R v Lewis [2007] VSCA 24

1. The learned judge erred in failing to give any or sufficient weight to the appellant's mental illness; and in particular he erred:

(a) in holding that the appellant's mental illness "does not impact substantially on the need for specific and general deterrence";

(b) in failing to hold that there should be at least a sensible moderation of the weight to be accorded to specific and general deterrence on account of mental illness;

(c) in failing to hold that the appellant's level of moral culpability was reduced on account of his mental illness;

(d) in failing to hold that the mental illness ought to have a bearing on the type of sentence imposed - namely, a sentence with a relatively short non-parole period so as to allow for the possibility of a longer period of supervision on parole.

2. The individual sentences, the extent of the order for cumulation, the resulting total effective sentence and the non- parole period are manifestly excessive and in breach of totality.

3. The extent of the differences between the total effective sentences and non-parole periods imposed upon the appellant and his co-offender infringe the principles relating to parity, particularly when regard is had to the appellant's mental illness.

7 It is sufficient, I think, in order to set out the factual background against which the appeal has arisen simply to recite the sentencing judge's summary of the circumstances of the offences, concerning which, I understand, there is no controversy.

"On 9 October 2003 at 2.15 am the burglar alarm at Daht Abalone Factory in Curtis Street, Belmont, Geelong was activated. Those premises were used by the victim of counts 2 and 3, David Hoskin, and his family, in the process of buying, preparing, storage and sale of abalone. You both forced open a gate and brought a hired truck onto the premises. You forced open a door, damaged and attempted to disengage an alarm control panel and damaged a security light above the street entrance to the factory. You had ice in the hired truck and intended to steal abalone. The alarm, and possibly the arrival 15 minutes later of a security guard, caused you to leave the scene. The truck was left in the yard. No property was stolen. The security guard waited for the arrival of the police and saw you drive past twice in a station wagon.

You then drove to the residence of Toby Hoskin, the son of the owner of Daht Abalone. He had been called to go to the factory, and found that a tyre on his car had been deliberately let down. Lewis spoke to Toby Hoskin, apparently knowing about his flat tyre, and offered to drive him to the factory. That offer was refused. The significance of that evidence was that it was established that you both knew of the burglary that night.

You later returned to the factory and told police that you intended to arrange, in the early hours of the morning, for the repair of the hired truck at an automotive electrician across the road from the abalone factory. The automotive electrician did not operate in the early hours of the morning and the truck was not faulty. Despite that evidence, at the trial you maintained the same specious explanation for the presence of the truck in the factory yard. You were both arrested at the scene.

Commencing on 9 October, Lewis made several attempts to telephone the victim of counts 2 and 3, the owner of the abalone factory. At about midnight on 10 October, the victim, David Hoskin, agreed to be escorted to Lewis's residence. Bell was then living there. Lewis complained that he had been charged with burglary of the factory and that Bell, who was present during half of the tirade made by Lewis, had been injured by police and demanded monetary compensation. Bell did not take part in that conversation, but he was present when that allegation and demand was made. It was also said that Bell was a member of a bikie gang and that police should not be contacted because 'you would find out.' When Bell was not present, Lewis threatened David Hoskin and his family with physical harm. He was told in the presence of Bell that Bell belonged to a bikie gang, the Black Ulans. When Bell was not present, Lewis shadow boxed around the room and said that the Hell's Angels had to be paid.

Over the following days, Lewis telephoned David Hoskin and demanded $100,000 and lesser sums. The demands continued, including a demand made at a meeting at Hoskin's home. On 17 October, the victim was telephoned by Lewis as he travelled by ferry from Sorrento to Queenscliff. The following sentence was in the draft Reasons for Sentence handed to counsel but was not read in court: 'Lewis demanded $50,000 and threatened to kill Hoskin's sons.' Hoskin was terrified and told his sons to leave Geelong. He arranged to withdraw $10,000 from his bank account and met Lewis in the street outside Hoskin's home. The money was passed to Lewis through an intermediary."[2]

8 In the course of presenting arguments concerning penalty, counsel for the appellant tendered a report from a psychiatrist, Dr Lester Walton, in which the opinion is expressed that the appellant suffers from bipolar affective disorder. In further explanation in that report, Dr Walton stated:

"I am not suggesting that this man may have had a defence of mental impairment available to him specifically in relation to his recent charges, but it is Mr Lewis' account that he was manic during the period of his alleged offending. Bipolar affective disorder certainly can form a basis of defence of mental impairment when the condition is of severe proportion, but it would seem that the situation was somewhat short of that with Mr Lewis at the material times. Nevertheless, in my view, his mental illness has made at least some contribution to his offending and that might be seen as militating against moral culpability. The description of Mr Lewis' rather frantic racing around in the early hours of the morning surrounding the original burglary is entirely consistent with manic behaviour, as is his subsequent ill-considered attempt at blackmail and the like."

