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[2009] VSCA 38
General information, not legal advice.
Court of Appeal (Vic)
2009-03-17
DODDS-STREETON and WEINBERG JJA and, WILLIAMS, AJA
Original judgment source is linked above.
CRIMINAL LAW - Sentencing - Manslaughter by unlawful and dangerous act - Guilty plea - Severe assault on boarder - Offender with acquired brain damage - Whether sufficient weight given to effects of mental impairment - Whether judge erred by failing to consider effect of mental impairment on experience of imprisonment - Whether sentence of 9 years' imprisonment with non-parole period of 6 years manifestly excessive.
1 I have had the benefit of reading in draft the reasons for judgment prepared by Williams AJA. I agree with the disposition proposed by her Honour and the reasons she gives.
2 I have had the advantage of reading, in draft, the reasons of Williams AJA. I agree, for the reasons given by her Honour, that the appeal should be dismissed.
3 On 30 April 2007, after a guilty plea, the appellant was convicted of the manslaughter of Michael Iorlano on 26 July 2005. On 29 August 2007, he was sentenced to nine years' imprisonment with a non-parole period of six years. He appeals from the whole of the sentence.
4 On 26 July 2005, the appellant was 41 years old. He was unemployed and had been living in a rented house in Springvale for some 12 months. He had been an alcoholic.
5 The appellant's rent was being paid out of his pension by State Trustees. He had taken in some five boarders on an unofficial basis to supplement his income over the 12 months of his tenancy. On about 15 July 2005, he had sublet a room to Mr Iorlano, a 55 year old homeless alcoholic man.
6 By 26 July 2005, the appellant considered that Mr Iorlano owed him $140 in rent. He told an acquaintance that if Mr Iorlano did not pay his rent that day, he would 'kick him out'.
7 The appellant was frustrated because he did not have cigarettes or beer. He wrote a note for Mr Iorlano requesting the rent and emphasising the urgency of payment. Mr Iorlano was out for most of the day and returned in the late afternoon, very drunk, with some bottles of beer. He offered the appellant a bottle which he drank. The appellant requested the $140, but Mr Iorlano gave him only $70, asserting that that was all he had and that he was not going to pay more. This made the appellant cross. Mr Iorlano became verbally aggressive and started talking about his own problems. The argument became heated. Mr Iorlano struck the appellant with the back of his hand to the side of the head and then pushed him as he tried to rise.
8 The appellant was a very strong man in the upper body and had previously worked as a tree-lopper. He was not afraid of Mr Iorlano whom he described to police as being about his size, but some 10 or 12 years older. Although painful, Mr Iorlano's blow was not particularly hard. The appellant was angry and, in retaliation, picked up a cable with a heavy metal hook on the end (which he had previously used when climbing trees) and swung it hard at Mr Iorlano, striking the side of his head with the hook. Mr Iorlano's blood was later found on the hook. He went off to his room, still remonstrating with the appellant.
9 The appellant was agitated and walked to the Springvale RSL where he bought three bottles of beer. He told a Mr Smith, who served him, that his boarder was 'holding out' with regard to $70 rent. Mr Smith thought that he appeared to be his 'normal self' and did not seem upset, angry or affected by alcohol.
10 When the appellant arrived home after some 25 minutes, he expected Mr Iorlano to be gone. He was not and the appellant heard him yelling disparaging things about him from his room. After about 10 minutes, the appellant went into Mr Iorlano's room to confront him, without having drunk any more alcohol. Mr Iorlano was sitting on his bed, watching television. He told the appellant to get out of his room and grappled with him to try to make him leave, but he did not hit the appellant.
11 The appellant began to hit Mr Iorlano with both fists to the face and ribs many times. He knocked him to the floor and continued to strike him with both fists. He struck him eight to ten times, mainly to the face. Mr Iorlano began asking for mercy and to be left alone, but the appellant punched him a couple more times.
12 The sentencing judge characterised the attack as ferocious. Mr Iorlano suffered numerous severe external and internal injuries to the face, chest, abdomen, neck, arms and legs. He had fractures to the skull and nose, to the maxilla in five places and to the zygomatic arch on both sides, as well as to eight right ribs and six left ribs. He sustained a number of injuries to his hands and arms that may have been defensive. He suffered significant internal damage. The post mortem investigation showed that there had been numerous and severe blows to the head, chest and abdomen. The learned sentencing judge was not able to determine whether or not Mr Iorlano had died in the course of the assault, but did find that his death was caused by a haemorrhage and blunt abdominal trauma whilst he was suffering from severe facial injuries and rib fractures. Mr Iorlano had a blood alcohol content of .21% at the time of death.
