DPP v Weidlich; R v Weidlich [2008] VSCA 203

2 He admitted 11 prior convictions arising from three court appearances between 16 September 2002 and 13 October 2006. Relevant for present purposes are two convictions for causing criminal damage, one for causing wilful damage, one for aggravated burglary, one for assault and one for the possession of a controlled weapon without lawful excuse.

3 After hearing a plea in mitigation of penalty, the judge, on 17 April 2008, imposed the following terms of imprisonment upon him:

Her Honour directed that 12 months of the sentence imposed on count 1, 9 months of that imposed on count 3, and 6 months of that imposed on the summary charge be served cumulatively upon each other and upon the sentence imposed on count 2. These orders created a total effective sentence of six years' imprisonment in respect of which a non-parole period of three years and six months was fixed.

4 The Director of Public Prosecutions has appealed against the sentences imposed on counts 1 and 2, the total effective sentence, and the non-parole period fixed, on the ground that all are manifestly inadequate in that they failed sufficiently to:

(a) punish the respondent to an extent which is just in all the circumstances;

(b) deter the respondent or other persons from committing offences of the same or similar character;

(c) manifest the denunciation by the Court of the type of conduct in which the respondent engaged;

(e) have regard to the maximum penalty prescribed for the offences;

(f) have regard to the nature and gravity of the offences;

(g) have regard to the respondent's culpability and degree of responsibility for the offences;

(h) have regard to the impact of the offences on the victim;

(i) have regard to the aggravating features of the offending and in particular:

• the use of a weapon,
• the threats made,
• the nature of the offending over a protracted period, and
• the serious permanent injuries suffered by the victim.

5 The circumstances surrounding the commission of the respondent's offences are sufficiently set out in the 'Summary of Prosecution Opening' provided to the Court, which was read into the transcript in the Court below.[1]

