Nachar v The Queen [2021] VSCA 242

1 On 7 December 2020, I granted the appellant leave 'on the papers' to appeal against a sentence of eight years' imprisonment, with a non-parole period of six years, for rape, imposed upon him by a judge of the County Court on 11 June 2020.

2 As my reasons made clear, I granted leave because I considered that, when one had regard to the appellant's impaired mental functioning, it was reasonably arguable that the sentence was manifestly excessive.[1]

3 Now having had the benefit of full oral argument, I am of the view that the appeal should be allowed and the appellant resentenced.[2] My reasons - which, for the sake of convenience, recapitulate much of what I had earlier written - follow.

4 It is necessary to describe the offending, which occurred in unusual circumstances.

5 At about 1.40 pm on 22 February 2019, the appellant, aged 35 years, boarded a Melbourne-bound bus in a regional Victorian city. He initially asked to be taken to a town in the opposite direction to the intended destination. The appellant then paid cash for a ticket to a central Victorian city, which was a stop en route to Melbourne.

6 When the appellant boarded it, the bus held about 40 passengers. He sat in the middle of the bus, in seat 32.

7 Part way into the journey, at 2.22 pm, 'HH', the complainant, boarded the bus at a small town, and sat in seat 31, next to the appellant. HH is a 26-year-old female who has an intellectual impairment and speech impediment.

8 The appellant introduced himself as 'Sam' - HH also introduced herself by her first name - and then asked the complainant, 'are you OK, do you feel comfortable?'. HH was sitting with a pillow on her lap, speaking to a friend on the phone. The appellant then put his hand under the pillow and began touching HH. He then placed his hand inside the complainant's underwear and penetrated her vagina with his finger (charge 1 - rape). After the appellant penetrated the complainant's vagina, he shook the complainant's leg.

9 Another passenger, Olivia Soshma Roby, had made a point of keeping an eye on the appellant because of the way he had been looking at female passengers. She noticed that HH looked uncomfortable, and could also see the appellant's arm moving back and forth. Ms Soshma Roby then saw HH lean her entire body towards the centre of the aisle. Thinking that HH was being harassed, Ms Soshma Roby approached the bus driver, Karl Freeman, who then had HH move to another seat, seat 45. The appellant asked Mr Freeman why he had moved HH. Mr Freeman replied that HH had been uncomfortable in her original seat.

10 A little later, the appellant approached the bus driver and asked again why he had moved HH. Mr Freeman told him that the complainant was uncomfortable sitting where she was. The appellant asked, 'Did she tell you she was uncomfortable?', and said that it was not right that she had been moved. He said that he wanted to get off at the next town. The appellant then returned to his seat.

11 Not long afterwards, the appellant went to the front of the bus with his belongings and squatted next to the front row. Mr Freeman asked him to return to his seat, as it was dangerous to remain where he was. The appellant refused to return to his seat, so Mr Freeman stopped the bus, opened the door, and asked the appellant to get off, which he did.

12 Shortly thereafter, when the bus stopped at 3.15 pm for a break at another town, Ms Soshma Roby sat next to the complainant, who was sitting back in her original seat. HH began crying and hugged Ms Soshma Roby. The two then spoke to the driver, Mr Freeman, who called the police.

13 Police attended at 3.30 pm. Mr Freeman told them that a passenger had been touched inappropriately, and that the appellant had left the scene on foot. Police members conducted a search. They observed the appellant in a supermarket in the township and arrested him. The appellant was interviewed the following day and denied any offending. Among other things, he said:

_• It's not true. I did not rape anybody. I did not commit any offence.

• And none of that happened. Nothing happened at all, that's lie and bullshit.

• And I was just looking through the window and checking my phone and that - that's it.

• I swear to God that I'm telling you the truth. I didn't touch the girl. I didn't do nothing to her.

• And come on, man. I'm gunna rape someone on a bus? I don't even do that. You know?

14 Police charged the appellant with the digital-vaginal rape of HH. Thereafter, on 3 April 2020, he pleaded guilty in the County Court to one charge of rape.[3] A plea was conducted on 1 June 2020. On 11 June 2020, as I have said, the judge sentenced the appellant to eight years' imprisonment, with a non-parole period of six years.[4]

15 It appears that the appellant, now aged 38,[5] has suffered from significant mental illness for many years.

16 Although the appellant has no convictions for sex offences, commencing in 2004 he has convictions for a number of firearms, driving, bail, public nuisance, apprehended violence order breach and dishonesty offences. He also has convictions in the District Court (NSW) for aggravated breaking and entering (2006), and aggravated assault with intent to rob with wounding (2011), both of which attracted substantial periods of imprisonment.

