R v Ahmed [2005] VSCA 279

1 On 15 December 2004 the appellant pleaded guilty in the County Court at Melbourne to a presentment alleging three counts of armed robbery, one count of robbery, one count of burglary, two counts of theft, three counts of obtaining property by deception, one count of attempting to obtain property by deception and one count of recklessly causing injury. He admitted 18 prior convictions and four findings of guilt from seven court appearances between September 1997 and November 2001, including prior findings of guilt or convictions for theft, attempted theft, attempted robbery, handling stolen goods, intentionally causing injury, unlawful assault, attempting to obtain property by deception and breaching suspended sentences. The appellant, who was born on 19 December 1979, was aged 23 during the period of offending, which was from 22 November to 3 December 2003.

2 On 17 December 2004 the judge sentenced the appellant to a total effective sentence of six years' imprisonment, and fixed a non-parole period of three years and six months. Some 372 days of this sentence had then already been served. Of the individual sentences, it is sufficient to say that the judge imposed sentences of three years in respect of each count of armed robbery, two years in relation to the count of robbery, 12 months in respect of the counts of theft and recklessly causing injury, nine months in respect of the count of burglary, and six months' imprisonment respectively in the case of each count of obtaining property by deception. Cumulation of 12 months was ordered in respect of two of the counts of armed robbery, and six months in the case of the count of robbery and one count of theft. Leave to appeal under s.582 of the Crimes Act was granted by a judge of this Court on 12 August 2005.

3 The appellant originally sought to appeal on the ground that the sentence imposed was manifestly excessive. This ground is not now pursued. Instead, the single ground of the appeal is that in light of the fresh evidence of the appellant's mental disorder, the sentencing discretion is reopened and the appellant ought now be re-sentenced by this Court.

4 I can deal briefly with the circumstances of the offences. On Saturday 22 November 2003 the appellant went to a cake shop in Braybrook, and, after saying something to the 16-year-old female shop assistant who was alone at the service counter, suddenly grabbed her by the collar of her shirt and put a screwdriver to her throat. He said to her, "Open the till otherwise I'll kill you. Give me all the money." She then handed him $510 of the store's takings. The appellant warned the victim, "If you scream I'll kill you," and he then left. The two other armed robberies were committed in like circumstances, one on a garden nursery in Barkly Street, Footscray, where the appellant produced a screwdriver and menaced a female attendant and female customer while making demands for money, the second at a florist shop in North Melbourne where the appellant produced a syringe with which he menaced the lone female attendant, demanding money. The count of robbery involved the appellant going to a florist shop in Braybrook, where he approached the attendant, saying, "Before I hurt you, give me money, give me everything." He took about $400 in notes and coins from the victim, then physically forced the victim into the rear of the shop towards the office area. The victim began to resist, and during the violent struggle which followed, the appellant tore a gold necklace, valued at $800, from her neck, causing her scratches, bruises, abrasions and emotional trauma. One of the counts of theft involved the appellant taking a 1997 Holden Commodore station wagon valued at $14,000, from which he stole items including a handbag containing a purse, credit card, a Medicare card and assorted other items. He later used the credit card stolen on this occasion three times to obtain goods such as petrol, cigarettes and whisky. On 12 December 2003 the appellant was arrested and later that day during a record of interview denied committing these offences or gave "no comment" responses.

5 During the plea, a report was tendered from a psychiatrist, Dr Christopher Wong, dated 10 September 2004. Evidence was called from the appellant's brother-in-law, Mahdi Hersi, and a statutory declaration by Ali Bara Abde and Amad Abdu Ali and a letter from the president of the Somali community in Victoria were tendered. In sentencing reasons, the judge noted that there had been little planning for the armed robberies, and no apparent attempt on the part of the appellant to disguise himself. The robberies were of soft targets and were serious crimes, in each case very frightening events for the victims, particularly for the victim of the robbery who was injured in the course of the violent struggle which took place. The judge took into account the pleas of guilty, and gave detailed consideration to the appellant's personal circumstances.

6 These included that the appellant came to Australia in 1993, when his family migrated to this country pursuant to the humanitarian program. His father had been killed in Somalia when he was about 11 years old. On arriving in Australia the appellant undertook a course in English and completed his VCE in 1997 at Brunswick High School. Unfortunately his pass was not at a sufficient level to enable him to obtain entry to a business course, and thereafter his life went into a downward spiral. He had commenced to use cannabis at school, became depressed for failing to obtain the necessary tertiary entry score and began to mix in the wrong company. His cannabis use escalated, he quickly advanced to using amphetamine, and when he found that that drug was producing unfortunate side effects, he turned to heroin. He had been involved with heroin ever since, until, according to the evidence of Dr Wong, he detoxified during the year he had spent in custody.

