Flood v The Queen [2016] VSCA 37

1 On 8 October 2015 the applicant (now aged 42), pleaded guilty in the County Court to aggravated burglary, intentionally cause injury, theft and two charges of possess drug of dependence. Following a plea on 8 October 2015, the appellant was sentenced on 16 October 2015 as follows:

Aggravated Burglary - person present [Crimes Act 1958 s 77(1)(b)]

25 years [Crimes Act 1958 s 77(2)]

Intentionally Cause Injury [Crimes Act 1958 s 18]

10 years [Crimes Act 1958 s 18]

Theft [Crimes Act 1958 s 74(1)]

10 years [Crimes Act 1958 s 74(1)]

Possess Drug of dependence - Oxycodone [Drugs, Poisons and Controlled Substances Act 1981 s 73(1)]

1 year and/or fine of not more than 30 penalty units [Drugs, Poisons and Controlled Substances Act 1981 s 73(1)(b)]

1 year and/or fine of not more than 30 penalty units

6y and 9m imprisonment with non-parole period of 4y and 10m

2 The applicant seeks leave to appeal on the following grounds:

1. The learned sentencing judge erred by failing to find that all six principles of R v Verdins[1] were engaged.

2. The learned sentencing judge erred by failing to accord the applicant procedural fairness when rejecting the applicability of all but the fifth principle in R v Verdins.

3. The learned sentencing judge erred by failing to reduce the applicant's moral culpability in view of his intellectual disability, mental ill health and substance abuse issues, which impaired his capacity to make rational decisions at the time of the offending.

4. The total effective sentence, non-parole period and order for cumulation on Charge 2 are manifestly excessive and offend the principle of totality in regard to:

(b) Failure to take account of principles in R v Verdins;

(c) Excessive order for cumulation given single episode of offending;

(d) The applicant's plea of guilty at the earliest stage; and

(e) The applicant's chaotic, traumatic and abusive background.

3 About 10pm on 18 March 2015, the applicant opened a sliding window and entered the unit occupied by the victim, Ms Fatimah Ahmadi and her two daughters aged 11 and 7 (Charge 1 - Aggravated burglary). The applicant walked past the daughters, who were asleep on the couch in the lounge room, walked upstairs into the bathroom and took a towel. He covered the lower part of his face with the towel and walked into Ms Ahmadi's bedroom.

4 The victim screamed. The applicant asked her 'Where's the money?' and 'Give me your phone'. He also told her that if she did not give him the money, he would kill or shoot her. The applicant had a covered object in his hand that the victim thought may have been a gun. She gave him her phone (Charge 3 - Theft).

5 The applicant picked up the victim's handbag off the floor, said 'Don't follow me. If you follow me, I will kill you' and went downstairs. Unknown to the applicant, the victim had $6,000 in her bag that she had recently withdrawn from the bank to purchase a car for a friend. The victim followed the applicant downstairs, told the applicant 'Give me back my bag' and tried to grab it from him. The applicant punched the victim four or five times to the face.

6 The 11 year old daughter called out 'Why are you punching my mum?' She tried to push the applicant away from her mother. The applicant pushed the daughter onto the couch. The victim continued to grapple with the applicant, telling him 'Don't touch my daughter.' The applicant punched her three more times to the face. He pushed her head into the wall two or three times. The victim fell down but was able to get up again. The 11 year old daughter continued attempting to intervene to help her mother. The victim was eventually able to grab the bag from the applicant. She threw it into the kitchen. The applicant tried to go after the bag, but the victim grabbed him again. The victim told her daughter to call the police.

7 The applicant punched the victim three more times to the face, causing her nose to bleed. He then left the house through the front door. The police arrived shortly afterwards. The victim was taken to hospital where she remained for five days. She sustained a bruise to her left eye, swelling to her nose, headaches and ongoing pain to her neck, nose, head and face. The victim continued to experience physical pain, post traumatic amnesia and psychological trauma as a result of the assault (Charge 2 - Cause injury intentionally).