17 The appellant is one of three children. In 1995, he migrated with his family from Lebanon when aged about 12 years. He suffered a head injury in 2004 during a fight when he was hit with a hammer, although there was apparently no record that he suffered an acquired brain injury as a result.

18 After leaving school at the end of Year 10, the appellant commenced an apprenticeship as a cabinet maker. He did not complete the apprenticeship but took up work as a spray-painter and panel-beater. It appears that he has for many years been living on a disability support pension. He has children from two significant intimate relationships, three from the first and one from the second (a daughter from the second relationship having died in infancy).

19 The appellant started drinking alcohol when he was aged about 15, and consumed alcohol at dangerous levels by way of binge drinking. He has for many years been an habitual user of methylamphetamine and cannabis.

20 In 2001, in New South Wales, the appellant was first diagnosed with drug induced psychosis. About two years later, in 2003, at Bankstown Mental Health Services, he was diagnosed with schizophrenia. He has had numerous admissions to mental health facilities in NSW and Queensland due to his mental illness, and was held in mental health units whilst undergoing sentences in NSW.[6]

21 Of some significance, in August 2019, whilst being held in custody at Melbourne Remand Centre, the appellant was noted to be suffering from psychiatric symptoms and paranoid delusions and auditory hallucinations. On 20 January 2020, he was noted to be unresponsive to treatment despite being compliant with medications, and was certified and transferred to Thomas Embling Hospital (where he remained for three months). Throughout the course of his current sentence, the appellant had been a patient at Thomas Embling Hospital - a high-security forensic mental health hospital operated by the Victorian Institute of Forensic Mental Health ('Forensicare') - and was a patient there when counsel conferred with him a little over a week prior to the hearing of the appeal.

22 Although no assessment was made of the appellant's mental state immediately following the offending, so that the precise status of the appellant's mental health at the time of the instant offence cannot be determined with absolute precision, reports from Dr Fiona Best, consultant psychiatrist, of Forensicare, dated 14 May 2020, and David Ball, psychologist, dated 27 March 2020, confirm the appellant's long history of mental illness. It may safely be concluded that, notwithstanding the absence of a contemporaneous assessment, it is unlikely that the appellant's longstanding psychotic illness was in complete remission. As to that, there is information to suggest that the appellant was not taking prescribed anti-psychotic medication at the relevant time.

23 Dr Best assessed the appellant at Thomas Embling Hospital on 22 April 2020 at the request of the sentencing judge. In her report, she noted that the appellant 'has a long history of mental illness and a diagnosis of schizophrenia'. He has been on a Disability Support Pension for some time, and State Trustees manage his finances. At the time of assessment, the appellant was a security patient at Thomas Embling Hospital pursuant to the provisions of the Mental Health Act 2014.[7] In part, Dr Best said:[8]

On assessment today, there was ongoing evidence of a major mental illness and Mr Nachar is still in need of immediate psychiatric treatment. Mr Nachar is currently prescribed psychotropic medication to manage his psychotic illness and he has a diagnosis of Schizophrenia, Multiple episodes currently in partial remission (DSM-5). Mr Nachar is in the early stages of treatment for psychotic relapse of schizophrenia. Mr Nachar should continue with his current medication to treat and control his psychotic symptoms. Interruption to his current treatment plan is likely to result in relapse. When Mr Nachar is approaching release it is recommended that his mental health care and ongoing recovery be supported by a local area mental service. Mr Nachar has a history of poor adherence with psychotropic medication in the community and a service that supports him to maintain adherence would be beneficial.

On assessment today, Mr Nachar reported a long history of substance abuse. His reported history indicates he has a diagnosis of Alcohol Use Disorder (DSM-5), Cannabis Use Disorder (DSM-5) and Amphetamine Use Disorder (DSM-5). ...

