Court of Appeal (Vic)|2013-12-10|Before: Ashley JA, Redlich JA

Johnston v The Queen [2013] VSCA 362 (10 December 2013)

DPP v Johnston (Unreported, County Court of Victoria, Judge Chettle, 23 November 2012)

CRIMINAL LAW - Threat to inflict serious injury - Threat to victim recorded in phone conversation between the appellant and his mother - Appellant never intended for victim to hear the threat - Manifest excess - Appeal allowed - Appellant re-sentenced.

1 On 4 October 2012, the appellant pleaded guilty to threatening to inflict serious injury, intentionally damaging property, aggravated burglary, intentionally causing serious injury and two summary charges. On 23 November 2012, he was sentenced as follows:

Threaten to inflict serious injury [Crimes Act 1958 (Vic) s 21]

Intentionally damage property [Crimes Act 1958 (Vic) s 197(1)]

Aggravated Burglary [Crimes Act 1958 (Vic) s 77(1)]

Intentionally causing injury [Crimes Act 1958 (Vic) s 18]

Breach of family violence intervention order [Family Violence Protection Act 2008 (Vic) s 123(2)]

Act in a way that is prejudicial to the good order of a police gaol [Corrections (Police Gaols) Regulations 2005 (Vic) r 13(1)(a)(i)]

6 years 6 months' imprisonment with a non-parole period of 5 years

Other orders: $400.00 fine for Summary Charge 8.

2 On 29 May 2013, the appellant was granted leave to appeal by Ashley JA on two grounds. The first was that the individual sentences on charges 1, 3, and 4, the total effective sentence, and the non-parole period are manifestly excessive and offend the principle of totality. The second was that the judge erred in his approach to and findings of the principles in Verdins,[1] and in particular erred in characterising the appellant's drug history as having caused his psychological ill health.

3 On 29 May 2012, the appellant went to the home of Rachel Maybury, his estranged partner, and their two young children. At the time of the offending she had taken out an interim Family Violence Intervention Order against him (the breach of which constituted summary charge 7). Prior to going there, the appellant sent a text message to Ms Maybury asking to speak to his children on the phone. He became very agitated when Ms Maybury ended the call. He spoke to his mother by telephone, and in that call threatened to kick Ms Maybury's head in and cut her throat. In some way, evidently by accident, that call to his mother came to be recorded on Ms Maybury's telephone (charge 1).

4 The appellant's mother called Dr Maher, the appellant's psychologist, stating that the appellant was in an extremely agitated, confused and aggressive mood and was heading to Ms Maybury's house. Dr Maher tried calling the appellant several times before getting through. The appellant told Dr Maher he had ingested 'heaps' of Xanax. According to Dr Maher, the appellant was incoherent and could not follow any logical reasoning.

5 Some time later, the appellant arrived at Ms Maybury's home. He used a piece of wood to break the glass in the French doors of the master bedroom (charge 2 - damaging property). The appellant entered the house through the broken door. Ms Maybury and the children ran down the hallway and into the backyard and the appellant chased them (charge 3). The appellant punched Ms Maybury in the face with a closed fist a number of times in view of the two children. Ms Maybury screamed for him to stop. He then kicked her in the groin. The appellant got behind Ms Maybury, tilted her head back and gouged her eye. He then placed his hands over her mouth and nose. Ms Maybury had trouble breathing, but managed to struggle free of his grip. The children were screaming at the appellant to stop attacking their mother. The appellant punched Ms Maybury's face with closed fists (charge 4).

6 The appellant then grabbed the younger child and went to the front door of the house, at which point Ms Maybury's boyfriend, Troy Mackay, arrived. Mr Mackay tried to calm the appellant down. The appellant let go of the child and threatened Mr Mackey. The appellant then left the premises. As a result of the assault, Ms Maybury suffered a black eye, swelling and tenderness over the right side of the jaw, and back pain.

7 The appellant handed himself in to police later that day. When he attended the police station he was heavily intoxicated and drug affected and was unable to be interviewed. As became apparent on the plea, the appellant had taken a 'handful' of Xanax pills after the phone conversation with Ms Maybury and claimed to have no recollection of the offending. He was taken to St Vincent's Hospital and released after several hours. On 30 May 2012 the police arranged for the appellant to attend at Greensborough police station for an interview. The appellant failed to attend and was arrested later that day. The appellant became verbally and physically aggressive to police in the cells and was taken to the Melbourne Assessment Prison (summary charge 8). As a consequence, the appellant never participated in a police interview in relation to his offending.

8 It is convenient to first consider Ground 2. Evidence was led on the plea as to the appellant's long-term history of anxiety and depression, drug abuse and a deterioration in his mental health. His mother gave evidence that the appellant had suffered from depression and suicidal thoughts since primary school. The appellant also tendered a report from Dr Maher, who had seen the appellant on a fortnightly basis since early 2011, and assessed the appellant as suffering from major depression and generalised anxiety disorder.