It appears that Dr Walton examined the appellant at the Melbourne Assessment Prison on one occasion on 14 September 2004, and that he had been provided with some letters and other documentation concerning the circumstances of the matter and his history and relationships. It was on that material that the opinion was expressed.

9 In response to counsel's contention, in the course of the plea, that the conduct of the appellant at around the time of the commission of his offences could be seen to be "mediated by mental illness", his Honour referred to the passage just cited. The following exchange then took place:

"COUNSEL: What I understand Dr Walton to be saying, that the effect of his mental illness might be such as to impact on his moral culpability. I think, with respect, that's a matter properly for Your Honour, but really what I understand Dr Walton to be saying in that report is that the defendant has had a serious mental illness for some time and that it is likely that the mental illness was affecting Mr Lewis' behaviour at the time of these offences. One obvious difficulty with that is that Mr Lewis has not been regular in seeking treatment for that mental illness and - - -

HIS HONOUR: He stopped using the treatment, he stopped his medication and hasn't continued with the treatment.

COUNSEL: No, he hasn't, and presently he's only medicated on Arapax, which is an anti-depressant drug. It is nonetheless still relevant to the sentence that Your Honour imposes on him, in my submission, that he is afflicted with that condition, and it's relevant in the sense of affecting his moral culpability, in my submission, and also the weight which is properly to be attracted to the purposes of specific and general deterrence when Your Honour determines what sentence is appropriate."[3]

10 It is apparent from his Honour's sentencing remarks that he took the opinion of Dr Walton and counsel's submissions into account, but that he also concluded that, in view of the uncertain terms in which they were expressed, and the paucity of information with which he was provided on this aspect, he was unable to find that the appellant's mental condition was such that it could impact substantially upon the need for specific and general deterrence.

11 There was, as counsel for the Crown in this Court submitted, very little save the appellant's assertion of his state of mind in the early hours of 9 October 2003, and what could be described as unusual features surrounding his conduct during that period, to suggest that his judgment may have been significantly impaired by reason of some mental disturbance. The burglary itself was clearly premeditated and planned, albeit it not well executed, and the conduct encompassed by count 3 involved a number of actions, contacts and decisions and took place over a period of nine days. These features of themselves would not exclude the possibility that he may have been acting under the effects of some level of mental disturbance, but they equally do not necessarily suggest that he was.

12 It would appear that the appellant had, only a few weeks prior to the commission of the offences, lost control of the business which had been his livelihood for over ten years and was unemployed. He had also had substantial disruption of his personal relationships, however, he would not be the first person who comes before this Court with a level of some emotional instability in circumstances of that kind. The motivation for engaging in the burglary at least was, it seems, to secure financial advantage through the sale of the stolen abalone and address his personal difficulties in that regard.

13 It is hardly surprising, against that background, that the sentencing judge encountered difficulty in determining the extent to which the diagnosis of bipolar affective disorder could be taken into account in this case.

14 As Charles, J.A. stated in R v Chambers[4]:

"In R v Yaldiz... Winneke ACJ, after referring to cases such as R v Anderson and Tsiaras, said --

'It is not appropriate to simply fasten onto the words "recognised psychiatric disorder" and then, without reference to symptoms and consequences of that disorder, to contend that purposes of general deterrence have no part to play in the sentencing process. Whether in the particular case a psychiatric condition should reduce or eliminate general deterrence as an appropriate purpose of punishment will depend upon the nature and severity of its symptoms and its effect upon the mental capacity of the accused.'

In R v Toni Vodopic this Court considered the case of a woman who had pleaded guilty to various offences including kidnapping for ransom in circumstances where there was evidence that she suffered 'a significant personality dysfunction' and accordingly that the sentencing judge should have moderated the weight needed to be given to factors of general and specific deterrence. Eames JA, with whom Winneke ACJ and Phillips JA agreed, said... --

'Even if the personality dysfunction identified here was to be regarded as a psychiatric illness, which had not been established, it falls far short of the kind of illness discussed in Tsiaras. If it is to be regarded as ameliorating the need for general deterrence, then the symptoms and consequences of such disorder must be clearly explained and related to the offending conduct so as to explain how that disorder bore upon the moral culpability of the appellant in committing the offences: see R v Yaldiz. In this case there was simply no evidence, and thus no reason for the judge to conclude that the personality disorder was a relevant factor reducing the seriousness of the offences and the moral culpability of the appellant in her participation therein.'

Similarly, in R v Skura... Eames JA said --

'A disorder falling short of serious psychiatric illness might well be capable of moderating the need for general or specific deterrence but the onus was on the applicant to demonstrate that it did so in this case, by establishing that its effect reduced the seriousness of the offences and the moral culpability of the applicant.' "[5]

15 As I have indicated in the present case, although there was a diagnosis made that the appellant was suffering from a significant mental condition, and it was said that this condition must be taken to have had made some contribution to his offending, the measure of that contribution or the way in which it could be seen to have reduced his level of moral culpability remained unexplored. The sentencing judge cannot be said to have fallen into error in a case in which, for practical purposes, almost nothing was done to address the task as repeatedly outlined in a series of decisions in this Court.

