O'Toole v The Queen [2013] VSCA 62

Court of Appeal (Vic)|2013-03-27|Before: Mr P, Warren CJ

DPP v O'Toole (Unreported, County Court of Victoria, 21 June 2012, Judge Hampel)

CRIMINAL LAW - Appeal against sentence - Appellant convicted of aggravated burglary, intentionally causing injury and common assault - Whether sentencing judge erred by failing to find a causal connection between appellant's post-traumatic stress disorder and the offending - Whether sentencing judge incorrectly found that a causal connection between appellant's post-traumatic stress disorder and the offending was required in order to mitigate sentence - Whether sentencing judge erred in finding risk of relapse in prison of post-traumatic stress disorder symptoms insufficient to mitigate sentence - Appeal dismissed - R v Verdins [2007] VSCA 102; (2007) 16 VR 269 considered.

1 The appellant, Christopher O'Toole, pleaded guilty to one count of aggravated burglary, one count of intentionally causing injury and one count of common assault. Following a plea he was sentenced as follows:

Aggravated burglary [Crimes Act 1958, s 77]

Intentionally cause injury [Crimes Act 1958, s 18]

Common assault [Summary Offences Act 1966, s 23]

Nil - 12 months to serve, with 16 months suspended for 16 months

2 The appellant seeks to appeal his sentence. He was granted leave to appeal on the following grounds:

1. The learned sentencing judge erred in failing to apply any of the principles concerning impaired mental functioning outlined in the case of R v Verdins (2007) 16 VR 269.[1]

2. The sentencing discretion miscarried by reason of the learned sentencing judge's failure to consider adequately the availability of a Community Correction Order.

3 The offending arose from a road rage incident on the afternoon of 1 November 2010. The appellant was seated in the passenger seat of his car supervising his son, who was driving as a learner driver. The appellant's wife was in the back seat.

4 The first victim, who was 17 years old at the time, inadvertently veered into the path of the appellant's car while negotiating a roundabout. The appellant became angry and directed his son to follow the other car. While driving the appellant's car also picked up a 17 year old male ('the child offender'), per an arrangement made before the incident. The victim had stopped outside a friend's house and the appellant ultimately stopped behind the victim's car.

5 The victim was in his car. The appellant got out, leant inside the open window of the victim's car, spoke abusively to the victim and then punched the victim in the jaw. The victim drove off, dragging the appellant a short distance as his arm was still inside the car. The appellant fell to the ground and became enraged.

6 The appellant went back to his car and directed his son to follow the victim. They drove for some distance but eventually lost sight of the victim's car. Meanwhile, the victim had returned home and parked his car in the rear yard. He went inside and spoke to his 19 year old girlfriend (the second victim), his passenger and his passenger's 16 year old brother who were all in the house.

7 About ten minutes later, having somehow found the victim's house, the appellant, followed by his son and the child offender, entered the victim's house by pushing open the unlocked back door, forming the basis of charge 1 - aggravated burglary. The appellant screamed at the first victim 'Do you know me, you could have killed us, so it's my turn.' The appellant then punched the first victim to the right side of his face, slammed his head into a mirror, dragged him by the hair across the lounge, punched him twice in the right eye area and then kneed him to the nose. The first victim fell down, got up again, and was punched to the nose again. The first victim stumbled to the middle of the room and collapsed. The appellant stood over the first victim and punched him again a number of times in the face demanding that he admit that he ran them off the road and threatening to continue to punch him until he admitted as much.

8 In the meantime, the appellant's son and the child offender walked toward the first victim. Although it is not clear whether they were going to join the attack or merely restrain the appellant, the second victim was concerned and pushed the two back. The child offender pushed her and she hit him back. She also tried to drag the appellant away from the first victim, but in the course of doing that, the appellant struck the second victim to her face with the back of his hand. The second victim was yelling at the appellant throughout this time to get out of the house.

9 In an attempt to bring an end to the attack, the first victim eventually admitted that he had tried to run the other car off the road.[2] Not satisfied with that admission, the appellant then tried to drag the first victim outside. The appellant's son and the child offender prevented the appellant from doing so and the three of them then left.

