Gray v The Queen [2010] VSCA 312

2 The appellant was born on 9 June 1970 and is a disability pensioner. He was involved in a motor accident in 1995, as a result of which he suffered a closed-head injury with acquired brain damage. He also has a long history of substance abuse. In 2004 he was diagnosed by Peninsula Psychiatric Services as suffering from psychotic symptoms, particularly persecutory ideas, and was treated with Risperidone and later referred back to his general practitioner. He was also briefly readmitted to Peninsula Psychiatric Services in November 2007. At that time, the diagnosis was primarily alcohol intoxication and substance use on a background of acquired brain injury with some psychotic symptoms.

3 On Saturday 18 April 2009, at approximately 6.00 pm, he went to the BP Service Station at 401 Nepean Highway, Frankston, wearing a black balaclava, black jumper and blue jeans, and holding a black-handled knife in his left hand. He told the console operator, who was a young woman, to put money in his bag and she complied by putting some notes in it. The appellant told her to put all of the money in the bag and she responded by withdrawing the cash draw from the till and placing it on the counter. The appellant then ran from the site with his bag containing approximately $400, and was seen heading in the direction of Kananook Creek.

4 On Sunday 19 April 2009, the appellant went to the Safeway Supermarket petrol station in Nepean Highway, Seaford. He rushed into the store wearing a black balaclava and demanded money. The console operator, who was a man, told him that there was not any. The appellant then withdrew a small knife from his sock and started to walk round the counter towards the operator. The operator jumped over the counter, ran outside to the forecourt and yelled to customers to call the police. While he was doing that, the appellant stole some cigarettes from behind the counter and then started walking in the direction of the operator. The operator observed that the blade of the knife was approximately 20 cm long and tried to grab it, but in the process cut his hand. The appellant left the store but the operator chased after him until he lost him about 10 blocks away. The operator did manage, however, to observe the appellant driving away and took down the registration number.

5 Police were later called, and having traced the appellant from the registration number, went to his flat where they found the kitchen knife which he had used in the robbery and, in a creek at the back of his house, a balaclava, shoes, money and gloves which had come from the robbery. The appellant was then arrested.

6 Evidence tendered on the plea included a letter from the appellant's sister, which the judge said he found most helpful. It explained that, although the appellant had long been a drug user, his drug consumption had increased following his discharge from hospital after his motor accident in the 1990's, and that it had led to drug-related petty crime and prison sentences. Later, the appellant began living alone, although near his family, and suffered frequent further lapses into drug dependence. He several times received help from the Frankston Crisis Assessment Team and, as has been noted, in 2004 was put on anti-psychotic medicine, which it was said made a tremendous difference as long as he remembered to take it. But in the lead up to the subject offending, his mental state declined and he believed that he had to resort to violent crime in order to get the help he needed.

7 The evidence also included a report by Dr Ruth Vine, who is a consultant psychiatrist. Dr Vine opined that, although the appellant had been aware of the nature of his actions at the time of offending, and aware that they were wrong, his mood state, compounded by the effect of his previous head injury, had contributed to a level of impulsivity and poor judgment which resulted in the offending. Dr Vine further explained that the appellant suffered from ongoing psychotic symptoms, which included voices of spirits telling him to commit the offences, and that it had significantly impacted on his decision to commit the offences and his behaviour during the offences. Dr Vine concluded that, from a psychiatric perspective, 'it would be appropriate that these issues were included in determining the most appropriate sentencing options' and that if the appellant were to be given a non-custodial sentence, it was important that his mental state, including his mood and thought processes, be further assessed and appropriate treatment monitored.

8 As the judge observed, correctly, the appellant was a person:

... with a severe psychological dependency, compounded by an acquired brain injury, arising out of a motor vehicle accident ...

... you appear[ed] to have been going through a psychotic episode, leading up to the commission of these offences'.

9 The judge then went on, however, to say that, despite the appellant's mental deficits, the appellant:

... must accept that these [offences] are regarded by the community and by the law as extremely serious offences ...