1. The victim in this matter is Michelle Catherine Maker, aged 27 years.

1. At the time of the offences, the prisoner (aged 29 years) and the victim were in a de facto relationship and residing together in Malmsbury. They had been in the relationship for approximately four years.
2. The victim worked at the Malmsbury Hotel and the prisoner in a house re-stumping business.
3. On Friday the 27th of April 2007, the victim was working at the Malmsbury Hotel between the hours of 11:30am and 3:00pm and returned to work a second shift between the hours of 6:00pm and 9:30pm.
4. Whilst the victim was working, the prisoner was at home with some of his friends. During the day, they consumed alcohol together. Sometime during the afternoon, the prisoner went to the hotel and purchased more alcohol, returning home and consuming the alcohol with his friends.
5. Between 10:30pm and 11:00pm, the prisoner left home with his friends and went to the hotel. By this time, the victim had finished work and was having a drink in the public bar area with other staff members. The prisoner entered the bar and hotel patrons present at the time observed some sort of tension between the prisoner and the victim She and another female staff member were dancing to music which was playing and were having a good time.
6. The prisoner at this time was becoming more agitated and the tension between him and the victim was increasing. Other patrons in the hotel stated that they avoided eye contact with the prisoner because he was becoming aggressive towards them.
7. Whilst at the hotel, the prisoner was consuming full strength beer. The victim had three mixed drinks after her shift had finished and had various conversations with other male patrons, which were in the line of sight of the prisoner, but not within his hearing. The victim stated that the reason for these conversations were that she was organising a surprise 30th birthday party for the prisoner and did not want him to become aware of her intentions at the time. Whilst the conversations were occurred (sic), the prisoner was observed to be increasingly agitated and staring in the direction of the victim and the males in a threatening manner.
8. The victim continued to dance with a female staff member in the bar area when she was confronted by the prisoner, who was in an agitated state. He said to her 'What are you doing dancing behind the bar like a little slut.' ... In order to avoid a further confrontation, the victim left the hotel and returned home. As she left, she said to the prisoner 'I don't need this shit, I'm going home and I'll deal with you when you get home.' ...
9. The victim was home only a short time, when the prisoner arrived. The victim stated that he was very angry and was 'ranting and raving' at her. Again, in an effort to avoid a further confrontation, she left the house and told him that she was going for a walk so that they could both calm down.
10. It was raining, so the victim walked approximately 100 metres south along the street to a bus shelter situated outside the police station, where she had a cigarette. She then heard the hinges on the gate at her house squeaking and became concerned that the prisoner was going to drive his car whilst intoxicated. She therefore returned home and entered the front yard by a small front gate and walked to the front of the house. As she stepped inside, she saw the prisoner's right arm come around the front of her. Initially, she thought he was going to give her a cuddle and say he was sorry, however he jabbed her to the right side of her neck with an electric cow prodder (also known as a 'stun gun') and she immediately felt pain. She felt immediate shock and the (sic) felt it again. She felt pain and heard a whirring noise. The second shock caused her to fall to her knees. She heard him say 'It doesn't even work' ... and then he jabbed her to the neck once again. He then appeared to be fiddling with the device and she took the opportunity to get up and out of the front door. She could hear him behind her and attempted to get out to the front gate and escape.
11. When the victim was in the front yard, she slipped in a puddle of mud and the prisoner caught up with her, lunging at her and jabbing the device into her neck once again. She fell to the ground with him lying on top of her and he continually jabbed the device into her neck stating to her with no emotion in his voice 'Fuck you.' ... (count 1) During the struggle, she slid out from under him, got back onto her feet and ran to the front gate. She jumped over the gate and ran across the road to the front of the Malmsbury Hotel, screaming for help. When she arrived at the front of the hotel, she started banging on the windows in an attempt to attract the attention of anyone who could still be inside.
12. The prisoner then caught up with the victim and pull (sic) her down onto the concrete footpath. He then smashed her head up and down into the footpath and onto the balcony where patrons sit to have their meals a number of times. He then punched her to the mouth and cheek area, splitting open her lip and causing it to bleed. He then knelt down beside her and forced his thumb into her left eye socket at the bottom of her eye. She stated that 'He was really pushing hard. He was trying to cut my optic nerve with his nail.' ... He then rolled her onto her back and sat on her chest, still gouging her eye with his thumb. She could not breathe and was in fear that she was going to die. She tried to tell him to get off her, but was unable to draw sufficient breath to scream out. Her left eye had nearly come out of its socket when he forced his thumb into her right eye and attempted to gouge it out of its socket. He said to her 'I don't want you to breathe, I'd rather go to gaol for it this time.' (count 3) She was continually gasping for breath and told him that she could not breathe. As he was gouging her eyes, she observed that he was calm and showed no emotion towards her. At this stage, she could not see anything and one of her eyes was completely out of its socket and hanging out. The light outside the hotel came on and he pulled his thumb away from her right eye. (count 2) He stood up and walked away. As she had no vision in either of her eyes, she relied on her memory of the layout of the hotel to feel her way around the building until she came to a rear door. She banged on the door and it was opened by Robert Currie, the hotel owner, who took her inside and contacted the police and ambulance.
13. Police attended the scene at 12:50am.
14. The victim expressed a genuine fear that she thought she was going to die as a result of the assaults committed upon her by the prisoner. She stated that 'the pain was horrific and it was the worst pain I have ever felt in my life.' ...
15. The victim says that on this night, the prisoner was not drunk and other patrons at the hotel give a similar account but also say that he appeared very angry.
16. Police located and arrested the prisoner at his home at approximately 1:00am. He was interviewed at Kyneton Police station and denied the allegations, claiming that he had no recollection of what had occurred.
17. After being treated by ambulance paramedics, the victim was taken to the Royal Victorian Eye and Ear Hospital and admitted for further specialist treatment. Upon examination, she was found to have suffered the following injuries ...:
    • severe pain in both eyes;
    • bulging to the left eye due to significant swelling;
    • a horizontal laceration over her left eye lid;
    • injuries around both conjunctiva (the white part of the eye) with a 360 degree detachment of the conjunctiva off the eyeball in her left eye and tears to her right eye;
    • significant reduction in movement in her left eye in all ranges and mild reduction in movement in her right eye;
    • swelling to both eyelids;
    • abrasions to corneas (the clear part of the eye which a person sees through) in both eyes.