10 The attack on the first victim formed the basis of charge 2 - intentionally causing injury. As a result of the attack, the first victim suffered bruising, swelling to his face and a black eye. The backhand to the second victim formed the basis of the summary charge - common assault. The second victim had swelling and soreness to her left cheek attributable to the appellant.

11 The appellant was interviewed by police about a week later. He admitted fighting with the first victim because of a road rage incident. He originally said that he spoke to the first victim when his car was parked and asked him to wait while he called police but the victim drove off while he was still in the car. The appellant also originally said that the subsequent fighting occurred in the driveway. He specifically denied entering the house.

12 The plea took place over two days, 30 May and 14 June 2012, and the sentence was delivered on 21 June 2012.

13 There are aspects of the facts as presented to the learned sentencing judge, and the circumstances generally, which warrant particular focus. First, the appellant had prior convictions, including two for assault for which he was sentenced in 1996 and 1997. The details of that offending were put before her Honour. She summarised them as involving 'impulsive behaviour where [the appellant] did not control [his] temper.'[3]

14 Secondly, the appellant, together with others, was involved in retrieving a man from a crashed and burning vehicle in 2002. As a result, the appellant received a bravery award.[4] Thirdly, the appellant was diagnosed as suffering from post-traumatic stress disorder (PTSD) as a result of that event, which in turn was the subject of psychologists' reports tendered on the plea.

15 Fourthly, two days before the offending the appellant was involved in a car accident. Another car ran a red light and struck the vehicle with the appellant and his wife inside. The car was written off and the appellant's wife was injured and taken to hospital. Fifthly, the appellant's brother had died in a car accident some years before and the appellant had also been in a serious car accident in 2007.

16 Finally, a notable period of time must have occurred between the incident at the roundabout and the attack. After that incident the appellant followed the first victim, collected the child offender and continued to follow the first victim until he parked his car. After the first victim drove off, the appellant continued to track him until he lost sight of his car. Presumably the appellant must have then continued to drive around until he saw the first victim's car. It was some ten minutes after the first victim parked his car at home and entered the house that the appellant entered and the attack occurred.

17 On the plea, the appellant had tendered a report from his treating psychologist, Mr Jones dated 24 May 2012. Mr Jones saw the appellant upon referral by his doctor from 2009 for a total of 17 sessions (as at June 2012). The visits commenced in May and initially finished in October 2009. Subsequently, in July 2011 (that is, seven months after the subject offending) the appellant resumed his sessions with Mr Jones.

18 The sentencing judge raised a number of concerns about this report.[5] Her Honour was concerned that Mr Jones expressed an opinion about the sixth Verdins principle without substantiating his expertise to do so.[6] Further, having had the prospect of a non-custodial sentence raised by counsel for the appellant, she gave a clear indication that she did not have sufficient material before her.[7] As a consequence, counsel for the appellant sought an adjournment in order to obtain the necessary evidence. Thus, the sentencing judge adjourned the further hearing of the plea from 30 May 2012 to 14 June 2012.

19 Mr Jones completed an updated, second report on 5 June 2012 and a further report on 7 June 2012. In effect, the third report was a revision of the earlier reports and included additional matters. In any event, Mr Jones described his treatment of the appellant for 'ongoing anxiety and depressive symptoms and post-traumatic stress disorder (PTSD) in relation to a fatal car accident where he and a friend attempted to save the life of a crash victim who died at the scene.'[8] Mr Jones commented that one of the appellant's PTSD symptoms is intense fear and anger that is triggered after witnessing what he perceives to be dangerous driving.[9]

20 Mr Jones concluded the third report by opining as to the impact of a prison sentence on the mental health of the appellant. Mr Jones opined that there would likely be a detrimental effect on the appellant's mental health for three reasons. First, the stress of not being able to provide for his family and keep them safe; secondly, the loss of his business and therefore inability to provide for the financial security of his family and which is 'a protective factor against negative thoughts and emotions'; thirdly, the appellant would not have access to therapy to treat his PTSD symptoms and thus may be at risk of relapse of symptoms including severe anxiety, flashbacks, hyper-awareness, social withdrawal, low mood, suicidal thoughts and feelings of low self-worth and hopelessness.[10]

21 An additional assessment was provided by Mr Joblin in a report dated 25 May 2012. Mr Joblin reported as a forensic psychologist not as a treating psychologist. Mr Joblin confirmed in his report that he received a Prosecution summary. Mr Joblin also reported the appellant's description of the incident. The appellant was reported to have said that after his car had been 'cut off', the driver of the other vehicle had swerved at them deliberately. The appellant informed Mr Joblin that it was the deliberate swerving that caused him to become more distressed and if they had merely been 'cut off' that would have been the end of the issue. Mr Joblin described that as 'a pivotal issue'.[11] The additional swerving was not included in the Prosecution summary nor did defence counsel ever submit that it occurred.