8 After leaving the victim's house, the applicant went to the houses of two friends. He told one of his friends that he had broken into a house to steal something and had hit a girl and a woman. He said he felt pretty bad about hitting the woman.

9 On 19 March 2015, the applicant was arrested and a search warrant executed on his house. The police located the victim's mobile phone, as well as six oxycodone tablets (Charge 4 - Possess drug of dependence) and 18 oxazepam tablets (Charge 5 - Possess drug of dependence).

10 The applicant participated in a 'no comment' record of interview and was remanded in custody. The matter resolved by way of a plea of guilty at a committal mention hearing.

11 The applicant's counsel referred to psychiatric and psychological reports tendered on behalf of the applicant, referring to the applicant's long history of chronic substance abuse. The report of a Dr Gelman of 6 August 2012 (3 ½ years before the offending) was specifically relied upon as linking his mental and psychological problems and substance abuse to his offending. Dr Gelman also opined that the applicant would find imprisonment considerably more difficult because of his depression and post-traumatic stress disorder.

12 The Crown submitted that a Community Corrections Order, sought by the applicant, would not satisfy the relevant sentencing objectives of general and specific deterrence, just punishment, denunciation and protection of the community.

13 As to Verdins the prosecutor conceded that imprisonment would be more onerous for the applicant because of his mental illness, but on the other principles submitted that there was no evidence of a realistic connection or causal link between his offending and his mental and psychological problems. The Crown referred to the case of Caldwell & Caldwell v The Queen[2] to support the proposition that someone with an intellectual impairment will always have an intellectual impairment, and it was not the mere existence of the intellectual impairment, but the link between the offending and the intellectual impairment that was relevant.

14 The Crown relied upon a finding by a Dr Barth who had provided a long and comprehensive psychological report on the applicant on 14 August 2015. He concluded that:

Nevertheless, there were no deficits in his ability to appreciate the wrongfulness of his actions.

15 The applicant's then counsel noted that in Caldwell it was said, referencing Muldrock v The Queen[3]:[4]

However, in some cases involving intellectual disability, questions of causation are less likely to arise - simply because the circumstances of the offending and the nature or level of the intellectual disability bespeak a relevant causal nexus.

Counsel submitted that there was evidence in this case as to a causal link.

16 The applicant admitted to an extensive criminal record, going back to 1991. It involved a substantial number of offences involving burglary, dishonesty and violent offences. He had been released from prison in respect of his last bout of offending on 3 February 2015, only about five weeks before committing these offences.

17 The sentencing judge gave the applicant full credit for his early indication of a guilty plea. His Honour noted that the applicant had spent the bulk of his late teenage and adult life in custody, serving sentences of one kind or another, resulting, unsurprisingly, in a degree of institutionalisation.

18 Aggravated burglary is a serious offence and this was a particularly serious example of aggravated burglary, made worse by the applicant engaging in assaulting the victim. The applicant's conduct on this occasion bore similarities to previous conduct he had engaged in on other occasions when he had been involved in burglaries.

19 The applicant has a mild intellectual disability, with an IQ of 69, and suffers from depression and dysthymia. Although there was some dispute as to whether he also suffered from a post-traumatic stress disorder, the sentencing judge was prepared to accept that the applicant had suffered from such a condition in the past and that there was an overlay of those symptoms that bore upon the applicant's mental functioning at the relevant time.

20 It was apparent from the applicant's mental health and medical reports that he had an appalling start to life and his substance abuse issues went back to a very early age. He was subjected to a chaotic childhood, a chaotic period in his teenage years and a chaotic adulthood, that was likely to some extent to be a product of his mental impairments; to some extent a product of the lack of care and nurturing experienced as a child and teenager and certainly the product of substance abuse over many years. His Honour noted that the applicant had a sad history and one which led to this appalling criminal history.

21 There was some dispute in the psychological reports as to the applicant's capacity for understanding the wrongfulness of his conduct and whether he was impaired at the relevant time. Dr Barth said:

Whilst he presented as a very simplistic and concrete thinker, his capacity to understand the wrongfulness of his actions was not impaired.

