R v Jones [2006] VSCA 266

2 Having had the advantage of reading in draft the judgment of Redlich JA, I agree with his Honour's conclusion, for the reasons he has stated, that the new material which was sought to be relied upon does not constitute fresh evidence. For the reasons given by his Honour, I agree, too, that the appeal should be dismissed.

3 On 9 September 2005 the appellant was sentenced in the County Court, having pleaded guilty to four charges on two presentments. On the first presentment the appellant was sentenced to 12 months' imprisonment on one count of armed robbery and six months' imprisonment on one count of assaulting police (counts 1 and 2). On the second presentment the appellant was sentenced to three years' imprisonment on one count of kidnapping (counts 3) and five years' imprisonment on one count of armed robbery (count 4). Orders for cumulation made by the learned sentencing judge resulted in a total effective sentence of six years and nine months, and a non-parole period of four years was imposed. The appellant appeals to this court against the sentences imposed.

Circumstances of offending

4 The conduct giving rise to count 1 occurred on the morning of 24 February 2004, when the appellant entered a milk bar in Mornington. Mr and Mrs Melhem, the owners of the store, were present along with a customer who was holding her three month old child. With a towel covering his face the appellant approached the counter, although he had his back to it. On reaching the counter he turned around and produced a knife, which was described as a large butcher's knife. The towel momentarily fell away, exposing the appellant's face. The appellant demanded money. The owner of the store did not comply with this request, and yelled at the appellant, urging him to put the knife down. The appellant ran from the store empty handed. Later that day the appellant was arrested by police and placed in a divisional van. The appellant refused to move his legs away from the doors when requested by police to do so. When one of the police officers attempted to move the appellant's legs, the appellant spat on him. Some of the saliva entered the officer's eye, which was later flushed by staff at Frankston Hospital. This incident gave rise to count 2 on the first presentment.

5 The conduct which was the subject of the second presentment (counts 3 and 4) occurred in the afternoon of 2 October 2004. The appellant approached Mrs Shirley Lever in a supermarket car park in Rosebud and said that he was in pain and needed to go to hospital. Mrs Lever offered to take him to hospital. The appellant thanked her, introducing himself as "Steven". Mrs Lever began to drive the appellant in the direction of the hospital, until the appellant asked her to stop the car, which she did. At that point the appellant produced a long knife from his sleeve. He jabbed Mrs Lever in the ribs with the knife and demanded that she give him the keys and get out of the car. Mrs Lever tooted the horn to attract the attention of passers by, at which point the appellant dug the knife into her ribs and said "you're pissing me off." He asked Mrs Lever where her purse was, and she told him it was in the boot. The appellant then retrieved the purse from the boot and searched through it for money and credit cards. When Mrs Lever told the appellant that she did not have any credit cards, he again jabbed her with the knife and said "don't fucking lie to me."

6 At the appellant's instruction Mrs Lever continued to drive the car. The appellant threatened to stab her and stated that he was not frightened to kill her. Mrs Lever noticed the appellant "nodding off" and asked the appellant whether he was on drugs. He stated that he was on heroin. After around half an hour the appellant told Mrs Lever to pull over, get out of the car and walk away. The appellant then drove off in the direction of Rosebud. Mrs Lever reported the incident to police, and the appellant was arrested later that day and taken to Rosebud Police Station where he was interviewed. A knife was found in his trouser leg and he made substantial admissions.

7 The appellant admitted 33 prior convictions for various offences including theft, burglary, handling stolen goods and possessing a drug of dependence. The learned sentencing judge rightly recognised that the new offences represented an escalation in the seriousness of appellant's offending. Following the appellant's sentence for these offences, he was presented in the Magistrate's Court on 5 October 2005 and pleaded guilty to two counts of burglary, one count of aggravated burglary, three counts of theft, four counts of obtaining property by deception and one count of knowingly dealing with the proceeds of crime. The appellant was given an aggregate sentence of 15 months' imprisonment for these offences, of which seven months was to be served cumulatively upon the sentence he was already serving. These offences were committed between 28 and 30 September 2004, some days before the appellant kidnapped and robbed Mrs Lever.

Grounds of appeal

8 The Full Statement of Grounds filed on the appellant's behalf set out the following grounds of appeal:

"1. The individual sentences and total effective sentence are manifestly excessive.

