R v Danaher [2003] VSCA 119

Court of Appeal (Vic)|2003-08-06|Before: VINCENT, EAMES, JJ.A. and ASHLEY, A.J.A.

Criminal law - Intentionally causing serious injury - 8 years head sentence with 6½ year non-parole period - Fresh evidence showing true significance of facts which existed at the time of sentence - Diagnosis of serious mental disorder - Serious example of offence - No explanation for unusually high non-parole period - Head sentence not outside available range - Non-parole period manifestly excessive in light of matters including those revealed by fresh evidence - Applicant re-sentenced to non-parole period of 5 years.

The applicant, Richard Danaher, pleaded guilty in the County Court to one count of intentionally causing serious injury and one count of being a prescribed person in possession of a prohibited weapon. The offences to which he pleaded guilty were committed on 15 June 2001. On 18 October that year he was sentenced, after a plea hearing, to eight years' imprisonment on count 1 and twelve months' imprisonment on count 2. There was no cumulation. The judge fixed a non-parole period of six-and-a-half years. The maximum penalty on count 1 was 20 years; and on count 2, seven years.

The Crown asked the sentencing judge to act on a version of events concerning count 1 which sought to interweave accounts given by those present at the pertinent time. Those persons were the applicant, Mr Glenn Hassall and Mrs Nola Whiteford. Mr Hassall was the victim and Mrs Whiteford his mother and the de facto partner of the applicant. The judge, having heard viva voce evidence from Mrs Whiteford, was confirmed in his prima facie view that he should act on her account of events. That account, together with some other and uncontroversial material, was generally as follows:

In August or early September 2000, the applicant met Mrs Whiteford. They began a relationship. In February 2001 the applicant moved into Mrs Whiteford's home in Ringwood. I interpolate that the applicant was then unemployed. He had been a truck driver and his work record had been good, but some years earlier he had gone onto a disability pension. To return to the narrative, in May 2001 Mr Hassall returned from overseas. He moved into the house. Over the period until 15 June, antipathy developed between the two men. There were confrontations.

On 15 June Mrs Whiteford and the two men were home at a little after midday. Mrs Whiteford and the applicant were watching the television. Mr Hassall began fiddling with the remote control during breaks for advertising. Apparently he wanted to watch a video cassette. His actions annoyed the applicant, who made some sharp remarks. That led on to a shouting match, and pushing and shoving. In the course of this confrontation the applicant said words to the effect, "I'll shoot you." Mr Hassall replied by saying, "Oh, you are, are you?"

Mr Hassall then went into the bathroom of the house to shave. The applicant left the house and went to a locked shed at the rear of the property. He had either taken a key with him, or returned to the house and obtained a key. Having unlocked the shed he took hold of a single-barrel sawn-off shotgun which he kept there in an Esky. Probably it was unloaded, and he loaded it with ammunition which he also kept in the Esky. Mrs Whiteford went out to the back yard. She saw the applicant holding the shotgun. She immediately and repeatedly asked him to put it down, but he pushed her aside and entered the house. Then followed further verbal confrontation between the men. According to Mrs Whiteford, her son taunted the applicant, saying, inter alia, "So you've got a gun. What are you going to do now, shoot me?", and, in answer to the applicant saying, "I could shoot you, you silly cunt," "Oh, that makes you a big man." In the event, a point was reached when the applicant tilted the shotgun down, so that it pointed to Mr Hassall's left foot, and discharged it.

So much for the circumstances of the incident itself. These further matters must be mentioned. First, on the plea it was conceded by the applicant's counsel, in effect, that the shot was deliberately aimed at Mr Hassall's leg.

Second, the shotgun blast caused serious damage to Mr Hassall's ankle and foot. At the time of sentence Mr Hassall faced extensive reconstructive surgery and the prospect he might eventually require below-knee amputation. Additionally, according to the report of Mr Michael Papasava, psychologist, Mr Hassall was suffering from multiple psychological sequelae: post traumatic stress disorder, major depressive disorder, panic disorder and chronic pain disorder. The last mentioned, it might be observed, would seem to have had a perfectly understandable physical explanation.

