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[2015] VSCA 160
Court of Appeal (Vic)
2015-06-23
Mr P, Ashley JA, Beach JA
Original judgment source is linked above.
[2015] VCC 2051 (Judge Hogan)
CRIMINAL LAW - Sentence - Application for leave to appeal against sentence - Attempted armed robbery - Robbery - Recklessly causing injury - Reckless conduct endangering serious injury - Serious mental illness - Applicant ceased taking medication - Consequences of applicant ceasing medication - Application of R v Verdins ; - Whether sentence was manifestly excessive - Whether sentencing judge failed to give sufficient weight to of the - Whether sentencing judge breached of the - referred to - and (4C).
Ms V Anscombe, Acting Solicitor for Public Prosecutions
1 On 13 October 2014, the applicant was arraigned and pleaded guilty to one charge of recklessly causing injury, one charge of robbery, two charges of reckless conduct placing persons in danger of serious injury and one charge of attempted armed robbery. In addition, the applicant consented to five charges of driving in a manner dangerous, one charge of resist police and one charge of assaulting police, to which the applicant also pleaded guilty, being uplifted from the Magistrates' Court.[1] On 9 December 2014, following a plea hearing on 13, 14 and 17 October, 28 November and 1 December 2014, the applicant was sentenced as follows:
s 19 Crimes Act 1958
ss 64(1)-(2) Road Safety Act
s 52(1) Summary Offences Act
2 The applicant seeks leave to appeal against the sentence imposed on the following grounds:
In particular, her Honour erred in finding that the applicant:
(a) had 'made a rational decision, unconnected with [his] mental illness, to cease [his] antipsychotic medication' and in so doing, foresaw that it would probably result in a deterioration of his condition such that he became psychotic and that there was a risk of impulsive, aggressive behaviour associated with distorted perceptions of reality; and
(b) 'following cessation of the medication, ... had sufficient insight to know that [he] was becoming unwell ... but [was] reckless in failing to follow through with [his] need for medical assistance'.
2**.** The total effective sentence imposed is manifestly excessive.
...
on the completion of the non-parole period and be subject to supervision from that date.[3]
3 All of the indictable and summary offences for which the applicant was sentenced took place in a 15 minute period on 8 June 2013 in circumstances where the applicant, who had a longstanding and undisputed diagnosis of paranoid schizophrenia, had taken himself off his medication. The offending was summarised by the judge as follows:
On the morning of 8 June 2013 you committed all of the indictable and summary offences within a period of approximately 15 minutes. In essence, you drove your motor vehicle at a fast rate of speed along Whitehorse Road, through the suburbs of Box Hill, Balwyn and Kew, in a manner of driving which can only be described as terrifying. In the course of your maniacal driving, you caused damage to six vehicles, drove on the wrong side of the road causing other vehicles to swerve out of your way and narrowly missing a pedestrian, and went through red lights. Two of the vehicles impacted upon by your offending contained children. You stole one vehicle after assaulting the driver of the vehicle by punching him to his face. This occurred in front of his wife. You attempted to steal another vehicle by assaulting the driver. You attacked him with a broom. This occurred in front of his wife and three children and only came to an end when a passer-by intervened.
When police came to arrest you, you resisted their attempts to restrain you causing one police officer to suffer a strain to the left hand. You also assaulted another police officer by head butting him.[4]
4 The applicant was 39 years of age at the time of his offending, and 40 years of age at the time of sentencing. He had been diagnosed with paranoid schizophrenia in approximately 2000. From the medical evidence tendered on the plea hearing, it appeared that the applicant's condition had up to that time been 'somewhat resistant to treatment'.[5]
5 Prior to his offending, the applicant had relevant serious convictions for violence arising out of two episodes. In November 2009, the applicant was sentenced to a community based order for a period of 12 months for the offences of recklessly causing serious injury and unlawful assault. Additionally, in October 2011, the applicant received a two year sentence of imprisonment wholly suspended for a period of three years for intentionally causing serious injury, and a community based order for a period of two years for contravening a family violence intervention order. The two episodes that led to these sentences are described in some detail in the judge's reasons for sentence.[6] It is not necessary to set out that detail here, save to say that following each episode of offending, the applicant's medication regime for his paranoid schizophrenia was increased.