At the time of the offending, Mr Nachar denied that he had been using illicit drugs at the time, however he acknowledged that he was intoxicated with alcohol. He acknowledges also that his alcohol use, combined with him not taking his psychotropic medication as prescribed, is likely to have contributed significantly to his alleged offending. A combination of his mental health difficulties and his substance abuse difficulties are likely to have affected his capacity to exercise appropriate judgement and make calm decisions and think clearly at the time of the alleged offending. Additionally, imprisonment may have the capacity to weigh more heavily on him than on an individual without those difficulties because he is more vulnerable to relapse of his major mental illness. However, Mr Nachar is currently receiving treatment in an acute psychiatric inpatient unit at Thomas Embling Hospital.

24 In his sentencing remarks, the judge described the appellant's as 'a serious example of the crime of rape'. The judge recognised, however, that there were no sex offences in the appellant's 'extensive criminal history'.

25 Having noted the applicable maximum penalty, the judge turned his attention to the standard sentencing scheme, citing various passages from Brown.[9]

26 The judge noted that the appellant entered his plea 'at the earliest opportunity', and was 'entitled to the benefits that flow to [him] from that plea, being that it is some evidence of [his] remorse and that it has utilitarian benefits'.

27 Victim impact statements had been received from HH and her mother. The judge summarised their contents. It is unnecessary to recount their contents, save that they reflect the distress suffered by both as a result of the offending.

28 The judge then summarised the contents of records relating to the appellant's psychiatric history, before noting the opinions expressed by Mr Ball and Dr Best. Importantly, the judge observed that the appellant 'suffer[s] from a serious psychiatric illness which appears to be resistant to medication', and that he has 'little insight' into his psychiatric illness and his offending. And significantly, the judge said:[10]

The application of the principles of general and specific deterrence must be sensibly moderated in your case. However, denunciation of your conduct, just punishment, and protection of the community, are the principal sentencing purposes to be applied when arriving at an appropriate sentence in your case.

29 The appellant relied on two grounds in support of his appeal:[11]

1. The sentence imposed and the non-parole period are manifestly excessive in that they fail to take into account and/or give adequate weight to a number of mitigating factors put on behalf of the [appellant].
2. The learned Sentencing Judge erred in that in his reasons for sentence he placed emphasis on Denunciation, Just Punishment and Protection of the Community as being the principal sentencing purposes to be applied in arriving at the appropriate sentence.

30 Counsel for the appellant submitted that the sentence imposed failed adequately to reflect the appellant's early plea of guilty and his 'significant mental illness'. He submitted that, although the sentencing judge acknowledged that all the limbs of Verdins[12] were engaged, the sentence imposed did not reflect that adequate weight was given to the appellant's mental impairment.

31 The appellant's counsel submitted that the judge's sentencing remarks betray an error in approach to the application of Verdins principles. While the judge observed that both general and specific deterrence should be 'sensibly moderated' in light of the appellant's mental illness, he nonetheless considered that denunciation, just punishment and protection of the community were 'the principal sentencing purposes to be applied' when arriving at an appropriate sentence in the appellant's case. Counsel contended that, since the presence of a serious mental illness such as the appellant's means that 'denunciation is less likely to be a relevant sentencing objective', it was difficult to see why the judge gave prominence to denunciation and just punishment (and protection of the community).

32 In oral submissions, counsel for the respondent described the appellant's offending variously as 'predatory', 'brazen' and 'opportunistic'. She submitted that there was no impairment of the appellant's moral culpability, and drew attention to the fact that, while the appellant told Dr Best he might have been 'a bit drunk' at the time of the offending, he told Mr Ball he was largely unaffected by substances at the time.

33 The respondent's counsel submitted that the judge gave the matters in mitigation - in particular, his mental illness - appropriate weight, and the sentence imposed was within the available range. Counsel submitted that any reduction in sentence by application of Verdins principles must be balanced against the need for community protection. The appellant's history of non-compliance with medication; his history of drug and alcohol abuse; his risk of relapse; his lack of insight into his mental illness; and his significant anti-social personality features, were all factors bearing upon the need for community protection.