Third, placed for the applicant before the learned sentencing judge was a report of Dr Lester Walton, psychiatrist. Dated 10 October 2001, the report was founded on a consultation held on the preceding day and upon Dr Walton's inspection of prison medical records. The applicant, in short, was disclosed to have a psychiatric medical history going back to at least 1991. It had involved five periods of short-lived hospitalisation. A consistent diagnosis had been antisocial personality disorder. The doctor, however, said that he remained to be convinced that such a diagnosis could be made. He concluded also that no depressive reaction was then present, though perhaps at times such a diagnosis would correctly be made. He did not express an opinion that the applicant's offending conduct could be attributed to any psychiatric disorder. He opined that -

"There would seem to be no obvious factors within my area of expertise which directly impact upon sentencing questions."

In what should be thought to be relevant to the commission of the offence, the doctor said that the applicant -

"appears to have been a somewhat irascible individual on a long term basis, there being a lengthy history of various situations of interpersonal conflict."

Fourth, Dr Walton's report noted a remark by the applicant which indicated lack of remorse. Thus:

"He got his right whack. I feel it's all his fault."

But the doctor also said that, informed of the extent of Mr Hassall's injury, the applicant "did display appropriate concern and sorrow".

Fifth, Mrs Whiteford gave evidence on the plea pertinent, for present purposes, to the applicant's medical situation and the question of remorse. Concerning the former, she referred to the applicant "struggling with his depression" and his being on antidepressant medication. Concerning the latter, she gave evidence indicative of some remorse on his part. I pause to say that Mrs Whiteford described her occupation as that of nurse.

Sixth, counsel for the applicant submitted to the learned sentencing judge that consideration must be given in his client's favour to the plea of guilty, the presence of some remorse, the age of the applicant and the background picture of antipathy between the two men. He did not make a submission that the applicant was suffering from a psychiatric disorder when the offences were committed or that the presence of such a condition could otherwise bear on the sentencing process.

So much for the circumstances of and surrounding count 1 as they stood when sentence was passed. Now I should briefly refer to count 2. The applicant admitted possession of the shotgun. He vaguely described its provenance in answer to questions put by the investigating police officers. Nothing, however, turns on that matter. Importantly for the purposes of count 2, as at June 2001 the applicant was prohibited in law from possessing such a weapon. That was because an intervention order had been made against him and remained extant.

I turn to the sentencing remarks of the learned judge. Sometimes he expressed conclusions as having that character. Sometimes that was simply the gist of what he said. The main conclusions of either character which can be found in the sentencing remarks are these:

First, the shot was deliberately aimed at Mr Hassall's leg.

Second, the injury did frightful damage. The prognosis was gloomy indeed.

Third, Mr Hassall's victim impact statement revealed the devastating effect of the applicant's conduct upon him.

Fourth, although the extent of the applicant's remorse was questionable, the presence of some remorse was accepted.

Fifth, the applicant did not possess the shotgun for any criminal purpose and the applicant had become a prohibited person only by reason of the intervention order being made against him.

Sixth, the past work record of the applicant, a man aged 58, was good until employment ended by reason of his being granted a disability pension.

Seventh, derived from Dr Walton's report, the applicant did not need psychiatric treatment and no obvious factors within the doctor's area of expertise directly impacted upon sentencing questions.

Eighth, the applicant was entitled to credit in that his plea of guilty had saved court time and money and had relieved Mr Hassall of the trauma of reliving and recounting his experience before a jury.

Ninth, the applicant's relevant prior convictions from four court appearances between December 1994 and September 2000 were for relatively minor offences of little present significance.

Tenth, in sentencing the applicant the factors of specific and general deterrence were pertinent, as was the need to satisfy the community that the applicant had been appropriately punished for what was a very serious crime.

