R v Imadonmwonyi [2008] VSCA 135

1 I will ask Ashley JA to deliver the first judgment.

2 Charles Imadonmwonyi, a man now aged 42, seeks leave to appeal against sentence passed upon him by a judge of the Trial Division on counts of murder and intentionally causing serious injury. On 19 October 2004, the learned judge sentenced the applicant to be detained in an approved mental health service as a security patient[1] for a period of 17 years on the count of murder and for a period of six years, of which three years was made cumulative on the sentence for murder, on the count of intentionally causing serious injury. The total effective period of the hospital security order was thus 20 years. The learned judge fixed a non-parole period of 15 years and made a declaration in respect of pre-sentence detention.

3 Antecedent to trial a question of fitness to plead was agitated. In the event it was determined that the applicant was fit to stand trial. Then, at trial, one of the substantial issues, as will appear, was the applicant's mental state at the time of offending. The jury by its verdicts determined that the applicant's mental state at the time of offending did not preclude him being found guilty of the offences charged.

4 The applicant's mental state subsequent to conviction and sentence explains why this application has been much delayed in being brought on. The applicant has been in and out of Thomas Embling Hospital for treatment of paranoid schizophrenia. Recently, he has been adjudged fit to provide relevant instructions. In that connection I refer to, but need not cite, passages from the reports of Dr Danny Sullivan dated 18 July 2008 and of Dr Douglas Bell dated 21 July 2008.

5 On 6 January 2002, the applicant approached two men, otherwise unknown to him, who were checking the engine of a motor vehicle which belonged to one of them. He stabbed both of them a number of times. He killed Hakan Ulu and seriously injured Erhan Ulu. The only conceivable reason for the attack was that the applicant was upset because the deceased and his brother had been revving the engine of the vehicle whilst the applicant had been using a public telephone nearby.

6 The applicant fled, chased by associates of the deceased. Having made a temporary escape, he rang the police and advised that he had been assaulted. But when the police attended the premises from which he had called, his appearance, particularly blood on his clothing, hands and face for which there was no obvious cause, led to him being arrested. By that time he had disposed of the knife, which he had twice produced in the course of his flight.

7 Somewhat later that day, at the offices of the Homicide Squad in St Kilda Road, having been informed by police officers that they wished to swab his hands and face, the applicant asked to go to the toilet. There he was told that he could not wash his hands before urinating. He refused to urinate before doing so. Subsequent to these events, he was observed in an interview room urinating on his hands and washing the blood from his face and hands with urine.

8 The Crown, as might be anticipated, relied upon aspects of the applicant's post-offence conduct as bearing upon his mental state at the time of offending, and as going in proof of consciousness of guilt.

9 I should refer to some of what his Honour said when sentencing the applicant. He said this about the applicant's mental condition:

I am well satisfied that you suffer from [schizophrenia] and to a severe and chronic degree. I am also satisfied that the condition materially affected why you acted as you did at the time of the stabbing and during the pursuit and the events thereafter. One symptom of your condition is a high level of paranoia. Another is the absence of insight. You attribute blame for events that affect you to the inappropriate actions of others. You do not think that you are to blame. You do not accept that you are mentally unwell. You do not think that you need medication. Your subjective assessment on such matters is totally at odds with any reasonable objective assessment.

10 His Honour dealt with the applicant's antecedents and aspects of the applicant's prior criminal history. He was to an extent hindered in his appreciation of the situation because of doubts he had as to the reliability of the applicant's account. His Honour said this:

It appears that you were born in December 1965 in Nigeria, into a large family that operated cocoa and rubber plantations. It seems that in 1977 you were involved in a car collision and had to have glass removed from your neck. Between 1984 and 1989 you studied agricultural economics at the university. In 1991 you left Nigeria and worked in Spain. In 1992 you married, in Spain, Carmen Palomares, a woman of Spanish background born in Australia. In 1993 you came with her to Australia. You lived in Melbourne where her family came from. You took up work in a factory and as a security officer. You went about upgrading your qualifications. In 1996 a daughter was born to you and your wife. On 11 December 1996, you were involved in an incident that led to your being charged with certain offences.

