R v Dupuy [2008] VSCA 63

Court of Appeal (Vic)|2008-04-24|Before: BUCHANAN and ASHLEY JJA and FORREST AJA

CRIMINAL LAW - Appeal against total effective sentence of four years imprisonment with non-parole period of two years for offences of making explosives under suspicious circumstances and acting with intent to cause an explosion of a nature likely to endanger life or cause serious injury to property - Whether appellant's mental condition reduced his moral culpability for offending - Whether sentence manifestly excessive - Appeal dismissed.

R v Tsiaras [1996] VicRp 26; and ; considered.

1 In my opinion the appeal should be dismissed for the reasons stated by Ashley JA.

**2 Justin Dupuy pleaded guilty in the County Court to the following offences:

• Making explosives under suspicious circumstances (count 1).[1]

• Acting with intent to cause an explosion of a nature likely to endanger life or cause serious injury to property (count 2).[2]

3 The offences were committed, respectively, on 2 September 2006 and on the night of 2-3 September.

4 Mr Dupuy was charged and remanded in custody on 6 September 2006.

5 On 15 June 2007, on a plea of guilty, he was sentenced as follows:

6 The learned sentencing judge ordered that six months of the sentence on count 1 be cumulated on the sentence passed on count 2. So the total effective sentence was four years' imprisonment.

7 His Honour fixed a non-parole period of two years. He also made a declaration in respect of pre-sentence detention,[3] and made certain ancillary orders.

8 Now pursuant to grant of leave, the prisoner appeals against sentence. He relies upon the following grounds -**

The learned sentencing judge erred by failing to give sufficient weight to the evidence of the appellant's mental condition.
The learned sentencing judge erred by failing to have proper regard to the appellant's prospects of rehabilitation.
The learned sentencing judge imposed sentences that are manifestly excessive in all the circumstances including:

(a) the appellant's lack of similar prior conviction and subsequent offending;

(d) the appellant's history of drug and alcohol abuse and the fact that the appellant was under the influence of drugs and alcohol at the time of the offending;

(f) the appellant's prospects of rehabilitation; and,

9 Although, in written submissions, appellant's counsel addressed Ground 1 on a stand-alone basis, (notwithstanding that the appellant's mental illness was called in aid of ground 3) in oral argument the three grounds were argued together.

10 The learned sentencing judge described the circumstances of the offending as follows:

... in what was probably the early hours of Sunday 3 September 2006 you placed an improvised explosive device, concealed in a bag, on a nature strip near a motel in close proximity to the Frankston Police Station. The nature strip was used by police to enter a car park at the rear of the police station.

You were seen leaving the bag containing the device by a member of the public. He examined the contents of the bag and thought it was a hoax. The police were notified of the presence of the device sometime between 1 p.m. and 2 p.m. on 3 September. The area was cordoned off, the bomb squad attended and the device was rendered safe by using a remote vehicle.

The police conducted searches of local stores in an attempt to identify anyone who might have purchased items similar to those used in the construction of the device. Sales records showed that at 10.35 p.m. on Saturday 2 September items consistent with those used to make the device were purchased using an ANZ Eftpos card. A warrant was obtained to search bank records, and this led to you. The bank records also disclosed that other items purchased on your card from Bunnings were also consistent with items used to make the device.

Surveillance footage at Bunnings, identified you as the purchaser. Your home was searched and items used in the construction of the device were located. You were arrested and taken to the Frankston Police Station but were assessed by a forensic medical officer as unfit for interview.

... although it is not clear when you intended that the device activate, the timing mechanism was set to activate each 48 hours. It may be that you intended it to operate soon after you left it, but if so, this would be in the early hours of the morning when minimal traffic would be expected. Alternatively, it may be you intended that there would be a long delay in which case detection was likely.

... although the device was loaded with 145, 50 millimeter nails, suggesting an intention to use the nails as shrapnel, because of the nature of the device they would not have been projected from the device. This means that either they served some other undetermined purpose as expert material tendered on the plea noted, or you did not understand the principles involved. Clearly the use of the nails is very disturbing, but the prosecution does not suggest I should conclude that you intended the nails to be dispersed.