22 As is apparent from Mr Joblin's report, the appellant told Mr Joblin that he tried to talk with the other driver to encourage him to slow down and asked the driver to remain until he called the police. Mr Joblin made no reference to, and provided no description of or explanation for, the actual behaviour that underlay the offending, which occurred in the house of the victims. Nor does Mr Joblin refer to the appellant punching the first victim while he was sitting in his parked car. There is nothing to suggest Mr Joblin taxed the appellant on the difference between his account and the Prosecution summary.

23 After setting out the history of the appellant and his witnessing or involvement in various vehicle and related accidents, Mr Joblin opined that the appellant 'had a certain sensitivity to driving issues' which resulted in 'excessive vigilance' and that the appellant's sensitivity 'was responsible for the subsequent offending'.[12] However, Mr Joblin's report did not appear to treat the appellant's sensitivity as a mental impairment or condition.

24 Mr Joblin went on to state that he was not of the opinion that the offending 'represented chronic symptoms of a psychological abnormality' or that the appellant had a disorder of impulse control or an antisocial personality.[13] Furthermore, Mr Joblin made no reference to PTSD in his report. In his report he mentioned that the appellant had made him aware that he had been diagnosed with a psychiatric condition. In an addendum to his report, Mr Joblin stated that he had since had the opportunity to consider the report of Mr Jones (that is, the first report dated 24 May 2012). Notwithstanding the reference of Mr Jones to PTSD in that report Mr Joblin did not amend his own report to refer to it or consider it. He simply said 'I have noted the treatment programme Mr Jones has been conducting with [the appellant]. I have no have no [sic] hesitation in agreeing with the opinion of Mr Jones that continued treatment is necessary'.[14] Later, counsel for the appellant on the plea informed the learned sentencing judge that Mr Joblin had subsequently advised him of his awareness that Mr Jones had made a diagnosis of PTSD.[15] Counsel also conveyed that Mr Joblin was of the opinion that the course of treatment proposed by Mr Jones should not be interrupted and would not be available in custody.[16]

25 Significantly, Mr Joblin expressed no opinion with respect to the impact of prison on the appellant (that is, the fifth and sixth Verdins principles).

26 On the resumption of the plea hearing her Honour pointed out to counsel that the further report of Mr Jones did not support the fifth and sixth principles in Verdins.[17] Her Honour made that position abundantly clear. Her Honour further observed that Mr Jones' third report, rather than going to those principles, stated only that if the appellant's therapy was interrupted he might be at risk of relapse of the PTSD symptoms.[18] This was accepted by counsel for the appellant on the plea.[19] However, counsel for the appellant endeavoured to persuade her Honour that the fact of the risk of the relapse made the principles applicable.[20]

27 Finally, at the end of the exchange between the sentencing judge and the appellant's counsel, her Honour said:

It doesn't seem to me to fit comfortably within Verdins. It certainly is something that is in the general mix properly something to be taken into account, that this is a man who has significant long-term PTSD, who has from time to time sought treatment, but who has for the last two years or so or year or so properly engaged with treatment.[21]

28 Counsel for the appellant appeared to accept her Honour's observation and moved onto other matters, in particular the question of a custodial sentence.

