Pato v The Queen [2011] VSCA 223

1 I invite Hansen JA to give the first judgment in this matter.

2 The appellant pleaded guilty in the County Court at Bendigo to one count of recklessly causing serious injury. Following a plea in mitigation, on 13 August 2010 the appellant was sentenced to three years' imprisonment. The judge fixed a non-parole period of 18 months.

3 Pursuant to leave previously granted, the appellant relies on the following grounds of appeal:

1. The learned judge failed to give sufficient weight to the psychiatric condition of the appellant both at the time of offence and at the time of sentence.
2. The head sentence and non-parole period are manifestly excessive.

4 The offending occurred in the home in the early hours of 23 March 2009 in the context of an argument between the appellant, then aged 40, and his then de facto partner, Wendy Dickerson. The argument had apparently developed over several days in relation to a household blind. The appellant was drunk, became angry and picked up a stool, using it to hit the wall. As a result, a newspaper cutting fell to the floor and the appellant told Ms Dickerson to pick it up. He then grabbed her by the hair and pulled her over the couch. He then grabbed her throat with such force that he fractured her thyroid cartilage. Having been released from his hold, Ms Dickerson called the appellant a drunk, slapped his face with an open hand and poured the contents of his beer can down the sink. The appellant then pushed Ms Dickerson into the stove, then down onto the floor where he stood astride her and punched her to the head and body. She suffered multiple facial fractures, bruising and a bout of acute pancreatitis. The pancreatitis involved aggravation of a pre-existing condition. The next morning the appellant told Ms Dickerson that it was her fault that she caused him to do what he did. It was only when her employer

and work colleagues became concerned that the police became involved several days later.

5 The appellant gave a no comment interview to the police. He ultimately pleaded guilty, but only after a contested committal which exposed the victim to cross-examination.

6 The plea in mitigation commenced on 4 June 2010 and was adjourned by the judge to enable the preparation of a Forensicare report. A report was duly written by Dr Meera Aurora, dated 28 July 2010, and when the plea resumed on 13 August, counsel addressed submissions to the report.

7 The report referred to the appellant's longstanding depression, extensive alcohol use (drinking 10 to 12 beers per night if he was working the following day[1] and double that amount if not working), social isolation, distrust of others and difficulty in controlling anger. The report stated that suicidal ideation was actively present and that the appellant had reported a total of four suicide attempts in the past although he currently had no suicidal intent. He was diagnosed with 'explosive personality disorder' in June 2009 following an attempt to overdose on anti-depressant medication. He attempted suicide in January 2010. The report also stated that the appellant had high levels of 'trait anger' defined as the tendency to perceive a wide range of situations as annoying or frustrating and that such individuals often feel they have been unfairly treated. The appellant's profile indicated a 'strong angry temperament, with a tendency to be quick tempered and readily express his angry feelings with little provocation'. He has difficulty controlling his anger and although he regretted his actions in the majority of his past offences, '... he not only has a tendency to see provocation where it may not in fact lie, but also possesses a limited repertoire of coping skills that would have impacted on his ability to solve conflict in a reasonable manner'. The report went on to state:

With respect to the offences for which he is currently awaiting sentencing, there appears to have been clear precipitants to Mr Pato's behaviour. In the context of his distrustful personality style and negative self concept, Mr Pato was engaged in a volatile relationship reportedly characterised by domestic violence and abuse by both individuals. For some time Mr Pato had been estranged from his son whom he had been the primary carer for, for eight years. This estrangement, combined with poor coping skills, alcohol abuse and an ineffectual romantic relationship precipitated depressive symptomatology and suicidal ideation. These factors combined, appeared to result in the violent way in which Mr Pato responded to conflict with his partner on the night his offences occurred.

8 Defence counsel on the plea referred to the report and the case of R v Verdins.[2] She submitted that of the list of six factors in Verdins relating to how mental impairment may be relevant to sentencing, the most relevant was principle six, that is the serious risk that imprisonment would have a significant adverse effect on the appellant's mental health. In this regard she referred to the appellant's anxiety about going to prison for the first time, his fear of confined spaces and the suicidal ideation referred to in the report. She referred to other Verdins factors, namely specific and general deterrence and the relevance of mental impairment to the kind of sentence that ought to be imposed (having earlier submitted that an intensive corrections order was appropriate), but did not develop submissions on these matters, in effect leaving the judge to determine the extent to which the sentence ought be moderated on account of these factors. Importantly, counsel stated that on instructions she did not rely on the first factor in Verdins, that is, she did not submit that the appellant's moral culpability ought be reduced on account of his mental impairment. This submission was made in the context of a submission that although the appellant still had a long way to go in overcoming his various issues, he was at least now starting to accept responsibility for his actions.

