Court of Appeal (Vic)|2014-05-01|Before: Priest JA, Nettle JA

Monaghan v The Queen [2014] VSCA 82 (1 May 2014)

DPP v Monaghan (Unreported, County Court of Victoria,

1 I have had the benefit of reading the judgment of Priest JA in draft form. For the reasons he has given, I agree that the application for leave to appeal against sentence should be granted, the appeal allowed and the appellant re-sentenced in the manner proposed.

2 The applicant was born on 6 July 1981 and is now aged 32 years.

3 From the age of 17 the applicant has amassed some 170 convictions from 20 court appearances, reflecting a wide variety of offending including convictions for resisting police; assaulting police; other assault and injury offences; weapons offences; drug offences; gaol offences; driving offences; stating a false name; failing to answer bail; burglary; aggravated burglary; forgery; going equipped to steal; obtaining property by deception; handling stolen goods; damaging property; possessing the proceeds of crime; car theft; making threats to kill; robbery; and armed robbery. He has been incarcerated multiple times, commencing with detention in a youth training centre in 1998 and continuing through the years with sentences of youth training and many sentences of imprisonment. In light of his record, it would be apt to describe him as incorrigible.

4 On 2 February 2011, the applicant pleaded guilty in the County Court to two charges of theft, one charge of burglary, one charge of armed robbery and one charge of assaulting a police officer. Following a plea, on 3 February 2011 he was sentenced according to the following table:

Armed Robbery [Crimes Act 1958, s 75A(1)]

Assault police officer in the due execution of his duty [Crimes Act 1958, s 31(1)(b)]

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

Other orders: Disposal order, forfeiture order, disqualification of driver's licence for a period of 12 months from the date of the applicant's release from custody.

5 The applicant seeks leave to appeal against sentence on a single ground:

There has been a substantial miscarriage of justice (such that a different and lesser sentence should now be imposed upon the applicant) by reason of the worsening of the applicant's psychological and psychiatric condition subsequent to the imposition of sentence.

6 Quite properly, the respondent did not resist the applicant putting new evidence of his psychiatric condition before this Court.

7 It is necessary to say something of the applicant's offending.

8 Between 18 and 19 October 2009, the applicant stole a 1990 Toyota Camry from Lobb Street, Coburg. He then drove it to Tatura with an associate. Over succeeding days he and his associate travelled to and from Melbourne in the stolen car (charge 1, theft of a motor vehicle).

9 On 22 October 2009, the applicant drove the stolen motor vehicle from Tatura to Mooroopna. Whilst in Mooroopna, the applicant entered 'Gruve Hair & Beauty' via a 'staff only' back door which was unlocked. He then stole a bag belonging to one of the hairdressing staff which contained personal items to the value of $600 (charges 2 and 3, burglary and theft).

10 At about 4.20pm the same day, the applicant drove the stolen vehicle to 'Billy's Bakehouse' in Mooroopna. Maureen Guppy was working alone in the shop. The applicant placed a drink on the counter. He produced a homemade knife with two blades and lunged over the counter, stealing money from an open register. The applicant then demanded that Ms Guppy open a second register and give him the money. Ms Guppy did so. The applicant fled the store with a total of $2,291.40 (charge 4, armed robbery).

11 From Billy's Bakehouse the applicant drove in an erratic manner. At about 5.20pm his driving was observed by a police officer, Leading Senior Constable Ingram. Mr Ingram approached the applicant, informing him that he was suspected of an armed robbery at a bakery and telling him that he was therefore under arrest. The officer also asked the applicant to remove his hands from his pockets, but the applicant refused to do so. The applicant then ran away. Mr Ingram gave chase and eventually tackled the applicant in a nearby park. There was a struggle, and the applicant grabbed the officer's testicles in an effort to escape (charge 5, assault police).

12 The applicant was immediately taken to the Shepparton Police Station where at interview he initially identified himself as his brother, Andrew Monaghan. Police suspended further interview pending an assessment by a Forensic Medical Officer ('FMO'). The FMO recommended that the applicant not be interviewed until the following morning.

