R v Meyers [2001] VSCA 237

10. The applicant seeks leave to appeal against sentence on two grounds: first, that the sentence was manifestly excessive; and, secondly, that the learned judge erred in failing to give sufficient weight to the evidence concerning the applicant's psychiatric condition.

13. 4 Before turning to counsel's submissions, it will be convenient to say something briefly about the circumstances of the offence.[2] On the evening of 27th February 1999 the applicant, Williams and Egan were present at a unit in Wodonga. They, together with other young people at the unit, were consuming alcohol, by which they were all substantially affected. At about 10.30 the three offenders walked to the residence of the deceased, which was a few blocks away. Each of them had a black stocking mask made from a pair of pantyhose. They were unarmed. They had decided to "do over" the deceased's unit, that is to say, they planned to enter his home and steal marijuana and cash that they believed would be found in a safe. One of them knocked on the front door. The deceased opened and immediately slammed the door, shouting "Fuck off" as he did so, almost certainly alarmed by the presence of three masked individuals. They did not withdraw but instead entered the deceased's unit through a living room window, after removing a flyscreen. The deceased grabbed an unloaded shotgun in order to defend himself and his property.

16. His Honour made no finding as to what precisely occurred thereafter, but he did find that some form of confrontation and struggle took place with the deceased involving at least Williams and Egan. At one stage, when Egan and the deceased were engaged, Williams went to the kitchen and took a large knife from a drawer. He returned to the scene of the struggle and, without warning, stabbed the deceased three times in the back. The offenders then fled the scene. The victim died within minutes. In addition to the stab-wounds, he sustained a number of other injuries in the course of the struggle indicative of the severity of the attack upon him.

19. When the judge turned to sentence the applicant, he said that he did not need to recite again the factual framework within which the crime had been committed. He had done that in sentencing Williams. It was necessary only to state that the applicant was a willing participant in the violent invasion of the deceased's home. He acted in company with two others and all three were affected by alcohol. His actions were clearly unlawful and objectively, his Honour continued, it would have been obvious to any reasonable person that to engage in them would create an appreciable risk of at least serious injury to the deceased should he attempt to resist. His Honour also referred to the cowardice of the offenders and the "very serious" nature of the crime that the applicant had committed.

22. At the outset of the hearing, I asked the prosecutor how the Crown characterized the unlawful and dangerous act that the applicant had admitted by pleading guilty to manslaughter. Mr Hillman responded that it was the applicant's and others' unlawfully entering the premises of the deceased, masked and intent on robbery, in circumstances where it would reasonably be expected that the deceased would lawfully resist. (In response to a question later from the learned presiding judge, counsel added, "and they would overpower him in order to rob him".) A situation of danger was thereby created, counsel continued, which involved an appreciable risk that the deceased would be exposed to serious injury. It must have been intended that he would be subjected to some violence if he resisted.

25. Mr Croucher's principal submission was that the sentence could not be reconciled with the extensive findings of mitigation in the sentencing remarks. He reminded us that, although a hospital security order had been made, the period of detention could not be longer than the period of imprisonment to which the applicant would have been sentenced had that order not been made.[3] The importance of that rule is illustrated by what happened in the present case: five weeks after being sentenced, the applicant was discharged as a security patient[4] and transferred to a prison. Since then he has been certified twice as a security patient under s.16(3)(b) of the Mental Health Act 1986. At the time of the hearing of the application, he was a patient in the Thomas Embling Hospital.

28. To evaluate counsel's submission, I turn first to the findings of mitigation on which he relied. After mentioning the applicant's previous convictions, a topic to which I shall return, his Honour referred to the applicant's troubled upbringing. His parents had separated when he was three years old. His father was a violent alcoholic and the man with whom his mother then entered into a de facto relationship of some 13 or 14 years' duration also abused alcohol and displayed violence. In 1992 the applicant had successfully undertaken a 14-month program to overcome his own alcohol and drug problem but, after completing the program, he learned that his half-sister had been sexually molested by his mother's then partner. The distress that caused led to his reverting to a pattern of drug and alcohol abuse and his offending behaviour recommenced. The applicant also began to show the symptoms of what the judge accepted was a serious mental disorder.