As to what happened on 11 December 1996 there are different versions. They bear a troubling similarity to the differing versions of what happened as to the Ulu brothers. You told [a psychologist] that a car was driven at you near your home, that you were forced on to the bonnet, that there you were threatened with death by a man with a steering lock, and only then did you produce a knife to protect yourself. It seems that other material before the court would have shown that the other man had no weapon and did not get out of his car, and that your concern arose only with his having parked in a position that upset you. In any event, when you went to court in June 1997, you were sentenced to a community-based order.

It seems that in January 1997 you were involved in another car accident in which you claimed to have suffered injury. Claims by you that you have suffered injury at the hands of others were thereafter to become commonplace. Not always, indeed not too often, were the claims of injury supported on medical examination when you went to seek treatment. You claimed in June 1997 you were assaulted by Asian youths. You claimed that in June 1998 you were beaten by a group of Maoris. In July 1998 your wife left you. She obtained an intervention order from the court to prevent you harassing her. You claimed later that in April 1999 you were attacked by two Somalians. Between December 1998 and May 1999 you attended the Carlton Community Corrections office many times. Those attendances were marked by hostility and aggression on your part. You refused to do an anger management program pursuant to the community-based order. In August 1999 you were convicted of breaching the terms of the intervention order and of unlawful assault and fined $500. ... In October 1999 you were brought before the court because of the report of your non-compliance with your October 1998 court order. At court you were then abusive.

I pause at this point to note that I have experienced your acting in a hostile and aggressive, paranoid and abusive way. It was at a mention hearing in this court last year. I have subsequently seen you many, many times acting in a totally responsible way. At the time of the hostility witnessed by me, you were not taking any medication. You have later been suitably medicated. The opinions of the professionals still all point to the conclusion that you have a mental illness and that the illness responds to medication. You do not accept those opinions. You are unable to accept what a difference the medication makes.

I resume my chronology to record that after the abusive court appearance in October 1999 you were taken to hospital then to the custody centre. You claimed you were assaulted there. You were placed in an isolation cell. You were prescribed medication. You refused to take it. Mr Joblin saw you in November 1999 and described you as grandiose, agitated and exuberantly hypomanic. On 18 November 1999 the community-based order was cancelled; you were ordered to serve five months' imprisonment. On March 2000 on release you moved into the Holland Court flat. Over the next 18 months you attended Dr Lim several times. To him you made claims of various injuries resulting from assaults in prison and by the police.

As to what happened in the period from March 2000 and January 2002, I also have the history you gave to Dr Triglia and the first-hand account of Schem Hamu. The symptoms of the schizophrenia, including the paranoia and the social withdrawal, were becoming more and more manifest. The Ulu brothers were in the wrong place at the wrong time.

You have shown no indication of remorse. I treat that as being a position which is consistent with your mental condition and the symptom which warrants your taking an objectively unacceptable position that you did not stab the Ulu brothers.

Evidently his Honour was concerned about the circumstances of the applicant's future incarceration. He said this:

I have satisfied myself that there has been the required compliance with s 93 of the Sentencing Act and regulations governing hospital security orders. Such an order, as the legislation and current prison and forensic hospital resources now stand, has advantages and disadvantages. Ideally you would be treated indefinitely in hospital given the severity of your condition. The high demand for beds is regrettably likely to mean that when you appear to be well enough you will go back to prison. There you will not be obliged to take medication. If you choose not to do so, and your condition deteriorates again, you may well have to be returned to hospital. The position will only be improved if the present inadequate resources available for those forensically mentally ill are supplemented to cater better for patients like you.

Finally, his Honour explained that the period of operation of the orders which he intended to make took account of the applicant's mental condition. He said:

The period of the hospital security order reflects my taking into account your schizophrenia and sensibly moderating what would otherwise have been a considerably longer period in detention. Protection of the community is none the less a great concern in your case. My approach to sentencing you as to the two sentences is governed by the importance of appropriately moderating and cumulating.

1. The individual sentences, total effective sentence, non-parole period and length of the hospital security order are manifestly excessive.
2. The learned sentencing judge erred by failing to properly take into account the applicant's mental illness and mitigate accordingly.

12 Counsel submitted in writing that the learned sentencing judge failed to take into account the evidence of the applicant's mental illness, namely, paranoid schizophrenia, and that such error was apparent on the face of the reasons for sentence and by virtue of the length of the sentences imposed and the order for cumulation. He pointed out that the sentence antedated the decision of this Court in R v Verdins and Others[2].