The applicant relies on five grounds of appeal, the last two having been added pursuant to leave granted on 30 July this year. The grounds are as follows:

1. That in all the circumstances the sentence was manifestly excessive.

2. That the learned sentencing judge erred in that he did not give sufficient weight to the plea of guilty.

3. That the learned sentencing judge erred in that he did not give any or any sufficient weight to the prospects of rehabilitation or to the age of the applicant.

4. The sentence imposed is too severe given the opinion expressed by Dr Lester Walton in his report dated 21 July 2003, a copy of which is attached.

5. In the circumstances the principles of general and specific deterrence are given too much weight in the sentence imposed.

Grounds 4 and 5, Mr Thomas of counsel for the applicant indicated, were interrelated. It was contended that the sentences passed were too severe because they over-emphasised the role of specific and general deterrence in the circumstances revealed by the medical report referred to in ground 4. Nonetheless, ground 4 is able to stand alone.

It is convenient to deal with those grounds immediately. I note at the outset that in fact the applicant sought to rely on two recent reports provided by Dr Walton, not one. The first was attached to ground 4 and was dated 21 July this year. The second was dated 31 July and developed a matter left uncertain by the first. Today the Court granted the applicant leave to amend ground 4 appropriately, Mrs Pullen for the Crown not opposing that course.

Counsel for the applicant submitted that the reports refer to events occurring after sentence, those events being relevant not in themselves but as throwing light on circumstances which existed at the time of sentence or as showing the true significance of facts which were in existence at the time of sentence.[1] For that reason the reports should be admitted. Counsel for the respondent did not oppose that course, rather dwelling upon their content, which was said to be incomplete and unsatisfactory.

I should refer to particular opinions expressed in the recent reports. According to the first of them:

"Since this man has been incarcerated the picture seems to have changed to one of far more protracted depression and persisting auditory hallucinations." "I would be inclined to make a diagnosis of schizoeffective disorder which clinically is a combination of depression and schizophrenia." "Given the clinical picture has changed, I would now be inclined to describe this man as suffering from a major mental disorder which may be seen as having some relevance in relation to general deterrence."

"In my opinion ... there is a continuity of psychiatric symptomatology. The current clinical syndrome does not represent a newly-arising condition but a progression by way of deterioration of previous psychopathology which was well established prior to the time of sentencing."

The language of the second report, particularly, might be thought to have been framed with legal concepts pertaining to receipt of fresh evidence in mind. But let it be accepted that the doctor's opinion, though founded upon a single examination, and making no significant reference to treating medical records, should be taken at face value and received as casting light on the applicant's psychiatric state both on 15 June 2001 and at the time of sentence. It may then be said that the learned judge imposed sentence on a premise that was wrong in two respects. In 2001 Dr Walton concluded that there were no obvious factors within his areas of expertise which directly impacted upon sentencing questions. That conclusion was founded on his not being satisfied that the applicant suffered from an antisocial personality disorder or current depressive reaction. In consequence, his Honour sentenced the applicant on the basis, first, that he did not suffer any psychiatric disorder as could mitigate in any way his apparently irascible, antisocial behaviour on 15 June 2001; and second, that the applicant did not suffer a major psychiatric disorder which had the prospect or potential of deteriorating to the point where it produced significant symptoms and required prolonged hospitalisation.

Thus understood, the later reports may be said to show the true significance of facts known at the time, by which I mean the applicant's antisocial behaviour pattern which in 2001 Dr Walton did not attribute to a psychiatric disorder; and, as a corollary, the prospect that the then unrecognised psychiatric disorder might worsen and require hospitalisation. It is for that reason that the respondent was correct not to oppose the admission of the reports.