7 The judge accepted that the majority of the appellant's previous criminal history was drug-related and that the crimes to which he pleaded guilty on this occasion were drug-related.

8 The judge said -

"I accept that you have found your time in prison very difficult and accept that you miss your family both here and in Somalia. I have read and considered the statutory declaration as to the plight of your family in Kenya and accept that in many respects yours is a very sad case. However, these are serious crimes and whilst I accept that you are now drug free in prison and express a determination to remain drug free in future, numerous attempts in the past to break the cycle of heroin addiction which had blighted your life in recent years have failed. You resumed using heroin after your return from Somalia. Dr Wong sounded a warning in his report about the prospects of rehabilitation and I have taken that warning into account."

His Honour then said that having regard to the appellant's past history, he could not be particularly optimistic about rehabilitation. His Honour continued -

"Your drug problem unfortunately is a longstanding problem and the many opportunities which courts have offered you in the past have come to nothing and that is most probably due to the fact that you have continued to use heroin. The year that you spent in Somalia, apparently drug free, has also come to nothing really because when you returned to Australia you resumed drug use. I regard the offence seriousness as high and the impact on the victims of the armed robbery and the robbery cannot be disregarded. I have taken the totality principle into consideration, as well as the problems of imprisonment for an almost 25 year old man of Somalian origin, and that is yet another factor that I have taken into account."

9 The fresh evidence of mental disorder upon which the appellant now relies comes in the form of two reports from a consultant psychiatrist, Dr Ruth Vine, supplemented orally by counsel this morning. The first of these, dated 1 July 2005, records that the appellant was in the Argyle Unit at the Thomas Embling Hospital and that it was his belief that his food was being tampered with in prison. The appellant had declined to take food, both in the Melbourne Assessment Prison and in the Thomas Embling Hospital, believing that not only prison officers but also psychiatric staff were tampering with his food. Dr Vine said that the appellant stated he believed his life and the lives of his family were at risk. He gave no reasons behind his belief that others were tampering with his food, but described a complicated set of persecutory beliefs which involved a range of police, custodial and health staff. In stating her opinion Dr Vine said that the offences appeared to have occurred in the context of significant social stressors and a return to heroin use. She said that "It would also appear that the offences occurred during a period when Mr Ahmed believed that he was under surveillance by others, including the police." Having at first been able to partake normally of food and prison activities while at Port Phillip Prison, "on being transferred to Barwon, there appears to have been a rapid escalation in his persecutory beliefs". In Dr Vine's view, these beliefs are clearly of a delusional basis. The appellant, Dr Vine said, has no insight into his problems, no acceptance that his beliefs may be symptoms of a mental illness, and "his conviction is of such strength that he would prefer to starve rather than share his concerns, and would prefer to serve his entire sentence rather than expose those beliefs to a court's scrutiny". In conclusion, Dr Vine said that the appellant -

"is currently prescribed treatment for psychotic symptoms, but it is my opinion that he is unlikely to be being compliant with such treatment. Mr Ahmed's current presentation is consistent with a delusional disorder, that is, a circumscribed and fixed but false belief. Delusional disorder is one of the functional psychoses, but is not generally associated with the same level of dysfunction as other psychoses, for example, schizophrenia. I do not believe at this time that he shows the disorganisation and deterioration of function consistent with a diagnosis of schizophrenia. Also, as noted above, it is certainly possible that Mr Ahmed was experiencing some of the symptoms of a delusional disorder at the time of committing the offences, but, in my opinion, his offences were more likely to be related to his social circumstances and his drug use at that time."

10 In a second report dated 13 October, Dr Vine said that the appellant's belief that his food was being tampered with followed a complicated and somewhat confusing sequence of events, both prior to and following his incarceration. She said that he described his initial offences as having occurred during a period of considerable stress in his life, although it was unclear how directly the offences related to his belief of being under surveillance and under pressure from others.

