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[2012] VSCA 282
Court of Appeal (Vic)
2012-11-20
Mr P, Osborn JA, Coghlan J, Buchanan JA
Original judgment source is linked above.
CRIMINAL LAW - Appeal - Sentence - Whether sentence manifestly excessive - Whether sentence imposed amounted in part to preventative detention - Reference to objective seriousness of the offending - Leave refused.
1 I will ask Osborn JA to deliver the first judgment.
2 The applicant seeks leave to appeal against a sentence of six years' imprisonment with a minimum non-parole period of four years imposed by Justice Coghlan on 11 November 2011 in respect of one count of intentionally causing serious injury to David Tihema on 28 February 2009.
3 The applicant had met Tihema a month or two before the assault and found him good company. He had visited Tihema at his apartment from time to time. In the early hours of 28 February 2009, the applicant, who was then homeless, went to Tihema's apartment. He was invited in and they both smoked some marijuana and consumed alcohol. The applicant was hungry and Tihema fed him some pasta. The applicant asked for a radio and Tihema put one on for him and went to bed. After a while the applicant knocked on Tihema's door and said he needed to talk. They talked over the next half hour concerning the applicant's problems with drugs and alcohol and about a horticultural course Tihema was doing. Eventually Tihema went back to bed and the applicant left the room.
4 Later the applicant returned to Tihema's room and threw Tihema his cigarettes saying something like, 'You've only got a couple of ciggies left. I don't want to smoke them when you are asleep.' Tihema replied 'Sweet as.' The applicant then attacked Tihema by jumping on him on the bed and stabbing him with a knife. Tihema initially thought he was being punched but then realised he was being stabbed in a frenzied manner. He kicked the applicant off and said 'You'll kill me if you keep stabbing me.' The applicant then attacked him again. Tihema attempted to ward him off with his hands and arms receiving further knife injuries as a result.
5 The applicant then ran off leaving part of the knife embedded in Tihema's right elbow. Tihema managed to call 000. He was taken by ambulance to the Alfred
Hospital where he was found to have life threatening injuries constituted by some 15 stab wounds. His injuries included:
• a small right pneumothorax and displaced fracture of the left fourth rib;
6 At about 5:30 am on the morning of 28 February 2009, the applicant walked into St Kilda Road Police Station and told police that he had just stabbed someone. He was transferred to the Melbourne West Police Station and deemed unfit for interview due to lack of sleep but otherwise mentally stable.
7 At the date of sentence, the applicant was 29 years old. He had a very troubled background involving substance abuse, mental illness and extensive prior offending.
8 The sentencing judge accepted that the attack upon Tihema was due to the applicant's delusional belief that Tihema had attacked him and was in some way a threat to him.
9 Tihema had not in fact attacked the applicant and Tihema suffered substantially as a result of his generosity to the applicant. His injuries have meant that he is no longer able to work as a labourer because of permanent damage to his left arm. He has residual injuries to his right leg and his breathing is affected by the puncture injuries to his lungs. He suffers from post-traumatic stress disorder which gives rise to anxiety and insomnia and problems with trusting others. He has a drinking problem as a result of the attack and difficulty sharing accommodation and being in crowds. He is seeing a counsellor regularly.
10 On the plea hearing, the judge had before him a report from Dr Toal from Forensicare and evidence from Dr Lester Walton relating to the applicant's mental state at the time of offending and his future prognosis. As the sentencing judge recorded, Dr Toal stated in part in her report dated 5 May 2010:
Mr Frost has been previously diagnosed with a major mental illness (Schizophrenia) and continues to experience some subjective residual symptoms (delusional memories). At my interview, approximately one year after his alleged offence, he presented as mentally stable with no objective signs of acute schizophrenia, he is currently functioning well and describes significant insight into his previous symptoms including the effect of illicit drug use on his mental state. Therefore it appears paradoxically that he has responded particularly well to his depot medication and avoidance of drug use as a result of his detention in prison.