Where does that lead? Mrs Pullen accepted that if the later reports provided some explanation for the applicant's antisocial behaviour on 15 June 2001, it would have been relevant for sentencing purposes. But she did not concede that such explanation would have operated to affect the sentence. I understood her to make a similar submission with respect to the opinion that the applicant in truth had a psychiatric disorder at the time of sentence which then had the potential to, and which had in fact, deteriorated to the point where florid symptoms emerged necessitating hospitalisation. The conceded relevance of those matters seems to me to be consistent with the propositions stated in R. v. Tsiaras[2] that the presence of serious mental illness is relevant to sentencing at least in so far as -

* it was in any way operative in the commission of the principal offence as might bear on a person's moral culpability;

* it means that a prison sentence would or might weigh more heavily on a particular person than a person in normal mental health.

It is unnecessary to consider the third proposition in Tsiaras, which pertains to the place of general deterrence in the case of a person suffering from a severe mental disorder - as to which compare R. v. Yaldiz.[3]

In my opinion the reports, though their content is thin, do make out the two matters to which I have referred. At least, I consider, the first of them was of significance here in the sentencing process. In my view it was pertinent to the moral blame which the applicant bore for what he had done that, at the least arguably, his extreme, antisocial behaviour that day was not simply the behaviour of a bad man, but was the product of a serious psychiatric disorder.

I go to grounds 1 to 3. I do so in the context that, in my opinion, the fresh evidence does disclose at least some fairly arguable explanation for the applicant's conduct, an explanation of which the learned sentencing judge knew nothing.

Grounds 1 to 3 are nominally discrete. Whilst it would be possible to conclude that the sentence was manifestly excessive without finding that either of the specific errors alleged by grounds 2 and 3 were present, in a practical way the three grounds can be considered together. Mr Thomas argued, with respect to ground 2, that the applicant had pleaded guilty at the earliest opportunity. That required a large reduction in sentence, a reduction not discernible in the sentences imposed. Concerning ground 3, he argued that in the context of a man then aged 58, a man with a minor criminal history, the sentences imposed were crushing or did not accord sufficient weight to all those considerations. Concerning ground 1, he relied upon his submissions on grounds 2 and 3 and contended also that, viewed discretely, the sentence on count 1 was manifestly excessive. It was, he submitted, more commensurate with sentences passed in cases of manslaughter. He submitted, finally, that in any event the non-parole period was a high, and inexplicably high, proportion of the head sentence.

I am not in doubt that in this case there were factors going in mitigation. The applicant did plead guilty at a very early time. Some remorse was present. The applicant's prior criminal history was minor. The applicant did have a good work record until he became a disability pensioner. The applicant was 58 at the time of sentence. Various of the considerations which I have just mentioned should lead to a conclusion that the prospect of rehabilitation was real in this case. In addition, for reasons explained, it was fairly arguable that the applicant's extraordinary conduct on 15 June 2001 was in some part explicable by the psychiatric disorder then present but only recently diagnosed by Dr Walton. The judge explicitly or implicitly referred to all of the matters to which I have just alluded, save for the last. They include matters identified by grounds 2 and 3.

The head sentence passed on count 1, statistically, was undoubtedly at the upper end of the range of sentences imposed in the past five years for offences of that kind. That might suggest, given the mitigating factors, that the sentencing exercise went wrong; or that in light of the fresh evidence it may be seen to have gone wrong. But I am not persuaded that it did. For this was an extremely serious example of the offence.

First, it involved the use of a gun. Many such offences involve, no doubt, the use of fists or feet.

Second, the incident culminating in the offence occurred over a period of time. The shooting itself may have been an immediate response to Mr Hassall's taunts, but earlier on the applicant had said he would shoot Mr Hassall. After that he left the house, unlocked the shed, removed the shotgun, loaded it, brushed off Mrs Whiteford's entreaties, re-entered the house, and on one account demonstrated that the shotgun was loaded before the fateful moment. This was an extended course of conduct. At any time the applicant could have desisted; but he did not.

Third, as was conceded at the plea, the shot was deliberately aimed at Mr Hassall's leg; and, it would seem, the shotgun was discharged at pretty close range.

Fourth, as might be expected in the circumstances to which I have just referred, the shooting caused the victim extremely serious injury. At the very least Mr Hassall faced much reconstructive surgery at the time when the applicant was sentenced. There was also the prospect that he might require, eventually, below knee amputation.