The victim then underwent surgery later that morning.

The victim in her Victim Impact Statement states that she continues to suffer pain and headaches associated with her left eye, double vision, blurry and cloudiness and she fears the permanent loss of vision in her left eye.

6 There is no need to recite the principles to which the Court must have regard when considering a Crown appeal against sentence as they well known and are regularly applied.[2]

7 In the present case, counsel representing the Director asserted that, notwithstanding the presence of factors militating in favour of the mitigation of the penalty to be handed down upon the respondent, the proper exercise of sentencing discretion required the judge to impose substantially longer individual terms of imprisonment on two of the counts and a total effective sentence of greater length than that directed. Particular emphasis was placed, in support of this claim, upon the protracted and calculated character of the respondent's behaviour as he pursued his objective of inflicting severe pain and permanent physical injury upon his victim. Conduct of this kind, bearing in mind its actual and potential consequences, called for the imposition of condign punishment to manifest the denunciation of the community and to act as a deterrent to others who may be motivated to act in a similar fashion, he argued.

8 In response, counsel for the respondent submitted that it is apparent upon perusal of the judge's sentencing remarks that considerable care was given to the determination of an appropriate sentence in this case. No contention has been advanced, he pointed out, that her Honour failed to have regard to any relevant factual circumstance or sentencing principle or that, in addressing the matters that had to be taken into account, she fell into any specific error of commission or omission. Against that background, counsel reminded the Court of the remarks of Callaway JA in R v Bernath[3] -

... A ground of appeal may complain that a sentencing judge failed to give due weight or, alternatively gave excessive weight to a relevant factor, but that stands in contrast with a ground that asserts that the judge disregarded such a factor altogether or took an irrelevant factor in to consideration. Where the complaint is made in terms of weight, an appellate court must be especially cautious not to substitute its own opinion for that of the judge in the absence of identifiable or manifest sentencing error ... The same caution is appropriate when it is said that a sentence is manifestly excessive.

9 Here, he continued, the judge can be seen to have well appreciated the seriousness of the respondent's conduct, its consequences to the victim and made clear that she did have due regard to all of the matters relied upon by the Director in this Court. In this context, he pointed to her Honour's references to the maximum penalties for the offences, her careful statement of the facts relating to the offending, and the attention given to the impact upon the victim. Her Honour was not only justified in doing so but was required to place weight, he argued, upon the respondent's guilty plea and the fact that it was entered at an early stage at a committal mention and the remorse referred to in his record of interview, Dr Walton's report, and the evidence of the witness, Pamela Matthews.

10 Considerable reliance was placed by the respondent's counsel upon the evidence, which the judge accepted, concerning his client's mental state at the time of offending and the time of sentencing. Her Honour, he submitted, was required to give proper effect to the principles set out in the judgments of this Court in R v Tsiaras[4] and R v Verdins and Ors[5] and clearly did so.

11 When all of these matters were taken into account, the disposition at which her Honour arrived was, he argued, available in the proper exercise of sentencing discretion and even if it was not so viewed by the Court, when regard was had to the principle of double jeopardy, it became apparent that the appeal should be dismissed.

12 It is appropriate to commence our consideration of this matter by addressing the judge's findings with respect to the respondent's mental state at the time of the commission of the offences. Her Honour stated -

... I accept the evidence that you were suffering from depression and post-traumatic stress disorder when you committed these offences and accept your counsel's submission that your moral culpability is reduced because your psychological condition impaired your ability to exercise appropriate judgment and ability to make calm and rational choices.

When considering the question of general and specific deterrence, the fact that you have been diagnosed as suffering from post traumatic stress disorder and depression is a relevant consideration. As I have already stated, you were suffering from those psychological conditions when you committed these offences. In accordance with the principles stated by the Court of Appeal in R v Tsiaras and restated in R v Verdins, I have taken into account in mitigation of punishment the opinion expressed by Ms Matthews that you were suffering from those psychological conditions at the time you committed these offences and that you continue to suffer from those psychological conditions. Accordingly both general and specific deterrence should not be given as much weight as they would ordinarily attract. In this case the weight to be given to both specific and general deterrence is to be sensibly moderated.