13 Immediately after the second episode, the appellant who, at that stage, did not believe Mr Iorlano was dead, walked to a friend's nearby house to seek help to remove him from the house. When the two men went into the house, the friend could see Mr Iorlano was dead and told the appellant so. The friend telephoned the emergency services and the two men waited for the police and ambulance to arrive.
14 In his subsequent police interview, the appellant said that his own actions sounded cruel and horrible. He said that he did not intend Mr Iorlano to lose his life and that he would change that if he could. He admitted that Mr Iorlano had only hit him once, during the first episode. He claimed that Mr Iorlano had been ready to fight him in the bedroom and that he had been frightened of being hit, because a doctor had told him he had a blood clot in his head and that if it moved he would die. He told police he was intending to teach Mr Iorlano a lesson that he should not grab him in his own house or attack him. The appellant said that he had felt that he had to defend himself.
15 The appellant acknowledged to police that he had done the wrong thing. He agreed that he was angry with Mr Iorlano in relation to the rent, but said that he was not out of control. He said that he had been trying to assert himself with Mr Iorlano. He denied considering that he might cause him serious injury or even kill him. He mentioned that he had had similar fights with his older brothers without them dying. He claimed that the second episode lasted only about two minutes and, at one stage, expressed the idea that someone else might have entered the house afterwards and injured Mr Iorlano.
16 The appellant was born on 21 October 1963 in Melbourne, one of ten children. He was educated at St Bede's College, Mentone to form five level. After leaving school at 17, he married at the age of 18. He and his wife had four children now aged between 23 and 15.
17 The appellant worked as a labourer and eventually became a tree lopper, completing an Advanced Arboriculture at Burnley Horticultural College in the 1980s. He considered himself to have been one of the top three or four tree loppers in Victoria and had set up his own tree-lopping business just before October 2001 .
18 The appellant had a history of recurrent depression and harmful use of alcohol and other drugs. He had separated from his wife in 1999 and had subsequently become an alcoholic. In 2001, he had lost his licence for three years for exceeding the prescribed alcohol limit and driving at dangerous speed. He had been placed on a community based order, with requirements for drug and alcohol treatment. He had breached the community based order in the context of the accident to which I will shortly refer. He had an old conviction for possession of cannabis. The judge noted that the appellant had not previously been imprisoned.
19 The learned sentencing judge accepted that the appellant's personality and situation had changed following an accident in October 2001 when he was caught in a train door and dragged along for some time ('the accident').
20 The appellant was intoxicated on the day of the accident. He sustained a heavy blow on the head. He suffered a haematoma, a fractured left temporal lobe and post traumatic amnesia for between eight and 25 days. He was in hospital for six weeks and had three or four months of outpatient treatment.
21 Before the accident, the appellant had had a very good relationship with his children and there had been no bitterness associated with the breakdown of his marriage. After the accident, he returned to live with his wife for a few months. This was unsuccessful and he moved in with his parents. Eventually, his drinking caused problems and State Trustees found him the Springvale house.
22 The appellant's brother gave evidence of the change in his personality after the accident. He said that, although other people might not have recognised the brain damage, his family was aware of it. The appellant had become frustrated and annoyed quickly and angry on occasions and would become distant for short times during conversations. He had been very worried about receiving another knock on the head. His brother had heard about him becoming violent and having required restraint during an argument with another brother. He had also heard about him having physically restrained a train inspector about to eject him from a train, because he was worried about being hit on the head.
The expert evidence about the appellant's mental state
23 The learned sentencing judge had before him a number of medical reports, prepared between about July 2003 and July 2004 in connection with the appellant's claim for compensation against the Transport Accident Commission in relation to the accident.