... should not be regarded as less serious, simply because isolated victims, who are vulnerable are selected and the perpetrator, in this case yourself, exploits that isolation and vulnerability of those victims.

There is no questioning the seriousness of these offences in this case. Nor is there any question concerning the mitigating features highlighted by your mental state.

Despite that mental state, however, I have come to the conclusion that only a significant term of imprisonment is appropriate for these offences. Accordingly the sentences of the court are, on both counts, you will be sentenced to be imprisoned for the period of three years.

11 The judge then ordered that one year of the sentence imposed on the second count be served cumulatively on the sentence imposed on the first count and, as has been seen, set a non-parole period of three years.

Ground 1 - Insufficient weight to appellant's mental state

12 The first ground of appeal is that the judge erred in giving too little weight to the appellants' depleted mental state and its sentencing consequences and too much weight to general deterrence relative to the effects of the appellant's mental state.

13 With respect, I am inclined to agree. The appellant's mental state deficiencies were significant and thus called into play the principles adumbrated in R v Verdins.[1] As the court said in that case, impaired mental functioning, whether temporary or permanent, is relevant to sentencing in at least six ways:

1. It may reduce the offender's moral culpability, as opposed to the offender's legal responsibility, and thereby reduce the need for denunciation and the punishment that is just in all the circumstances.
2. It may inform the kind of sentence which should be imposed and the conditions in which it should be served.
3. According to the nature and severity of the offender's symptoms, and the effect of the condition on the offender's mental capacity, at the time of the offending or at the date of sentence or both, it may moderate or eliminate general deterrence as a relevant sentencing consideration.
4. The same applies to specific deterrence.
5. The nature and extent of the condition may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. To the extent that there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, it will tend to mitigate punishment.

14 Although the judge noted the application of the Verdins principles, it appears to me that his Honour did not give them very much weight. As counsel for the appellant submitted, his Honour did not explain how or to what extent he considered the principles affected the sentence. In effect, all his Honour did was to state that there was no question concerning the 'mitigating features highlighted by [the appellant's] mental state', and then, without any analysis of the effect of those features, move straight to imposing individual sentences which were more or less the statistical average term of imprisonment for armed robbery,[2] and a total effective sentence which to some extent exceeded the statistical median total effective sentence for such armed robberies and related offences committed in the course of a single or more than one related criminal episode.[3]

15 Perhaps, it might be said, as was submitted by counsel for the respondent, that offences of the kind in question would ordinarily be regarded as serious instances of armed robbery, committed on vulnerable and exposed victims, and aggravated, in one case, by the use of a weapon and the appellant's confrontation of the victim. It may be, too, as counsel for the respondent contended, that such offences would ordinarily attract individual sentences of in the order of five years' imprisonment, in order to manifest the court's denunciation and to provide adequate general deterrence and just punishment.

16 In this case, however, the appellant's mental state deficiencies significantly mitigated his moral culpability and thus, in accordance with Verdins, reduced the need for denunciation, general deterrence and punishment. The likely effects of imprisonment on the appellant and his mental state were also such as to justify a more merciful and precisely directed sentence than would ordinarily be expected.

17 Of course, I do not overlook that the appellant had an extensive history of convictions for burglary, theft and related offences and for possession and use of drugs of dependence. Significantly however, the last recorded convictions before the subject offences were in July 2004, which, according to Dr Vine's report, was when the appellant was first diagnosed as suffering from a psychotic illness and prescribed anti-psychotic medicine; and the subject offences corresponded with a deteriorating mood in the weeks to months leading up to the offences, when the appellant appears to have stopped taking Risperidone. As counsel for the respondent submitted, the previous criminal history of an offender may be relevant in fixing sentence. But normally, it is only relevant to the extent that it illuminates the offender's moral culpability or demonstrates a dangerous propensity or need to impose condign punishment to deter the offender and other offenders from committing similar offences.[4] For the reasons already given, those considerations are not of great importance in this case.