27 In my opinion, the sentencing judge was entitled, when fixing the head sentence, to regard the circumstances to which I have adverted as calling for a heavy sentence notwithstanding the matters which went in mitigation and of which he knew. Even when one adds in the existence of the psychiatric state, which could provide some explanation for the applicant's particular behaviour pattern in the events which culminated in the shooting, I do not consider the head sentence was manifestly excessive. Nor does it imply a failure by his Honour to give sufficient weight to the considerations mentioned in grounds 2 and 3.

That takes me to the non-parole period. Mrs Pullen conceded that a six-and-a-half-year non-parole period in the case of a head sentence of eight years was "unusual". But she submitted it was the sort of sentence with which the Court should not interfere. She accepted that the position would be more difficult if the Court found that the fresh evidence revealed a relevant psychiatric condition.

In my opinion Mrs Pullen's concessions were rightly made. Whilst there is no set proportion between the head sentence and non-parole period, there was no

disagreement at the Bar table that a non-parole period of six-and-a-half years where the head sentence is eight years is unusual. It might have been expected that the learned judge would have said something as to why he fixed such a high non-parole period. But he said nothing in that connection.

All the factors that were relevant to fixing the head sentence, and in that I include the recently elucidated psychiatric condition in the particular connection which I have identified, were relevant when his Honour came to fix the non-parole period. Their individual and collective significance was not necessarily the same as their significance when considered in the context of fixing the head sentence. In my respectful opinion the combination of the mitigating factors of which his Honour knew, and the additional matter, is such that the non-parole period which his Honour fixed was outside the available range. That is probably a conclusion which I would have reached even absent the additional matter. Be that as may, I would propose that the appeal be allowed only to the extent of substituting for the non-parole period of six-and-a-half years fixed by the learned sentencing judge a non-parole period of five years.

For the reasons advanced by Ashley, A.J.A., I consider that this appeal should be allowed. I also agree with his proposal as to the disposition of the matter. I would add only a couple of comments of my own.

I regard the sentence of eight years' imprisonment imposed upon the applicant as being not only within the range of those available to the sentencing judge, but also appropriately reflective of the very serious conduct in which he engaged and his level of personal culpability for that conduct, even having regard to the additional material presented to this Court. However, as Ashley, A.J.A. has pointed out, the non-parole period fixed was unusual and unexplained. It is difficult to avoid the impression that the learned sentencing judge, unaware of the applicant's underlying psychiatric condition, attributed to him a very high level of moral 33 culpability, and certainly one which he may have been inclined to modify had he had the information possessed by this Court. However, that must remain a matter of speculation, as his Honour's sentencing remarks enable no insight to be gained into his reasoning processes in this area. The combination of the unusual disposition and the absence of any explanation, as to the reasoning adopted which led to it, has long been accepted as inviting the scrutiny of this Court.

In all of the circumstances, and in particular having regard to the additional material with which we have been provided, as I have indicated, I consider that this appeal should be allowed.

I agree with the orders proposed by Ashley, A.J.A. and with his Honour's reasons.

The order of the Court will therefore be that the application for leave to appeal against sentence is granted. The appeal is to be treated as instituted and heard instanter and allowed. The sentence imposed in the court below is set aside. However, the head sentence of eight years' imprisonment is re-imposed. In respect of that re-imposed sentence, the Court fixes a non-parole period of five years.

It is declared that the period of 785 days which has already been served is to be reckoned as having been served under the sentence hereby imposed. It is directed that this declaration and its details be entered in the records of the Court.

[1] R. v. Babic [1998] 2 V.R. 79 at 80-82.

[3] [1998] 3 V.R. 376 at 382, per Winneke P and Hampel AJA. But see Batt JA at 381; and see also R. v. Richards and Gregory [1998] 2 V.R. 1 at 10 concerning the issue of general deterrence in the case of an intellectually handicapped person.

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