9 The appellant had an established history of drug abuse and began using heroin at 15. He began using benzodiazepines, including Xanax, from age 16 and reported that he had used them regularly since in combination with heroin. He had only received the Naltrexone implant in early May 2012. On the plea, counsel for the appellant submitted that the appellant had ingested Xanax pills on the day of the offending because he felt that he could not withstand the symptoms of his mental illness while distressed by the dispute with Ms Maybury. It was submitted that his usual coping method - heroin use - had been rendered ineffective, because he had recently obtained a Naltrexone implant that diminished the euphoric effects of the drug. The Xanax made the appellant disoriented and disinhibited. Pursuant to the principles identified in Verdins,[2] it was put that the appellant's moral culpability was thus reduced, because his ability to think clearly and make calm and rational choices was impaired.

10 The sentencing judge expressly rejected the appellant's submission on the plea that there was a causal link between the taking of Xanax and the offending conduct, such that the Verdins principles were enlivened. In his sentencing remarks, the judge considered the appellant's history of drug abuse and his use of prescription drugs on the night the offences occurred:

You have abused drugs since you were 14 years of age when you started using cannabis. You started using heroin when you were 15. You had used amphetamine, methylamphetamine over the past six years and you have abused Benzodiazepam. It appears that drug abuse has comprised [sic] your intellectual functioning and you have a mild degree of substance related brain impairment according to the ARBIAS report, Exhibit 5. You have suffered from depression for many years, no doubt assisted by your drug abuse. You have exhibited and still have some suicidal thoughts.

...

You were aggrieved about what you saw as being limited contact with your children. You apparently took a 'handful' of Xanax pills and you claim to have no recollection of your offending. Certainly the police evidence demonstrates you to be severely drug-effected at the time.

I accept that your crimes were spontaneous and drug-fuelled, although it is clear that your abuse of prescription drugs cannot be regarded as a mitigatory factor. It simply gives some context and explanation as to why you behaved in the way you did.

11 The appellant submits that the sentencing judge erred in finding that the Verdins principles did not apply, and in characterising the appellant's drug history as having caused his mental disorder, rather than the other way around. The appellant submits that the evidence supported a conclusion that the appellant's mental health problem preceded his drug abuse, and in describing the appellant's depression and anxiety as problems 'no doubt assisted by your drug abuse', the sentencing judge recast the appellant's psychological problems as having been self-induced. As a corollary to that argument, the appellant sought to resurrect the argument made on the plea, namely, that the appellant's abuse of drugs was a means of coping with his underlying mental disorder and thus his moral culpability was reduced.

12 His Honour's remarks do not indicate that he mischaracterised the nature of the appellant's impaired mental functioning or the cause of such impairment. His Honour was merely setting out the appellant's history of drug abuse. Having regard to the transcript of the plea, it is clear that his Honour recognised that any psychological problems affecting the appellant preceded his drug-taking:

HIS HONOUR: It's a self-induced drug condition though, isn't it? Whatever he does, whatever he takes, and if he takes a handful of Xanax, apparently, that puts him into a condition where he's in a rage, he's angry, he's whatever, that's all self-induced and as such it's no excuse, no nothing. It's not a mitigating factor if you do it yourself. There's plenty of authorities to that point (indistinct).

MS TODD: There is also authority in my submission, Your Honour, that - of the self-medicating version where this addiction, this very difficult drug history, is on top of what is clearly an undiagnosed depressive disorder from a very young age.

HIS HONOUR: This is where we're getting into the very stuff that Mr Ellwood wants to cross-examine about, isn't it?

MS TODD: Maybe - - -

HIS HONOUR: The suggestion of - - -

MS TODD: It's the which came first question.

HIS HONOUR: Well, no, it's not even that, it's the - he's got an underlying depressive illness, he's socially isolated as a kid and he starts using drugs, he becomes more socially isolated, he realises that his prospects in the Family Court are grim if he's a heroin addict so he tries to fix it, but then he - the self-induced state that he puts himself in by abusing prescription medication and goes around and does this.

13 His Honour plainly understood that the appellant had underlying issues with anxiety and depression that both preceded and were exacerbated by the appellant's use of drugs. What his Honour refused to accept was that the appellant's drug abuse could be used as a factor in mitigation, nor did his Honour accept that there was an established causal link between the appellant's drug abuse and a major depressive disorder, such that the principles in Verdins applied. In both respects, his Honour was entirely correct.