13 On 23 October 2009, the interview recommenced. The applicant elected to remain mute, but gave consent to a DNA sample and to photographs of his hand.

14 Originally the applicant opted to contest the charges at trial. During the course of the applicant's trial, however, after the prosecution had opened to the jury and several prosecution witnesses (including Ms Guppy) had been called and cross-examined, the matter resolved into a plea.

15 On the plea, defence counsel tendered a report from a psychologist, Carla Lechner, dated 12 June 2010, concerning the applicant's psychological state. Ms Lechner diagnosed clinical depression.

16 Counsel relied upon the applicant's clinical depression as a mitigating factor. It was submitted that a term of imprisonment would weigh more heavily on the applicant because of his condition. Counsel relied upon the fifth Verdins[1] proposition. It was submitted that the applicant should receive a longer than usual parole period to assist in the applicant's supervised release back into the community.

17 The sentencing judge accepted the submission that a term of imprisonment would weigh more heavily on the applicant because of his clinical depression and thus treated the applicant's condition as a mitigating factor. It was also accepted that, to a degree, the fifth Verdins proposition was applicable. The judge made the assessment, however, that 'the reduction is quite slight, given the nature of your depression'.

18 After sentence was imposed, on 19 October 2012 Dr Anthony Cidoni, a consultant forensic psychiatrist, assessed the applicant at the Metropolitan Remand Centre ('MRC'). He found that the applicant displayed features consistent with borderline personality disorder and that there was a longstanding pattern of mood instability, anger and impulsivity.

19 Doctor Cidoni also found that the applicant evidenced acute psychosis with thought disorder and paranoia. He noted that acute psychosis can occur in borderline personality disorder under stress. Doctor Cidoni also thought that there may be evidence of an underlying psychotic disorder such as schizophrenia. He recommended that the applicant's antipsychotic treatment be reviewed and increased. Moreover, he expressed the view that it was likely that the applicant would have further anxiety, instability of mood and paranoia in custody.

20 On 26 April 2013, Dr Cidoni again assessed the applicant. He found that the applicant's mental state had deteriorated since his earlier assessment.

21 Doctor Cidoni noted that when the applicant was sentenced, only the applicant's clinical depression (as diagnosed by Ms Lechner) was taken into account. In addition to depression, Dr Cidoni found that the applicant had suffered borderline personality disorder and psychosis (the latter very likely being due to schizophrenia). His opinion was that these conditions, which he described as 'much more severe and significant', were present at the time of the offending.

22 Importantly, Dr Cidoni expressed the view that the additional conditions of borderline personality disorder and psychosis would mean that a term of imprisonment would weigh more heavily on the applicant than depression alone. In his opinion, the applicant's mental state was at significant risk of worsening in custody. Indeed, it had already done so in recent months. Ultimately, Dr Cidoni recommended that the applicant be transferred to the Acute Assessment Unit of the Melbourne Assessment Prison ('MAP') or to Thomas Embling Hospital.[2]

23 Both of Dr Cidoni's reports were filed with the Court for the purposes of the present application. Their use in support of the application was not opposed by the respondent.

Steps preliminary to the hearing of the application for leave to appeal

24 Initially the present application was listed for hearing on 12 February 2014 before a differently constituted bench. In anticipation of the hearing - the Court being cognisant of the content of Dr Cidoni's two reports - the parties were asked to prepare submissions directed to Part 5 of the Sentencing Act 1991 (in particular, the availability of a hospital security order).

25 On 12 February 2014 the hearing of the application was adjourned so that the respondent might make enquires about the possibility of an assessment of the applicant being carried out under s 90 of the Sentencing Act. Those enquiries, made of Forensicare,[3] revealed that assessments for hospital security orders were not ordinarily made under s 90, but rather a psychiatric assessment was carried out in prison.

26 Accordingly, on 13 February 2014 the Registry made a request of Forensicare that an authorised psychiatrist[4] attend Barwon Prison to conduct an assessment of the applicant.