29 Her Honour, later in the plea, indicated she would have the appellant assessed for suitability for a Community Correction Order ('CCO') but was at pains to indicate that she had not resolved the appropriate sentence for the appellant. At the very end, shortly before adjourning, her Honour made abundantly clear to counsel that with respect to the assessment for the CCO the appellant would need to understand that he should not indicate he was able to perform unpaid community work if in fact he was unable to or not prepared to do so.[22]

30 In the CCO assessment report it was noted that the appellant had a pending Transport Accident Commission (TAC) claim, which made him ineligible to participate in community work. It was also noted that the appellant informed the assessors that he worked fulltime on a rotating shift which might impede his capacity to participate in unpaid community work.[23]

31 On the adjourned date for the delivery of sentence her Honour asked if there was anything the representative for the appellant wished to raise. Counsel informed the sentencing judge that the appellant was prepared to do unpaid community work and would withdraw his TAC claim if necessary. Her Honour also commented that she had been concerned with the appellant self-reporting that his fulltime work would impede his capacity to participate. So far as the capacity of the appellant to meet the requirements of unpaid community work because of his fulltime shift work, the appellant's counsel informed the sentencing judge that the appellant accepted the potential of performing substantial unpaid community work and was willing to do that by fitting it in with his work. After hearing these matters her Honour then proceeded to sentence the appellant.

32 The sentencing judge noted the following matters regarding the offending:

while the attack was not pre-planned, nor was it a heat of the moment, spontaneous response to an incident of bad driving. The appellant actively pursued the victim, and had ample time to make conscious choices about his behaviour. He chose to pursue and attack rather than reflect and cool down,[24]

the offending had a serious impact on the victims as described in the victim impact statements,[25]

the appellant breached his responsibilities both as a parent and as the supervisor of a learner driver, effectively leading two young people into trouble,[26]

road rage assaults and aggravated burglaries are prevalent offences and denunciation, just punishment and deterrence must be reflected in the sentence,[27]

the assault of a young woman in her own home as she sought to intervene to prevent further assault on her partner called for condemnation, denunciation, punishment and deterrence,[28]

33 As to matters personal to the appellant, the sentencing judge noted the following:

- the appellant's stable family life and good work history,[29]

- the appellant's suffering from PTSD as the result of an incident in 2002 (for which he received a bravery award) where he dragged a person from a burning car wreck only for that person to die subsequently,[30]

- the opinion of Mr Jones, the treating psychologist, that the offending was explained by the appellant's fear and anger caused by bad driving in the context of his PTSD, exacerbated by another incident two days before the offending where the appellant's wife was hospitalised following a car crash, in which the appellant was also involved, where the other driver had run through a red light,[31]

- her Honour was not satisfied (either on the basis of the report of Mr Jones or the report of the other psychologist, Mr Joblin) that there was a causal connection between the PTSD symptoms and the offending so as to reduce moral culpability,[32]

- her Honour was not satisfied that the opinions expressed by Mr Jones about the effects of imprisonment (particularly the interruption of the appellant's treatment for PTSD due to the unavailability of such treatment in prison) which would bring any of the Verdins principles into play,[33]

- whilst there was a clear rehabilitative benefit to the appellant in continuing with his counselling for PTSD, this was relevant in a 'psychological well-being sense not in a sentencing sense, given the absence of a causal connection between those symptoms and the offending behaviour.'[34]

- having not excluded a CCO as a possibility, her Honour had the appellant assessed for suitability for a CCO,[35]

- on the basis of the report thus prepared, she took the view that a CCO was not a viable option given the appellant's potential work commitments in his own business and, possibly, a pending TAC claim,[36]

- her Honour stated that, in any event, the offending was of such a serious nature, that no sentence other than one of imprisonment immediately served was appropriate and that a sentence of imprisonment of three months or less (the maximum that could be imposed if she were to impose a CCO order as well), was inadequate to reflect the seriousness of the offending.[37]

34 With respect to ground 1 the appellant made two key submissions. The first was that the learned sentencing judge had erred in not applying the principles in Verdins as a result of finding that there was no causal connection between the appellant's PTSD and his offending so as to reduce the appellant's moral culpability. The second was that the learned sentencing judge erred in not applying the fifth and sixth Verdins' principles and had misconstrued the principles by requiring some kind of causal connection between the offending and the mental condition in order to operate as a mitigating consideration.[38] It was submitted that insofar as such a connection was required in the application of any of the Verdins' principles it was demonstrated by the psychologists' reports.

35 Application of the Verdins' principles in sentencing should be regarded as exceptional[39] and the burden lies on the accused.

36 In relation to the first submission, I consider that it was open to her Honour to conclude as she did that there was no causal connection between the PTSD and the offending so as to reduce the appellant's moral culpability.