13 Whilst it would seem to be apparent that the respondent was in a highly agitated state at the time it is apparent on the judge's findings that he acted in a purposive fashion and was not only well aware of what he was doing but possessed a clear appreciation of its criminal character.

14 We have set out the circumstances of the respondent's offending earlier in this judgment, but there are some features which bear repeating in this context.

15 The respondent had consumed cannabis and had been drinking for some hours prior to the incident. He was observed by persons at the hotel to be in an increasingly aggressive state, to the extent that they avoided eye contact with him. He was, on the evidence, in an ugly mood at the time he arrived home. When he initially attacked the victim without warning and using a 'cow prodder', he expressed disappointment with the result, saying 'it doesn't even work'. However he persisted, pursued her when she broke away and applied the device repeatedly, stating 'fuck you' as he did so. She broke away again and he knocked her to the ground and then tried to gouge her eyes out of their sockets. As he attempted to remove her right eye, he said 'I don't want you to breathe, I'd rather go to gaol for it this time'.

16 The seriousness to be attributed to a breach of the criminal law in any given case is, of course, dependent upon a number of factors including the intention of the perpetrator and the consequences of its commission.[6] By reference to these considerations, the conduct of the respondent constituted a particularly serious example of each of the offences encompassed by counts 1 and 2. He deliberately and viciously set about trying to cause his victim extreme pain, suffering and injury and succeeded in doing so. His level of culpability for acting in this way must, of course, be assessed against the background of his underlying psychological fragility. However, as we have mentioned, his mental state was not such that he did not make clear and conscious decisions or that his understanding of the real significance of what he was doing was clouded. Nor could he be reasonably viewed as having acted spontaneously or in some uncontrolled fashion in any real sense.

17 Generally, the measure of culpability of an offender under the criminal law rests upon the extent to which the individual can be seen to be personally responsible for both the prohibited acts and their consequences. Little thought is required to appreciate that the greater the level of insight and understanding possessed by him or her concerning the act and its potential harm, the higher becomes the level of culpability for then deliberately engaging in the conduct involved. The Court in Tsiaras and Verdins[7] recognised that sometimes as a consequence of the contribution made to the commission of an offence by a mental disorder from which a perpetrator was suffering at the time, it would be unjust to attribute to the offender a full measure of personal responsibility. The presence of the disorder could bear upon the sentencing judge's assessment of the individual's motivation and level of culpability, prospects of rehabilitation, the need for specific deterrence and the appropriateness of giving full effect to the principle of general deterrence. However it follows, when addressing the question of the significance of the disorder for these purposes, that the nature and extent of its possible effect upon the offender's behaviour must be carefully explored.

18 In the present case, evidence as to the relationship was provided by a forensic psychologist, Pamela Matthews who stated in a report dated 27 July 2007 -

In regards to the current offences before the Court the writer is of the view that the most significant factors involved were: (a) Mr Weidlich's unstable self esteem, see Mr Weidich's own admission of embarrassment in the clinical interview and the statement of Currie (b) intense anger, see various witness references to Mr Weidlich spoiling for a fight. (c) substance use acting as a dis-inhibitor or an exacerbator of dissociative state and (d) a dissociative state associated with a history of Post Traumatic stress Disorder and/or Borderline Personality Disorder.

With respect to the last matter, however, when cross-examined by the prosecutor at the plea hearing and after aspects of the respondent's conduct were put to her, the following exchange occurred -

PROSECUTOR: Let me suggest to you those two things don't suggest a dissociative state but rather somebody in touch with reality, firstly, explaining why he's doing this to her in a way and, secondly, as soon as the light comes on he takes off. What do you say about?