14 For a sentencing judge to be satisfied that an offender was affected by a particular mental condition so as to reduce his moral culpability, there must be a 'realistic connection' between the mental condition and the commission of an offence.[3] It must have 'caused or contributed' to the offending or have been 'causally linked' to it.[4] The argument raised here - that the appellant's moral culpability should be reduced on the basis of an indirect causal link between the offence, his drug addition, and an underlying mental disorder - must be rejected.

15 Where offending occurs in circumstances where the offender was affected by drugs or alcohol, his substance abuse is not generally to be regarded as a factor in mitigation.[5] Circumstances must be quite exceptional before the effects of drugs or alcohol at the time of offending can mitigate the offender's moral culpability.[6] The underlying reason sometimes advanced is that where a crime is the predictable consequence of a rational choice to take the drug, that choice establishes moral responsibility for the condition at the time of the offence. Where a person's mental state is affected by voluntary drug-taking, it will only constitute a mitigating factor in the rare circumstance where it is established that the offender did not have any foreknowledge of the mental state that would be induced by the taking of drugs.[7] Where an offender suffers from a mental disorder, the disorder is not to be treated as a mitigating factor because it explains the offender's recourse to drugs.

16 Furthermore, a drug or other form of addiction will not reduce an offender's moral culpability where the nexus of the addiction to the crime is unsubstantiated.[8] As the sentencing judge observed, nothing in the report of Dr Maher or the ARBIAS report was sufficient to establish a Verdins argument that the appellant's moral culpability was reduced on account of his depression and anxiety. As such, it would be contrary to the public interest and to a long line of authority in this Court to mitigate the appellant's culpability on the basis of such a tenuous causal link. Moreover, the reports show that the appellant had a long history of abusing both heroin and benzodiazepines at the same time. That such a combination of drugs would serve to disinhibit and disorient him was something the appellant knew all too well.

18 The appellant submits that the sentences the subject of this ground are manifestly excessive and offend the principle of totality, in light of: the early stage of the plea; the remorse indicated by the plea; the appellant's reasonable long term prospects of rehabilitation; his obtaining long term psychological assistance in the period before the offending; his efforts to address his drug addiction; the personal distress occasioned by the Family Court proceedings; the fact that he had very limited prior convictions for violence; the circumstances of the threat to inflict serious injury charge; and the apparently light weight given to his plea of guilty, in particular having regard to the s 6AAA declaration.

19 On charge 1, the appellant was sentenced to six months' imprisonment, with the sentence wholly cumulated. The Crown referred the Court to the cases of DPP v Shahi,[9] R v Cardamone[10] and DPP v Youlton,[11] all of which involved threats to inflict serious injury, which in the Crown's submission supported the view that a sentence as high as 12 months' imprisonment was not outside the range. However, the facts in this case are plainly distinguishable from the cases referred to by the Crown, each of which involved offending of a far greater objective gravity. In those cases the threats were made directly to the victim and the threats were made in the context of more serious offending than in the present case. In Cardamone and Youlton, the offender was armed and threatened to assault the victim unless the victim consented to a sexual act. In Shahi, the offender made a direct threat to his wife over the phone from prison.

20 In this case, the appellant clearly never intended for Ms Maybury to hear the threat. The appellant's phone conversation with his mother, during which he made threats directed towards Ms Maybury, was accidentally recorded as a voicemail message on Ms Maybury's phone. It was not in dispute at the plea that the appellant had not intended to record the message on Ms Maybury's phone. The nature of the threat was graphic and serious, but it is of significance that the victim the subject of the threat was never in fact meant to receive it. In these circumstances, the sentence of six months, and the order was manifestly excessive. So much was ultimately accepted by the Crown during the hearing.

21 In this case it was not in issue that upon a finding that the sentence on charge 1 was excessive, the sentencing discretion on the other charges should be re-opened. Nonetheless, in my view the sentences on charge 3 of aggravated burglary, and charge 4 of intentionally cause injury, were entirely within range. A review of current sentencing practices for these offences reveals that the average total effective sentence for aggravated burglary for 2006-7 was three years, and, for 2010-11, three years 10 months.[12] The sentences imposed in the County Court and Supreme Court for causing injury intentionally ranged between one month to five years and six months' imprisonment.[13] Thus both of the sentences imposed by the sentencing judge were in the mid range of sentences available.

22 In finding that the sentences imposed by his Honour on charges 3 and 4 were within range, I have given close consideration to the matters raised by the appellant in mitigation. While the appellant relies on his limited prior convictions for violence, in truth he has quite an extensive criminal record, including multiple convictions for theft, burglary, receiving stolen goods and obtaining property by deception. He has also been convicted of unlawful assault and resisting arrest. I accept that prior to the offending the appellant had been seeking counselling to address his drug addiction, which is undoubtedly a factor contributing to his ongoing criminal behaviour. I also acknowledge the utilitarian value of the appellant's early plea of guilty, that it was evidence of genuine remorse and that the appellant has reasonable prospects of rehabilitation.

