R v Orbach [2007] VSCA 166

Court of Appeal (Vic)|2007-08-23|Before: BUCHANAN and NEAVE JJA and KAYE AJA

CRIMINAL LAW - Sentence - Appeal - Armed robbery, two counts of recklessly causing injury and three counts of false imprisonment - Fresh evidence of events after sentence - Applicant with complicated medical and psychological conditions - State of health significantly deteriorated and treatment compromised after incarceration - Evidence admissible as showing the true significance of facts in existence at the time of sentence - Exceptional case - Application for leave to appeal granted - Applicant re-sentenced.

**1 I have had the considerable advantage of reading the draft reasons for judgment prepared by Kaye AJA. I agree with his Honour that the application for leave to appeal should be granted, the appeal instituted and heard instanter and allowed and the appellant re-sentenced as his Honour proposes.

2 I differ from Kaye AJA only in respect of ground 4 of the application. The error did reopen the sentencing discretion unless the Court is satisfied that the mistake "could not have materially affected the decision."[1] [Emphasis added.] I acknowledge that the sentences imposed in respect of the three counts of unlawful imprisonment represented a small proportion of both 10 and 15 years' imprisonment. Nevertheless, I think that, in carrying out an instinctive synthesis, her Honour's mind may have been influenced by her perception of the gravity with which the legislature viewed the offences revealed by the maximum sentences it had fixed.[2] I feel unable to rule out the possibility that the sentencing judge's misconception may have influenced the individual sentences or the non-parole period.**

**3 For the reasons given by Kaye AJA I agree with his Honour that the application for leave to appeal should be granted, the appeal instituted, heard instanter and allowed and the appellant re-sentenced, as his Honour proposes.

4 I wish only to express my view on Ground 4 of the application, relating to the effect of the learned sentencing judge's misapprehension about the maximum penalty for unlawful imprisonment. Such an error will almost invariably reopen the sentencing discretion, because it necessarily influences the instinctive synthesis of factors which must be considered by a judge in sentencing an offender. In the**

exceptional circumstances of this case, however, I am persuaded by Kaye AJA's reasoning that the error could not have affected the sentences of 6 months imposed in respect of counts 6, 7 and 8, or the manner in which the learned sentencing judge fixed the non-parole period..

**5 On 17 May 2007, the applicant pleaded guilty in the County Court at Melbourne to one count of armed robbery, two counts of recklessly causing injury, and three counts of false imprisonment. Those offences arose out of an armed robbery undertaken by the applicant and her co-accused, Jimmy Lam ("Lam"), in Burwood Road, Hawthorn at about 9.30 am on Sunday 4 June 2006. The applicant also pleaded guilty to three further counts of theft at Richmond on 29 June 2006.

6 The robbery occurred at a milk bar owned and operated by Zhan Gao and his wife, Jing Gao, who resided at the premises attached to the business with their 12 year old son, their 11 month old daughter, and Mr Gao's two elderly parents. All of the family were present at the time of the robbery.

7 Lam and the applicant drove to the Gao's shop in the applicant's vehicle. They stopped en route at Coles Richmond to steal a Wiltshire 15 cm knife, and two pairs of white gloves, which they used in the robbery. When the applicant and Lam entered the milk bar, they were both armed with knives, and had donned balaclavas to disguise their appearances. Lam locked the door. He and the applicant approached Zhan Gao, and told him to get down on the floor. Gao refused to comply with that demand, and attempted to use a mirror to defend himself. Lam pushed the mirror aside. In the ensuing commotion the other family members entered the shop.

8 Mr Gao's parents attempted to assist him. Mr Gao senior (Zhen Hua Gao) was told to get down on the floor. The applicant grabbed Zhan Gao, and in the course of the struggle his glasses came off. In the meantime Lam stabbed Zhen Gao in the arm. He fell bleeding to the floor and collapsed. Lam then cut the forehead of**

Zhan Gao with his knife. The applicant and Lam pushed Zhan Gao, his wife and his mother into the rear section of the shop, and made further demands for money and phone cards. Lam located a bag of money containing $1,820. He also took some phone cards and cigarettes. During the robbery, Zhan Gao was pleading with Lam and the applicant not to hurt the baby, who was seated in a high chair. Lam then tried to tie up all three victims. He pushed them into a toilet area and told them to stay there. Subsequently Zhan Gao left the toilet to check on his children. He observed Lam fleeing, running along the roof of the premises beside the shop.