37 The case of Verdins recognised that the mental impairment of an offender may influence sentencing. In cases where a causal connection between the relevant condition and the offending has been demonstrated, the moral culpability of an offender may be reduced thus moderating the need for general or specific deterrence and denunciation. Whether that is so will depend on the nature and severity of the offender's symptoms and the effect that the condition had or has on the offender's mental capacity.[40]

38 The appellant submitted that it was a matter of 'common sense' that the PTSD and the offending were causally connected and it was also demonstrated by the psychological reports. Her Honour considered and analysed the reports carefully[41] and expressly referred to the fact that the reports, in particular Mr Jones' reports, did not satisfy her that there was a causal connection between the PTSD symptoms and the offending such as to affect the appellant's moral culpability for the offending. Her Honour found Mr Jones not to be an impartial witness and the factual basis on which he presented his opinion was not made clear.

39 In his assessment of the appellant Mr Joblin referred to the driving incidents the appellant had been involved in by way of explanation for his sensitivity and distress while observing bad driving. However, as her Honour observed, Mr Joblin did not draw any causal connection between any psychological condition or diagnosis, or disorder relating to impulse control and the offending.[42] In fact Mr Joblin went on to rule out a number of psychological conditions in relation to the offender. Mr Joblin did not appear to have access to Mr Jones' reports when originally writing his own.[43] While it was not in dispute by the parties that the appellant actually did suffer from PTSD, Mr Joblin's report failed to support a causal connection between PTSD, or any psychological condition or mental impairment, and the offending.

40 Additionally, as already considered, it is unclear whether the opinions that were given by Mr Joblin were based on the prosecution's summary or the facts reported to him by the appellant. It is not clear whether Mr Joblin considered the actual events that constituted the offending as they are not referred to in his description of what the appellant reported as having occurred.

41 There is also a matter of the timing of the events on the day. The appellant was not deterred from his pursuit by needing to pick up the child offender, having already yelled at and punched the first victim, nor by losing sight of the first victim. It was clear that there was some considerable lapse of time between the initiating or 'triggering' event at the roundabout and the offences in question. There was also a notable delay between the appellant punching the first victim while he was parked in the car and the first victim driving off, presumably further angering the appellant, and the offending.

42 Finally, there were the two prior convictions for assault, which predated the PTSD that were taken into account in assessing whether there was a causal connection so as to reduce moral culpability. Her Honour was aware of the background to those matters and when they occurred. There is nothing to suggest she gave these matters more weight than they warranted.

43 Insofar as the appellant suggests it is a matter of 'common sense' that the PTSD and the offending are connected, that may be true, but only insofar as it was the appellant's instinctive reaction to the first victim's driving that first gave rise to his idea to target the first victim. That matter would have been clear to her Honour. However, given her Honour's conclusions about the reliability of the opinions in the psychological reports, and even if the psychological reports were accepted, there is nothing to counter the view that the appellant had ample capacity, opportunity and time to calm himself and act rationally after the incident at the roundabout. Instead of doing so, his actions leading up to the attack were inflammatory, purposeful, persistent and extended for a significant period of time beyond the roundabout incident. Thus, insofar as a limited causal connection might be made out, it was open to the sentencing judge to find it to be insufficient, on the balance of probabilities, and not of such a nature as to make the appellant less blameworthy or to reduce his moral culpability.[44]

44 When the considered reasons of her Honour are examined together with the discussions that occurred on the two days of plea already described, it is apparent that her Honour did no more than take the evidence into account. I therefore do not accept the appellant's first submission.

45 In relation to the second submission, it is misconceived. A careful reading of the paragraphs in her Honour's reasons referred to by counsel do not demonstrate that her Honour misconstrued the fifth and sixth principles of Verdins by requiring a causal connection between PTSD and the offending. Rather, her Honour was simply not satisfied on the basis of Mr Jones' reports that the effects of imprisonment would bring any of the Verdins' principles into play.[45]

46 During the oral argument before this court, a further submission was developed in relation to the sixth Verdins' principle (where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, then this will be a factor tending to mitigate punishment).

