Court of Appeal (Vic)|2011-08-18|Before: Harper JA

Kavanagh v The Queen [2011] VSCA 234 (18 August 2011)

R v Kavanagh (Unreported, County Court of Victoria, Judge Jenkins, 18 November 2010)

1 The appellant suffers from alcoholism. She also has a history of depressive illness stretching back to about 1990. The tenth of twelve children, she was born on 20 January 1961. Her childhood was marked by fear of her mother, who was ill with paranoid schizophrenia. For a young child, that must have been more than a burden; but she also had to suffer the constant disapproval of her parents, for whom nothing was ever good enough. She left school after completing year 10, and has since held various jobs, but went on a disability support pension in 2009. Before she went into rehabilitation in 2008 she was drinking a two-litre cask of wine each day. This has impaired her memory, and her higher mental functioning. According to Dr Alan Jager, a forensic psychiatrist, she suffers from 'alcohol dependence, dementia secondary to alcohol dependence, chronic major depressive disorder and a likely borderline personality disorder.' The history of her relationships, as she described it to Dr Jager, is 'completely incoherent', as partners came and went on dates which she was unable to recall even approximately. A pervasive sense of abandonment has, it seems, haunted her since childhood.

2 This came to a head on 15 December 2009. She was then in about the sixth month of a casual relationship. She was intoxicated. It seems that she initiated, or at least recommenced, an argument with her partner. He was either in bed or preparing for it, but changed his mind and began to dress in preparation to leave. According to Pamela Matthews, a forensic psychologist, '[the appellant] had reached a point of no longer being able to cope with yet another such experience.' She went into the kitchen, picked up a knife, returned to the bedroom and stabbed him in the stomach.

3 His wounds were life-threatening, and their effects remain with him - with consequences which the sentencing judge described in her reasons for sentence as 'devastating'. His first reaction was of searing pain. He then yelled at her to call an ambulance and reached for the telephone. She knocked the telephone out of his hand and replied that she 'was not ringing nothing.' She added: 'Die you bastard.' She did, however, make the call. The victim was taken to hospital, where he was operated on for a perforated bowel. He remained in hospital for two weeks, and was re-admitted when the wound became infected. The assault also caused a hernia, and further surgery may be required. The psychological consequences continue, as they will for some time at least.

4 There can be no doubt that the criminality of the appellant's conduct that evening was grave. On 7 September 2010 she pleaded guilty to one charge of intentionally causing serious injury, and on 18 November 2010 was sentenced as follows:

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

5 At the plea, defence counsel submitted that any sentence should be wholly suspended given the appellant's mental state and the application of the Verdins principles. The Crown submitted that, given that the offence of causing a serious injury intentionally is defined by s 3 of the Sentencing Act 1991 as a 'serious offence', a wholly suspended sentence could not be justified under s 27(1A) of the Sentencing Act 1991. Her Honour agreed. In my opinion she was right to do so. Because intentionally causing serious injury qualifies as a 'serious offence', s 27(2B) of the Act precludes the imposition of a suspended sentence unless the circumstances are in the opinion of the court exceptional and, having regard to the matters set out in s 27(1A), the interests of justice warrant such a sentence. I agree with her Honour that no exceptional circumstances obtain in this case.

(a) the sentencing judge erred in her approach to the appellant's mental health issues; and

(b) the sentencing judge erred in treating the delay in calling an ambulance as a matter that affected the weight to be given to the plea of guilty.

7 The appellant relies on Dr Jager's diagnosis. In his opinion, her dementia has resulted in impaired memory and impaired higher mental functioning; and 'damage to the frontal lobe of her brain has caused impaired judgment which contributed to the offending behaviour' - the prime cause of which, however, was alcohol intoxication.