**9 In the meantime, the police, who had been called by a passer-by, attended the scene and arrested the applicant. Shortly thereafter Lam was located nearby and was also arrested. Zhen Hua Gao was conveyed to the Alfred Hospital, where he was treated for three stab wounds to his left arm. Those wounds were required to be repaired by a vascular surgeon in theatre. Zhan Gao's injury was treated at the scene. His wife suffered pain in some parts of her body, and has sustained a nervous reaction to the incident. Mr Gao's mother suffered pain in the back and breast region for about three weeks, and also suffered from an anxiety reaction as a result of the incident.

10 The applicant and Lam were charged on the same presentment. Count 1 charged the applicant and Lam with one count of armed robbery. Counts 2 and 3 related to the stabbing of Zhen Hua Gao. Count 2 charged Lam with recklessly causing serious injury to Zhen Gao; count 3 charged the applicant with recklessly causing injury to Zhen Gao. Counts 4 and 5 related to the injury caused to Zhan Gao. Count 4 charged Lam with intentionally causing serious injury to Zhan Gao; count 5 charged the applicant with recklessly causing injury to Zhan Gao. Counts 6, 7 and 8 jointly charged Lam and the applicant with the unlawful imprisonment of Zhan Gao, his mother, and his wife, respectively. Counts 9, 10 and 11 charged the applicant on the three charges of theft at Richmond.

11 After the applicant and Lam had both pleaded guilty, the sentencing judge heard a plea on behalf of each accused. A number of medical and psychiatric reports were tendered on behalf of the applicant. On 5 June 2007, the primary judge passed sentence on the applicant and Lam. The applicant was sentenced to terms of imprisonment of 3 years on count 1 (armed robbery), 6 months on count 3 (recklessly causing injury to Zhen Hua Gao), 12 months on count 5 (recklessly causing injury to Zhan Gao), and 6 months on each of counts 6, 7 and 8 (false imprisonment). With cumulation, the applicant was sentenced to a total effective term of imprisonment of 4 years, with a minimum non-parole period of 18 months. The applicant was also convicted on the three theft charges (counts 9, 10 and 11), and was released on an adjourned undertaking to be of good behaviour for 12 months. Lam, whose sentences I shall set out in greater detail later, was sentenced to a total effective term of 7 years and 6 months' imprisonment, with a minimum non-parole period of 5 years' imprisonment.

12 The plea on behalf of the applicant focussed on matters pertaining to her background, and in particular her physical and psychological health. The applicant is 37 years of age and has no previous convictions. When she was young her parents separated, and the applicant and her brother remained with their father. The applicant had a difficult relationship with both of her parents, although, after her arrest, she became reconciled with her father and brother, both of whom have provided material and emotional support to her. From a relatively early age, the applicant's life has been blighted by ill health. She required hospitalisation on a number of occasions between the ages of approximately 2½ years and 7 years as a result of being diagnosed with nephritis. Her teenage years were basically unsettled. During her years in secondary education the applicant commenced using marijuana. She subsequently graduated to using amphetamines.

13 Over the last decade the applicant has suffered from particularly poor health. In 1999 she was diagnosed with severe Crohn's disease. Initial drug therapy proved to be unsuccessful. Ultimately, complications set in, and she required to undergo major surgery with a bowel resection, which involved removal of most of her large bowel. In recent years the applicant has had frequent hospitalisations. She has been on high doses of immuno-suppressive medication. As a consequence, she has suffered major side effects including debilitating arthritis. In a report tendered on the plea, her gastroenterologist, Dr Debinski, stated that he did not believe that the applicant would ever be able to overcome the array of medical problems which confronted her, and that the best which could be done was to maintain her on medication and to monitor her regularly and support her.