24 The judge found that the medical reports showed that, in about mid 2004, as a result of the accident, the appellant suffered from dizziness, impaired vision, epileptic seizures, short term memory problems, social withdrawal, loss of independence and resulting loss of self-esteem, proneness to occasional mounting irritability and frustration, as well as loss of temper and violence, depression, clear cognitive difficulties with impaired concentration, attention and attendance to complex tasks, anger management problems, significant changes to his personality and behaviour, executive dysfunction and anxiety, balance problems, fatigue, inability to achieve more than a sheltered workshop level of functioning and increased verbosity. Dr John Lloyd, a neuropsychiatrist, had assessed his whole person impairment from combined neurological and psychiatric deficits at 22% and the psychiatrist, Dr Nathan Serry, had assessed it at 25%.
25 His Honour found that each of the appellant's disabilities and problems had persisted up to the time of the offence and that his pre-existing depression and his past and continuing harmful use of alcohol and illicit drugs also contributed to his mental condition at that point.
26 The court had been provided with one more up to date report. It was from Dr Andrew Carroll, a consulting forensic psychiatrist, and was dated 20 March 2007. Dr Carroll had examined the appellant on 14 February 2007, at the request of the Director of Public Prosecutions.
27 Dr Carroll recorded a history of recurrent depression, intermittent harmful use of alcohol and amphetamines and a serious traumatic brain injury sustained in 2001. He found no evidence of a psychotic disorder. He noted that the appellant was in stable accommodation, not clinically depressed and that he had been keeping alcohol and substance abuse under reasonable control at the time of the offence. Dr Carroll saw no evidence that he was either intoxicated or suffering from mental illness symptoms at the time of the offence.
28 Dr Carroll stated that it was well recognised that the sequelae of brain injury can be life-long and that victims generally plateau in terms of functioning, making further improvement unlikely. Dr Carroll concluded that the appellant's cognitive deficits were not such as to deprive him of the capacity to form an intent to kill. He also said that poor impulse control was commonly noted in sufferers of brain injury, but that, even if this were to be a feature of the appellant's long term clinical picture, it had not been shown to have played a major part in the offence.
29 Dr Carroll did speculate that it might have been possible that the appellant's cognitive deficits may have impaired his ability to monitor and judge the physical force used in the second encounter with Mr Iorlano. The learned sentencing judge, nevertheless, concluded that the savagery of the attack suggested that poor impulse control played a role in the appellant's offending behaviour. His Honour also accepted the possibility that the appellant's higher order cognitive deficits might have impaired his ability to monitor and judge the physical force used in his second encounter with Mr Iorlano. He found that the appellant's thinking at the time of the killing had been influenced by his genuine belief that he was at risk of a clot (absent evidence that he had been so advised) as well as by a baseless fear of an attack unless he dealt severely with Mr Iorlano. The judge concluded that these matters indicated the appellant's impaired judgment and his lack of the ability to think clearly and to appreciate the wrongfulness of his conduct.
30 His Honour found that the appellant's mental impairments at the time of the offence had, to some extent, effects of the sort held by the Court in R v Verdins[1] to be capable of reducing moral culpability by :
(a) impairing his ability to exercise appropriate judgment;
(b) impairing his ability to make calm and rational choices;
(d) impairing his ability to appreciate the wrongfulness of the conduct;
(e) obscuring the intent to commit the offence; and
(f) contributing causally to the commission of the offence.
31 Significantly, his Honour found that the appellant continued to suffer from significant mental impairment at the time of sentencing. He noted that, in custody, he was receiving appropriate medication for depression as well as an anticonvulsant with mood stabilising properties. His Honour nevertheless concluded that, although the appellant's access to alcohol and drugs had been restricted, there was no evidence to suggest that his various other mental disabilities and problems were in any way diminished.
32 The learned sentencing judge then went on to say:
33 His Honour referred to the future impact of the appellant's brain damage when he said :
34 The judge noted the evidence of the appellant's continuing lack of insight with regard to his own volatility and expressed little confidence that similar difficulties would not arise in the future. Relevantly, his Honour said:
35 He went on to state that he took the appellant's acquired brain damage into account as a mitigating factor, along with his guilty plea, remorse and absence of prior convictions for violence and lack of real pre-meditation.
36 The grounds of appeal were stated as follows in the 6 October 2008 Full Statement Of The Grounds Of Appeal Upon Which The Appellant Intends To Rely:
1. The learned sentencing judge erred by failing adequately to synthesize, and reflect in the sentence imposed, the appellant's acquired brain injury.