31. It is desirable to set out the next three paragraphs of the sentencing remarks in full:

"At the time of the commission of the offence which brings you before this Court, you were apparently quite drunk and also under the influence of prescription pills. I accept that you, like Benjamin Williams and Anthony Egan, did not intend on this night to cause [the deceased] any serious harm. I am satisfied that when you set out your sole objective was to rob him of his marijuana and cash. I accept that your conduct on the night in question may also have been influenced by the condition of schizophrenia from which you suffer. It appears that you were suffering from a mental disorder at that time. The courts have many times expressed the view that in the cases of persons who are subject to such conditions, concepts of general and specific deterrence assume less significance as sentencing considerations than might otherwise be the case. A similar approach must be taken when levels of culpability and the degree of importance to be attached to the retributive function of the sentencing process are considered. Those principles are applicable in your situation. In the circumstances, I consider that in view of your youth and your unfortunate background, the prospect of your eventual rehabilitation must assume significance as a sentencing consideration. Hopefully, with appropriate assistance, you may be successfully reintegrated into the community."

35. His Honour then said that he had taken into account in his favour the applicant's plea of guilty and the fact that, for a lengthy period of time, he had been awaiting trial for murder. The applicant had not yet experienced any real sense of remorse, having been primarily concerned about his own situation, but the plea had utilitarian value and the period of time awaiting trial for murder had imposed additional stress.

38. A deal of attention was given to the second paragraph of the passage I have set out in [10]. It was said, for example, that, if the applicant was suffering from schizophrenia, general deterrence should have assumed no significance rather than "less significance". Per contra, it was suggested that all his Honour had found was that the applicant's conduct "may ... have been influenced" by his condition and that it only "appeared" that he had been suffering from a mental disorder at that time. I put such criticisms entirely to one side. The general sense of that paragraph is, to my mind, perfectly clear when regard is had to the last sentence and to the fact that a hospital security order was made. It amounts to a finding that the applicant's mental illness was such as significantly to decrease the weight to be given to both general and specific deterrence and to culpability and retribution.

41. Mr Hillman conceded that a sentence of nine years' imprisonment is a stern sentence for manslaughter by unlawful and dangerous act, but subject to the caveat that many of the sentences that are said to be comparable were imposed before 1997. In that year the maximum custodial penalty for manslaughter was increased from 15 years' to 20 years' imprisonment. The effective maximum had been 10 years' imprisonment because of the former s.10 of the Sentencing Act 1991.

44. To say that a sentence is stern is not, of course, to say that it is manifestly excessive. In the present case there was an invasion of the victim's home at night and, by his plea, the applicant accepted responsibility for the death of the deceased. The unlawful and dangerous act had not been the subject of contention on the plea. Counsel for the applicant had assumed that it was, broadly, as Mr Hillman was later to describe it to this Court. Naturally, he put it in language that was more attractive from the applicant's point of view.[5] The real question is whether it can be said, upholding ground 2, that his Honour gave insufficient weight to the evidence concerning the applicant's psychiatric condition. That is the only basis on which the contention could be accepted that the sentence is manifestly excessive.

47. The evidence was that the applicant's condition was "a severe mental illness". It involved auditory hallucinations. The applicant's resort to alcohol was said on the plea to be, in part, an attempt at self-medication. The judge described his condition as "a serious mental disorder" and, as we have seen, accepted that it entailed a significant decrease in the weight to be given to general and specific deterrence, culpability and retribution. His Honour did not say that it diminished the importance of imposing a sentence that would protect the community.[6]

50. It is well established that mental illness may point both ways , provided that the requirements of proportionality are borne firmly in mind. The best known passage is in the judgment of Mason, C.J., Brennan, Dawson and Toohey, JJ. in Veen v. R. [No. 2][7]:

"The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions. And so a mental abnormality which makes an offender a danger to society when he is at large but which diminishes his moral culpability for a particular crime is a factor which has two countervailing effects: one which tends towards a longer custodial sentence, the other towards a shorter. These effects may balance out, but consideration of the danger to society cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality. ... In this case, Hunt J took into account the relevant purposes of criminal punishment in determining the sentence to be imposed. He was entitled to attach great weight to the protection of society as a factor in that determination."

