Three submissions are made:

(1) There was 'very little evidence' before the sentencing judge to establish that the respondent's traumatic childhood was an operative factor in his offending.

(2) The sentencing judge's reliance upon the connection between the respondent's psychological problems (such as they were) and his drug addiction and consequent offending was stated in terms which were 'too absolute', and did not represent the application of sound sentencing principles as stated by the High Court in Bugmy v The Queen.[9]

(3) In any event, defence counsel's plea submissions did not put the respondent's childhood deprivation, and allegedly resulting psychological problems, forward as a significant mitigating factor, but only as reducing moral culpability 'somewhat'.

17 Having regard to the position adopted by Crown counsel on the plea, which accepted that Bugmy had 'some' application to reduce the respondent's moral culpability, these submissions should be taken together as a challenge to the weight placed by the judge on Bugmy principles, not a challenge to their ability to operate in the circumstances of the case. It is not open to the Director on appeal to withdraw the concessions made on the plea.[10] Accordingly, although it appears that the sentencing judge relied heavily on Bugmy principles in determining the respondent's sentence, it is not now open to the Director to challenge the judge's finding that, for that reason, the respondent's psychological state was a mitigating factor.

18 Moreover, it follows that it is not now open to the Crown to contend that the respondent's use of synthetic cannabis was an aggravating factor, because his prior conviction put him on notice that his use of that drug could induce in him a psychotic state with paranoid delusions and cause him to commit violent acts.[11]

20 The Director should thus be limited on appeal to the same submission advanced by the prosecutor on the plea, namely, that although Bugmy principles were engaged to some extent, the respondent's moral culpability was nevertheless 'still high'. That is a matter to be considered in determining the Director's appeal based on manifest inadequacy.

Ground 2 - the sentence was manifestly inadequate in all the circumstances

21 The Director does not challenge the sentence imposed on the summary offence of contravening the CCO. The manifest inadequacy ground is limited to challenging the sentence of two years and four months' imprisonment, with a non-parole period of 14 months, on the principal offence.

22 Manifest inadequacy does not require the establishment of specific error. As the High Court stated in Dinsdale v The Queen:[12]

Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than noncustodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case.

23 The Director contends that the sentencing judge must have placed too much weight on Bugmy factors in the circumstances of the case, because the offending was just too serious to justify the lenient sentence which was given - even if some allowance is made for the respondent's traumatic childhood. The Director relies upon the following factors to support the manifest inadequacy contention:

(1) The brutality of the respondent's attack on his brother-in-law. Not only did the respondent punch him to the head with such force as to make him fall and hit his head on the concrete floor, but he then kicked his head while he was on the ground, admitting in his record of interview that he did so three or four times. The respondent then picked up either 'some sort of machine' or a wooden chair, and was about to hit his brother-in-law with it when he was prevented from doing so.

(2) The attack caused serious injuries. The victim suffered traumatic and severe head and brain injuries, which required emergency specialist procedures in a hospital intensive care department. Notwithstanding the victim's good recovery, there remains a real prospect that he will suffer ongoing medical problems.

(3) At the time of offending, the respondent was subject to a CCO for offences including assault on his former wife. This was an aggravating factor.

(4) The offence was a serious example of an offence carrying a 20-year maximum penalty. However, the sentencing reasons contain no discussion as to the gravity of the offence, save that the sentencing judge noted that, if he had not been restrained, the respondent may have gone on and killed the victim. That comment was apt and reinforced the gravity of the offending.

(5) The sentencing reasons do not record that the sentencing judge considered the obviously relevant sentencing purposes of denunciation, deterrence (specific and general) and protection of the community.

(6) Although the judge found that the respondent had reasonable prospects for rehabilitation, the risk of him re-offending does not appear to have been given any sufficient weight in the sentencing process. The respondent presented as a prolific cannabis user since he was 14 years old, who had continued to use synthetic cannabis while under a CCO designed to assist him in stopping that use.