2. The learned sentencing judge erred by attaching insufficient weight to, and failing to reflect in the sentence imposed, the significance of the appellant's:
(a) admissions;
(b) plea of guilty; and
(c) remorse.
3. The learned sentencing judge erred by attaching, in the circumstances of the appellant's case, too much weight to:
(a) the appellant's apparent lack of insight;
(b) deterrence;
(b) denunciation; and
(c) punishment.
37 Counsel for the appellant first generally submitted that the sentence disclosed error by failing to reflect the judge's findings in his favour and, in particular, the findings as to the effects of his acquired brain damage. The result was that the sentence was manifestly excessive.
38 He also argued that the sentencing discretion was reopened because the learned sentencing judge had failed to consider whether the appellant's mental impairment would have the effect that a sentence would weigh more heavily upon him than upon another. I will deal with this contention first.
Failure to consider the effect of mental impairment on experience of imprisonment
39 Counsel relied upon the judge's findings as to the numerous consequences of the appellant's mental impairment. He submitted, in essence, that those effects should have been found to have distinguished the appellant from other prisoners, making his incarceration more difficult than for someone of normal mental health.
40 Senior counsel for the respondent denied that any error occurred. He pointed out that there had been no submission made on the appellant's behalf that his impairment would affect his experience of imprisonment in the relevant way. He also argued that there was no evidence to support such a finding.
41 Whilst, undoubtedly, the effects of mental impairment might result in imprisonment weighing more heavily upon an offender, I am not persuaded that his Honour should have found that appellant's cognitive difficulties, volatility and aggressiveness and the other matters relied upon were likely to have done so. Indeed, the appellant had been incarcerated for over two years by the time he was sentenced and not only was there was insufficient evidence to support such a finding but there was evidence that he was coping well despite his condition.
42 Dr Carroll had examined him after he had been in custody for over eighteen months. He described the appellant as a cooperative interviewee with whom he could establish a good rapport. He said that the appellant showed no guardedness and talked spontaneously and coherently and had a bright and reactive affect. Although the appellant had described himself as being 'medicated out of being realistic', he had told Dr Carroll that he slept well, had a good appetite and had no thoughts of harming himself or anyone else. The doctor found no evidence of psychotic phenomena and had observed the appellant to be fully alert and orientated and able to attend throughout. Although the appellant had mentioned awareness of some short term memory problems, Dr Carroll said that they were not demonstrated during the interview, where he had given a good account of recent events in his life and of the world around him. The appellant had also demonstrated a reasonable degree of insight into his predicament and the impact of his head injury on his life. He had told Dr Carroll (and the prison files had confirmed it) that he had been compliant with his medication and other treatment in prison.
43 The sentencing judge had also found that the appellant had begun a horticulture course at Port Phillip Prison (although a move to the Melbourne Remand Prison had prevented him from completing it). At the Melbourne Remand Prison he was living in one of four flats, each accommodating four prisoners, and was able to prepare his own meals and maintain the premises, if he wished to do so. The judge had presumed that his accommodation in the flat was an earned privilege. The appellant had also remained fond of the horticulture work he had been able to do around the flats and in which he had been employed five days a week within the prison.
44 Whilst an offender's impaired mental functioning might be relevant to sentencing in at least the six ways listed by the Court in Verdins when restating the Tsiaris principles,[2] it will not necessarily have an impact in each of those ways. There is no error in the learned judge's approach is this case where, not only was it not submitted that the appellant's mental impairment would result in his imprisonment weighing more heavily upon him than upon a person in normal health, but there was insufficient evidence to support any such conclusion and, indeed, evidence to the contrary.
Manifest excess and weight given to findings of fact
45 The appellant also submitted that both the head sentence and the non-parole period were at the higher end of the range for manslaughter sentences and were manifestly excessive in all the circumstances. He contended that the sentence indicated that the sentencing judge had failed to adequately and properly synthesize the matters found in the appellant's favour or to reflect them in the ultimate disposition.[3] In other words, the sentence was wholly outside the range of sentences it would have been reasonable to impose on the appellant for this offence, in all the circumstances as they were found by the sentencing judge.[4]
46 Counsel for the appellant argued that the sentence would have been within range, but for the distinguishing feature of the appellant's brain damage. He contended that the sentence failed to reflect an appropriate discount in accordance with the principles in Verdins. He sought to distinguish the appellant's case from one in which no or only a slight connection had been found between the offence and the offender's mental state.[5]
47 Counsel also put his submission that there had been an error in another way, arguing that insufficient weight had been given to the effects of that impairment and other findings favourable to the appellant and too much weight accorded to those made against him. Counsel relied upon the findings that the appellant had reacted to Mr Iorlano's verbal abuse, had been provoked and assaulted by Mr Iorlano and had surrendered to police. He also cited the appellant's admissions, his expressions of remorse and his guilty plea.