... the construction of the device was such that it was essentially an incendiary device rather than a bomb. The police constructed a similar device and activated it. This process was filmed and the film was tendered as an exhibit. Although I was appropriately cautioned not to read too much into the precise replication and placement of the device it is clear that what resulted was essentially a relatively confined fire. Of course, had your device operated it would have presented a risk of injury, or even death, to people, although any victim would have to have been in very close proximity to the device on activation.

11 His Honour described the alleged motivation for the appellant acting as he did this way:

During the course of the plea your counsel ... confirmed that the motivation for what you did was a grievance or grievances you had towards the police. This was because you felt that they had failed to properly investigate allegations of sexual assault made by you in the 1970's, and repeated in the late 1990s.

You also were antagonistic towards the police for what you considered was a failure to properly investigate the details of an incident when a car was driven at you in the mid-90's. On that occasion you suffered injuries to your back and hip. You reported this matter some years after the incident.

It is not necessary to determine whether there is anything in your grievances. It is not possible, in any event, to do this satisfactorily. It seems that you were the victim of sexual assaults by a teacher but the passage of time means it is no longer feasible to determine what happened to your complaint in the 1970's. It seems the complaint was followed up in the late 1990s but by this stage the teacher was ill and died of cancer before anything could be done.

As your counsel conceded, the alleged failure by the police to investigate the traffic incident is not surprising, given the delay in reporting it.

The appellant's mental condition prior to and at the time of offending

12 The appellant's offending conduct was connected - in precisely what way and to what extent was disputed on the appeal - with his mental state. The judge dealt with that matter as follows:

A critical reason why nothing much turns on the legitimacy of your complaints is because you have suffered from a serious mental illness for some years and this has, at least, at times, impaired your capacity for rational thinking.

Your antagonism towards the police and the fact that the placing of the device targeted police at the Frankston Police Station is clearly very troubling. However, this also needs to be seen in the context of your long-standing and on-going mental illness.

The precise significance of [the way in which the device was constructed and in which the timing mechanism was set] and the bearing they have on what you intended is difficult to unravel because of the impact of your mental illness and consequent impaired ability to regulate and control your behaviour.

You were first treated for schizophrenia in 2000. Delusional thoughts reflective of psychotic illness emerged in the setting of heavy marijuana use. You have been involuntarily admitted for treatment twice, first in 2000 and next in 2002. You have been treated with anti-psychotic medication. You received treatment on a Community Treatment Order between late 2000 and May 2006.

After you were discharged from this order your medication was decreased because you were considered stable. Your brother stated that when your medication drops the family begins to see problems with you. When you were arrested and imprisoned, your medication was increased and later reduced.

... what seems to be a combination of factors, or as your counsel put it "an unfortunate confluence of many factors" ... contributed to your offending behaviour. Dr Cidoni[4] considers that you were not psychotic at the time. As your counsel noted, if you were then you may have had a mental state defence.

However, you had problems at work and left. You began to drink heavily and use marijuana. You began to focus on your sexual abuse. This led to resentment of the police, probably compounded by your experience with the car incident report. Your medication was down. I accept, as Dr Cidoni states, that due to your psychotic illness you are likely to have had deficits in your executive functioning; that is, the ability to regulate and control your behaviour was impaired.

As well as suffering from marijuana, paranoid type, you also meet the criteria for a diagnosis of post-traumatic stress disorder. As I understand it, this is related to your sexual abuse as a young child.

The appellant's mental state at time of sentence. Need for ongoing treatment

**13 The consultant psychiatrist opined that the appellant required monitoring to ensure an appropriate medication regime in prison and on release. The appellant, he further opined, would benefit from specialist drug and alcohol counselling and treatment.