34 At least three things may be drawn from Dr Best's report, none of which are contentious:

• first, the appellant's mental ill-health, coupled with his difficulties with substance abuse, are likely to have affected his 'capacity to exercise appropriate judgement and make calm decisions and think clearly at the time of the alleged offending';

• secondly, imprisonment 'may have the capacity to weigh more heavily on him than on an individual without those difficulties because he is more vulnerable to relapse of his major mental illness'; and,

• thirdly - and allied to the second matter - as a security patient under the Mental Health Act 2014 the appellant had compulsorily been taken from prison to a high-security forensic mental health hospital and was there detained and treated (he having been subject to similar intervention when serving sentences in NSW).[13]

35 In those circumstances, there can be little doubt that each Verdins proposition was attracted. The six propositions are:[14]

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.

36 As Verdins makes clear, impaired mental functioning may have an effect not only upon the application of principles of general and specific deterrence, but also upon just punishment. Moreover, the presence of a serious mental illness such as the appellant's means that 'denunciation is less likely to be a relevant sentencing objective'.

37 Subsequently to Verdins, in Muldrock,[15] the High Court referred with approval to earlier statements of principle by Young CJ and Lush J in Mooney, observing:[16]

One purpose of sentencing is to deter others who might be minded to offend as the offender has done. Young CJ, in a passage that has been frequently cited, said this:[17]

General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others.

In the same case, Lush J explained the reason for the principle in this way:[18]

[The] significance [of general deterrence] in a particular case will, however, at least usually be related to the kindred concept of retribution or punishment in which is involved an element of instinctive appreciation of the appropriateness of the sentence to the case. A sentence imposed with deterrence in view will not be acceptable if its retributive effect on the offender is felt to be inappropriate to his situation and to the needs of the community.

The principle is well recognised.[19] It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap. A question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence.[20] ...

38 As the authorities make clear, the moral culpability of an offender with a serious mental illness or disorder (to use Verdins language, with 'impaired mental functioning') will in most cases be lessened due to a reduced capacity to reason with respect to the wrongfulness of his or her conduct. General deterrence should often be given very little weight in the case of such an offender because he or she will not be 'an appropriate medium for making an example to others'. Moreover, the aspects of denunciation[21] and just punishment[22] in a sentence appropriate for a person unafflicted by mental illness will often be inappropriate for a mentally ill offender (and, for that matter, the needs of the community).[23]

39 Given the appellant's chronic psychotic disorder and its probable causal connection to his offending, it is difficult to see how - if properly adhering to authority - the judge could have viewed 'denunciation of [the appellant's] conduct, just punishment, and protection of the community, [as] the principal sentencing purposes to be applied when arriving at an appropriate sentence'. If anything, denunciation and just punishment should have been viewed as having lesser importance in the sentencing synthesis. Hence, I consider that ground 2 has been made out. The appeal should be allowed and a different sentence imposed. Self-evidently, since the sentencing discretion is reopened, it is unnecessary to consider the first ground.

40 I should add that, even were one to regard community protection as a principal sentencing purpose - I note once more that the appellant had no prior convictions for sex offences - that could not justify the imposition of a sentence disproportionate to the seriousness of the offence in order to extend the period of community protection from the perceived risk of future offending.[24]

41 As I have said, the appellant must be resentenced. Balancing, as best I am able, the relevant circumstances of the offence and of the appellant, and taking into account all aggravating and mitigating features - paying particular heed to the appellant's serious mental illness - I would substitute a sentence of six years' imprisonment for that first imposed. Given that it is in both the appellant's and the community's interest that the appellant be subject to an extended period of supervision if released conditionally on parole, I would fix a non-parole period of three years and six months. For the avoidance of doubt, I should say that I consider that it is not in the interests of justice to impose a non-parole period equivalent to 'at least' 60 per cent of the head sentence.[25]

42 The appeal should be allowed and the sentence first imposed should be set aside. In lieu, the appellant should be sentenced to six years' imprisonment. A non-

parole period of three years and six months should be fixed. All other orders and declarations of the County Court should be confirmed.

43 I agree with the disposition proposed by Priest JA for the reasons that his Honour gives.

44 I wish to add this. This is a very distressing case, given the life-long challenges faced by the complainant and the profound impact this offending has had on her life. The appellant preyed on a very vulnerable member of the community who was entitled to care and protection. The appellant has a criminal history and a history of drug and alcohol abuse, as well as his history of mental illness. Although he has no history of sexual offending, he has been assessed as being in the 'moderate' risk category for sexual re-offence relative to other male sex offenders. These factors point to the importance of community protection in the sentencing synthesis.