Whereas Dr Gelman in his report dated 6 August 2010 said:

When he uses drugs he becomes disinhibited, irrational, he does not understand the wrongfulness of his actions, he cannot make calm, reasonable decisions or show appropriate judgment or control of his emotions or behaviour.

22 The sentencing judge did not determine whether Dr Gelman was or was not correct, but found the applicant if not by 2010, certainly by 2015, must have known of the disinhibiting effect his drug use and abuse of illicit substances had on his conduct. The sentencing judge found that it was difficult to find a case amongst all the material provided to support the proposition that the applicant's intellectual disability, or his mental impairments in combination, led to a conclusion that the applicant's ability to reason as to the wrongfulness of his conduct was significantly or relevantly impaired.

23 Ultimately, the sentencing judge was not satisfied that Verdins principles applied to reduce the applicant's moral culpability, thereby largely rejecting the case put by his counsel. He did find however that the applicant's mental illness, intellectual disability and substance abuse were all relevant sentencing considerations and were to be taken into account in a general sense.

24 His Honour also found that the applicant's mental impairment and his intellectual disability would make his time in custody more burdensome and was such that it should be taken into account.

25 The applicant's chaotic upbringing, his being subjected to sexual abuse at a relatively early age, and his poor start to life were all to be factored into the instinctive synthesis as the effect of very significant disadvantage. The judge acknowledged that the applicant's history is one not uncommon to the courts and was often attended by the kind of criminal history the applicant had acquired.

26 The sentencing judge took into account the evidence of a Mr John Hardy, who was the guardian of, and a good friend to the applicant. His goodwill and commitment to helping the applicant was extraordinarily impressive. The judge found him to be an impressive witness who was sincere in his belief that he could help the applicant to turn his life around. Even considering this evidence, the sentencing judge considered the seriousness of the applicant's offending, in light of his criminal history and previous not dissimilar conduct, precluded a Community Correction Order in this case.

27 The sentencing judge took into account the need for adequate punishment, denunciation, protection of the public, and general and specific deterrence. He said he did not lose sight of the need to impose a sentence that facilitated rehabilitation, but it was not the most significant sentencing consideration in this case.

28 Although the applicant had arrived in Australia as a tiny baby, he faced the real prospect, upon release, of deportation to Scotland, where he was born. The sentencing judge did not take that into account per se, but did take into account that the risk of deportation would weigh on the applicant's mind, making his time in custody more difficult to bear.

Ground 1 - the application of Verdins principles

29 This ground concerns the application of Verdins principles in the determination of the applicant's sentence. It was contended that all six of those principles should have been applied in that determination.

30 The sentencing judge concluded that only one of those principles (the fifth): that the applicant's time in custody would be more onerous than it might have been by virtue of his mental impairments and the intellectual disability from which he suffers, applied. His Honour rejected the applicant's counsel's submissions that all six Verdins principles applied although his Honour did take into account the applicant's 'mental illnesses and [his] intellectual impairment and [his] substance abuse going back to a very early age ... in the more general sense'.

31 The sentencing judge was correct, having regard to the evidence his Honour accepted, in confining the consideration of the application of Verdins principles to that already referred to. As this Court has often clearly stated, to be able to call in aid any of the first four of those principles there must be a connection between the impairment to mental functioning and the offender's moral culpability in respect of his offending.[5] The sentencing judge was not satisfied that such a case had been made out.

32 There were a number of psychological reports before the sentencing judge concerning the applicant, but only two of them contained material going to the issue of the application of the relevant Verdins principles.

33 Dr Gelman's report of 6 August 2010 supported the proposition that the applicant's mental capacity, chronic depression and substance abuse contributed to 'the offending behaviour'. He was, of course, referring to some earlier offending for which the applicant was before a court. He considered the likelihood of the applicant's reoffending then as being 'low'.

34 The other report was that of Dr Barth of 14 August 2015. It comprehensively reviewed the applicant's history, mental status, cognitive functioning and other relevant matters and concluded, amongst other findings, there were no deficits in the applicant's ability to appreciate the wrongfulness of his actions.