2. The learned sentencing judge placed insufficient weight on the appellant's psychiatric history and erred by not sufficiently moderating general deterrence.

2.1 The learned sentencing judge erred (a) in failing to receive and consider a report ordered in accordance with section 90 of the Sentencing Act, (b) in failing to clarify the recommendations of the Forensicare report dated 5 August 2005 and (c) in finding that the Forensicare report recommended that the appellant remain in prison.

3. The learned sentencing judge erred in ordering the extent of cumulation of the sentences, bearing in mind the principle of totality.

4. The learned sentencing judge erred in adopting a two-tiered approach to sentencing."

9 On 18 October 2006, the day before the hearing of this appeal, a supplementary outline of argument was filed on the appellant's behalf, together with a large amount of additional material, exhibited to an affidavit sworn by the appellant's solicitor. That material can be divided into two categories. Broadly described, the first category of material relates to the general state of mental health facilities within the corrections system, and includes extracts from the Report of the Senate Select Committee on Mental Health, submissions made to that Committee (including oral submissions regarding forensic mental health in Victoria), and documents setting out national guidelines and principles relevant to forensic mental health. These guidelines and principles[1] were drafted with reference to international standards. The second category of material related to the experiences of the appellant during his time in prison, and consisted of prison records obtained under the Freedom of Information Act 1982 and a further psychiatric report by Dr Mark Ryan dated 17 October 2006.

10 In a supplementary outline of argument, filed together with the affidavit material, counsel for the appellant argued that his mental illness made imprisonment more burdensome for him, and constituted punishment over and above that which was contemplated by the sentencing judge. In order to "give content" to this submission, counsel referred to the obligations of States under international law with respect to the treatment of prisoners and people with mental illness, and argued that the affidavit material indicated that forensic mental health facilities in Victoria fall short of international legal standards. It was submitted that "breaches of international standards which may result in a prisoner suffering more than usual hardship in prison or being punished while in jail beyond that entailed by the deprivation of liberty should be taken into account in the exercise of the sentencing discretion." The appellant's written submissions make specific reference to:

• the International Covenant on Civil and Political Rights (the 'ICCPR');

• the United Nations Standard Minimum Rules for the Treatment of Prisoners;

• the Basic Principles for the Treatment of Prisoners (adopted by Resolution of the UN General Assembly); and

• sthe International Covenant on Economic, Social and Cultural Rights.

11 In oral argument, Counsel for the appellant abandoned any reliance on these international instruments. He correctly conceded that none of the material which related to the general state of mental health facilities, national guidelines or international standards enlarged the appellant's common law rights. That is to say, it was accepted that the sentencing court's powers at common law enabled it to take into account the burden of imprisonment on a particular offender having regard to his or her personal circumstances and any relevant circumstances which prevailed within the correctional institution where the offender was detained. When considering the burden of imprisonment on an offender who requires psychiatric care, allowance may be made for the limited nature and quality of treatment available within our correctional institutions.[2] Ultimately, counsel for the appellant sought the admission into evidence only of material which specifically concerned the appellant.

12 Counsel argued that the new evidence was admissible in two ways. First, it was contended that the evidence should be considered by the Court in re-sentencing the offender because the original discretion was vitiated by error. Alternatively, it was submitted that the new material constitutes fresh evidence which shows the true significance of facts which were in existence at the time of sentence.[3]

Grounds alleging error

13 In an outline of argument filed by the appellant, ground 3 was abandoned. No oral or written submissions were advanced in support of ground 4. Accordingly, it is only necessary to deal with grounds 1, 2 and 2.1.

Ground 2.1

14 It is convenient to consider this ground first. In order to do so it is necessary to refer briefly to the conduct of the proceedings in the court below. The appellant's plea was conducted over two days. During the hearing on the first day, 17 June 2005, the appellant's mental condition was discussed at length. Psychiatric reports tendered on the appellant's behalf indicated that he had been diagnosed with paranoid schizophrenia, one report also assessed the appellant as suffering from polysubstance abuse and an anti-social personality disorder. The learned sentencing judge was evidently concerned about the appellant's mental health, and although neither party submitted that his Honour should do so, he requested that the appellant be assessed pursuant to section 90 of the Sentencing Act 1991 ('the Act') in order to ascertain his suitability for an order under section 93 of that Act.[4]

15 An assessment report dated 5 August 2005, by Dr Kate Roberts, was supplied to the court, and the hearing of the appellant's plea recommenced on 9 September 2005. Dr Robert's report stated, incorrectly, that it was requested 'pursuant to s.96 of the Sentencing Act.' The report did not expressly address the matters to which s.90 of the Act is directed and recommended, somewhat ambiguously, that the appellant required "a structured management plan with a containing environment where he can gain attention in various ways."