6 From the medical evidence tendered on the plea hearing, it is plain that the applicant's offending has occurred at times when his medication levels are suboptimal. The judge described the background to the offences for which she sentenced the applicant in the following terms:
On 28 May 2013, you decided, without medical advice or supervision, to reduce and ultimately cease all medication. Within a period of a week, you had stopped all medication. This was by 5 June 2013. You had become increasingly unwell and, on the advice of your parents, drove to your general practitioner's rooms on 4 June 2013 to seek assistance, but the rooms appeared to have closed for the day. Subsequently, you telephoned the rooms at about 10am on Friday, 7 June 2013, but were told that your doctor was not working that day, so you made an appointment to see her on Monday, 10 June 2013. You made no other attempt to seek medical assistance and became increasingly psychotic. Later in the day of Friday 7 June 2013, you resigned from your job as a draftsman/estimator and left the rented shared accommodation where you had resided since late 2011 and began to drive aimlessly around Melbourne.
I am satisfied that the offences for which I must sentence you were committed whilst you were in a psychotic state. As police officers attempted to restrain you and had you face-down on the roadway, you were banging your head against the bitumen, attempting to break your teeth, and were heard yelling irrational things, such as, 'Scream! I want to hear you scream! Scream to me "Meena", tell me that you have your seatbelt off'.[7]
7 The plea was heard over five days. A large amount of material was tendered. This material included medical reports from a psychiatrist, Dr Lester Walton; medical reports from the applicant's treating psychiatrist, Dr Simon Jones; a Forensicare psychiatric report; reports from the applicant's case manager, Nicole Sydenham, a mental health nurse; treatment plans; drug screens; referrals; references; certificates; letters of apology written by the applicant to his victims; a letter to the sentencing judge; and other miscellaneous documents. Further, during the course of the plea, Dr Walton, Dr Jones and Ms Sydenham gave viva voce evidence.
8 The judge's reasons describe the applicant's offending, his background, the substance of the victim impact statements tendered, and the medical evidence, in considerable detail. Having considered all of the relevant evidence, the judge then made a number of findings about the applicant's medical condition and its consequences so far as the applicant's offending was concerned.[8] Having set out (again in considerable detail) her findings, the judge then said:
For the foregoing reasons, I find that you made a rational decision, unconnected with your mental illness, to cease your antipsychotic medication and that, following cessation of the medication, you had sufficient insight to know that you were becoming unwell such that you twice attempted to contact your general practitioner, but were reckless in failing to follow through with your need for medical assistance. Thus, although your offending is associated with your mental illness of schizophrenia, I find that you have some moral culpability for the psychotic state in which you ended up.
Thus, I have concluded that, in accordance with the Prosecution submission, I should not moderate the emphasis upon denunciation of your conduct, general deterrence or specific deterrence, to the full extent that I might have done had you not had such moral culpability for your psychotic state. Yours is not a situation where you had symptoms about which you had not idea because you had never been diagnosed. Such a person should be entitled to greater moderation of these factors than you. I do consider that some lesser moderation is warranted in recognition of the difficulty that you have in coping with the onerous side effects of antipsychotic medication. In particular, the understandable desire to not feel sedated, as well as the lessening of your judgment, that probably occurred as each day passed without the beneficial effect of your antipsychotic medication.[9]
9 The judge then dealt with further matters concerning the applicant's background, including his employment history, before saying:
Apart from the limited application of principles 1 to 4 of Verdins, I also take into account that, following your arrest in June 2013, your two months in custody whilst unmedicated, prior to being transferred to Thomas Embling Hospital, were very onerous indeed. You were very mentally unwell and had never been in custody before. It is clear from your account about your experience in gaol, prior to being given bail in December 2013, that you felt claustrophobic and frightened, particularly before you were moved to mainstream prison, but, even then, felt intimidated and spent very small amounts of time outside your cell for fear that there would be fights. In sentencing you, I have no reservation in accepting, as the Prosecution concedes, that for a person with your mental illness, serving time in a custodial environment is more onerous than for someone in normal health.[10]
10 As to the possibility of a community correction order, the judge said:
Your counsel has urged that the court give a disposition by way of time served in custody and/or a Community Correction Order. It is my view that a sentencing disposition of the type requested would fail to recognise the objective gravity of your offending. Your conduct on 8 June 2013 posed a very serious risk to other members of the community and it is quite miraculous that no one was killed or seriously injured by reason of your maniacal behaviour.