13 Today, by reference to statistics, counsel orally submitted that over a 5 year period the median sentence for murder was 18 years' imprisonment and the average sentence varied between 18-and-a-quarter and 19-and-a-quarter years' imprisonment. He accepted that sentences of 20 years' imprisonment and upwards are now passed. Against that background, he submitted that whilst a sentence of 17 years would have been within range if the applicant had not been mentally ill - and, indeed, would have been towards the lower end - for this man, failure to take the evidence of mental illness properly into account, and particularly the extent of the applicant's mental illness, had yielded a sentence which was manifestly excessive. He cited, as a case giving some indication of the kind of sentence which might have been imposed, R v Sebalj[3]. He accepted that there were differences between the circumstances which arose in Sebalj and the circumstances of this case.

14 In respect of the count of intentionally causing serious injury, counsel submitted, by reference to sentencing statistics, that sentences were shown to vary from as little as three months to 16 years' imprisonment, with a median sentence of three years' imprisonment and average sentences in the range of three to four years over the period of the statistics. He submitted that the sentence of six years' imprisonment should be seen to be excessive where, in all the circumstances, this was not an objectively bad instance of the offence. Accepting that the jury's verdict showed that it had been satisfied that the applicant had inflicted serious injuries upon the victim, he submitted that these were not very serious serious injuries. The injuries to the neck and hand had been superficial, not involving the deeper structures; and, whilst the injury to the back had been a penetrating wound and potentially the most dangerous, it had caused no damage to a body structure. Further, he submitted, there was no evidence of the victim being permanently disabled by his injuries.

15 In an anticipated response to a submission for the Crown that an important sentencing consideration had been protection of the community, counsel submitted that whilst he did not dispute the relevance of this factor, none the less the Court should bear in mind that when release becomes available to the applicant, it will be inevitable that applications will be made under the Mental Health Act for involuntary treatment orders or for some other order which will ensure that the applicant remains medicated and so not a danger to the community.

16 Counsel accepted that, because the applicant suffered and suffers from a serious mental illness, the principles described in Tsiaras[4] - later confirmed and expanded upon in Verdins - apply in this case. But he submitted that the applicant had posed a difficult sentencing problem. On the one hand, there were matters articulated in Verdins which ran in favour of mitigation in sentence. On the other hand, the case was one requiring the applicant to be separated from the community for a significant period of time. Protection of the community, he submitted, was a principal concern. Verdins, he contended, had been accommodated to the extent that it could be operative by the form of order which was made by the learned judge. Concerning Sebalj, counsel submitted that it was clearly distinguishable upon the facts. Concerning the submission of counsel for the applicant in respect of the count of intentionally causing serious injury, he argued that any injury involving penetration of the body cavity is serious injury, and that the absence of long-term consequences of injury is a factor, but not the dominant factor, in the assessment of the seriousness of injury inflicted.

17 The applicant might have been found unfit to stand trial. Alternatively, the jury might have found the defence of mental impairment[5] was established, in which case the judge would surely in this instance have made a declaration that the applicant was liable to supervision under Part 5 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, and have made a supervision order under that Part. It can also be confidently predicted that the judge would have made an order committing the applicant to custody. In accordance with s 28(1), the nominal term of the order would have been 25 years. That would have opened up in turn the various possibilities which are described, inter alia, in ss 32, 35 and 57.

18 But the applicant was not found unfit to stand trial, and the defence of mental impairment which he advanced was not established. In the event, he fell to be sentenced as a prisoner convicted of very serious offences, albeit as a person variably affected by a serious mental illness. The latter circumstance permitted, before Verdins, of amelioration of sentence.[6] But the learned sentencing judge had to bring all relevant sentencing considerations to bear.

19 Before mentioning the considerations which in my opinion were of primary importance, I should address seriatim the relevance in this case of six principles described in R v Verdins[7].

20 I would accept that the applicant's mental illness was such as to reduce his moral culpability for the crimes, because it might be inferred that his attack was attributable to his paranoia.

21 I would also accept that his illness rendered general deterrence of at least reduced significance as a sentencing consideration.

22 The same may be said of specific deterrence, because it seems clear that the applicant lacked at time of offending, lacked at time of trial and still lacks insight into his illness. It can be argued that his mistaken view of life's events and his role as aggressor render specific deterrence useless in his case. That is, he will not be deterred because he does not, by reason of his illness, accept blame for his actions. That this is so even when he is in symptomatic remission is demonstrated by the recent reports of Drs Sullivan and Bell.