27 Thereafter, for the purposes of the present application, on 25 February 2014 the Registry sought further information from the parties, including where the applicant has been held for the period of his incarceration; whether he has been subject to management, 'lockdown' or any other special conditions different from those of a mainstream prisoner during his period of incarceration; if he has been subject to any such conditions, the length of time and specific hours he has been held under those conditions; and, if he has been subject to any such conditions, the reasons he was placed under those conditions.

28 On 7 March 2014 an affidavit of Brendan Money, Assistant Commissioner, Sentence Management Branch of Corrections Victoria, was filed. A second and supplementary affidavit of Mr Money's was filed 9 April 2014.

29 Further, a report of Dr Kevin Ong, a consultant forensic psychiatrist employed by Forensicare, dated 2 April 2014, was filed on 3 April 2014.

30 The material deposed to by Mr Money in his two affidavits paints a grim picture.

31 Mr Money is responsible for the oversight of the management and placement of prisoners (both sentenced and on remand) within the Victorian prison system. He deposed that the applicant was 'recepted' on remand at the MAP on 29 October 2009. Following an assessment by medical and mental health staff the applicant was assessed as (and remains) a maximum security risk. He was transferred to the MRC on 10 November 2009.

32 As a result of sentences imposed by the Geelong Magistrates' Court on 10 August 2010, the County Court at Shepparton on 3 February 2011 (the subject of the present application) and Dandenong Magistrates' Court on 18 March 2011, the applicant was required to serve imprisonment of five (5) years and nine (9) months, subject to a non-parole period of three (3) years and nine (9) months. Pre-sentence detention declared was 322 days. Significantly, the applicant was eligible for parole on 13 December 2013. Parole was refused by the Adult Parole Board, however, after consideration of a psychiatric report. The applicant is also remanded to face charges at the Sunshine Magistrates' Court relating to assault and causing injury relating to an attack on a prison doctor, Dr Loy.

33 Mr Money deposed that the applicant had been subject to 114 recorded incidents between his reception on 10 November 2009 and 3 March 2014. The detail of the various incidents as recorded in prison records is set out in Mr Money's second affidavit. It is fair to say, however, that the recorded incidents reflect poorly on the applicant's behaviour. Many incidents relate to the applicant returning positive drug tests or refusing drug testing. Many are of self-mutilation, threatened and actual assaults, fire setting and damage to prison property. Many of the incidents are bizarre and troubling, provoking a deal of disquiet about the applicant's mental state.

34 Doctor Ong noted the contents of a report provided to the Adult Parole Board by Professor Paul Mullen, who had observed that the applicant was a socially isolated individual with no real supports in the community, and who had said that, 'What is not in doubt is that if he does not stop his drug abuse and does not acquire any effective social network and social roles, he will reoffend'.

35 Doctor Cidoni's report of 9 November 2012 was also noted. In particular, Dr Cidoni was of the opinion that the applicant suffered from a borderline personality disorder, with a longstanding pattern of mood instability, anger and impulsivity. There was evidence of acute psychosis, thought disorder and paranoia. The applicant also suffered from polysubstance abuse dependence.

36 Doctor Ong observed that the applicant 'is an exceedingly difficult man to assess'. He has a clear history of polysubstance abuse, more recently benzodiazepine dependence.

37 Although the applicant relayed various symptoms which on face value could be psychotic, Dr Ong thought it very likely that these are part of the applicant's 'overall personality structure', rather than psychosis per se (such as schizophrenia).

38 The applicant, Dr Ong observed, is preoccupied with receiving what he claims to be necessary medications to settle his behaviour in prison. He has assaulted medical staff when his demands for medications have not been met, indicating an inability to think 'consequentially'. In Dr Ong's opinion, the applicant would benefit from a neuropsychological assessment, which may inform management planning whilst the applicant remains in custody.

39 Doctor Ong also expressed the opinion that the applicant's transfer to Thomas Embling Hospital under a hospital security order 'is currently not appropriate, as Mr Monaghan is likely to continue to make similar, inappropriate demands of staff at the hospital, and there are unlikely to be any interventions put in place that would assist him in the current situation'.