...
Unhappily, you have now demonstrated yourself to be a person capable of violence on a number of occasions. Your offending in 2008 and 2011 would appear to be in the context of being under-medicated and, whether that was due to the dosage of medication being too low or you not being compliant, I am unable to say. The offending for which I must sentence you would not have occurred had you heeded the message about your need for compliance with your medication. Indeed, it was a condition of your Community-Based Order, upon which you were on at the time, that you undergo psychiatric counselling and treatment in keeping with the directions of Dr Jones. For reasons which I have previously given, there still must be some emphasis upon denunciation by this Court of your offending, as well as emphasis upon general and specific deterrence and, in all of the circumstances, I am satisfied that the only appropriate sentence is one of imprisonment.
...
You are to be given credit for your engagement with treatment since your release from custody, as well as compliance with onerous bail conditions, and also getting back to work part-time. I consider that it must have been difficult for you, particularly with these proceedings hanging over your head. Your good work history is another positive factor which I take into account in assessing your prospects of rehabilitation. However, you have shown yourself to be a person from whom the community needs protection and, notwithstanding the sentiments that you have expressed to the Court and your victims that you will never again discontinue your medication, like Dr Jones and Dr Walton, I am guarded in expressing a view about your likelihood of retaining that insight. Clearly, your prospects of rehabilitation are totally dependent upon your continuing to engage with treatment and that you should do so was part of a Court order which you breached when committing the offences for which I must sentence you. In these circumstances, I do not consider it appropriate to, again, place you on a Community Correction Order. It seems to me that you require the supervision of parole, with an ongoing reminder that, if you do not comply with your medication and reoffend then you will end up back in prison.[11]
11 In concluding, the judge said that she paid heed to the principle of totality, and that it was important to bear in mind that all of the applicant's offending happened within a relatively short space of time (15 minutes) during which he was in a psychotic state following the cessation of his medication.[12]
Ground 1: the judge's conclusions in respect of Verdins principles 1-4
12 In ground 1, complaint is made about the judge's conclusion that principles 1-4 of Verdins did not apply 'to the full extent'. In Verdins, the Court set out six ways in which a mental condition might be relevant to sentencing. Principles 1-4 were stated in the following terms:[13]
13 There is no substance in the applicant's complaint about the judge's conclusion with respect to principles 1-4 of Verdins. In our view, the judge was right to conclude that the applicant's moral culpability was greater than the moral culpability of someone who might have had symptoms about which they had no idea because they had never been diagnosed with any condition.[14] Further, that conclusion entitled the judge to moderate the extent to which her Honour should give effect to principles 1-4 of Verdins.
14 Notwithstanding that the applicant might have thought that he was able to go off his medication without risk, we see no error in the judge concluding that, given the applicant's previous history, he was a person with some knowledge of the risks and consequences of not taking his medication as prescribed. Whether the applicant's decision could truly be described as 'rational' is a matter about which we do not need to express an opinion. The point is whether, having regard to his history as he knew it, the applicant's moral culpability was correctly regarded as greater than that of a person who had not previously been diagnosed or who had not had problems in the past when his or her medication levels had become suboptimal.
15 Similarly, we do not find it necessary to engage in the debate as to whether the applicant's insight into his problem diminished as he became correspondingly less well having stopped his medication. The short point is that the judge's treatment of this issue and her conclusion was, on the evidence, with respect, correct.
Ground 2: was the sentence manifestly excessive?