47 It was submitted that her Honour erred in finding that the mere fact of the appellant possibly being at risk of relapse in prison did not engage the sixth Verdins' principle. This refers to the comment in Mr Jones' third report that: '[The appellant] has re-engaged in therapy and made positive gains but may be at risk of relapse in his PTSD symptoms if he cannot continue in therapy.' It seemed to be accepted that the appellant would not receive therapy for PTSD whilst in prison. The symptoms referred to in Mr Jones' report were severe anxiety, flashbacks, hyper-awareness, social withdrawal, low mood, suicidal thoughts and feelings of low self-worth and hopelessness.

48 Her Honour accepted in her reasons that the appellant faced a risk of relapse of his symptoms if his treatment was interrupted for any period.[46] However, at the plea her Honour stated that she found it difficult to see how great weight could be given to the proposition that prison would be more onerous because of a risk of relapse of the appellant's PTSD symptoms.[47] It is plain from her Honour's reasons that she did not consider the risk of relapse sufficient to warrant the application of the sixth Verdins' principle.

49 Was it open to her Honour to conclude thus? In order for the sixth Verdins' principle to be attracted, the appellant must demonstrate, on the balance of probabilities, that there was a serious risk that the appellant's being unable to access therapy would have a significant adverse effect on his mental health.[48] Taking into account the history of the appellant's PTSD, the likely conditions of his imprisonment and the lack of treatment for the PTSD in prison, it seems to me that the appellant has not met his burden.

50 While it is important to remember that each case will turn on its own merits, many of the symptoms so described are in fact regrettably common amongst prisoners.[49] Mr Jones' report fails to provide any account of the degree or severity of the symptoms (barring anxiety) and whether the more serious symptoms were more likely to occur. Another issue is the degree of the risk of relapse. No submissions were put forward to suggest the degree of risk of relapse. Mr Jones does not provide any suggestion as to the likelihood of a relapse reoccurring. The psychological reports do link many of the symptoms described with driving. While it was clear that her Honour accepted there was some risk, it is implicit from her Honour's reasons that the degree of risk was not regarded as sufficient to be taken into account. It is apparent that she thought bad driving, which the appellant would obviously not be exposed to in prison, was an important triggering factor.[50]

51 Her Honour's reasons demonstrate the difficulty she had in accepting the evidence of Mr Jones and the problems she had with that evidence in relation to Verdins. In any case, examination of the psychologists' reports reveals that her Honour was correct in the observations she made as to the general limitations and inadequacies of those reports for the purposes of satisfying Verdins.

52 It follows that I am not persuaded as to ground 1.

53 I note that counsel for the appellant stated in his oral submissions that the appellant had reported to him a relapse of his symptoms, being depression, anxiety, staying in his room, flashbacks and occasional suicidal thoughts. However, the appellant was not relying on any fresh evidence and no psychological or medical evidence was adduced in that regard. Counsel confirmed that the appellant relied on the situation as it stood at the plea.

54 The question also arose during oral hearing argument, if the appellant's submission regarding the fifth and sixth principles in Verdins were accepted, what could be made of the fact that her Honour took the risk of relapse into account when sentencing as part of the 'general mix' or 'intuitive synthesis'. As ground 1 was not made out it is unnecessary to consider the matter further. However, if necessary, I would regard the sentencing judge's reasons as demonstrating a careful analysis and one which covered all necessary matters.

55 Ground 2 alleges that the sentencing discretion miscarried because the sentencing judge failed to adequately consider the availability of a CCO. In essence, the appellant's submissions are basically concerned with the manner in which the sentencing judge dealt with the CCO report on the morning of the sentence.

56 Before handing down sentence, the sentencing judge and counsel engaged in a discussion of the CCO report.[51] In her Honour's reasons, she observed that the appellant was assessed as ineligible to participate in unpaid community work because of his pending TAC claim and his fulltime shift work. Her Honour reiterated that before the completion of the plea she specifically raised the importance of being frank with Corrections Victoria about work commitments and the appellant's capacity to participate in unpaid community work. The sentencing judge observed that shortly before the delivery of reasons for sentence the appellant's legal representative had indicated that the appellant was willing to undertake any unpaid community work component that may be imposed on him. Her Honour then proceeded to express some concerns about the level of commitment having regard to the statements in the CCO assessment report, the qualifying of the information provided by the psychologists and the information about the appellant's business activities. The sentencing judge observed that whilst a commitment may have been expressed immediately before the delivery of sentence she did not have much confidence that the commitment would be fulfilled. The sentencing judge concluded that if she had been considering a CCO then a substantial component of unpaid community work was an essential part of that on the basis that it forms the punitive part of a CCO. Accordingly, her Honour concluded that ineligibility to participate in a CCO or in unpaid work rendered a CCO inappropriate as a sentencing option.