18 Indeed, despite the objective gravity of armed robbery, I consider the subjective circumstances of the appellant may have warranted a community based order in conjunction with a short term of immediate imprisonment.[5]

19 All that having been said, however, I am not persuaded that the judge was plainly wrong in imposing individual sentences of three years' imprisonment or in ordering 12 months' cumulation. Although, as I say, I would contemplate a significantly more merciful disposition, I am not convinced that his Honour's orders

19 were beyond the range of a sound exercise of sentencing discretion. Accordingly, I reject Ground 1.

20 Under Ground 2, counsel for the appellant argued that the non-parole period of three years, representing three quarters of the total effective sentence, was at the upper end of the range in a case in which one should expect it to be at the lower end of the range, and was indicative of sentencing error.

21 I agree. As Redlich JA explained in R v Tran and Tran,[6] although there is no legal requirement for a set ratio between head sentence and non-parole period (other than, of course, that the non-parole period be at least six months less that the head sentence),[7] current sentencing practice is generally to set a non-parole period at between 60 and 66 per cent, increasing to 75 per cent in the 'worst category of case'. A non-parole period which is less than or exceeds that range is not necessarily indicative of error but, where a non-parole period is set which is unusual by comparison with other cases, having regard to the facts of the case and the course of the plea, an absence of reasons of the kind essayed by Callaway JA in R v VZ[8] invites appellate scrutiny and may reflect error.

22 In this case there does not appear to be any justification, and certainly none is expressed in the judge's sentencing remarks, for setting a non-parole period of three quarters of a substantial head sentence (or in other words at the level which is ordinarily reserved for the 'worst category of case'), given that the uncontested medical evidence was that the appellant's offending was substantially affected by his psychotic condition; and, as I infer from Dr Vine's report, that the appellant would be more likely to benefit, and so to avoid the risk of re-offending, if afforded a substantial period of supervised treatment in the community.

23 Of course, in one sense, the longer the appellant is kept locked up, the less chance there is of him re-offending and, in that sense, the better the community is protected. In effect, that was the essence of the Crown's submission. But, plainly, community protection of that kind is not a sufficient reason to impose a longer sentence of imprisonment than is dictated by the nature and gravity of the offending in the sense that includes the appellant's diminished moral culpability.

24 With respect, it appears to me that the judge failed to take into account when setting the non-parole period that, because of the appellant's mental state and need for a substantial period of supervised treatment, it was likely to be more just and would more probably deter re-offending if the appellant were released earlier than usual into the community under close supervision, monitoring and treatment, in just the manner which Dr Vine proposed. In my view, his Honour's failure to take those matters into account constituted sentencing error.

25 It follows, in my view, that the sentencing discretion is re-opened. For the reasons already given, I am not disposed to interfere with the individual sentences or total effective sentence imposed by the judge, but I would set aside the non-parole period of three years and in lieu thereof set a shorter than usual non-parole period of 20 months.

26 In my opinion the appeal should be allowed for the reasons given by Nettle JA. I also agree with the sentencing disposition proposed by Nettle JA.

2. The sentence passed below is varied by substituting for the current non-parole period of three years, a new non-parole period of 20 months.

3. It is declared that a period of 579 days (including this day) is reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that that declaration was made and its details.

4. Pursuant to s 6AAA of the Sentencing Act 1991 it is declared that but for the appellant's plea of guilty he would have been sentenced to a total effective sentence of seven years in prison with a non-parole period of 36 months.

[1] [2007] VSCA 102; (2007) 16 VR 269, 276 [32].

[2] According to the Sentencing Snapshot No 92 dated March 2010, the average sentence of imprisonment for armed robbery over the period 2004-5 to 2008-9 ranged from two years and 11 months in 2005-6 to three years and two months in 2007-8.

[3] According to the same sentencing snapshot, the median TES was three years and six months.

[4] Veen v The Queen [1988] HCA 14; (1988) 164 CLR 465, 477.

[5] Sentencing Act 1991, s 36(2).

[6] [2006] VSCA 222, [27]-[28]; see also R v Detenamo [2007] VSCA 160, [24].

[7] Sentencing Act 1991, s 11(3).

[8] (2001) 7 VR 693, 697-698 [12]-[15].