14 Again, because the appellant suffered post-traumatic stress disorder by reason of reported sexual abuse as a child, the doctor recommended, as the judge put it, that the appellant required 'specialist sexual assault counselling and ... clinical treatment of [his] post-traumatic symptoms.'

15 Still further, the doctor was of opinion that it was critical that the appellant's anger towards the police be resolved - this perhaps requiring structured contact with the police - and that the appellant needed counselling so as to manage his tendency to anger.**

The appellant's personal circumstances; and other matters going in mitigation

**16 The appellant was aged 36 at time of offending, and 37 at time of sentence. Now he is aged 38. He is a single man.

17 He had and has the support of his family. The judge was told that there would be accommodation available for him on release.

18 Despite his mental illness, and despite whatever physical injuries he suffered in the motor vehicle accident in the mid 1990s, the appellant's pre-offence work record was quite good. The judge accepted that, on release, there was the prospect of the appellant obtaining work in his father's construction business.

20 The appellant pleaded guilty at the earliest possible time.

21 The learned judge concluded that the plea reflected 'a measure of remorse', and that the appellant was regretful for his actions. His Honour concluded also that the appellant understood the gravity of what he had done.**

22 Having recounted the circumstances of the offences, the history of the appellant's mental illness and its apparent connection with the offending, the appellant's personal circumstances, and other matters going in mitigation, the learned judge said this:

I expect that your case will attract publicity. I have received notice of an application for the release of exhibits to the press. I anticipate, given your counsel's submission that I should impose a sentence that makes you eligible for release soon, and given the significance of your long-standing mental illness, that you will consider the sentence I intend to impose to be harsher than you hoped for. However, I ask you to reflect on the serious nature of the offending you committed.

On the other hand, given the alarming nature of your offending, I expect that some members of the public might consider the penalty inadequate. I ask them to consider your mental illness and the fact that the offending to which you have pleaded imposes its own constraints on penalty.

In the final analysis it is necessary to keep in mind the very serious nature of the offending to which you have pleaded. Offending of this type is fortunately not common.

Although the factors relied upon by your counsel, in particular your mental illness, require mitigation of penalty, nevertheless, specific and general deterrence are still clearly relevant, as is the need for appropriate punishment, denunciation and protection of the community. Of course, so is the need to encourage your rehabilitation.

As I noted earlier, your counsel submitted that I should impose a sentence that would make you eligible for release on parole in the near future. Despite the Crown making no submission in opposition to this, I consider that such a sentence would be inadequate, given all the circumstances.

**23 Consistently with the grounds of appeal, and responsibly, appellant's counsel did not contend that the learned judge's sentencing remarks were infected by specific error. He rather submitted that his Honour had correctly accepted that the appellant's mental illness did have mitigatory impact in a number of ways, had accepted also the presence of a number of other circumstances going in mitigation: the appellant's age, previous good character, absence of prior convictions, early plea of guilty and remorse; and had, rightly, also, had regard to the need to foster the appellant's rehabilitation. But the sentence imposed, counsel submitted, particularly the total effective sentence of four years' imprisonment (every day of which, he reminded us, his client was liable to serve) showed that the mitigatory factors had been undervalued. Particularly, the impact of the appellant's mental illness must have been undervalued. The magnitude of the sentence 'reveal[ed] that [his Honour] could not have had proper regard to the evidence of the appellant's mental condition'. In the spectrum of cases, this was at one extreme: 'a severe mental disfigurement that contributed directly to the offences' commission'.

24 In essence, then, counsel contended that the sentence passed was manifestly excessive; and he sought to explain how that had come about.

25 At trial, appellant's counsel pressed the importance of his client's mental illness. The judge noted submissions -**

that it reduced your culpability; was relevant to the sentence and how it was to be served; that you were not an appropriate vehicle for general deterrence; that your illness is relevant to specific deterrence and what is required is treatment to encourage your rehabilitation ... [and] that prison would weigh more heavily on you than it would on others without your illness.

**26 His Honour noted that the Crown did not take issue with those submissions. That is the case, insofar as the prosecutor did not address them at all in his response to the submissions advanced by appellant's counsel.