Another important case is R. v. Engert[8], where, among other things, Gleeson, C.J. expressly rejected the proposition that mental illness necessarily results in a lesser sentence.[9]

55. At the conclusion of the sentencing remarks the judge referred to the assessment he had received from Dr Andrew Taylor, a consultant forensic psychiatrist, with a view to the possibility that a hospital security order might be made. Mr Hillman relied on the fact that his Honour said that he was satisfied, having received Dr Taylor's report, that the applicant should be admitted and detained as an involuntary patient "for [his] own health and for the protection of the community". Counsel pointed out that all that was required by s.93(1)(b)(iii) of the Sentencing Act was satisfaction that the offender should be admitted and detained as an involuntary patient for his own health or safety or for the protection of members of the public.

58. I attach little weight to that consideration. There are two much stronger indications that the protection of the community weighed with the judge. The second of them shows that there was no denial of procedural fairness.

61. First, in the course of the sentencing remarks his Honour referred to the applicant's convictions and their significance in the present case. The applicant had appeared before courts on 16 occasions between March 1990 and November 1997 in relation to a large number of offences, some of which had involved violence and the threat of violence. They included convictions for theft, causing wilful damage, attempted armed robbery, assaulting a member of the police force in the execution of the member's duty, intentionally or recklessly causing injury, reckless conduct endangering life, burglary, causing serious injury recklessly, driving whilst disqualified and whilst over the prescribed alcohol limit, being in possession of a pistol without a licence and discharging a firearm in a public place. The judge concluded, "You have a bad criminal record indicating a propensity to acts of dishonesty, the abuse of alcohol and the employment of violence, all of which features were associated with the circumstances under which the deceased met his death."[10]

64. Secondly, in the course of the plea, the following exchange took place:

"HIS HONOUR: [The applicant] was also potentially the most aggressive and dangerous of the people who came through the window, Mr Morrissey. MR MORRISSEY: His prior convictions suggests that that's right. I would submit that Your Honour ought [quaere `ought not'] to make a finding that his state of mind differed to the others in any way that matters. Really what affects him badly - - - HIS HONOUR: His level of self-control is always going to be fairly limited, isn't it? MR MORRISSEY: He might not have - I submit that's true, but whether he would have that insight being drunk is another question. I would submit you might not go that far to make the finding that he saw himself as a time bomb. The court might see things differently now." (Emphasis added.)

Mr Morrissey was counsel for the applicant. He may have taken the judge's first observation as a reference to his client's previous convictions and his Honour's second observation as a reference to the applicant's moral culpability, but there had been a clear indication of an aspect of the case that was troubling the judge and counsel acknowledged, as he was bound to do, that, although the applicant had not seen himself as a time bomb, the court might see things differently now.

69. In those circumstances I do not think it can be said that a sentence equivalent to nine years' imprisonment with a non-parole period of six-and-a-half years was manifestly excessive. It is true that the sentence imposed on Williams, who stood trial and was convicted of murder, was moderate. In that regard it may be said to

stand in contrast with the sentence imposed on the applicant, even if due allowance is made for the differences between the two crimes and the offenders' personal circumstances. There is, however, no ground touching parity and I do not suggest that there should have been. The applicant was the most dangerous of the three offenders and, in my opinion, it was that consideration that led his Honour to conclude that not too much mitigatory weight could be given to his psychiatric condition.

73. For these reasons I would dismiss the application.

78. I have had the advantage of reading in draft the reasons for judgment prepared by Callaway, J.A. I gratefully adopt his description of the circumstances of the crime and the antecedents of the applicant. Unfortunately I differ as to the result of the application.