MATTHEWS: I've already raised that in my previous explanation. That there is some of what appears to be very purposeful behaviour, and then there is also descriptions that would suggest an altered mental state. In that respect we're still dealing with possibilities, not certainties, and we can not be unequivocal about this. (Our emphasis)

PROSECUTOR: He told you that one, perhaps two, days a week he would drink a whole slab of beer and have cannabis as well?

PROSECUTOR: He told you on this day he'd been drinking alcohol all day and had cannabis. Is that right?

PROSECUTOR: That is going to be a great dis-inhibitor to somebody who has an anger problem. Do you agree?

MATTHEWS: No. A dis-inhibitor to a range of behaviours but also an exacerbator of any psychiatric condition that he's suffers from.

PROSECUTOR: He's a person who has problems controlling his anger?

MATTHEWS: Yes, I believe he has had issues with anger.

19 Dr Walton stated in his report of 2 November 2007 -

There would seem to be little doubt that Mr Weidlich was in an advanced state of intoxication due to the combination of alcohol and cannabis he had consumed preceding his offending, which does form the substrate of a potential defence of automatism. He has the requisite dense amnesia but if the complainant's account of what occurred to her is accepted then that implies a degree of purposive and co-ordinated behaviour on the part of Mr Weidlich, which is inconsistent with the actions of an automaton.

While it may be the case that formal mental state defences are not available to this man, clearly a person who was likely hallucinating and intoxicated with alcohol and cannabis, was far from being in a state of equilibrium at the material time and it would be open to consider that psychiatric factors might be relevant in mitigation.

...While it is clear that this man has suffered from a serious depressive condition of late, the psychotic symptoms in the form of auditory hallucinations and deluded ideas, at this point are not clearly diagnosable as parallel schizophrenia or a rather protracted drug-induced psychosis. At the very least, this man has been afflicted by a psychotic disorder.

20 The judge, in the course of discussion with counsel for the respondent, said that it appeared to her that Dr Walton had expressed no concluded opinion as to the extent to which his client's psychiatric state contributed to the commission of the offence. Counsel agreed and decided not to call the doctor to give evidence. The judge then directed that a further report be obtained from Forensicare.

21 Dr Stephen Tallents, Senior Psychiatry Registrar, Melbourne Assessment Prison then reported -

I note from Dr Lester Walton's report dated 2nd November 2007 that there has been uncertainty with respect to Mr Weidlich's diagnosis at that time. I note that at the time of his report Dr Walton had formed the view that Mr Weidlich had been suffering from a serious depressive disorder and a psychotic disorder which at that point of time was not clearly diagnosable as schizophrenia or a protracted drug-induced psychosis. It appears that the worsening of auditory hallucinations and the intense fear that he was going to be attacked that were noted by Dr Walton in late October 2007 have persisted in relatively for the past 5 months. There have also been possible intermittent olfactory hallucinations.

Whist (sic) I have not had the opportunity to examine Mr Weidlich's medical record at the St Paul's unit at Port Phillip Prison, I was able to speak (sic) Dr Daina Rumbergs, psychiatric registrar at the St Paul's psychiatric unit. Dr Rumbergs stated that Mr Weidlich's fears for his safety are reality based in his current prison environment as he feels at risk from other prisoners because of the nature of his offence. She stated that he as (sic) been diagnosed with a depressive disorder at the St Paul's unit and that although he has psychotic symptoms, he has not been diagnosed with Schizophrenia. She indicated that some of his early hallucinatory experiences may have been associated with substance abuse, although I note that at interview Mr Weidlich stated that he first heard a 'voice' in his head at 16 years of age and that he first used illicit substances at 18 years.

I am not able to comment on his mental state at the time of the offence. [Our emphasis]

22 The nature and extent of any relationship between the respondent's mental state and his offences can be seen to be at best a matter of conjecture. It certainly did not follow from the opinion evidence or the behaviour of the respondent on the night, that his underlying psychological problems made any substantial contribution to what took place, or that his behaviour was not more heavily influenced by his consumption of cannabis and a great deal of alcohol, against the background of what was described by her Honour as a 'turbulent relationship' with 'low frequency' domestic violence. Her Honour noted that -

Michelle took out an intervention order against you four years ago. You reconciled after you gave up drinking alcohol for twelve months.