8 Reliance is also placed upon a body of psychological opinion that imprisonment would adversely impact upon the appellant's mental health. The only psychiatric opinion on this point is that of Dr Jager, who sees imprisonment as likely to aggravate, at least initially, her depressive illness. At the same time, it will, he thinks, have the 'immense benefit' of removing her from access to alcohol, and providing a structured environment which includes alcohol education and rehabilitation programs.

9 There is, it seems to me, a proper basis in this evidence upon which to conclude that the appellant's moral culpability has been lessened by her dementia or impaired higher mental functioning. There is also a basis for concluding that both specific and general deterrence should be given less weight than otherwise, and that her time in prison will exacerbate her mental condition. To this extent, the principles enunciated in R v Verdins[1] are applicable here.

10 The sentencing judge nevertheless accepted a prosecution submission that any mitigation of penalty should be minimal. This, it seems, was particularly so because the appellant had 'a long-standing history of mental health issues and alcohol abuse for which [she had] been treated prior to the subject offending.' Moreover, 'nothing has changed in terms of [these] issues.'

11 There appears to be no basis in logic or principle for this submission. Although put on the plea, it was - rightly - disavowed on the appeal. I adopt the Crown's current position, which is that by her acceptance of the prosecution's earlier argument, the sentencing judge was lured into error. In other words, I agree with the Crown's submission on this appeal that her Honour was wrong to hold that, because the appellant's mental health problems were not only of long standing but had been the subject of treatment, the applicability of the Verdins principles was minimised.

12 The consequence is that the sentencing discretion is re-opened.

13 It does not necessarily follow, however, that the appellant will be successful. Despite there being an error in the sentence first imposed, an appeal must succeed only if the Court of Appeal is also satisfied that a different sentence should be imposed.[2] It is to that question that I now turn.

14 The Crown submitted that the gravity of the offending was in this case increased by the appellant's delay in calling the ambulance. The judge accepted that this was so. In my opinion, her Honour was correct. She found that the appellant's behaviour was 'extremely disturbing' in circumstances where the victim in no way provoked the attack, and where the consequences for him have been 'devastating'. I agree. The appellant's failure immediately to take the obviously necessary step of calling for paramedical help turned a serious offence into one which was even more so.

15 The appellant further complains, however, that having treated the delay as an aggravating factor, her Honour also (and wrongly) brought it back into the process of instinctive synthesis by allowing it to dilute the strength of the plea of guilty. Her Honour accepted that that plea was 'a significant mitigating factor' but qualified that by stating that:

... the extent of the mitigation may vary according to the circumstances of the case. You delayed somewhat before calling for an ambulance and providing assistance for an ambulance.

16 If by this her Honour did evince an intention, carried into effect, that the mitigating effect of the plea of guilty be diminished, she was in my opinion wrong to do so. The plea followed all the events of the evening in question, and there is nothing of which I am aware to suggest that it did not cover the entirety of the appellant's behaviour that night. But I am not confident that this was what her Honour meant, or did. At all events, she accepted the plea as a significant mitigating factor, and the sentence imposed is consistent with that approach.

17 In addition to the delay in calling for assistance, there were in the appellant's conduct other aggravating circumstances. First, this was an unprovoked attack with potentially lethal consequences on an unarmed and defenceless victim. Secondly, very grave physical and psychological injuries were inflicted upon him. And thirdly, the offence included an element of betrayal, he being her guest in her home and entitled to place trust in her.

18 These features of this offence require a sentencing court to put the gravity of the offending above consideration of such mitigating circumstances as are personal to the appellant. Plunging a knife upwards into the abdomen of a guest in an attack provoked by nothing more than the victim's desire to escape an argument is a crime heinous enough to warrant consideration of a stern penalty for all but the insane. I accept the Crown's submission that 'in all the circumstances, the sentence imposed at first instance was appropriate, and tendered towards being relatively lenient.' I do not think that a different sentence should be imposed.

Kavanagh v The Queen [2011] VSCA 234

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Kavanagh v The Queen [2011] VSCA 234 (18 August 2011)

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