40 Ultimately, Dr Ong observed that the applicant is a man who 'has previously, under stress, decompensated into what appear to be psychotic states'. When he does so he would benefit from transfer to the Acute Assessment Unit at MAP for review and possible treatment at Thomas Embling Hospital under s 16(3)(b) of the Mental Health Act 1986. He could then be discharged back to prison once treated. Such an approach would be more 'feasible' than a hospital security order, given 'the severe shortage of mental health beds available within the forensic system' and 'the need to make beds available for prisoners with urgent clinical needs'.

41 The applicant submitted that the reports of Dr Cidoni, received after sentence was imposed, 'throw a different light of circumstances which existed at the time of sentence' or 'demonstrate the true significance of facts inexistence at the time of sentence'.[5] That the applicant suffered from a mental illness was known at the time of sentence, but, consistently with the state of the evidence at that time, the applicant's condition was given slight weight. Subsequent events in custody, and the diagnosis of Dr Cidoni, demonstrate that the applicant's mental illness was far more serious than was apparent to the sentencing judge. Thus, it was submitted, it was no longer appropriate to give the applicant's condition slight weight.

42 It was also submitted that general and specific deterrence should be moderated as a result of the applicant's mental illness. Significant weight should be given to the fact that his mental health has made (and continues to make) his time in custody more burdensome than for someone of normal health, and for that reason punishment should be mitigated.

43 The respondent fairly conceded that the reports of Dr Cidoni were admissible as fresh evidence. When read together, the reports permit 'some scope for moderate reduction' of the applicant's sentence. It was submitted, however, that as it stands the evidence does not establish any link between the applicant's mental condition and the commission of the relevant offences.

44 After a thorough review of authority, in Verdins, the Court (Maxwell P, Buchanan and Vincent JJA) set out six relevant propositions bearing on the sentencing of those suffering from impaired mental functioning:[6]

Impaired mental functioning, whether temporary or permanent ('the condition'), is relevant to sentencing in at least the following six ways:

1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.

2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.

3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.

4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.

5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.

6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment.

45 I agree with the respondent's submission that there appears to be no evidence linking the applicant's mental condition - whatever it might be properly classified as being - with the commission of the offences. In so saying, I do not ignore Dr Cidoni's opinion that in addition to the depression of which Ms Lechner gave evidence, 'much more severe and significant' borderline personality disorder and psychosis were present at the time of the offending. The fact remains, however, that the evidence does not establish that the applicant's condition reduced the moral culpability of the offending conduct. Thus the first Verdins proposition is not engaged.

46 Based on Dr Cidoni's reports, the respondent also fairly submits - in probable recognition that the sixth Verdins proposition is relevant - that there is scope for moderate reduction of the applicant's sentence. I agree that, on the preponderance of evidence, imprisonment potentially will have a significantly adverse effect on the applicant's mental health. The harder question is whether, in the particular circumstances of the case as they are now apparent, the applicant's punishment should actually be mitigated. (Given that the non-parole period has by now been served, that would need to be accomplished by orders having the effect of reducing the total effective sentence.)

47 Doctor Cidoni, Professor Mullen and Dr Ong all seem to agree that the applicant suffers from polysubstance abuse. Prospects of reoffending remain high until the applicant overcomes his substance abuse.

48 More problematic is whether the applicant is afflicted by some form of psychiatric or psychological illness, disorder, abnormality or condition (or, in the language of Verdins, 'impaired mental functioning'); and, if so, its nature and extent.

49 The Court in Verdins made clear that what is important is not how the particular condition is classified, but how it affects the applicant:[7]

The sentencing court should not have to concern itself with how a particular condition is to be classified. Difficulties of definition and classification in this field are notorious. There may be differences of expert opinion and diagnosis in relation to the offender. It may be that no specific condition can be identified. What matters is what the evidence shows about the nature, extent and effect of the mental impairment experienced by the offender at the relevant time.