17 Ground 2 can be disposed of in short compass. As has been said many times before, manifest excess is a difficult ground to make out. The test for manifest excess is whether the sentence was wholly outside the range of sentencing options available to the judge, not whether some other sentence could have been imposed.[15]
18 The task of an appellate court in a case such as this was described by Lowe and Gavan Duffy JJ in R v Taylor and O'Meally:[16]
It will not proceed by considering at once what the individual members of the bench consider an appropriate punishment. On the contrary it will look at the sentence imposed by the trial judge, and unless it appears that he has made a mistake as to the facts, or has acted on an erroneous principle of law, or has taken into account some matters which should not be taken into account, or has failed to take into account matters which should have been taken into account, or has clearly given insufficient weight, or excessive weight, to some matter taken into account, or unless the sentence is obviously - not merely arguably - too severe or too lenient, it will not interfere.
19 Having regard to the objective seriousness of the applicant's offending and his previous criminal history, and noting that the present offending occurred during the currency of the suspended term of imprisonment imposed in 2011, and whilst the applicant was subject to a community based order then imposed, we are unable to say that the sentence imposed by the judge was wholly outside the permissible range.
Ground 5: failure to give sufficient weight to s 5(4C) of the Sentencing Act?
Ground 6: breach of s 5(2AA) of the Sentencing Act?
21 It is convenient to consider these grounds together. The former is, as will be seen, influenced by consideration of the latter.
22 Section 5(4C) of the Sentencing Act 1991 ('the Act') provides:
A court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a community correction order to which one or more of the conditions referred to in ss 48F, 48G, 48H, 48I and 48J are attached.
23 Section 5(2AA) of the Act provides, so far as is relevant:
Despite anything to the contrary in this Act, in sentencing an offender a court must not have regard to -
(a) any possibility or likelihood that the length of time actually spent in custody by the offender will be affected by executive action of any kind;
...
24 In sentencing the applicant, and in determining that a community correction order was not appropriate, the judge said:
It seems to me that you require the supervision of parole, with an ongoing reminder that, if you do not comply with your medication and reoffend then you will end up back in prison.[17]
25 With great respect to the judge, it appears to us that she sentenced the applicant on the basis that he would be granted parole at, or shortly after, the expiration of his non-parole period. That this was her Honour's approach is emphasised by the fact that she fixed, proportionately, a very short non-parole period and a proportionately long period of potential parole. Such an intended regime in turn emphasised the need, as her Honour perceived (and described) it, for the applicant to be subject to supervision after confinement; a perception which, on the evidence, was unquestionably well-founded. That is, there was a very great deal to be said for a regime by which the applicant did not transition from confinement to liberty unconstrained by any supervision of maintenance of his medication.
26 Nonetheless, sentencing the applicant on the basis that he would be granted parole at or shortly after he had served the non-parole part of his sentence breached s 5(2AA) of the Act. That error necessarily impacted upon her Honour's consideration both of the parsimony principle and s 5(4C) of the Act. In order to decide whether, to satisfy the purposes for which sentence was to be imposed, it would be sufficient to impose a period of confinement of up to two years, and thereafter a community correction order for some period of time, it was a false comparison to contemplate imposition of a sentence of three years and ten months' imprisonment with a non-parole period of 16 months' imprisonment on the assumption that the applicant would be at large (though under supervision) for two and a half years of the three years and ten months sentence.
27 A simple example will illustrate the point. The true comparison between, on the one hand, a sentence of 16 months' imprisonment and thereafter a community correction order of 30 months and, on the other hand, a sentence of 46 months' imprisonment with a non-parole period of 16 months is that the former would give certainty of release after 16 months, and certainty of supervision for the following 30 months, whilst the latter would give no certainty of release at all before the expiration of the 46 month period and thus no certainty of any period of supervision after imprisonment.[18]
28 Of course, the comparison in the example just mentioned would extend beyond the matters there discussed. Thus, for instance, the period of a community correction order following a period of confinement may be proportionately much longer than would ordinarily be achieved by a sentence of imprisonment incorporating a non-parole period (that is, on the assumption that parole was not only granted, but granted as at the first available date).[19] On the other hand, the parole regime enables the return of an offender to prison, in the event of a breach of conditions, more easily than may be achieved in the case of a breach of a condition imposed by a community correction order.[20] The protection of the community being of prime importance, the parole regime just mentioned might be considered a relative advantage - bearing in mind that pretty similar conditions can be attached to a grant of parole as are or may be attached to a community correction order by statute or by order of a court.