14 In May 2005, the applicant was also diagnosed with epilepsy. Her neurologist, Dr Freilich, was of the view that most of her seizures had been related to the use of other medications. She is currently on anti-convulsive medication. Dr Freilich expressed the view that if the applicant were in custody she would need to have her medication administered regularly. He also stated that it is possible that a seizure could be precipitated if she were to miss her medication, or to suffer stress or sleep deprivation.

15 The applicant also has a long-standing history of substance abuse and psychological problems. In more recent years she had been using heroin. She had also been abusing benzodiazepines including Valium and Serepax, together with powerful analgesics containing opiates. After her arrest she was treated by Dr Jagoda at the Vaucluse Hospital. Dr Jagoda, in a report dated 7 May 2007, stated that the applicant had made excellent progress, and that she was well on her way towards rehabilitation. Dr Jagoda expressed the view that a custodial sentence may have a detrimental effect on the applicant's depression, anxiety and panic disorder.

16 The sentencing judge also heard evidence from, and received a report of, Dr Danny Sullivan, a consultant psychiatrist, dated 15 May 2007. Dr Sullivan stated that the applicant had features of a borderline personality disorder, and that she suffered from poly-substance dependence, which was currently in remission. The applicant exhibited fluctuations of mood which are frequently seen in cases involving a borderline personality disorder. At the time of the initial consultation the applicant appeared depressed. However, by May 2007 there was no indication of significant mood disturbance involving anxiety, and no need for anti-depressant medication. Dr Sullivan attributed the applicant's involvement in the offences to her intoxication with benzodiazepines and heroin dependence. He also considered that the applicant's personality problems, her isolation and sadness, together with her indiscriminate formation of relationships, had contributed to her involvement in the offences.

17 On the plea, the judge also received a report of Mr Raphael Aron, the director of counselling at the Gateway Family Counselling Centre. That report stated that since June 2006 the applicant had attended 75 counselling sessions with Mr Aron, and that she had also been seen by another counsellor on 24 occasions in relation to her occupational needs and financial matters. Mr Aron noted that the applicant understood the serious nature of the crimes for which she was then charged, and that she was, "without any doubt", very remorseful. Mr Aron expressed the view that the applicant remained extremely fragile and vulnerable to outside influences. She had made a conscious effort to reduce the amount of medication she had been taking, so that she was no longer dependent on opiates and had reduced her use of benzodiazepines. Mr Aron expressed the view that any period of incarceration would have "extremely serious consequences". He considered that there might be a distinct possibility that the applicant would revert to her previous self-destructive behaviour. Mr Aron noted that by becoming reconciled with her father and brother, the applicant, for "perhaps the first time in her life", was developing a positive attitude to life.

18 Based on that material, a strong plea was made on behalf of the applicant that the judge not impose an immediate custodial sentence. In support of that submission, counsel relied on a number of circumstances, including the applicant's health, her guilty plea, and an offer made by her to give evidence against her co-accused. It was submitted that the applicant's moral culpability was significantly reduced, as her involvement in the offences had arisen from her intoxication with benzodiazepines and heroin dependence, and had been a product of the very complex personal problems from which the applicant then suffered. On the other hand, it was submitted on behalf of the Crown that, in light of the gravity of the offending, an immediate term of imprisonment should be imposed. Counsel for the Crown acknowledged that a sensible moderation of the sentence was justified, particularly in light of the borderline personality symptoms described by Dr Sullivan, the applicant's moral culpability, her remorse, and the evidence relating to her rehabilitation.

19 In her reasons for sentence, the judge recognised that there were significant differences between the applicant and her co-offender Lam. She accepted that the applicant's role was not as significant as that of Lam. Nonetheless, her Honour observed that the applicant had been instrumental in the execution of the robbery, and that she had gone into the robbery as an active and willing participant. Her Honour accepted there were also significant differences in the backgrounds of the applicant and her co-accused. She noted that Lam, unlike the applicant, had an extensive criminal history. The applicant's prospects for rehabilitation were significantly better than those of Lam. The judge accepted that the applicant was genuinely remorseful. She outlined at some length the applicant's medical and psychiatric problems. In addition, her Honour acknowledged that the applicant had taken positive steps to address the underlying factors, which had triggered her offending, including obtaining treatment for her drug abuse and undergoing extensive counselling through the Gateway Family Counselling Centre. Her Honour accepted that the applicant was ultimately cooperative with the police and gave a more detailed account of her role through a statement made to the police on 4 August 2006. She accepted that the applicant's psychiatric condition and drug addiction reduced her moral culpability, as her judgment was impaired at the time of the offending. Thus, her Honour was satisfied that she should moderate the need to emphasise both general and specific deterrence. Her Honour further acknowledged that, by reason of the combined effect of the applicant's physical and psychiatric conditions, a term of imprisonment might weigh more heavily upon the applicant than it would upon a person of normal health.