45 Having regard to the psychological assessment conducted by Mr Ball and the pre-sentence psychiatric report prepared by Dr Best, I agree with Priest JA that community protection in this case is best served, not by incarcerating the appellant for as long as possible, but by putting in place the conditions in which he can receive proper, ongoing treatment and support for his mental illness. Unless and until he receives such treatment he will present a risk to the community, whether he is incarcerated for six years or for three. As Dr Best has noted, before the emergence of the appellant's mental illness, 'he was employed, he was married, and he was a father and had stable accommodation. His mental illness has interrupted his employment, he has lost the support of family and lost housing'. A long period of parole provides the opportunity for the appellant to receive treatment and support in an intensively supervised environment and where breaches of the conditions of his parole may result in him losing his liberty.

[1] Nachar v The Queen (Unreported, Court of Appeal, Priest JA, 7 December 2020), [20].

[3] Crimes Act 1958, s 38(1). The maximum penalty is 25 years' imprisonment; and, by virtue of s 38(3), the standard sentence is 10 years' imprisonment.

[4] Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the plea of guilty, he would have sentenced the appellant to 10 years' imprisonment, with an eight year non-parole period. The judge also made orders under the Sex Offenders Registration Act 2004, requiring the appellant to report for eight years.

[5] His date of birth is 21 September 1983.

[7] Sections 275 and 276(1) of the Act provide:

A Secure Treatment Order is an Order made by the Secretary to the Department of Justice and Regulation that enables a person who is subject to the Order to be compulsorily taken from a prison or other place of confinement to a designated mental health service and detained and treated in the designated mental health service.

(1) The Secretary to the Department of Justice and Regulation may make a Secure Treatment Order in relation to a person if -

(a) the person is detained in a prison or other place of confinement; and

(b) the person has been examined by a psychiatrist and the Secretary to the Department of Justice and Regulation is satisfied by the production of the psychiatrist's report and any other evidence that the following criteria apply to the person -

(ii) because the person has mental illness, the person needs immediate treatment to prevent -

(A) serious deterioration in the person's mental or physical health; or

(B) serious harm to the person or to another person; and

(iii) the immediate treatment will be provided to the person if the person is made subject to a Secure Treatment Order; and

(iv) there is no less restrictive means reasonably available to enable the person to receive the immediate treatment; and

(c) the Secretary to the Department of Justice and Regulation has received a report from the authorised psychiatrist for the designated mental health service to which it is proposed that the person be taken -

(i) recommending the making of the Secure Treatment Order; and

(ii) stating that there are facilities or services available at the designated mental health service for the detention and treatment of the person.

[9] Brown v The Queen [2019] VSCA 286; (2019) 59 VR 462, 464-5 [4], 465 [7] and 470-71 [25] (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA).

[11] Leave was granted to rely on ground 2 upon the hearing of the appeal.

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

[13] See footnote 7 above.

[14] Verdins, 276 [32] (emphasis added; citations omitted).

[15] Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 ('Muldrock').

[16] Muldrock, 138-9 [53]-[54] (emphasis added; citations as in original).

[17] R v Mooney (unreported, Court of Criminal Appeal (Vic), 21 June 1978) at 5, cited in R v Anderson [1981] VicRp 17; [1981] VR 155 at 160.

[18] R v Mooney (unreported, Court of Criminal Appeal (Vic), 21 June 1978) at 8, cited in R v Anderson [1981] VicRp 17; [1981] VR 155 at 160-161.

[19] Veen v The Queen [No 2] (1988) 164 CLR 465 at 476-477. See also R v Anderson [1981] VicRp 17; [1981] VR 155; R v Scognamiglio (1991) 56 A Crim R 81; R v Letteri (unreported, Court of Criminal Appeal (NSW), No 60407 of 1991, 18 March 1992); R v Engert (1995) 84 A Crim R 67; R v Wright (1997) 93 A Crim R 48.

[20] See R v Engert (1995) 84 A Crim R 67 at 71.

[21] See Sentencing Act 1991, s 5(1)(d).

[22] See Sentencing Act 1991, s 5(1)(a).

[23] See Sentencing Act 1991, s 5(1)(e).

[24] Veen v The Queen [No 2] (1988) 164 CLR 465, 473 (Mason CJ, Brennan, Dawson and Toohey JJ).

[25] See Sentencing Act 1991, s 11A(4).