16 In a written outline of argument, the appellant sought to argue that the trial judge's sentencing discretion had been vitiated by the fact that he had not obtained the type of assessment report which he had ordered.[5] In oral argument, counsel for the appellant did not seek to press the point. It was not contended before this Court (nor was it contended on the plea) that an order under section 93 of the Act should have been made with respect to the appellant. That being so, the sentencing discretion of the learned sentencing judge could not have miscarried as a result of the failure of Dr Robert's report to comply with section 90 of the Act.

17 Further, by the time the report was provided to the Court the learned sentencing judge had decided that it was no longer needed. As it happens, another report pursuant to s 90 was ordered, when leave to appeal was granted in this matter on 24 February 2006. That report, prepared by Dr Debra Wood and filed with this Court on 14 June 2005, concluded that the appellant was not an appropriate candidate for an order under section 93 of the Act.

Grounds 1 and 2

18 Given the appellant's mental condition, the sentence imposed upon him was arguably a stern one in light of the applicable principles summarised in R v Tsiaras.[6] Of course, it does not follow that the sentence is manifestly excessive.[7] In my view, given the gravity of the appellant's offending, particularly the kidnapping and armed robbery of Mrs Lever, the sentences imposed by the learned trial judge cannot be said to be obviously excessive. Accordingly, ground 1 cannot be sustained.

19 In support of ground 2, the appellant submitted that the failure of the learned sentencing judge to give adequate weight to Tsiaras principles could be inferred simply from the length of the individual sentences, the non-parole period and the total effective sentence imposed. This submission should be rejected. In light of the gravity of the offending and its effect on the victims, the length of the sentences imposed on the appellant do not support the inference that general and specific deterrence were insufficiently moderated. In his reasons for sentence, the learned sentencing judge made it clear that, but for the need to moderate general deterrence, the appellant could have expected to serve a much longer period of incarceration.

20 No error has been demonstrated in the sentencing of the appellant in the court below. Accordingly, the appeal turns on whether the fresh evidence is otherwise admissible and, if so, whether that evidence indicates that a different sentence should now be passed.

The fresh evidence

21 The principles governing the admission of fresh evidence on an appeal against sentence were recently summarised in R v Duy Duc Nguyen as follows:[8]

"(i) the new evidence must relate to events which have occurred since the sentence was imposed;[9]

(ii) the evidence must demonstrate the true significance of facts in existence at the time of the sentence;[10]

(iii) the evidence will not be admitted if it relates only to events which have occurred after sentence and which show that the sentence has turned out to be excessive;[11]

(iv) the new evidence may be admissible even though the applicant did not refer to the pre-existing state of affairs in the course of the plea;[12]

(v) upon the admission of the new evidence, it is unnecessary to determine whether the original sentence was vitiated by error,[13] or whether it was manifestly excessive; and

(vi) the question is whether, on all of the material now before the Court, any different sentence should be substituted to avoid a miscarriage of justice."[14]

22 Fresh evidence may thus be received on an appeal, and the sentencing discretion reopened, despite the absence of any sentencing error. Even a sentence which could be described as 'very moderate' may, as a consequence of the new evidence, be reduced on appeal in the re-exercise of the sentencing discretion.[15]

23 Mrs Quin, who appeared for the Crown, submitted that the new material did not indicate that the appellant's incarceration had been burdensome in a manner or to an extent not contemplated by the trial judge. The Crown emphasised, and counsel for the appellant conceded, that the appellant's mental illness figured as a prominent factor in the deliberations of the learned sentencing judge, who gave appropriate consideration to the appellant's psychological condition in considering his moral culpability and the need to moderate general deterrence. Counsel for the appellant on the plea did not advert to the question of the burden of imprisonment on the appellant and, as a consequence, the learned sentencing judge did not refer to the matter in his reasons for sentence. The fact that the burden of imprisonment on the appellant was not raised on the plea is not a relevant barrier to the admission of fresh evidence concerning that matter.[16]

Nature of the new material

24 The new material consists largely of prison records (such as incident reports, injury reports and psychological reports) concerning the appellant's experiences in custody since October 2004. This material is only admissible to the extent that it concerns events which have occurred since the sentence was passed[17] on 9 September 2005. Consequently, only a small portion of the "new evidence" relied on by the appellant is admissible. The admissible prison records disclose the following incidents:

• On 7 November 2005 the appellant was struck in the back of the head with an open hand in an altercation with another prisoner. He suffered no injury, and was relocated to another cell.