29 The judge having erred in her approach to sentencing the applicant, albeit only in the way which we have explained, the question is whether a different sentence should be passed. We should say immediately that the answer to that question does not depend upon the simple fact that the sentence was delivered before this Court's decision in Boulton.[21] While the importance of what this Court said in Boulton cannot be gainsaid, as has been said before, Boulton is not some sort of 'get out of gaol free card' to be trotted out in every application for leave to appeal against a sentence imposed before Boulton was delivered.[22]
30 That said, we have concluded that a different sentence should be passed. We agree with the judge's intent that there be an extended period of supervision of the applicant after confinement, compliance with prescribed medical treatment being mandated during that period. Plainly, for the reasons which we have explained, there is no certainty that the sentence which the judge passed would achieve those objectives. On the other hand, a sentence of imprisonment, to be followed by a lengthy community correction order subject to appropriate conditions, would give
31 Following the hearing of this application, we arranged for the applicant to be assessed for the purpose of a community correction order. Having received a report that is favourable to the applicant, we propose that the applicant be resentenced to a term of imprisonment of 14 months, with no non-parole period,[23] coupled with a community correction order. The period of the community correction order we propose will be six years[24] and, in addition to the conditions referred to in s 45 of the Sentencing Act, there will be a treatment condition in accordance with s 48D, and a supervision, monitoring and management condition in accordance with s 48E.
32 We would order that the application for leave to appeal be granted, and that the appeal be allowed. We would quash the sentence imposed in the County Court on 9 December 2014, and in lieu thereof, sentence the appellant to a term of imprisonment of 14 months coupled with a six-year community correction order containing the conditions referred to in s 45 of the Sentencing Act 1991 together with treatment, supervision, monitoring and management conditions in accordance with ss 48D and 48E of that Act.
33 As to grounds 1 and 2, I agree with Ashley and Beach JJA. As to grounds 5 and 6, I agree with their conclusions and the orders they propose for the following reasons.
34 It seems to me that it is necessary to differentiate between the issue of whether what the sentencing judge concluded as to the parole system in the context of Mr Manariti's circumstances was well-founded and the issue of whether she could take that conclusion into account as a matter of law.
35 Her Honour said that Mr Manariti required the supervision of parole with, what she described as, 'an ongoing reminder' that if he did not comply with his medication then he would be returned to prison. The sentencing judge clearly implied that the supervision under parole, and the capacity of that system to respond to contravention, was more rigorous and likely to be more effective than would exist under a community correction order, and that that more rigorous supervision was required in Mr Manariti's case.
36 The parole system of supervision differs from that under a community correction order because, amongst other things, offenders in the parole system are still serving a sentence of imprisonment and they can be returned to gaol if the Adult Parole Board considers that to be required for any reason.[25] Action in response to contravention of a community correction order generally requires a court application.[26] At the Court's request, an affidavit sworn by Roderick John Wise, Deputy Commissioner, Operations, Corrections Victoria, explaining the practical operation of supervision under parole and supervision under a community correction order was filed in this appeal. Mr Wise referred to the distinction between the two systems in responding to contraventions in the following paragraphs:
If a parolee or offender is alleged to have breached or contravened their parole or community correction order, different processes apply. If a parolee is alleged to have breached his parole, the breach is referred by the community corrections officer, or the police if the parolee is arrested for failing to comply with a prescribed term or condition (under section 77 of the Corrections Act), to the Adult Parole Board. It is up to the Board what, if any, action is next taken, but a parolee could have their parole cancelled immediately, be re-arrested quickly and be returned to prison to resume serving his or her sentence.