Based on my interview and reviewing previous psychiatric records provided to me Mr Frost fulfils the criteria for Paranoid Schizophrenia. He was first diagnosed aged 16 and when unwell he has been described as experiencing auditory hallucinations, appearing paranoid and aggressive, making bizarre statements and expressing persecutory delusions.
A significant complicating factor in his presentation has been the impact of illicit substances on his mental state. Whilst he has had numerous previous admissions they have all been relatively short and largely precipitated by illicit drug use in the context of non compliance with treatment. He is described as aggressive and paranoid on admission, frequently requiring seclusion and treatment with high potency medication. However his symptoms appear to settle relatively quickly and result in discharge after several weeks. One such admission occurred one month prior to the offence. Subsequently at the time of the offence he was on a Community Treatment Order to ensure compliance with treatment. Therefore it appears that substance misuse has a significant destabilising effect on his illness ad his subsequent behaviour.
In conjunction with Mr Frost's diagnosis of Schizophrenia his history also indicates that he has several features of Antisocial Personality Disorder including early evidence of offending, difficulties with authority and aggressive behaviour. These behaviours appear to have developed in the context of exposure to significant adversity from a young age including experiencing physical abuse by his father and subsequent fostering. He appears to have developed an opportunistic personality style in order to negotiate frequent periods of homelessness and unemployment and his history indicates that in the past he has used violence and threats to his own gain when apparently not psychotic. In addition Mr Frost has been repeatedly described by psychiatric staff as inconsistent in his presentations and description of symptoms and there has been doubt raised during previous presentations whether he has been feigning delusions for secondary gain including shortly before the offence.[1]
11 Dr Toal identified a significant destabilising link between the use of illicit substances and florid episodes of schizophrenia.
12 She ultimately said that the applicant's history[2] indicates that his chronic mental illness makes him particularly vulnerable to the disinhibiting effect of substance misuse, including an increased propensity to irritability and aggressive behaviour. His ability to make calm and rational decisions in this context has been repeatedly affected in the past. In her view, there is objective evidence that this was the case in the days preceding the offence.
13 Dr Walton accepted that, although the applicant was deluded at the time of the attack on Tihema, a potential defence of mental impairment was complicated first by questions of substance abuse and secondly by the appreciation of guilt reflected in the way the applicant handed himself into police shortly after the event.
14 Insofar as the future is concerned, Dr Walton described the applicant's mental illness as difficult to control and said any form of substance abuse is strongly contraindicated in his case. He agreed in cross-examination that it was also essential the applicant complied with prescribed medication.
15 It is convenient to say something first about the question of manifest excess because consideration of it provides a context for the resolution of the appellant's
other proposed grounds of appeal and this approach reflects the approach adopted by the applicant's counsel.
16 The maximum penalty for intentionally causing serious injury is 20 years' imprisonment.
17 In my view, the sentence imposed cannot be characterised as manifestly excessive having regard, in particular, to:
• the gravity of the life-threatening injuries inflicted upon the victim and their consequences;
• the unprovoked nature of the applicant's attack upon a person who extended hospitality towards him;
• the fact that the offending occurred in the context of illicit drug use;
• the applicant's prior history of violent offending which included convictions for armed robbery, causing injury recklessly, assault in company, intentionally causing injury, unlawful assault and assault by kicking, between 1999 and 2002;
18 This is so despite the factors which the sentencing judge properly recognised as counting in mitigation of penalty. The most significant of these were as follows:
• the fact that he suffered from mental illness and was affected by such illness at the time of offending and in particular the fact that the assault was triggered by a delusional belief;
• the reduction of his moral culpability implicit in this circumstance, and a consequent moderation of his suitability as a vehicle for general deterrence and of the appropriateness of imprisonment as a mechanism for specific deterrence;
• the gap in time which had occurred between prior violent offending and the offence in issue.
19 When all these matters are put together, the sentence which was imposed was, in my view, well within the appropriate range.
20 I turn then to the first proposed ground of appeal. This is that the sentencing judge erred in imposing a sentence amounting to preventative detention.