9 The prosecutor on the plea submitted that the report did not establish a sufficient causal link between the various matters affecting the appellant and the offending, such as would attract the operation of the principles in Verdins. He conceded that the appellant would find prison difficult because of his personal circumstances, including his anxiety, nevertheless given the gravity of the offending, an appropriate head sentence was three to four years and a non-parole period of 18 months to two years, thus the only appropriate disposition was an immediate custodial sentence.

10 The judge was plainly impressed by Dr Aurora's report, describing it as 'excellent'. He quoted several passages from it and stated that he agreed with Dr Aurora's opinions and recommendations and proposed to refer the report to the appropriate authorities so that the appellant can be supported properly. The judge then referred to the appellant's 17 prior convictions from seven court appearances - mostly alcohol related and eight of which were assault related offences - as confirming his alcohol problem. The judge went on to say that the appellant's personal profile and offending attracted the Verdins principles. He found that the appellant was suffering from severe depression which affected his ability to function effectively in daily life and the condition pre-existed the offending and continued to the present. He quoted further passages from the report, finishing with the passage set out above, although omitting the last sentence. He then stated:

Mr Pato, you had consumed large quantities of alcohol on this night and, to put it bluntly, you lost it. Mr Pato, having found that you were suffering severe depression I propose to moderate the sentence that I otherwise may have imposed, that is in accordance with Verdins.

12 The appellant contended that the judge failed to give sufficient weight to the psychiatric condition of the appellant both at the time of offending and at the time of sentencing. It was submitted that given Dr Aurora's unchallenged findings as to the appellant's depression and suicidal ideation, and particularly the passage quoted above, the judge should have found that:

(a) At the time of the offence the appellant was in the grip of mental illness which contributed to the offence and consequently his moral culpability for the offence was diminished to a degree.

(b) As a result, general deterrence was of less significance in this case.

(c) The appellant remained mentally unwell and fragile as at the date of sentencing and consequently, imprisonment will weigh more heavily upon him than upon a person of normal mental health and further, may have a significant adverse impact upon his mental health.

13 Counsel submitted that such findings should have led to a lesser sentence than that imposed. Further, the judge's failure to focus on and specifically consider the six Verdins principles indicated that they have not received proper consideration.

14 Counsel for the Crown accepted that the matters stated in Dr Aurora's report bore on the appellant's moral culpability in the sense that they went some way to explaining why he offended and might reasonably have attracted the judge's sympathy. However, it was submitted that the principles in Verdins were not enlivened as the appellant's depression was relevant merely as the setting in which the offending occurred rather than having any significant causative role in the offending. Similarly, the report's reference to the appellant's depression and suicidal ideation in the passage quoted above was in the context of a group of nine factors which, combined, contributed to the offending, but the evidence did not explain how, if at all, the appellant's depression impaired his ability to exercise restraint and judgment at the time of the offending. Further, there was no evidence as to the effect of incarceration on the appellant's mental state. Such evidence was necessary in circumstances where it could not be safely inferred that his depression would continue once incarceration caused the appellant to cease using alcohol which had for so along accompanied his depression. It followed, submitted counsel, that Verdins was not applicable. By applying Verdins, the judge erred in the appellant's favour.

15 Conversely, if Verdins was applicable, it was accepted that the judge's reasons failed to disclose which principles had been applied and what impact they had. It followed that the question for this Court was whether a different sentence would have been imposed had the principles been properly synthesised, which was to be dealt with in the context of the manifest excess ground.

16 The appellant contended that the sentence was manifestly excessive by reason in particular of the judge's failure to:

(a) properly apply principles 1, 3, 5 and 6 from Verdins;

(b) have regard to the fact this was the appellant's first prison sentence; and

(c) give proper consideration to the age and nature of the appellant's relevant prior convictions, having regard to his longstanding mental health difficulties and alcohol addiction.

17 Counsel for the Crown submitted that the sentence was within range, referring to a series of matters which need not be set out. He submitted that the non-parole period recognises the appellant's difficulties and the desirability of long-term supervised treatment in the community.

18 It is convenient to deal first with the question of whether, and if so how, Verdins applied to the present case. In doing so, I bear in mind the statement of Ashley and Weinberg JJA in R v Vuadreu[3] that:

It must be emphasised that Verdins has no application in respect of a condition postulated to have existed at the time of offending unless the condition relied upon can be seen to have some realistic connection with the offending. The Verdins principles are, and should be regarded, as exceptional.

19 Further, as Dodds-Streeton JA stated in R v Zander:[4]

The principles of Verdins do not dictate the automatic mitigation of sentence in an offender simply because he or she has suffered or is suffering from a mental illness, however severe. Rather, Verdins requires scrutiny and assessment, based on cogent evidence, of the relationship between the mental disorder and the offending and other relevant matters.