• On 23 January 2006 the appellant reported having been assaulted by another prisoner. He was taken to the medical centre for assessment and was uninjured.

• On 14 March 2006 the appellant started a small fire in a rubbish bin in his cell. He was also observed by prison officers hitting another prisoner in the back of the head, and 'standing over' one of the prisoners for cigarettes. He was moved to another unit.

• On 23 March 2006 the appellant was placed in a Management Cell following threats to other prisoners after he claimed he had been harassed. He was clinically assessed on 24 March 2006.

• On 16 April 2006 a condom was found in the appellant's cell.

• On 3 May 2006 the appellant was transferred to Melbourne Assessment Prison ('MAP').

• On 21 May 2006 the appellant was reported to have been disruptive in his unit, and was accused of stealing by other prisoners. He refused to leave the yard when instructed and became abusive to prison staff. And interfered with the laundry equipment. A broken jug was found in his cell. The appellant was moved to a different unit within MAP, and then to a Management Cell.

25 Importantly, the further psychiatric assessment of the appellant by Dr Wood, referred to above, was conducted after all of theses incidents had occurred. Dr Wood interviewed the appellant on 25 May 2006. In preparing her report, she made reference to an extensive range of materials, including the appellant's prison medical records and previous psychiatric reports. Further, the appellant was well known to Dr Wood, as he had, on a number of occasions during his incarceration, been under her care. Dr Wood confirmed that the appellant suffered from a "schizophrenia spectrum disorder", but concluded that "there has been no evidence of active illness" and thought there was "unequivocal evidence of malingered psychotic symptoms, since [the appellant's] incarceration".[18] Dr Wood's reasons for reaching this conclusion were set out comprehensively in her report, where she explained that the appellant "... frequently feigns symptoms for secondary gain. At times this seems to be for medication, at others for admission (in the civil setting) and latterly (in the custodial setting) to influence his prison placement."

26 Dr Wood stated that, at the time of preparing her report, the appellant was not requiring active treatment. The contention that the appellant's prison records demonstrate that imprisonment has been more burdensome for him owing to his mental illness is tenuous, to say the least. Any additional hardship the appellant has experienced in prison, up until the time of Dr Wood's report, cannot be attributed to his mental illness.

27 But the appellant relies upon a further psychiatric report by Dr Mark Ryan from Forensicare dated 17 October 2005. In this report, Dr Ryan records that the appellant was transferred to Thomas Embling Hospital from MAP on 9 September 2006 "due to concerns about a deterioration in his mental state." The remainder of Dr Ryan's report may be set out in full:

"[the appellant] presented with disorganised behaviour and communications, auditory hallucinations and grandiose religious ideas. He was recommenced on medication that had ceased some months earlier. These mental state abnormalities settled over a period of a week or two and he was discharged back to the Melbourne Assessment Prison on 10 October 2006.

The diagnosis consistently applied to Mr Jones over many years is paranoid schizophrenia. I also note a well documented history of feigning or exaggerating symptoms. Although such a tendency may have contributed to his presentation especially given the rapid resolution of symptoms there was strong likelihood of recurrence of his psychotic illness. By the time of his discharge there was no evidence of ongoing psychotic symptoms, he was adherent with his medication regime and he was expressing a keenness to return to prison. He is currently prescribed the anti-psychotic medication Olanzapine and the mood stabiliser Sodium Valproate."

28 In summary, Dr Ryan's report indicates that the appellant probably suffered a recurrence of psychotic symptoms, which settled after he was treated. In my view, this evidence does not 'throw a new light on'[19] or demonstrate the 'true significance'[20] of the appellant's mental condition or any additional burden it has caused during his incarceration. In this respect, this case is very different from R v SH,[21] where a vicious assault by other prisoners precipitated a major decline in the appellant's mental condition. The kind of recurrence of symptoms the appellant seems to have suffered was entirely predictable, and cannot be said to have gone beyond that which was in the contemplation of the learned sentencing judge.