21 I reject this ground. It is based on the following passage in his Honour's sentencing remarks:[3]
22 First, it must be observed that his Honour expressly states that but for the applicant's mental illness he would have imposed a sentence significantly greater than that which he in fact imposed. In the absence of manifest excess, there is no basis for concluding in these circumstances that his Honour did not give proper weight to the factor of mental illness in reduction of the sentence he would otherwise have imposed.
23 Secondly, the factor of protection of the community was properly engaged by the facts of the case and in particular the combination of the seriousness of the assault and the evidence as to the applicant's prior history and prognosis. The principle of proportionality does not make irrelevant a purpose which the statute expressly makes relevant (see s 5(1)(e) of the Sentencing Act 1991). In Veen v The Queen (No 2),[6] the relevant principle was stated as follows:
It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible.[7]
24 Thirdly, there is nothing improper in speaking of the need to balance competing considerations. They operated as factors tending towards different outcomes within the overall synthesis of sentencing considerations.
25 Fourthly, the sense in which the applicant's mental state affected both his moral culpability and the need for community protection was complicated by the link identified by Dr Toal and Dr Walton between substance abuse and paranoid and aggressive behaviour. The need for community protection resulted from the risk of behaviour connected not simply with mental illness but also substance abuse. The related consideration of specific deterrence remained of some force because it was
proper to seek to deter the appellant from any future substance abuse and to reinforce the need for him to maintain his medication.
26 Fifthly, as Nettle JA said in R v Imadonmwonyi,[8] the weight to be given to community protection and thus the length of sentence required to achieve the objective are primarily measured by reference to the nature and gravity of the offence and the circumstances in which it was committed. I would respectfully add that the offender's prior history and psychiatric evidence relating to the probability of re-offending may also be highly relevant. As his Honour went on to say: 'Of course it is a question of balance. Pushed too far, there will come a point at which such a process goes beyond the ambit of just punishment and into the realm of preventative detention.' In the present case, however, neither the sentencing judge's reasons for sentence, nor the sentence ultimately imposed, support the conclusion that he did other than arrive at an appropriate balance of relevant considerations.
27 In Veen (No 2), the majority acknowledged that the practical observance of a distinction between extending a sentence merely to protect society and properly looking to society's protection in determining the sentence calls for a judgment of experience and discernment.[9] I am not persuaded that the sentencing judge's remarks demonstrate that he failed to recognise the distinction in issue.
28 The second proposed ground of appeal is that the sentencing judge erred in characterising the offending as constituting 'when looked at entirely objectively a very serious example of a serious offence'.
29 There is nothing in this point. His Honour was saying no more than that putting to one side questions of the applicant's mental state, this was a very serious offence.
His Honour immediately went on to deal with the mental state of the offender as it related to the offence.
30 The New South Wales decision of R v Way[10] to which the applicant's counsel referred, was concerned with the meaning of the phrase 'objective seriousness' in a particular statutory context. Way has been overruled by the High Court in Muldrock v The Queen,[11] but more significantly, perhaps, their Honours' discussion of the relevant concept does not assist the applicant.[12]
31 In my opinion, leave to appeal should be refused.
34 The order of the Court is that the application for leave to appeal against sentence is dismissed.
[1] Report of Dr Fiona Toal, Consultant Psychiatrist, Forensicare, dated 5 May 2010 ('Report'), [50]-[53].
[3] R v Frost [2011] VSC 573, [29]-[36].
[4] R v Verdins [2007] VSCA 102; (2007) 16 VR 269, 276.
[5] R v Imadonmwonyi [2008] VSCA 135.
[6] [1988] HCA 14; (1988) 164 CLR 465 ('Veen (No 2)').
[7] Ibid, 473 (Mason CJ, Brennan, Dawson and Toohey JJ).
[10] [2004] NSWCCA 131; (2004) 60 NSWLR 168, 186-7.
# Frost
The Queen \[2012\] VSCA 282
(2007) 16 VR 269
(1988) 164 CLR 465
(2004) 60 NSWLR 168