If an offender is alleged to have contravened a community correction order, then CCS will either refer the contravention to the prosecuting authority or initiate its own contravention proceedings. Depending on the nature of the contravention and the willingness of the offender, the offender may continue to adhere to the conditions and requirements of the order until the hearing of the contravention prosecution, and
further orders are made, or simply remain in the community in alleged contravention and without continuing supervision. A contravention report is prepared for the court by CCS, and the timeliness of the resolution of the matter is determined in part by when it can be listed and heard before the Court.[27]
37 Another important difference in supervision under the two systems concerns duration. A non-parole period must be set by reference to the minimum period of incarceration which justice requires in the particular case,[28] and the period set must bear an appropriate relationship to the head sentence.[29] A community correction order can be for any period up to the maximum period of imprisonment for the offence,[30] provided that the requirement of proportionality in sentence is observed.[31]
38 The sentencing judge concluded that, given Mr Manariti's history, the prior advice which he had received in relation to reduction of his medication, and the relationship between his offending and the decision which he took to cease his medication, supervision under the parole system would be superior in his case to that under a community correction order. Save for the fact that the sentencing judge does not seem to have addressed the issue of the potential length of a community correction order as compared to a parole period, her conclusion in this respect seems to me to have been well-founded.
39 Notwithstanding that her Honour's assessment of the position was well-founded, it is one that the law does not permit. As Ashley and Beach JJA have explained, a judge cannot impose a sentence of imprisonment in the expectation that the prisoner will not serve the full term but will be released on parole and be subject to the supervision of the parole system. To adopt that course is to take account of the possibility or likelihood of release as a result of executive action. This is a consideration which is expressly precluded by s 5(2AA) of the Sentencing Act 1991.
40 It seems to me that the time has come for a reconsideration of the continuing efficacy of s 5(2AA), given the importance of community correction orders and the apparent desirability of paying regard to the differences between supervision under a community correction order and under the parole system.[32]
[1] In fact, pleas of guilty to charges 1, 2 and 5 on the indictment and the seven related summary charges were first entered at the committal hearing on 15 May 2014, while pleas of guilty to charges 3 and 4 on the indictment were first entered at a mention in the County Court on 14 July 2014.
[2] R v Verdins [2007] VSCA 102; (2007) 16 VR 269 ('Verdins').
[3] At the hearing of the application for leave to appeal, we gave the applicant leave to abandon grounds 3 and 4 and leave to amend his application for leave to appeal against sentence so as to include grounds 5 and 6.
[4] DPP v Manariti [2014] VCC 2051, [3]-[4] ('Reasons').
[7] Ibid [12]-[13] (footnote omitted).
[13] R v Verdins [2007] VSCA 102; (2007) 16 VR 269, 276 [32].
[15] R v Abbott [2007] VSCA 32; (2007) 170 A Crim R 306.
[16] [1958] VicRp 46; [1958] VR 285, 289.
[18] Throughout the 46 month period, the offender would be under sentence.
[19] A non-parole period must be set by reference to the minimum period which justice requires in the particular case: Power v The Queen [1974] HCA 26; (1974) 131 CLR 623, 628. The non-parole period must bear an appropriate relationship with the head sentence: Kumova v The Queen (2012) 37 VR 538, 545-6 [27]-[28] (Redlich and Osborn JJA) ('Kumova').
[20] As to parole, see Corrections Act 1986, ss 76-77 and 69(2). As to a community correction order, see s 83AS of the Sentencing Act 1991. See further ss 83AU-83AV of the Sentencing Act 1991.
[21] Boulton v The Queen [2014] VSCA 342 ('Boulton').
[22] Hutchinson v The Queen [2015] VSCA 115, [17] (Priest JA, with whom Ashley JA agreed).
[25] Corrections Act 1986 ss 76 (persons on parole deemed under sentence), 77 (cancellation of parole) and 69(2) (Adult Parole Board not bound by natural justice).
[26] Sentencing Act 1991 s 83AS. The Secretary to the Department of Justice may deal with some contraventions: ss 83AU-AV.
[28] Power v The Queen [1974] HCA 26; (1974) 131 CLR 623, 628.
[29] Kumova (2012) 37 VR 538, 545 [27] (Redlich and Osborn JJA).
[31] Boulton [2014] VSCA 342, [63]-[76].
[32] See Boulton [2014] VSCA 342, [196]-[200].
Manariti
The Queen [2015] VSCA 160
(2007) 16 VR 269
(2012) 37 VR 538
(1974) 131 CLR 623