11 Her report continues -

"The offences would appear to have occurred in the context of recommencement of substance use, increasing stressors and a sense that he was unable to honour his family obligations, including those to his wife and two young children, who are currently resident in Kenya, as well as an increasing concern that he was under surveillance by others. Mr Ahmed was reluctant to expand on the reasons behind such surveillance. After a period of some fifteen months in prison, Mr Ahmed developed a belief that his food was being tampered with. He believes that this was substantiated by his experiencing difficulty in sleeping, abdominal disturbance and perhaps vomiting of blood, as well as an altered sensation in relation to his brain and body. Mr Ahmed remains convinced of these beliefs, extending his concerns about others' actions beyond the prison staff to medical and nursing staff in the hospital.

As noted in my earlier report, I believe Mr Ahmed's presentation is consistent with that of a Delusional Disorder, paranoid type, with relatively circumscribed persecutory beliefs in relation to tampering with his food. He does not show evidence of formal thought disorder, perceptual disturbance or referential disorder, nor loss of effective reactivity or deterioration of general functioning, which would be expected if he had suffered from an acute psychosis such as a schizophrenic disorder. Mr Ahmed is receiving antipsychotic treatment, although it would appear that this has had little, if any, impact upon his beliefs to date. His behaviour has been reasonably settled while in the hospital, with minimal recurrence of either self-harming behaviour or harm towards other staff or patients.

Given Mr Ahmed's persistent belief that others are tampering with his food, which is of delusional content or proportion, it would seem unlikely that he will be able to be returned to the prison in the foreseeable future. Should Mr Ahmed be successful in his appeal such that his sentence is reduced and he becomes eligible for release, it would be appropriate, in my view, that he continue to be under psychiatric supervision in the community. Mr Ahmed states that if he were not in prison, he would return to live with family in North Melbourne. I understand that his family is very supportive of Mr Ahmed and would be able to provide close support and supervision."

On the basis of this material, Mr Boyce for the appellant submitted that evidence may be received by this Court of an illness suffered by a person who has been sentenced when such illness has become known only after the time of sentence so long as it can reasonably be concluded that the illness was in existence, albeit perhaps in a dormant state, prior to imposition of sentence. He relied on Bailey[1] and Eliasen[2]. Secondly, evidence of a relevant, pre-existing state of affairs may be admissible on appeal in order to avoid a miscarriage of justice even where an appellant (and the appellant's legal advisers) knew of the existence of the illness but did not raise it on the plea; see Knights[3] and R. v. Maniades[4].

12 On the basis of Dr Vine's two reports, Mr Boyce submits that the appellant continues to suffer from persecutory beliefs, believing that his life and lives of his family are at risk. He is currently prescribed an antipsychotic drug olanzapine, for his psychotic symptoms. It is argued that it appears that the offences occurred during a period when the appellant believed that he was under surveillance from others including the police. His beliefs are clearly delusional, although sincerely held by him. His current presentation is consistent with a delusional disorder that is one of the functional psychoses, although not as extreme as schizophrenia. Finally it is put that it is certainly possible that the appellant was experiencing some symptoms of a delusional disorder at the time of the commission of the offences.

13 On this basis, and supported by some further material from Dr Vine which was conveyed to us by counsel, Mr Southey for the Crown did not seek to contest that, at the time of sentence, the condition from which it is now clear that the appellant is suffering was present, but latent, at the time of sentencing.

14 It is apparent that the condition from which the appellant now suffers only truly manifested itself or came to the attention of health professionals since the date of sentence. There was in fact no reference to his suffering a delusional disorder on the plea, nor was there any reference to it in the report of Dr Christopher Wong which was tendered on the plea. It is argued that the appellant's condition, while not as extreme as schizophrenia, may still be relevant, in a general mitigatory sense, to the imposition of sentence; see R. v. Boxtel[5]; R. v. Smith[6]. Mr Boyce submitted that Dr Vine's reports provided evidence which was admissible and relevant in a mitigatory sense to the imposition of the appellant's sentence, and accordingly argued that the sentencing discretion was re-opened and that the appellant should be re-sentenced.

15 Mr Southey properly did not seek to challenge the view that the evidence was shown to be admissible, and also that the evidence established that service of a prison sentence was now shown to be more burdensome to the appellant, matters which were not within the knowledge of the sentencing judge at the time of sentence.