27 Counsel for the Crown submitted in this Court that the learned judge had approached the question whether the appellant's mental state operated to reduce his moral culpability, or the need for general deterrence, in precisely the correct way. His Honour had given regard to the nature and severity of the appellant's symptoms, the connection (or otherwise) between the illness and the offending, and the nature and seriousness of the offending.[5] The appellant's offending was attributable, counsel submitted, to drug and alcohol induced anger, not to underlying psychosis. But in light of evidence that the psychosis would affect the appellant's ability to control and regulate his behaviour, there should have been some allowance for reduced culpability and some moderation of general deterrence as a sentencing consideration. Specific deterrence, however, had a major role to play in the sentencing process. The appellant had capacity to reason. He must have appreciated that drug and alcohol abuse would upset his mental state. Finally, there was nothing to show that the appellant's imprisonment would weigh upon him more heavily than would imprisonment imposed upon an offender not suffering from the particular mental illness.

28 Counsel for the Crown further submitted, having regard to all considerations, that the sentence passed was an apt one. He agreed that the prosecutor had described the device which the had appellant prepared and left in a public place as being essentially harmless. But that characterisation, he argued, had minimised the danger posed by the device. It was not as if the device must have detonated where the appellant had left it. It might have been picked up, for instance, by an inquisitive child and kept in a confined area - where its capacity to cause real harm if it was triggered should not be underestimated. He urged the Court to view a videotape which showed a similar device[6] being detonated.**

The appellant's mental state was rightly treated as going in mitigation of penalty

**29 In my opinion, Dr Cidoni's report was plainly to the effect that the appellant's psychotic illness played a part in his offending. Incidents at work on 1 September 2006 caused him distress. That led him to drink alcohol and take marijuana. The appellant's mental illness impaired his ability to regulate and control his behaviour in that connection. He drank too much and used marijuana to excess. Affected by alcohol and marijuana overuse, he recalled past sexual abuse. That led him to reflect angrily upon what he perceived to have been lack of police assistance about that matter, and also about perceived lack of police help in connection with a motor car accident which had occurred in about 1995. His impaired regulatory and control responses were then a cause of him acting in the extreme and criminal form which he did, the police being the intended target of his actions.

30 In the event, I consider that the Crown's submissions in this Court as to the effect of the appellant's psychotic illness upon his offending minimised its impact. I do not doubt that the appellant's mental condition at time of offending and at time of plea was such as could legitimately be taken into account as reducing his moral culpability for the offending, and in moderating general deterrence as a sentencing consideration.

31 The role of specific deterrence in the sentencing process is more complex. The evidence suggests that alcohol and marijuana abuse gave rise, by a chain of events, to anger which the appellant, in his damaged mental state, could not control; and thus to his offending conduct. It does not follow, however, that the appellant's overuse of those substances was simply voluntary. Had it been, the Crown's submission that specific deterrence was an important sentencing consideration would have had some force - notwithstanding that the appellant was a man without prior convictions. But here, the overuse of alcohol and marijuana itself reflected, at least to an extent, the appellant's impaired regulatory and control mechanisms. So, in my opinion, whilst specific deterrence should still have been regarded as a relevant sentencing consideration, the part it played should have been somewhat muted.

32 I go to another dispute between the parties concerning the significance of the appellant's mental illness. It was submitted for the appellant[7] that the appellant's imprisonment would impact upon him more burdensomely than on a person who was of sound mind. It was submitted also - and correctly - that the learned sentencing judge had accepted a submission to that effect, which submission had not been challenged by the prosecutor. But I consider that there was force to the Crown's submission that the evidence did not show that the appellant's incarceration would be particularly burdensome because of that illness. Neither Dr Cidoni or Dr Keuneman - the latter of whom reported in June 2007 on behalf of St Vincent's Correctional Health Service - suggested that there would be, or was, any such difficulty. There was no suggestion that the appellant's mental illness during his confinement had been otherwise than well-controlled - in which circumstance he was, on the evidence, much like any other person.