20 Before this Court, the applicant relied on six grounds of appeal. Grounds 1 to 4, and ground 6, allege errors made by the judge in the exercise of her sentencing discretion. Ground 5 is of a different nature. It alleges that there has been a substantial miscarriage of justice by reason of the circumstances in which the applicant, since her sentence, has been required to serve the custodial portion of the term of imprisonment imposed on her. In support of that ground, a substantial body of medical and other material was produced to the Court. On the hearing of oral argument the Court received that material, and reserved its decision as to its admissibility.

21 As I have reached the conclusion that the application for leave to appeal against sentence should be allowed on ground 5, it is not necessary for me to deal with the other five grounds in any detail. However, I propose to do so, not only out of deference to the thorough and well presented arguments put to us in respect of each of those grounds, but also in deference to the sentencing judge. In summary, I have reached the conclusion that, on the material placed before her, the sentencing judge did not err in imposing sentence in this case. However, due to the highly exceptional circumstances of this particular case, I am of the view that ground 5 should succeed, based on medical issues relating to the applicant's condition in custody.**

**22 The first ground alleges that the judge failed to accord any, or any sufficient, weight to the fact that the applicant had provided assistance to the prosecution authorities, and to the consequences of that assistance.

23 On 1 August 2006, the applicant's solicitor contacted the informant and conveyed to him an offer by the applicant to assist by giving evidence against the co-accused. At that point Lam had not admitted all of the charges against him. On appeal, it was submitted that the statement by the applicant was potentially of assistance to the Crown, and that the sentencing judge failed to take the statement into account.

24 Having had the opportunity to read the applicant's statement in detail, I doubt that it would have advanced the Crown case against Lam. Apparently, at the time at which the statement was made, Lam was denying the allegation in count 4 that he had stabbed Zhan Gao on the forehead. The applicant's statement does not assist in that regard. However, and in any event, I am not persuaded that the sentencing judge failed to take into account the applicant's offer of assistance, and her making of the statement. Those matters had been the subject of only passing reference in the submissions made on behalf of the applicant on the plea hearing. In her reasons for sentence, the judge noted that the applicant had been "ultimately cooperative" and had made the statement. Bearing in mind the manner in which this issue was raised on the plea, I am not satisfied that the sentencing judge, in making those remarks, overlooked the offer of assistance made on behalf of the applicant, and did not make adequate allowance for it in the sentence imposed on the applicant. For those reasons ground 1 should fail.**

**25 The second ground of appeal alleges that the sentencing judge erred in the exercise of her discretion by confining the combined effect of the applicant's physical and psychiatric conditions to the fixing of the non-parole period.

26 This ground relies on an interpretation of one part of one sentence contained in her Honour's sentencing remarks. In paragraph 60, her Honour stated that she was mindful that, by reason of the combined effect of the applicant's physical and psychiatric conditions, a term of imprisonment may weigh more heavily upon the applicant than it would upon a person of normal health. Her Honour stated that, having regard to the remarks of the doctors and Mr Aron, she had fixed a "shorter than usual non-parole period to reflect that fact". In my view, by that statement, her Honour was not confining the relevance of the applicant's medical and psychiatric conditions to the fixing of the non-parole period. Rather, she was explaining, at that point, why she had fixed a non-parole period which was lower than one would ordinarily expect in proportion to the head sentence fixed by her. When regard is had to other parts of the reasons for sentence, it is clear that her Honour took into account the applicant's medical and psychiatric conditions in fixing both the head sentence and the minimum non-parole period. For example, at paragraph 58, her Honour accepted that the applicant's psychiatric condition had so reduced her moral culpability that she was satisfied that she should moderate the need to emphasise both general and specific deterrence. Furthermore, the total effective sentence itself reflects the fact that her Honour took into account the applicant's condition at that stage.**

**27 In ground 3, the applicant contends that the sentencing judge failed to accord any or any sufficient weight to the sentencing principle of parity.