57 It was submitted for the appellant that her Honour erred in concluding that the appellant was unsuitable for a CCO given the indication provided by his lawyer on the morning of the sentence. It was submitted that her Honour ought have made further enquiries of Corrections Victoria concerning the appellant's eligibility for community work.

58 In my view the position is misconceived. The shift of the position and attitude of the appellant would have been a matter that her Honour was entitled to take into account.

59 In any case, it is made expressly clear more than once in her Honour's reasons that even before receiving the CCO report, the sentencing judge concluded that no sentence other than one of imprisonment immediately served was appropriate.[52] Her Honour further observed that a sentence of imprisonment of three months or less was the maximum that could be imposed if a CCO was ordered which would be an inadequate reflection of the seriousness of the offending.

60 Counsel for the appellant submitted that it would not be possible for her Honour to have considered the matter in the abstract, before ever receiving the CCO report. I disagree. If such a submission were correct it suggests that no sentence of imprisonment could ever be correctly imposed without such a report ever being ordered. Moreover, it is obvious that a consideration of whether a CCO can be an appropriate punishment in all the circumstances of a case need not necessarily involve anything more than consideration as to whether the appropriate sentencing purposes cannot be achieved by something less than confinement of an offender.[53] Sentencing judges are well aware of the maximum degree of punishment a CCO can impose and how that compares to a term of imprisonment. Her Honour clearly gave fair consideration as to whether a CCO was appropriate in this case.

61 Counsel for the appellant indirectly raised the question of why her Honour engaged in the discussion of the CCO report if she had already decided to impose a sentence of imprisonment. However, in my view it is plain from the transcript that the matter was first raised by counsel just before sentence. Any doubts raised must have been dispelled by her Honour repeatedly stating she had decided nothing short of a custodial term in excess of three months would be appropriate. This is further assisted by the fact that one could not doubt that the custodial component of the sentence ordered by her Honour was appropriate in all the circumstances.

63 I would further add that the Court drew the attention of the parties to the

recent decision in R v Hogarth[54] concerning appropriate sentencing practice for confrontational aggravated burglary. We indicated at the outset that as the appellant had pleaded guilty and been sentenced prior to the delivery of the decision in Hogarth it would be unfair to the appellant in the event that the Court came to re-sentence him that the Court take account of the views stated in Hogarth and impose a higher sentence. However, Hogarth is indicative of the gravity with which confrontational aggravated burglary is now to be regarded. If, contrary to my view, the sentencing judge had fallen into error and had failed to make sufficient allowance for the appellant's PTSD, applying the sentencing practice that was current at the time of sentence, I am not persuaded that a different sentence should be imposed.

65 I have had the advantage of reading in draft the reasons of Warren CJ and agree that the appeal should be dismissed.

[2] On the prosecution's summary of the facts, tendered at the plea, the first victim's driving was inadvertent. Defence counsel said nothing that would suggest otherwise.

[3] DPP v O'Toole (Unreported, County Court of Victoria, Judge Hampel, 21 June 2012) [47] ('Reasons').

[5] Report of Mr Jones dated 24 May 2012.

[8] Report of Mr Jones dated 7 June 2012 [3].

[11] Report of Mr Joblin, dated 25 May 2012, 4.

[23] Department of Justice report dated 14 June 2012.

[26] Ibid [27]-[29] and [35]-[37].

[38] Appellant's submissions para [15].

[39] Charles v The Queen [2011] VSCA 399 [162].

[43] Report of Mr Joblin dated 25 May 2012, 6; Plea transcript T51.

[44] See, eg, DPP v Patterson [2009] VSCA 222 [46]; Carroll v The Queen [2011] VSCA 150 [20] (Maxwell P, Buchanan JA agreeing); Walker v The Queen [2011] VSCA 230 [10] (Harper JA, Hansen JA agreeing).

[49] See, eg, R v Howell [2007] VSCA 119; (2007) 16 VR 349 [25] (Nettle JA).

[51] See [31] above.

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