50 Doctor Cidoni expressed the opinion that the applicant displayed features consistent with borderline personality disorder and that there was a longstanding pattern of mood instability, anger and impulsivity. There was evidence of acute psychosis with thought disorder and paranoia, and that acute psychosis can occur in borderline personality disorder under stress. Doctor Cidoni also thought that there was some evidence of an underlying psychotic disorder (such as schizophrenia). He expressed the view that it was likely that the applicant would have further anxiety, instability of mood and paranoia in custody. When again assessing the applicant (more than six months after his first assessment), Dr Cidoni found that the applicant's mental state had significantly deteriorated. The existence of borderline personality disorder and psychosis would mean, Dr Cidoni thought, that a term of imprisonment would weigh more heavily on the applicant than depression alone.

51 By way of contrast, Dr Ong thought the applicant difficult to assess. The applicant superficially displayed some psychotic symptoms, but in Dr Ong's view these were more likely part of his overall personality structure than psychosis. In the end, however, Dr Ong observed that the applicant had previously decompensated into apparently 'psychotic states' when under stress.

52 In my opinion, sufficient is disclosed by the evidence to establish a serious risk of imprisonment having a significant adverse effect on the applicant's mental health, thereby making imprisonment more burdensome for him than someone unafflicted by his condition. The sentencing discretion is thus reopened.

53 The respondent was correct, in my view, to concede that there was some scope for moderate reduction of the applicant's sentence. It is proper to give effect to the fresh evidence of the applicant's impaired mental functioning, and to the respondent's concession, by orders that will have the effect of ameliorating the sentence on the charge of armed robbery, and thus the total effective sentence. By orders that I will later set out more fully, I would impose a sentence of four years' imprisonment on the charge of armed robbery, and make ancillary orders leading to a total effective sentence of five years' imprisonment.

54 That leaves for consideration the non-parole period. As I have said, the applicant has already served the non-parole period imposed by the primary judge. On one view it would be superfluous in those circumstances to fix a new non-parole period. But in my opinion the better view is that, as a matter of principle, the Court having reduced the total effective sentence to give effect to the ameliorating effects of the fresh evidence of the applicant's impaired mental functioning, that fresh evidence should also result in amelioration of the non-parole period. Thus I would fix a period of three (3) years and six (6) months' imprisonment before the applicant might be considered eligible for parole.

55 I would grant the application for leave to appeal against sentence, and allow the appeal. The sentences of imprisonment imposed by the County Court should be set aside, and in lieu I would sentence the appellant to be imprisoned as follows: 12 months on charge 1, theft; 14 months on charge 2, burglary; eight (8) months on charge 3, theft; four (4) years on charge 4, armed robbery; and 12 months on charge 5, assault police in the due execution of duty. I would declare the sentence on charge 4 to be the base sentence, and would cumulate three (3) months of the sentence on charge 1; three (3) months of the sentence on charge 2; and six (6) months of the sentence on charge 5, with each other and with the sentence on charge 4. The total effective sentence is thus five (5) years' imprisonment, upon which I would fix a period of three (3) years and six (6) months' imprisonment before the appellant is eligible for parole.

56 Otherwise I would confirm all other orders made by the County Court, including the forfeiture and disposal orders, and the order relating to drivers' licences.

57 In so far as it is necessary, pursuant to s 6AAA of the Sentencing Act 1991, I declare that, but for the plea of guilty, I would have sentence the appellant to be imprisoned for six (6) years, and would have fixed a non-parole period of four (4) years.

58 I would declare the period of 1505 days, not including this day, be reckoned as the period as having already been served pursuant to this sentence.

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

[2] Thomas Embling Hospital is a secure mental health hospital operated by Forensicare - see n 3 below.

[3] The Victorian Institute of Forensic Mental Health is a statutory body established under s 117B of the Mental Health Act 1986, carrying out its statutory functions as Forensicare.

[5] R v WEF [1998] 2 VR 385, 388-9.

[6] Verdins, 276 [32] (footnotes omitted).

[7] Verdins, 271 [8] (footnotes omitted).

Monaghan v The Queen [2014] VSCA 82

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Monaghan v The Queen [2014] VSCA 82 (1 May 2014)

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