In these circumstances, only limited weight could reasonably be given to the evidence concerning the respondent's psychological and psychiatric problems when considering the extent of his level of culpability or the issues of general and specific deterrence. Although her Honour made no finding concerning the extent to which those problems contributed to his behaviour, it is, we think, reasonable to infer from her remarks and from the sentences imposed, as counsel for the Crown contended, that undue weight was attributed to this consideration.

23 Her Honour accepted and properly took into account the likelihood that a sentence of imprisonment would impact more heavily on the respondent by reason of the psychiatric illness from which he was then suffering than upon a person who was serving a sentence in the general prison population. This did not arise by reason of the possibility that imprisonment may have had a significant adverse effect upon his mental health but because -

... you would need to serve any term of imprisonment under supervision in the hospital units. That results in a greater level of supervision than if you were serving a sentence in the general prison population. It is also more difficult for you to access daily activities and rehabilitation programs in that environment.

24 Perusal of the transcript of the plea hearing and her Honour's sentencing remarks reveals, as counsel for the respondent submitted, that the judge approached her task in this case with considerable care and took into account all relevant factual circumstances and applicable principles. Nevertheless, the sentences imposed on counts 1 and 2, the total effective sentence and the non-parole period fixed by her are inadequate to the extent that the intervention of this Court is required. They simply do not reflect the seriousness of the conduct in which the respondent engaged, the deliberation and malice with which he acted or his level of culpability.

25 This is not to say that there was no justification for the moderation by the sentencing judge of the application of the principle of general deterrence in this case or that her Honour fell into error in having regard to the respondent's underlying mental state at the time of the commission of the offences. It was clearly incumbent upon her to have regard to the possible contribution that it may have made to his conduct on that night. However there was little to support the claim that he should not be held responsible in large measure for his behaviour, concerning which there were otherwise no mitigating factors.

26 There is one final matter to which attention must be directed. The sentencing judge imposed a term of six months' imprisonment on the summary charge of possession of a prohibited weapon (the 'cow prodder') having been informed that the applicable maximum penalty at the time was 240 penalty units or imprisonment for two years whereas only a maximum term of 12 months could be imposed. Counsel for the Crown fairly conceded that the error was material. Leave has been sought and granted to the respondent to lodge a Notice of Application for an extension of time within to apply for leave to appeal. We have concluded that the application should be granted as should leave to appeal and the respondent re-sentenced on that charge.

27 In these circumstances, we are of the view that the sentences imposed upon the respondent were manifestly inadequate to the extent that, having regard to the principle of double jeopardy, the intervention of this Court is required.

29 The sentences imposed in the Court below on the counts subject to appeal are set aside and the appellant re-sentenced as follows:

On count 1 - two years and six months' imprisonment;

It is ordered that one year of the sentence imposed on count 1 and 6 months of that imposed on count 3 be served cumulatively upon the sentence imposed on count 2. There is no order for cumulation with respect to the summary charge. This creates a total effective sentence of seven years and six months imprisonment in respect of which a non-parole period of five years is fixed.

[1] As we understand the position, there has been no suggestion that this outline is inadequate or inaccurate in any significant respect.

[2] R v Clarke [1996] VICSC 30; [1996] 2 VR 520, 522; DPP v Johnston [2004] VSCA 150; (2004) 10 VR 85; DPP v Bulfin [1998] VR 114; and DPP v Bright [2006] VSCA 147; (2007) 163 A Crim R 538.

[3] [1997] 1 VR 271, 277.

[4] [1996] VicRp 26; [1996] 1 VR 398.

[5] [2007] VSCA 102; (2007) 16 VR 269.

[6] See Mallinder v R (1986) 23 A Crim R 179; R v Pota [2007] VSCA 198, [28]; DPP v Fevaleaki [2006] VSCA 212, [15]; and R v Buckle [2005] VSCA 98, [25].

[7] We are concerned here only with the significance of the presence of a disorder at the time of the commission of the offence and not its relevance for other sentencing purposes.