16 The evidence establishes that the appellant was indeed suffering from a delusional disorder in existence, but latent, when he was sentenced on 17 December. His beliefs, as explained by Dr Vine, are fixed and apparently unchallengeable, and involve a range of police, custodial and health staff, and are of such strength that he would prefer to starve rather than share his concerns, and would prefer to serve his entire sentence rather than expose these beliefs to scrutiny by a court. Dr Vine's view was that it is unlikely that he will be able to be returned to the prison in the foreseeable future, presumably, therefore, being required to be held in the Argyle Unit at the Thomas Embling Hospital. According to Dr Vine's last report, since his re-admission to the hospital on 31 August, he had continued to decline any food prepared or offered by staff at the Thomas Embling Hospital and his family continue to bring him food on a daily basis. We were informed in court this morning by Mr Boyce that the appellant maintains the view, and that he was expressly instructed to inform the Court of this, that the staff at the hospital are still attempting to kill the appellant.

17 It follows in my view in these circumstances that the delusional disorder suffered by the appellant is of such a nature that imprisonment will be a greater burden upon him, and that there is a risk of imprisonment having a significantly adverse effect on his health. The burden of serving a sentence is thus increased by reason of his disorder. It follows that the evidence of Dr Vine has been shown to be admissible[7] and that the sentencing discretion is reopened.

18 The question now becomes what sentence this Court should impose on the appellant. It is necessary to say at once that no error of any kind was said to have been present in the judge's sentencing reasons. The judge dealt with the appellant most sympathetically, accepting that in many respects the appellant's was a very sad case. There can be no conceivable claim of manifest excess, all matters relevant to mitigation of penalty were mentioned by the judge, and the sentence imposed by his Honour was both moderate and compassionate both in relation to head sentence and non-parole period. The judge was however particularly concerned that it was not possible to be particularly optimistic about rehabilitation, having regard to the appellant's past criminal history. His drug problem was known to be long-standing and he had been given many opportunities by courts in the past, all of which had come to nothing. The seriousness of the offences for which the appellant was sentenced was high and the impact on the victims of the three armed robberies and the robbery had to be given serious consideration.

19 As Callaway, J.A. pointed out in R. v. Izzard[8], mental illness is not solely a mitigatory factor. It may mean that the offender, whilst deserving of compassion, is also a greater danger to the community.[9] In the present case, I am not persuaded that this Court should vary in any respect the individual sentences imposed on the 12 counts on 17 December 2004, nor the orders for cumulation. Accordingly, I would leave standing the head sentence of six years imposed by the judge. In so far as the non-parole period is concerned, notwithstanding that imprisonment will be a greater burden for the appellant by reason of his delusional disorder, protection of the community remains a serious and continuing concern in re-sentencing by this Court, having regard to the seriousness of the offences for which the appellant was sentenced, his prior criminal history, and the judge's reservations as to the appellant's potential for rehabilitation, which seems to me entirely justified. In the circumstances, the only variation I would now make to the sentence originally imposed by the judge would be to fix a non-parole period of three years, in place of the period fixed by the sentencing judge.

20 I would accordingly allow the appeal, solely for the purpose of reducing the non-parole period to three years.

21 I agree, except that the protection of the community has weighed more heavily with me in affirming the head sentence than in concurring in the non-parole period that his Honour proposes.

22 I agree with Charles, J.A., for the reasons which his Honour gives, that this appeal should be allowed and that the orders proposed by his Honour should be made.

23 The orders of the Court are as follows:

The appeal is allowed.

The individual sentences imposed by the judge on each of the 12 counts on 17 December 2004 are confirmed and the orders for cumulation of sentence made by his Honour are confirmed.

The total effective sentence is therefore six years' imprisonment.

The Court fixes a non-parole period of three years.

The Court declares that, as at this day, the period to be reckoned as already served under this sentence is 707 days and directs that the fact of the making of this declaration and its details be noted in the records of the Court.

[1] (1988) 35 A.Crim.R. 458.

[2] (1991) 53 A.Crim.R. 391.

[3] (1993) 70 A.Crim.R. 105 at 110.

[4] [1996] QCA 242; [1997] 1 Qd.R. 593 at 597.

[5] [2005] VSCA 175 at [29].

[6] (1987) 44 S.A.S.R. 587 at 589 per King, C.J.

[7] Eliasen (1991) 53 A.Crim.R. 391 per Crockett, J. at 395-396; Smith (1987) 44 S.A.S.R. 587; Bailey (1988) 35 A.Crim.R. 458.

[8] [2003] VSCA 152; (2003) 7 V.R. 480 at [15].

[9] R. v. Engert (1995) 84 A.Crim.R. 67 at 68 and 70-71 per Gleeson, C.J.; R. v. Bux [2002] VSCA 126; (2002) 132 A.Crim.R. 395 at 402-404 [33]- [40].