20 In this regard it is to be noted that the six factors in Verdins relate to different aspects and objectives of the sentencing exercise, hence it is necessary to assess the relationship between the mental impairment of the particular offender and a particular sentencing factor said to be moderated thereby.

21 In the present case, I accept that the material in the Forensicare report establishes a causal connection between the myriad factors, including poor coping skills, alcohol abuse, depressive symptomatology and suicidal ideation, and the offending itself. In short, I accept that the appellant's mental functioning was relevantly impaired at the time of the offending and that it materially contributed to the offending, hence the judge was entitled to find that Verdins was relevant to the sentencing exercise.

22 The difficulty is that the judge needed to go further and explain how the appellant's impaired mental functioning was relevant to the particular factors in Verdins. Unfortunately he merely quoted passages from the report and stated that, having found the appellant was suffering severe depression, he proposed to 'modify' the sentence that he otherwise may have imposed, in accordance with Verdins. There was thus no indication as to which of the six factors in Verdins were relevant and the relative weight they received.

The absence of reasons on matters relevant to the sentencing disposition will not of itself vitiate the sentencing decision or provide a ground for review of the sentence. Where the reasons are silent as to a matter, it will be necessary to determine whether it was material to the exercise of the sentencing discretion. If it was, the sentencing judge was obliged to take it into account. The conclusion that the sentencing judge has failed to do so or to give it sufficient weight, will then commonly depend upon whether it can be said that a markedly different sentence would have followed, had the matter been taken into account.

24 In this context it is important to pay attention to the nature of the task facing the Court on an appeal against sentence.

25 Section 281 of the Criminal Procedure Act 2009 provides that:

(1) On an appeal under section 278, the Court of Appeal must allow the appeal if the appellant satisfies the court that-

(a) there is an error in the sentence first imposed; and

(b) a different sentence should be imposed.

(2) In any other case, the Court of Appeal must dismiss an appeal under section 278.

26 In short the appellant must do more than show that the judge erred in his treatment of Verdins, whether by the lack of transparency as to how it applied or the weight he gave to the appellant's condition. Rather, the appellant must demonstrate that having proper regard to the Verdins factors, a different sentence should be imposed.

27 That leaves the question of the relevance of Verdins in the present case.

28 In my view, Verdins was relevant in the following way. As to the matter of moral culpability, the defence concession that the appellant's moral culpability ought not be reduced was not decisive. Further, the Crown seemed to concede that his moral culpability was reduced albeit not on account of Verdins. In my view it was a matter for the judge to determine the appellant's moral culpability. Accepting that the appellant was suffering from severe depression, alcoholism and anger management problems at the time of the offending, his moral culpability should be regarded as less than that of a hypothetical person without those disadvantages who offended in a similar way. That said, the appellant was plainly aware that what he did was wrong, hence his moral culpability was still high and there was still ample scope for denunciation of his conduct.

29 Similarly, as to the matter of general deterrence, I regard the appellant's condition as impairing his ability to make appropriate judgments and calm and rational choices. Of course, he was drunk at the time of his own volition, but that drunkenness must be seen as part of his alcoholic and depressive state. In my view, the judge was entitled to give less weight to general deterrence than he otherwise might have. Nevertheless, the appellant was still an appropriate vehicle for general deterrence so the moderation on account of Verdins would have been of a most

30 As to the matters of the burden of imprisonment on the appellant because of his condition and the prospect that imprisonment may worsen his condition, I agree with the Crown's submission that there was a lack of evidence and consequently no reason to moderate the sentence on account of these two factors.

31 In all of the circumstances, the proper application of Verdins reduced the appellant's moral culpability and the need for general deterrence but only to a limited degree. In my view it cannot be said that the sentence imposed fails to reflect an appropriate moderation of sentence on account of these matters, or that a more lenient sentence ought to be imposed.

32 Although no weapon was used, this was still a serious example of the offence. The attack occurred against a weaker person in her home, leaving facial fractures and pain in the victim's face for weeks or possibly months. And while there was some remorse, and guarded prospects of rehabilitation, the appellant only offered to plead guilty after contesting the committal, thus exposing the victim to cross-examination. Further, the Forensicare report indicated that the appellant still blamed the victim to some extent, and blamed people in authority for his previous brushes with the law.

33 In my view a sentence of three years' imprisonment was open to the judge properly applying Verdins. Further, I agree with the comment of the judge on the leave application that the non-parole period was favourable to the appellant.

36 The order of the Court will be that the appeal be dismissed.

[1] He worked part-time as a furniture removalist.

[2] [2007] VSCA 102; (2007) 16 VR 269.

[3] [2009] VSCA 262, [37].

[4] [2009] VSCA 10, [29].

[5] [2008] VSCA 84; (2008) 18 VR 434, 440 [64] (citations omitted).