(7) Current sentencing practices for this offence demonstrate a median sentence of four years and six months' imprisonment.[13] Current sentencing practices remain relevant in the sentencing mix, notwithstanding the High Court decision in DPP v Dalgliesh (a pseudonym).[14]

(8) The sentencing reasons contain no recognition of the role which alcohol played in the respondent's offending.

(9) The increased use of cannabis and alcohol was a reaction to the breakdown of his marriage, a not unusual vicissitude of life, rather than any childhood deprivation.

24 The respondent contends that there were many mitigating factors, as follows:

(1) Although the victim's injuries were immediately serious, they have largely resolved and the victim impact statement stated that he suffered no lasting physical, emotional, financial or social impact from the assault and consequent injuries.

(2) A very early plea of guilty and genuine remorse.

(3) A traumatic childhood of domestic violence and an alcoholic father.

(4) An early exposure to and consequent dependency on cannabis.

(5) The respondent's inability to obtain appropriate treatment for his psychological problems while subject to the CCO, due to his inability to access Medicare funding.

(6) The offending was in the context of a continuing delusion brought on by stress and a drug (and alcohol) induced psychotic disorder.

(8) The respondent's visa has been cancelled and he will be deported home to Mauritius on his release from prison.

25 The central plank in the respondent's case is that the sentencing judge was entitled to give full weight to Bugmy principles, and reject the Crown case that, although those principles were engaged, the respondent's moral culpability nevertheless remained high. In particular, the respondent contends that his drug use 'was the coping mechanism learnt in a childhood marred by family violence to managing stress within his domestic relationships'.[15]

26 In order to assess the rival contentions concerning the use which could legitimately be made of Bugmy principles in this case as a mitigating factor, it is necessary to consider what the High Court said in that case. In Bugmy, the High Court was concerned with an offender who came from an Aboriginal community surrounded by alcohol abuse and violence when growing up, a lack of formal education, and a long record of convictions and incarceration including for offences of violence. The High Court determined that deprived or traumatic childhoods of that kind may constitute a mitigating factor in sentencing such an offender,[16] although each case must depend upon its own facts in order to ensure 'individualised justice'.[17] Mitigating factors of this kind are not confined to offenders of Aboriginal descent, but are equally applicable to any offender with a deprived background. Moreover, the concept of individualised justice requires that: '[i]n any case in which it is sought to rely on an offender's background of deprivation in mitigation of sentence, it is necessary to point to material tending to establish that background'.[18] The weight to be given to that material, in moderating the weight which would otherwise be given to specific and general deterrence and other sentencing considerations, depends on the circumstances of each case.[19]

27 In this case, the Crown accepted on the plea that the statements in Dr Cunningham's report constituted sufficient evidence of the respondent's background of deprivation to engage Bugmy principles. The respondent contends that the sentencing judge was therefore correct to give 'full weight' to his deprived background. In support of that submission, the respondent relies upon the following statements in the plurality reasoning in Bugmy:

... The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.

Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving 'full weight' to an offender's deprived background in every sentencing decision.[20]

28 The concept of 'full weight' requires some explanation - to be found in the immediately following passages in Bugmy:

... However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult.[21] An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.[22]

29 In the result, the High Court remitted Bugmy for reconsideration by the Court of Appeal, as a sentencing court, to determine:

... whether the appellant's background of profound childhood deprivation allowed the weight that would ordinarily be given to personal and general deterrence to be moderated in favour of other purposes of punishment, including rehabilitation, to the extent that [the sentencing judge] allowed.[23]

30 Here, the evidence of the respondent's background was lacking in detail and fairly weak in comparison to cases like Bugmy. The Crown's acceptance on the plea that it was sufficient to engage Bugmy principles is questionable. But, for the reasons given, it cannot be withdrawn on appeal. However, the Crown submission that the respondent's moral culpability nevertheless remained high should be accepted.