23 The appellant's conduct was appositely described by the sentencing judge as 'disgraceful, appalling and cowardly'.[14] After breaking into her home, the appellant subjected Ms Maybury to serious violence, punching her, kicking her in the groin and gouging her eye. Two young children were subjected to the trauma of watching their father inflict these injuries upon their mother. Given the nature of the assault, it was extremely fortunate that Ms Maybury did not suffer more serious injuries. Having regard to the seriousness of these assaults, committed in front of her children, head sentences of three years and six months on charge 3 and three years on charge 4 were both entirely appropriate.

24 None of the appellant's matters in mitigation are so compelling as to lead me to propose a more lenient sentence on these charges. Contrary to the appellant's submission, the sentencing judge placed considerable weight on the appellant's early plea of guilty. This is reflected in his Honour's 6AAA declaration, in which his Honour stated that had it not been for the plea of guilty, he would have imposed a total effective sentence of six years and six months' imprisonment, with a non-parole period of five years.

25 It was further conceded by the Crown that the sentencing judge's order for cumulation on charge 4 was excessive, given the commonality of conduct on charges 3 and 4 and having regard to the principle of totality. However, the Crown submitted that on re-sentencing some proportion of the sentence on the second charge should be the subject of cumulation.

26 The summary charge 7, being the breach of the family violence intervention order, was not the subject of appeal. However the appellant received the extremely lenient sentence of three months' imprisonment, with no order for cumulation. As this Court said in DPP v Johnson,[15] the terms of an intervention order must be strictly adhered to and can only serve to protect victims at risk of violence if they are effectively enforced and if the breach of an order attracts a sentence that reflects the true gravity of that offending. The Court there found that the respondent's breach of an intervention order, having already been convicted six times for similar breaches, required the imposition of a considerably higher sentence than the six months imposed. The appellant in this case acknowledged the leniency of the sentence imposed on summary charge 7. It was said that even allowing an increase on that sentence, the sentence should be made concurrent with the base sentence otherwise the total effective sentence would still be manifestly excessive. As this charge was not the subject of appeal I would not increase the sentence but I would upon re- sentencing the appellant make an order for full cumulation of that sentence.

27 I would allow the appeal against sentence and re-sentence the appellant as follows:

Threaten to inflict serious injury [Crimes Act 1958 (Vic) s 21]

Intentionally damage property [Crimes Act 1958 (Vic) s 197(1)]

Aggravated Burglary [Crimes Act 1958 (Vic) s 77(1)]

Intentionally causing injury [Crimes Act 1958 (Vic) s 18]

Breach of family violence intervention order [Family Violence Protection Act 2008 (Vic) s 123(2)]

Act in a way that is prejudicial to the good order of a police gaol [Corrections (Police Gaols) Regulations 2005 (Vic) r 13(1)(a)(i)]

6 years' imprisonment with a non-parole period of 4 years and 6 months

28 For the reasons given by Redlich JA, I agree that the appeal should be allowed and the appellant resentenced in the manner his Honour proposes.

29 I have had the advantage of reading in draft the judgment of Redlich JA. I agree that the appeal against sentence should be allowed for the reasons

his Honour gives and I agree that the appellant should be re-sentenced as his Honour proposes.

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

[3] Arthars & Plater v The Queen [2013] VSCA 258, [14].

[4] Ibid, citing Charles v The Queen [2011] VSCA 399; [2011] 34 VR 41, 69-70 [162] (Robson AJA, Redlich and Harper JJA agreeing).

[5] Redenbach v The Queen (1991) 52 A Crim R 95, 99; Morrison v The Queen [2012] VSCA 222, [17].

[6] Hasan v The Queen [2012] VSCA 352; Morrison v The Queen [2012] VSCA 222, [18], [24]-[25].

[8] R v Grossi [2008] VSCA 51; (2008) 23 VR 500, 517 [55]-[56].

[9] [2007] VSC 317 ('Shahi').

[11] [2009] VSCA 62 ('Youlton').

[12] Sentencing Advisory Council, Sentencing Snapshot 124, Aggravated Burglary, June 2012.

[13] Sentencing Advisory Council, Sentencing Snapshot 128, Causing Injury Intentionally, June 2012.

[14] DPP v Brendan Johnston (Unreported, County Court of Victoria, Judge Chettle, 23 November 2012), [29].

Violence Protection Act 2008

Johnston v The Queen [2013] VSCA 362

At a glance

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Judgment (66 paragraphs)

Johnston v The Queen [2013] VSCA 362 (10 December 2013)

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Legislation Cited (1)

Cases Cited (3)