R v Christie [2000] VSCA 183

9. Ronald and Carol Christie were divorced when their children were young but thereafter had maintained a good relationship and shared custody of their three sons. In August 1998 McLintock with his mother and three children moved in with Carol Christie. At that time her two younger sons, the appellant and his brother Quinton, also lived with their mother. This cohabitation immediately led to conflict within the household and McLintock used violence against both the appellant and Carol Christie.

12. On the evening of 14 December 1998 at approximately midnight Carol Christie answered a knock on the door of the Rosebud home and found there her son and ex-husband. Ronald Christie had a baseball bat and the appellant carried a machete-like cane knife. The men forced their way into the home. McLintock was sitting in the loungeroom watching television. The appellant was screaming about McLintock hitting his mother and Ronald was yelling that he would kill McLintock and telling his ex-wife to pack her things and come with them. The two men set upon McLintock with their weapons, and Carol Christie attempted to protect McLintock. McLintock suffered serious injuries including a lacerating blow which damaged his left eyeball and created a permanent facial scar. Carol Christie was injured in the melee, suffering lacerating and crushing injuries to her left hand which required surgical intervention. At least part of the assault was observed by McLintock's seven-year-old son.

15. The appellant and his father were arrested on Friday 18 December 1998 and made full admissions as to their roles in the offending. The appellant described his motivation for the attack upon McLintock as a desire for vengeance following McLintock's hurting his mother. He stated that he had taken the cane knife into the house because he was afraid of McLintock, and considered that his father's baseball bat did not confer sufficient advantage. Inside the house he lost control and scared himself with his own actions. In his interview with police he expressed remorse for what he had done.

18. A plea was heard before a County Court judge on 29 October 1999 and the appellant admitted four previous court appearances upon which he had been found guilty of 19 charges. No convictions had been entered in respect of these matters.

21. On 16 November 1999 the appellant was sentenced to a community-based order ("CBO") with a special condition that he perform 200 hours of community work over a period of two years. Ronald Christie was sentenced to be imprisoned on each of counts 1 and 2 for a period of 18 months and the judge ordered that 12 months of the sentence on count 2 be served cumulatively upon the sentence on count 1, making a total effective sentence of two-and-a-half years' imprisonment. The judge ordered that the whole of that period be suspended for three years.

24. On 30 June 2000 the appellant was brought back before the same judge in proceedings for a breach of his CBO because of the appellant's failure to comply with the conditions imposed. A report prepared by a community corrections officer recorded that the appellant had failed to attend for unpaid community work as directed on 23 November, 7 December and 14 December, had left community work without permission on 30 November and had failed to report as directed on 8 December 1999. The officer stated his opinion that the appellant had not yet shown due attention to the CBO and recommended that it be cancelled and that the appellant be re-sentenced on the original charges. A senior corrections officer in the same report described the appellant's conduct as appalling and supported the corrections officer's recommendation.

27. When the matter was brought back before the judge, his Honour sought an assessment of the appellant's suitability for detention in a youth training centre, and heard evidence given orally by an officer of the Office of Corrections, Mr Stephen Riordan.

30. On 30 June 2000 the judge sentenced the appellant to be detained in a youth training centre for the period of nine months. A declaration that 28 days of that sentence had already been served was made.

33. By application dated 12 July 2000 the appellant sought leave to appeal against sentence. On 15 September the appellant was granted leave to appeal pursuant to s.582 of the Crimes Act 1986.

36. A large number of grounds of appeal were relied upon by the appellant but in the events which have occurred it is necessary to mention only two of them. Ground 1 claimed that the sentencing judge had erred (a) in imposing an aggregate sentence of detention in a youth training centre and (b) in failing to impose a separate sentence on each count. The judge's sentencing reasons make it apparent that an aggregate sentence was imposed on all three counts and that separate sentences were not passed on individual counts. This is confirmed by the Return of Prisoners. Mr Croucher for the appellant submitted that this approach was in error. In support of this submission it was argued that s.9 of the Sentencing Act 1991 gives the Magistrates' Court express power to impose an aggregate sentence in respect of multiple offences. In the absence of a similar provision giving like power to the County Court it was submitted that the judge was not entitled to impose an aggregate sentence as he did. Mr Horgan who appeared for the Crown conceded in his helpful submissions that sentencing error had occurred under ground 1 and referred to s.33(1) of the Sentencing Act as suggesting that the judge was obliged to impose separate terms of detention in respect of each offence. Mr Horgan accepted that this error reopened the sentencing discretion. Accordingly the Court invited Mr Croucher to argue the appeal as, in effect, a plea.

39. Under ground 5 of the notice of appeal, the appellant had sought to lead fresh evidence as to (a) the deterioration in his mental and psychological state and his estimated IQ since sentence and (b) his unsuitability for detention in a youth training centre. Mr Horgan at first submitted that the Court should not receive this evidence, but in the light of what was said by the Victorian Court of Criminal Appeal in R. v. Carroll [1991] 2 V.R.509 at 511 withdrew his objection to the Court receiving the further evidence tendered on behalf of the appellant and to which I shall now refer.

42. When the judge first sentenced the appellant on 16 November 1999, his Honour had before him a report dated 26 October 1999 from a forensic psychologist, Bernard Healey. Mr Healey said that after intellectual testing the appellant was shown to have a full-scale IQ of 85 placing him in the 16th percentile where 84 per cent would do better. In his opinion the appellant had accompanied his father to the Rosebud dwelling in order to "teach a lesson" to his mother's assailant. The appellant had felt he was there to support his father, but being afraid for his father's well-being had smuggled the cane knife into the house. Matters were then complicated by the fact that his father accidentally struck him on the back of his head with the baseball bat in the ensuing struggle. Mr Healey stated his opinion that it was important that he not be placed in an adult prison which would have an adverse effect upon him and hoped that he would be given an opportunity to serve any penalty by other than custodial means.