16 Finally in this context, it is to be noted that there was nothing in the material before the judge that could be seen to have raised the reasonable possibility that a sentence of imprisonment would be significantly more burdensome for the appellant than for a person in normal health, or that his health may be adversely affected by incarceration. There was certainly no submission advanced by counsel or view expressed by Dr Walton that that would be the situation. With respect to the fixing of a parole period, it is clear enough that Dr Walton considered that it was highly desirable that appropriate allowance be made in order to assist the appellant in his rehabilitation upon release. There is no reason to infer that the sentencing judge may not have had regard to that consideration in fixing the non-parole period in this case.

17 In summary, the complaints advanced under ground 1 lack substance, in my view.

18 The claim that the individual sentences imposed upon the appellant were manifestly excessive in the circumstances rests on a number of assertions.

19 First, with respect to both counts, it is contended that the sentences do not indicate that proper regard was had to what was described as the appellant's manic state at the time of their commission. As I have already indicated and discussed, his Honour did direct attention to the submissions concerning the appellant's mental state at the time. He did not in his remarks indicate that no regard was had to it, but, for reasons that I have discussed, understandably on the material before him, concluded that he was unable to attribute substantial weight to it as a mitigatory factor bearing on general or specific deterrence or moral culpability.

20 Secondly, it was argued that the sentence for burglary should have been less as the enterprise was unsuccessful and no property was taken. In the course of discussion, Mr Croucher elaborated on this notion, arguing that the very fashion in which it was perpetrated was indicative of the mental state of the appellant at the time. I need make no further comment about that aspect.

21 Thirdly, counsel emphasised that the appellant had no prior convictions for dishonesty and, accordingly, he was to be dealt with in that respect as a person of reasonably good character.

22 The sentence handed down on the appellant for the offence of burglary can, in my opinion, be appropriately described as heavy, but it must be borne in mind that the appellant, who has a significant criminal history, engaged in a deal of organisation and a planned raid upon commercial premises at night and in company. He was also the instigator of that activity, which was undertaken for reasons essentially of his own. I do not consider that the sentence for this offence which was handed down upon the appellant could be viewed as unavailable in the sound exercise of sentencing discretion.

23 Similarly, the sentence for the offence of demanding money with menaces could not be described, in my opinion, as manifestly excessive in the circumstances. Although there was no physical violence employed, the victims were subjected to days of fear at the hands of a person whose conduct and threats clearly terrified them. The offence of demanding money with menaces is, of its nature, extremely serious. The commission of it involves the selection by the perpetrator of a victim perceived to be vulnerable to the threat of disclosure of information or the fear of violence. A course of conduct is then deliberately pursued which is designed to exploit these apprehensions, while at the same time inducing the victim to accept that resort to the authorities would be either futile or result in adverse consequences to them. The crime is generally undertaken, as here, in order to secure financial benefit and the criminality attached to its commission is almost invariably high. Those who embark upon it must anticipate the imposition of substantial penalties once detected.

24 Finally, with respect to the orders for cumulation and the total effective sentence which has resulted, neither, in my view, bespeak error, and the non-parole period could not reasonably be regarded as inappropriate in the circumstances of this case.

25 This ground fails.

26 With respect to this ground, it is, I think, sufficient to state that the situations of the appellant and Bell were distinctly different. Included in the matters which properly provide the basis of differentiation between them were -

(a) Bell's role in the commission of the offences. In this context it is important to bear in mind that he was not convicted of the offence of demanding with menaces but of an offence that the jury were instructed was less serious;

(b) Bell had a less serious and relevant criminal history than his co-offender and, unlike the appellant, had committed no subsequent offences;

(c) Bell was considered to have better prospects for rehabilitation, given his character references, employment history, future job prospects and steady relationship; and

(d) The personal pressures upon Bell, whose young child was in hospital, diagnosed as suffering from a potentially fatal cancer, could be viewed as rendering him particularly vulnerable to the appellant's approaches.

When regard is had to these various considerations, it is apparent that some distinction between the two offenders for sentencing purposes was required. I am far from persuaded that the sentencing judge fell into error in that respect.

27 It follows from the above that I consider that this appeal should be dismissed.

29 For the reasons given by the learned presiding judge, I agree that this appeal should be dismissed.

30 The order of the Court is that the appeal is dismissed.

[1] The appellant was also convicted of the offence of possession of cannabis L, and sentenced to a fine of $50.

[2] Sentence T419-419.

[3] T385.

[4] [2005] VSCA 34; (2005) 152 A Crim R 164.

[5] [2005] VSCA 34; (2005) 152 A Crim R 164 at 171-172.