29 The appellant's mental condition and the availability of treatment were again discussed with counsel at the recommencement of the plea on 9 September 2005. Further, at that time, the learned sentencing judge had the benefit of the report of Dr Roberts, who had been treating the appellant after he had been placed in the Acute Assessment Unit of MAP. Consequently, the learned sentencing judge was aware of the type of treatment which was available to the appellant in the prison system. After passing sentence, his Honour expressed the hope that the appellant's current treatment regime continue. Although his Honour did not expressly advert to the possibility of the appellant suffering a psychotic episode, in my view it would be unrealistic to suggest that this was not a possibility which was contemplated by the learned sentencing judge. Accordingly, in my view, this case is akin to R v McLachlan[22] where Chernov JA (with whom Winneke P and Vincent JA agreed) held that:

"The evidence on which the applicant now seeks to rely in this case does not throw light on, or explain, the circumstances that existed at the time of sentence. Rather, it does no more than show the working out of matters that were, in general terms, recognised and taken into account by his Honour at the time of sentence."[23]

30 The new evidence does not further illuminate facts that were in existence at the time of the sentence or give them a significance that was not appreciated at that time. Consequently there is no permitted basis upon which this Court should receive or act upon the new material or re-sentence the appellant. The appeal should be dismissed.

- - -

[1] Specifically, the Standard Guidelines for Corrections in Australia and the National Statement of Principles for Forensic Mental Health.

[2] See R v Rollo [2006] VSCA 154 at [16]- [18] per Warren CJ (with whom Buchanan and Vincent JJA agreed), and R v SH [2006] VSCA 83 at [22]- [23] per Warren CJ, Charles and Chernov JJA.

[3] The appellant relied upon R v Babic [1998] 2 VR 79.

[4] That section enables an order to be made that an offender be admitted as an involuntary patient at a mental health institution; either in lieu of sentence, or by way of sentence.

[5] This argument was presented as part of ground 1, although the relevance of the argument to manifest excess was not explained.

[6] [1996] VicRp 26; [1996] 1 VR 398.

[7] See R v Meyers [2001] VSCA 237 at [14] per Callaway JA.

[8] [2006] VSCA 184 at [36].

[9] R v Eliasen (1991) 53 A Crim R 391 at 394; R v Rostom [1996] VicRp 60; [1996] 2 VR 97 at 101; R v WEF [1998] 2 VR 385 at 388; R v Wooden [2006] VSCA 97 at [7].

[10] R v Smith (1987) 27 A Crim R 315; R v Eliasen at 394; R v Rostom at 99; R v WEF at 389; R v Holland [2002] VSCA 118; (2002) 134 A Crim R 451 at [2], [35]; R v McLachlan [2004] VSCA 87; (2004) 8 VR 403 at [10]; R v SH [2006] VSCA 83 at [9].

[11] R v Babic [1998] 2 VR 79 at 80, 82; R v McLachlan at [10]; R v WEF at 388.

[12] Knights v R (1993) 70 A Crim R 105 at 109-110; R v Maniades [1996] QCA 242; [1997] 1 Qd R 593 at 597; R v Ahmed [2005] VSCA 279 at [11].

[13] R v Ahmed at [18]; R v SH at [25]-[26].

[14] R v Eliasen, at 396; R v Rostom at 103; R v SH [2006] VSCA 83 at [25]. The reference to 'miscarriage of justice' is found in such cases as R v McLachlan at [10] and R v Ahmed at [11].

[15] See R v Rollo [2006] VSCA 154 at [17] per Warren CJ.

[16] See authorities cited under para (iii) from the passage in R v Duy Duc Nguyen above.

[17] See authorities cited under para (i) from the passage in R v Duy Duc Nguyen above.

[18] Earlier psychiatric reports relating to the appellant, which were tendered on the plea, also record the appellant's tendency to display 'malingered' or feigned symptoms.

[19] See R v WEF [1998] 2 VR 385 at 389 per Winneke P.

[20] Ibid.

[21] [2006] VSCA 83.

[22] [2004] VSCA 87.

[23] At [11].