45. When the judge came to re-sentence the appellant after his CBO had been breached, his Honour had before him the corrections officer's report which indicated that Community Correctional Services were unaware of any issues that may have affected the appellant's compliance with his obligations. His Honour also had a report dated 29 June 2000 from a psychiatrist, Dr Mark Taylor, in which Dr Taylor reported a decline in the appellant's mental health over the last year and symptoms consistent with a major mental illness such as psychosis, including auditory hallucinations and paranoia as well as the so-called negative symptoms of schizophrenia including de-motivation, poverty of thought and social withdrawal. Dr Taylor noted there had been some improvement in the appellant's mental health after his general practitioner wisely commenced him on an oral anti-psychotic medication some five months previously. Dr Taylor said as to the breach of the CBO that it was possible that due to the appellant's diminished social awareness and low level of intellect he did not appreciate the gravity of the CBO. He recommended that should the Court now be minded to pursue a community-based disposal the appellant be mandated as part of any community order into seeking treatment for his psychiatric disorder at the local area mental health service.

48. The additional material placed before this Court in relation to the appellant included an affidavit sworn on 18 September 2000 by Gerard Robert Bryant, the appellant's solicitor. Mr Bryant exhibited a report by Ms Sharyn Bunn, a psychologist of the Health Services Department. Ms Bunn's report indicated that the appellant had been tested again and had achieved a full scale IQ of 64 placing him at the first percentile where 99 per cent would do better. His presentation since arriving at Malmsbury appeared to reflect marked withdrawal and detachment and his apparent decrease in cognitive functioning had led him to be recommended for further psychiatric assessment. Ms Bunn said that it appeared that the appellant was currently functioning within the confines of an active mental illness and recommended that he continue with his medication regime and receive regular review by a psychiatrist. Mr Bryant also exhibited an assessment dated 30 August 2000 made by Irene Herceg and Maria McPhail of the Koonung Community Mental Health Centre at Box Hill. That assessment records that the appellant had developed psychotic symptoms in 1998 and that following the assault on his mother's boyfriend and ensuing court proceedings "his symptoms worsened, rendering him incapable of complying with community-based order. During his incarceration, firstly at Port Phillip Prison and then Malmsbury Juvenile Justice Centre, he has become progressively isolated and withdrawn. He presents with blunted affect, cognitive impairment, inappropriate smiling and poverty of thought." The immediate action plan which followed included the opinion that the appellant "requires in-patient assessment, full neuro-psych testing and thorough physical assessment including CT scan of head and full blood screens."

51. A further affidavit in support of the appellant was sworn on 19 September 2000 by Ron Boshuizen, the unit manager of Malmsbury Juvenile Justice Centre. Mr Boshuizen said that the appellant was considered to be extremely vulnerable and appeared withdrawn, extremely difficult to engage and suffering ill mental health. He confirmed the significant drop in the appellant's IQ from 84 to 63. An in-patient assessment already carried out on the appellant had resulted in him being certified and committed to the Alexander Baine Centre at Bendigo Base Hospital on 13 September. He was due to be released on 20 September (yesterday). Mr Boshuizen said in his view that -

"Malmsbury does not have the requisite resources to adequately care for the appellant due to his intellectual disability and poor mental health and ... he remains vulnerable and at risk whilst in detention."

55. In these circumstances Mr Croucher submitted that the options open to the Court on re-sentencing the appellant were the following: first, to reduce the sentence previously imposed to time served, which would have the effect of the appellant being immediately released having spent something less than four months in custody; secondly, to impose a total effective sentence of six months in a youth training centre, the effect of which would be that the appellant would remain under the control of the youth training centre authorities for a short additional period subject to such remissions as might be granted; or thirdly, to have the appellant assessed for a new CBO, but without the work component condition. After some argument, I think both Mr Croucher and Mr Horgan joined in submitting that the preferable course, in the light of the new information available to the Court (and which was of course not available to the sentencing judge on 30 June 2000) was to re-sentence the appellant by substituting a total effective sentence of six months in a youth training centre.

58. Further inquiries overnight have established that a detailed departmental plan has in fact already been prepared for the medical care and supervision of the appellant.

61. The sentencing of the appellant is a very difficult matter and fraught with risk. In all the circumstances I would propose that the appeal should be allowed, that the appellant be re-sentenced on each count to be detained in a youth training centre for six months, the sentences all to be served concurrently. I would recommend that he be given all medical assistance that is available for his medical and mental conditions and that he be released on parole in conformity with the detailed departmental plan that has already been prepared to facilitate his reintegration into the community.

The appeal is allowed. The sentence imposed on the appellant in the court below is set aside. In lieu thereof he is sentenced on each count to be detained in a youth training centre for six months. The Court directs that those sentences be served concurrently with each other.

77. The Court recommends that the appellant be given all medical assistance that is available for his medical and mental conditions and that he be released on parole in conformity with the detailed departmental plan that has already been prepared to facilitate his reintegration into the community.

80. The Court declares that the period of 112 days is the period of pre-sentence detention already served by the appellant as part of the said sentence and directs that the making of this declaration and its contents be entered in the records of the Court.