48 In relation to the question of the comparative seriousness of the offence, counsel for the appellant contrasted its circumstances with those on the basis of which a similar penalty had been imposed in recent times. He cited R v Casey[6], which involved a stabbing in the vicinity of the victim's children and also attracted a sentence of nine years' imprisonment with a six year non-parole period. He also referred to R v Stratton[7], where the Court re-sentenced the offender on appeal to nine years imprisonment with a seven year non-parole period in a case of death by gunshot. Counsel for the appellant also relied generally in this regard upon statistical and other information contained in the Sentencing Snapshots series prepared by the Sentencing Advisory Council.
49 The respondent submitted that the mitigatory factors to which the appellant referred had been specifically mentioned in the sentencing remarks. The respondent denied that they were given less weight than was appropriate.
50 Senior counsel for the respondent contended that the offence was properly characterised by the learned sentencing judge as very serious. He referred to the severity of the attack on Mr Iorlano, noting that it involved two assaults, separated by a trip to the RSL. Senior counsel also contrasted what he submitted was the calculated attack with one carried out in the heat of the moment.
51 Senior counsel reminded the Court of the increase in the maximum penalty for manslaughter from 15 to 20 years' imprisonment in 1997. He referred to the Court's observation in R v AB (No 2)[8] to the effect that courts had not responded to the legislative command to increase sentences for manslaughter and he submitted that heavier penalties were currently being imposed for this offence.
52 In his detailed reasons for sentence, the learned judge clearly addressed each of the issues raised in mitigation and, nevertheless, concluded that the offence was a serious example of manslaughter by unlawful and dangerous act. I am not persuaded that the sentence imposed indicated that he erred by giving too much weight to findings adverse to the appellant or to the sentencing objectives of deterrence, denunciation and punishment. Nor am I satisfied that his Honour accorded insufficient weight to the effects of the appellant's acquired brain damage or to any other mitigatory factors.
53 Material relating to sentencing trends provides a useful overview, informing the appellate determination as to manifest inadequacy or excess[9] and providing broad guidance on the question of consistency.[10] In the case of manslaughter, its utility is particularly limited, given the wide range of circumstances in which the offence may be committed and the recognised failure of sentencing courts to reflect the 1997 increase in the maximum penalty in their dispositions.
54 This is a serious example of unlawful and dangerous act manslaughter, as his Honour concluded. The effects of the appellant's acquired brain damage were relevant to the exercise of the judge's discretion and the learned sentencing judge has properly taken them and the other factors favourable to the appellant into account in accordance with relevant authority, both in relation to the head sentence and when fixing of the non-parole period.
55 Whilst the sentence might be described as being towards the top end of the appropriate range, neither it nor the non-parole are outside the range of dispositions which could reasonably have been imposed upon this appellant for this offence in all the circumstances. The sentence is not manifestly excessive.
[1] [2007] VSCA 102; (2007) 16 VR 269, [26].
[2] [2007] VSCA 102; (2007) 16 VR 269, [32].
[3] Referring to R v Casey [2008] VSCA 53; R v Stratton [2008] VSCA 130; and R v AB (No. 2) [2008] VSCA 39.
[4] See: R v Abbott [2007] VSCA 32; (2007) 170 A Crim R 306, [13]-[14] (Maxwell P), (Eames JA and Habersberger AJA agreeing).
[5] Citing R v Zander [2009] VSCA 10.
[8] [2008] VSCA 39, [48].
[9] R v Giordano [1998] 1 VR 544, 549 (Winneke P).
[10] R v Bangard [2005] VSCA 313, [11] (Buchanan JA) and [28]-[29] (Eames JA); R v Casey [2008] VSCA 53, [57] (Coldrey AJA), (Maxwell P and Neave JA agreeing).
R
Curtain [2009] VSCA 38
(2007) 16 VR 269