81. In my view the applicant's "serious mental disorder", to use the words of the sentencing judge, did warrant reduction of the sentence that was otherwise appropriate in that general and specific deterrence were of less importance than normal in the circumstances of this case. I am also of the opinion that the applicant's conduct on this occasion did not require the sensible moderation of the sentence to reflect the diminished roles of general and personal deterrence to be balanced out by the need to protect the community. In my view the sentence imposed upon the applicant failed to reflect the moderation of the sentence that the applicant's mental illness required.

84. I base those conclusions upon the conduct of the applicant that was the basis of his conviction for manslaughter. There was a large measure of agreement between counsel for the applicant and the Crown as to the unlawful and dangerous act upon which the conviction was founded. The unlawful aspect was the entry to the premises with the intention of robbery. The danger, or "appreciable risk of serious

injury"[11], was created by the invaders' intention to overpower the occupant of the house in order to rob him. As the sentencing judge said, none of those who entered the house intended to cause the deceased any serious harm. The danger did not arise from any weapons carried by the trespassers to effect their purpose. The knife was obtained by Williams in the house moments before he killed the deceased. The dangerous act which a hypothetical reasonable onlooker would have contemplated when the offenders entered in the house was not the wielding of a deadly weapon, the act which made Williams a murderer.

88. The applicant is not to be sentenced for the tendencies revealed by his prior convictions but rather for his criminal behaviour on this occasion against the background of the crimes which he had committed in the past. The applicant was, as the sentencing judge said in the course of the plea, "potentially the most aggressive and dangerous of the people who came through the window." That potential, however, was not realized on this occasion. The applicant was to be sentenced as one who participated in the dangerous act of breaking into a house with the intention of overpowering a belligerent occupant, not the act of repeatedly stabbing the occupant in the back. It seems that the applicant did not join in the struggle that preceded the stabbing of the deceased. The sentencing judge accepted that the applicant's conduct, that is, his enrolment in the expedition to rob the deceased ,may have been influenced by his mental disorder.

91. In my opinion the applicant's conduct on this occasion did not demonstrate such a propensity for violence that it was appropriate to reduce the ameliorating influence of the applicant's mental disorder in order to protect the community from the applicant. The sentencing judge did not find that the applicant was the instigator or leader of the invasion of the deceased's house. Further, when the conduct constituting the crime of which the applicant was convicted is contrasted with the conduct for which Williams was sentenced and the sentences imposed upon the applicant and Williams are compared, I am of the view that the sentence imposed upon the applicant failed to adequately reflect the effect of the applicant's mental state upon his moral culpability, the suitability of the applicant as an example to deter others and the need to deter the applicant himself.

94. In order to accommodate the applicant's mental disorder and bearing in mind the plea of guilty and what the sentencing judge said as to the prospect of the applicant's eventual rehabilitation, having regard to his youth and unfortunate background, I would re-sentence the applicant to a term of seven years' imprisonment and fix a term of five years' imprisonment before the applicant is to be eligible for parole.

[1] R. v. Williams [2000] VSCA 191.

[2] It is the judge's findings that are important, especially as they were contested by the Crown on the plea. Accordingly, the following account derives almost entirely from the sentencing remarks.

[3] Sentencing Act 1991, s.93(3).

[4] See s.93(5).

[5]. He said that the unlawful and dangerous act was entering the premises of what was perceived to be an angry drug dealer, notwithstanding the denial of entry at the door and in circumstances where "things could get very nasty".

[6] Sentencing Act 1991, s.5(1)(e).

[7] [1988] HCA 14; (1988) 164 C.L.R. 465 at 476-477.

[8] (1995) 84 A.Crim.R. 67.

[10] It is not surprising that, given the tenor of the rest of the remarks addressed to the applicant, his Honour did not say expressly that the sentence was in large measure to protect the community.

[11] Wilson v. R. [1992] HCA 31; (1992) 174 C.L.R. 313 at 333 per Mason, C.J., Toohey, Gaudron and McHugh, JJ.