31 First, any mitigatory effect arising from the respondent's drug induced psychosis at the time he offended must, in the circumstances of this case, be slight. In DPP v Arvanitidis,[24] this Court considered whether the offender's moral culpability should be reduced because he committed the offence while 'grossly affected by an ice induced psychosis with paranoiac overtones'.[25] The sentencing judge had refused to reduce the offender's moral culpability by reason of his mental impairment on the grounds stated in R v Verdins.[26] The material tendered on the plea supported the conclusion that the offender 'appreciated the general effect of taking the drug on his mental state ... recalled a number of the psychotic symptoms he had experienced and recognised that they were a consequence of his taking the drug'.[27] Nettle JA (Buchanan and Redlich JJA agreeing) affirmed the sentencing judge's approach and concluded that the offender could not rely upon his drug induced psychosis as a mitigatory factor:

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.[28]

32 Second, it appears that this was just the kind of point which the prosecutor was endeavouring to put to the sentencing judge in this case. Instead, he fell into accepting that the 'Bugmy point' raised by the respondent's counsel, and accepted in argument by the sentencing judge, was applicable. Although we have said above that the conduct of the prosecutor on the plea prevents the Crown from now disputing that the respondent's drug induced psychosis was a mitigating factor to some degree, the reasoning in Arvanitidis nevertheless stands in the way of any significant reduction of moral culpability in this case.[29] As the prosecutor contended on the plea, the respondent's moral culpability remained high even if some mitigation is given on Bugmy principles.

33 Third, this was a serious case of an offence carrying a 20-year maximum penalty. The sentence of only about one-tenth of that maximum failed to reflect the objective seriousness of the offending, and the need for both specific and general deterrence and protection of the community - particularly the respondent's family.

34 Fourth, the weight attached to the plea of guilty (and accompanying remorse) is offset by the respondent's prior offending, which was motivated by the same delusion also brought on by using Kronic. Moreover, the fact that the subject offending occurred in breach of the CCO for the prior offending is a significant aggravating factor - even if it be accepted that the respondent had financial impediments in getting psychological treatment.

35 The sentence imposed was in our view wholly outside the range of sentencing options available to the sentencing judge. The respondent should be resentenced on the charge of intentionally causing serious injury to a term of six years' imprisonment.

36 When combined with the respondent's re-sentencing for the prior offending (six months' imprisonment, with two months cumulated on the sentence for the principal offence) - which was not challenged on appeal - this results in a total effective sentence of six years and two months' imprisonment. We fix a non-parole period of four years.

37 But for the respondent's guilty plea, we would have fixed a total effective sentence of seven years and six months' imprisonment, with a non-parole period of five years.[30]

[1] DPP v L'Eveille [2017] VCC 1130 ('Sentencing Reasons') [2]-[8], [23]-[24].

[4] Ibid [21]-[22] (emphasis added). The relevant plea transcript is set out below.

[10] DPP v O'Neill [2015] VSCA 325; (2015) 47 VR 395, 419 [93].

[11] DPP v Arvanitidis [2008] VSCA 189; (2008) 202 A Crim R 300, 308-10 [24]-[29], 311-12 [38]; DPP v Perry (2016) 50 VR 686, 719-20 [129].

[12] [2000] HCA 54; (2000) 202 CLR 321, 325-6 [6].

[13] Sentencing Snapshot 187, Sentencing Trends for Causing Serious Injury Intentionally in Higher Courts in Victoria, 2010-11 to 2014-15, published by Judicial College of Victoria, June 2016.

[14] [2017] HCA 41; (2017) 91 ALJR 1063.

[15] Respondent's written case at [15].

[16] Bugmy (2013) 249 CLR 571, 592-3 [37].

[20] Ibid 594-5 [43]-[44] (emphasis added).

[21] Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465, 476 (Mason CJ, Brennan, Dawson and Toohey JJ).

[22] Bugmy (2013) 249 CLR 571, 595 [44] (citations in original).

[24] [2008] VSCA 189; (2008) 202 A Crim R 300.

[26] [2007] VSCA 102; (2007) 16 VR 269.

[27] DPP v Arvanitidis [2008] VSCA 189; (2008) 202 A Crim R 300, 311 [33].

[29] See also R v Martin [2007] VSCA 291; (2007) 20 VR 14, 19-22 [18]-[30].

[30] Sentencing Act 1991 s 6AAA.