33 In all, I consider that the mitigatory role which the learned sentencing judge evidently ascribed to the appellant's mental illness did the appellant no disservice. In one respect, it probably worked in the appellant's favour more than it might have done.

34 I should add two things. First, in analysing the ways in which the appellant's mental illness was relevant to the sentencing process, I have focussed upon the competing submissions. They descended, no doubt inspired by Tsiaras[8] and more recently Verdins,[9] to exquisite detail. Counsel cannot be criticised for their approach. No doubt it helps to ensure that no relevant sentencing consideration is ignored. But such an approach does tend, in my opinion, to devalue the reality that sentencing remains an intuitive synthesis of a range of often-competing considerations, not a mechanistic ticking or crossing of boxes. I think, with respect, that there was force in the observation of this very experienced judge, in the course of the plea, that 'we seem to have finessed this area of the law to an astonishing degree in recent years'. As Nettle JA said in R v Howell,[10] when speaking about the impact of Verdins upon sentencing considerations in a particular case:**

The point of Verdins is that each case depends upon its own facts and in particular the nature of the mental condition in question ... In each case it will depend on the facts. The theory and reality upon which the intuitive synthesis approach to sentencing is built is that each case is unique ...

35 Second, his Honour was not referred to Verdins, reasons for judgment in which had been delivered a few weeks earlier. He was, however, referred to Tsiaras. In the case of mental illness such as that suffered by the appellant, the appellant suffered no disadvantage by counsel calling Tsiaras rather than Verdins in aid.

**36 In all the circumstances which I have described, I am not persuaded that the individual sentences which his Honour imposed, or the total effective sentence - the latter being the aspect of sentence upon which counsel for the appellant mainly concentrated - show that his Honour failed to give the appellant's mental illness and the other circumstances which went in mitigation due weight. Put another way, in no respect have the sentences been shown to be manifestly excessive.

37 The appellant committed serious offences carrying substantial penalties. The offences were no spur of the moment thing. The ingredients were purchased, the device was manufactured, and later the appellant took it to the place where he left it. There was a particular intended target - any police officer who happened to be in the vicinity when the device detonated. Accepting that the explosive device was of**

crude designed and construction, and that where placed it had been unlikely to do physical harm except if a person had been close by if it detonated, I think also that there was some force to the submission for the Crown that the potential for the device causing harm was not confined to its detonating where it had been left. I add that the incendiary effect of the similar device constructed by the police investigator was by no means inconsequential. [11]

**38 On the other hand, as I have already explained at some length, the offences had been committed by a person who at time of offending was affected by mental illness, who remained affected (although he was at least largely symptom-free) at time of sentence, and who had a number of other mitigating circumstances running in his favour.

39 In my respectful opinion, the learned judge's sentencing remarks show eloquently that he wrestled with a very difficult sentencing problem, in which the various sentencing considerations spoke with different voices. I cannot say that the end product of his analysis reveals error in the sentencing discretion.**

40 In my opinion, the appeal should be dismissed.

**41 In my opinion the appeal should be dismissed for the reasons stated by Ashley JA.

[1] Crimes Act 1958 (Vic) , s 317(3), maximum penalty five years' imprisonment.

[2] Crimes Act, s 317(4), maximum penalty ten years' imprisonment.

[4] A consultant psychiatrist who examined the appellant on 13 March 2007, and who reported on 10 May that year.

[5] Paraphrasing the analysis of Redlich JA in R v Grossi [2008] VSCA 51, [55].

[6] It had been constructed by a police investigator.

[7] Citing R v Van Boxtel [2005] VSCA 175; (2005) 11 VR 258, 266-268, [29]-[33], (Callaway JA).

[11] I took up the invitation of counsel for the Crown to view the videotape of the detonation of a device very similar to that which the appellant constructed. I did so whilst bearing in mind the way in which the parties agreed that the sentencing judge should view the videotape - essentially as showing that the appellant's device had not been very dangerous.

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