35 Counsel for the applicant relied on Dr Gelman's report and submitted that Dr Barth's report should be interpreted as containing his opinion as to the applicant's capacity to distinguish right from wrong as being relevant only to the time of his assessment of her client and not at the time he committed the offences for which he has been sentenced.

36 It is clear from Dr Barth's report that he was consulted by the applicant's solicitors in relation to his then imminent appearance in court. On no reading of that extensive and thorough document could it be concluded that the doctor's opinion related only to the time at which he examined the applicant and not to the time at which the relevant offences were committed. Counsel's submissions to the contrary must be rejected. It should also be noted that no such submission was made before the sentencing judge.

37 Counsel's ultimate submission as to ground 1 was that it was not open to the sentencing judge to conclude that the applicant's moral culpability was not reduced or that general and specific deterrence required no moderation.

38 This submission cannot be accepted. It was entirely within the province of the sentencing judge to accept Dr Barth's opinion as set out above and reject that of Dr Gelman. Indeed, on a reading of the materials themselves and having regard to the dates of the relevant reports, such a conclusion was probably inevitable. Further, her submission that the trial judge did not give any effect to the applicant's psychological and other deficits, overstates the position. His Honour's sentencing remarks made clear that he did take those matters into account, as he put it, 'in a general sense'.

40 This ground asserts that the applicant was denied procedural fairness in the Court below in that the sentencing judge failed to inform counsel that an adverse view of the applicability as to all but the fifth Verdins principle would be taken when he had allegedly given an earlier contrary indication.

41 Counsel for the applicant pointed to two statements by the sentencing judge as being relevant to this ground. The first, followed the reading of a passage by the applicant's then counsel concerning the applicant's mental deficits. The passage concluded with this exchange:[6]

These last matters really go significantly to Verdins considerations, Your Honour.

HIS HONOUR: Yes. I doubt whether you'll have much opposition in the proposition that Verdins principles apply.

The second statement referred to by counsel was in the following passage:[7]

MR DICKINSON: Exactly, Your Honour. It's my submission, Your Honour, that all six are applicable. It's relevant in six ways.

HIS HONOUR: Without deciding, I think I'm inclined to that view.

MR DICKINSON: Yes.

HIS HONOUR: Without hearing Mr Ballek on the subject, but he may seek to persuade me otherwise, I don't know?

MR DICKINSON: I won't address any

HIS HONOUR: But for the moment, I'm leaning that way.

MR DICKINSON: Any further argument at this stage to that end, Your Honour. So really what I'm urging upon, Your Honour, now is to get a Justice Plan and a report and come back and see where we go from there.

42 At the conclusion of then counsel for the applicant's address to the sentencing judge, the prosecutor replied and the following exchange took place:[8]

PROSECUTOR: ... In relation to the application of Verdins, Your Honour, it's conceded that Limb 5 may have application as far as custodial hardship; however, on the other limbs, in my submission, there's no evidence of a realistic connection or a causal link.

HIS HONOUR: Is that essential? I rather thought that it wasn't, that if the circumstances are such that there are mental impairments, that it wasn't critical to the application of the first few Verdins principles to demonstrate that link.

MR BALLEK: In my submission, there must be at least some connection between the offending and the condition. Your Honour, there's a decision I'd refer Your Honour to on this point. It's Jason William Caldwell[9] v R [2014] VSCA at 274. I've provided my friend with a copy and I have a copy here for Your Honour.

HIS HONOUR: Thank you.

MR BALLEK: That case involved a series of offences involving criminal damage ...

43 The exchange continued until the prosecutor concluded his address. Then counsel for the applicant replied. The passage containing his only submissions as to this issue is as follows:

MR BALLEK: Those are my submissions, Your Honour.

HIS HONOUR: Yes.

MR DICKINSON: Your Honour, just briefly, that matter, case of Cordwell that my friend referred you to, if one looks at para.56

HIS HONOUR: Yes.