23 Next, I accept that the applicant's mental illness bore upon the kind of sentence which should be imposed. That it did so, I add, was reflected in fact in the form of sentence imposed.

24 The question whether the applicant's illness assessed at date of sentence was such as to mean that the sentence would weigh more heavily upon the applicant than in the case of a person in normal health is in my opinion an open one. The kind of sentence imposed was designed, so far as possible, to improve the applicant's lot whilst incarcerated, and the fact that he has had relapsing illness since does not establish any more than that, as a person suffering from serious mental illness which is prone to relapse, it has done so in his case.

25 Finally, I think that at time of sentence there was not a serious risk of imprisonment having a significant adverse effect upon the applicant's health. Neither do I consider that the applicant's subsequent history suggests the contrary. Indeed, the involuntary administration of drugs which he has been receiving whilst at Thomas Embling has surely had a positive impact upon his state of health.

26 In all, the applicant's mental illness in some respects tended in favour of amelioration of sentence; whilst in other ways the kind of sentence which was imposed has been to his advantage. That takes me to what I consider to be the primary sentencing considerations in this case. As I said earlier, the applicant committed extremely serious acts of violence, and the jury found that he did so with the relevant criminal intent in each instance. The applicant's prior history of serious antisocial behaviour added to the gravity of the offences. That gravity was in my opinion a sentencing consideration of central importance. It called for the protection of the community in response to what the applicant had done.

27 In the event, I consider that the sentence passed on the count of murder was not outside the available range. Sebalj, relied upon by the applicant, was a very different case. The offender in that case, who killed a person whom he loved whilst in a drug-induced psychosis, had sought professional help before offending. His culpability was low. He was genuinely remorseful. His prospects of rehabilitation were quite good. He had no evident predisposition to violence. The sentence of 12 years' imprisonment with a 9 year non-parole period, which was substituted on appeal reflected those considerations.

28 Next, in my opinion, the sentence for intentionally causing serious injury should not be accounted manifestly excessive. Allowing that the injuries which the applicant inflicted were not of the most serious kind, allowing the statistics to which counsel referred, the crime was none the less a grave one because it involved considerable violence inflicted by a man who had previously acted violently and unlawfully.

29 Again, the two offences involved distinct criminality. The fact that they occurred within the one incident did not tell against the need for some cumulation.

30 In my view, in all the circumstances each of the individual sentences was within the available range, as was the extent of cumulation which was ordered and the total effective sentence. Neither do I see any fault in the non-parole period which his Honour fixed. I see no reason why a relatively short non-parole period should have been set. The non-parole period which was in fact fixed allows sufficient scope, in my opinion, for the applicant's release and reintegration into society before the expiry of the head sentence - it would need to be, I should think, under close supervision - if such release is adjudged a suitable course.

33 I agree but wish to add some observations concerning the significance which the sentencing judge attributed to community protection. One contention implicit in counsel's submissions on behalf of the applicant was that, inasmuch as the sentencing judge had formulated the sentence imposed by reference to the need for community protection, his Honour had engaged in a process of preventative detention as opposed to the imposition of just punishment. I reject that contention. Certainly, the idea of community protection looks forward to some extent to the time when a prisoner will be released. But, in sentencing an offender, the weight to be given to community protection, and thus the length of sentence required to achieve the objective, are primarily measured by reference to the nature and gravity of the offence and the circumstances in which it was committed. In very approximate terms, the graver the offence, and the more extreme the circumstances of its commission, the more likely it will be that greater weight will need to be given to community protection. Of course, it is a question of balance. Pushed too far, there will come a point at which such a process goes beyond the ambit of just punishment and into the realm of preventative detention. But, for the reasons given by my brother Ashley, it is plain that in this case the sentencing judge stopped well short of the mark.

34 The order of the Court will be that leave to appeal against sentence is refused.

[1] See the now repealed s 93(1)(e) Sentencing Act 1991.

[2] [2007] VSCA 102; (2007) 16 VR 269.

[3] [2006] VSCA 106.

[4] R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398.

[5] It was described by counsel today as a subsidiary defence, the principal defence having been that the applicant had acted in defence of an assault upon him.

[6] R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398.

[7] [2007] VSCA 102; (2007) 16 VR 269 at 276 [32].