MR DICKINSON: where it talks about cause or link (sic), fourth line down: 'However, in some cases involving intellectual disability questions of causation are less likely arise simply because the circumstances of the offending and the nature or level of the intellectual disability bespeak a relevant cause or nexus. Thus where there is evidence of lack of capacity to reason as to the wrongfulness of the conduct the offender's moral culpability for the offence will be substantially reduced as may the need for denunciation and retribution.

I do say the evidence is there as to the cause or link (sic) but the observations in para 56 are apposite as well.

HIS HONOUR: Yes, thank you. I need some time to think about this. If I conclude that it's appropriate to seek an assessment then I'll make that judgment ...

44 Counsel's reference to paragraph 56 in the case of Caldwell is a reference to a discussion in the joint judgment of Redlich, Priest and Beach JJA in that case of causation where intellectual disability is a factor in respect to Verdins principles.

45 It appears obvious from the transcript that counsel for the applicant in the Court below was under no misapprehension as to the judge's then position. His comments relied upon by counsel in this court do not support her submission that the judge deprived the applicant of procedural fairness by failing to reach the conclusion he had tentatively expressed 'without deciding' earlier in the plea hearing.

46 There is no basis whatsoever for this ground of appeal. It is totally devoid of merit. That the sentencing judge made the comments that are relied upon by the applicant could not, in any sense, have conveyed anything more than a tentative conclusion, subject to revision. That then-counsel for the applicant - senior counsel - was in any sense misled or confused by the judge's comments cannot be maintained. He referred to paragraph 56 of the judgment in Caldwell's case in his reply to the prosecutor - a passage which emphasises the necessity for a causal link between a mental condition and relevant offending to enliven the Verdins principles he sought to invoke. He was presumably seeking to answer the prosecutor's submission that no such link existed in this case - a position ultimately also taken by the sentencing judge.

48 This ground was that the sentencing judge erred, in failing to reduce the applicant's moral culpability by reason of his intellectual disability, his mental ill health and his substance abuse which impaired his decision-making capacity.

49 In rejecting the application in this case of Verdins principles the sentencing judge said that he, nonetheless, took into account the applicant's mental illnesses, his intellectual impairments and his substance abuse history from an early age in a more general sense. His Honour specifically said so in his sentencing remarks. That his Honour did not refer to special and general deterrence explicitly is not to the point. The sentence itself demonstrates that he applied this conclusion when fixing both the head sentence and the non-parole period he imposed. This ground must be rejected.

50 This ground asserts manifest excess in the sentencing imposed. It was but faintly pursued by counsel for the applicant.

51 The applicant's long offending history, the conceded high risk, amounting to certainty of his offending again upon release and the consequent requirement of the protection of the community were, in this case, very significant factors. The argument as to manifest excess has no substance whatsoever. Indeed a higher sentence would probably not have been unjustified. This ground is not made out.

52 It is difficult to consider this case without being horrified at the applicant's history: a ward of the State at the age of seven, sexually molested and abused by those who ought to have been protecting him, intellectually challenged and mentally unstable and suffering from a drug addiction. It is to be hoped, however slim that hope might be, that this period of incarceration will be accompanied by some effective program of rehabilitation. In this regard the applicant has, at least, the indefatigable assistance of Mr John Hardy who gave evidence on his plea. This man has probably provided the only semblance of stability the applicant has ever known. Such people are rare and should not go unrecognised.

[1] Verdins v R [2007] VSCA 102; (2007) 16 VR 269 ('Verdins').

[2] [2014] VSCA 274 ('Caldwell').

[3] [2011] HCA 39; (2011) 244 CLR 120.

[4] Transcript of Plea Proceeding, DPP v Flood (County Court of Victoria), CR 15-01154, Judge Maidment, 8 October 2015), 68 ('Plea transcript').

[5] DPP v O'Neill [2015] VSCA 325 [74] and the cases there referred to or cited and others.

[7] Plea transcript 57-58 (emphasis added).

[9] The Plea transcript records this case as Cardwell - an obvious error.