28 In support of that ground, counsel for the applicant relied on findings by the sentencing judge that the applicant's role was not as serious as that of Lam, and that, in addition, her background and antecedents were such as to entitle her to a less severe sentence than Lam. Thus, it was submitted that the sentencing judge erred in imposing the same sentences on the applicant as she did on Lam in respect of counts 6, 7 and 8 (the three counts of false imprisonment). It was submitted that principles of "parity" required the sentencing judge to impose a lower sentence on the applicant than she did on Lam in respect of each of those three counts. Further, it was submitted that the judge erred in imposing on the applicant a sentence of 12 months' imprisonment in respect of count 5 (recklessly causing injury to Zhan Gao). It was pointed out that her Honour also imposed a sentence of imprisonment of 12 months on Lam in respect of count 4 (intentionally causing injury to Zhan Gao). Again it was submitted that, in accordance with the principles of parity, the trial judge was obliged to impose a lesser sentence on the applicant than on Lam, in respect of the incident in which the forehead of Zhan Gao was cut by Lam.

29 The principles of parity stem from the recognition that, ordinarily, persons who commit the same offence should receive the same sentence. Nonetheless, it is recognised that matters such as antecedents and personal circumstances may cause there to be some disparity of sentence imposed on co-offenders. Where an applicant complains of a lack of parity between sentences imposed on the applicant and on the co-offender, the relevant test is whether the difference between the sentences is so manifestly excessive as to give rise to a justifiable sense of grievance on the part of the accused on whom the heavier sentence is imposed, or to give the appearance in the mind of an objective observer that justice has not been done.[3] A fortiori, where there is a complaint of a lack of "disparity" between two co-offenders, such as to properly cater for the differences in their criminality, or to allow for differences in their backgrounds and antecedents, the relevant test must be whether the difference in the sentences is so manifestly inadequate as to engender a justifiable sense of grievance on the part of the accused, who should be entitled to the less severe sentence, or to give the appearance that justice has not been done.

30 In my view, the principle of parity did not require the judge in this case to impose different sentences in respect of each count to which the applicant pleaded guilty. In this case, the head count in respect of each accused was count 1, the charge of armed robbery. On that count, the judge sentenced Lam to a term of imprisonment of 6 years, and the applicant to a term of imprisonment of 3 years. On count 2, by which Lam was charged with recklessly causing serious injury to Zhen Hua Gao, the judge imposed a sentence of 2 years' imprisonment. On the other hand, on count 3, by which the applicant was charged with recklessly causing injury to Zhen Hua Gao, the judge imposed a sentence of 6 months' imprisonment. Those sentences were clearly designed by the sentencing judge to reflect the relevant differences in the positions between the two co-accused. Given the manner in which the judge applied the principle of parity to those sentences, in my view that principle did not require that her Honour must necessarily impose differential sentences in respect of each of counts 4 to 8. Clearly, other sentencing principles were also relevant when her Honour came to consider the remaining counts. First, as pointed out by counsel for the respondent, her Honour needed, in the case of Lam, to pay attention to the principles of totality. Further, the differences in the roles of the two co-accused were of less moment in respect of counts 4 to 8, than they were in respect of counts 1 to 3. Given those considerations, it cannot be maintained that her Honour must have erred by failing to impose separate sentences in respect of counts 4 to 8. In other words, a proper exercise of the sentencing discretion did not make it mandatory for the judge to sentence the two co-accused differently in respect of each count to which they pleaded guilty. For those reasons, I consider that ground 3 must fail.**

**31 By ground 4 it is alleged that the judge, in imposing sentences on counts 6, 7, 8, 9, 10 and 11, misapprehended the prescribed statutory maximum penalties. In her reasons for sentence, her Honour noted that the prescribed maximum penalty for the offence of false imprisonment was 15 years' imprisonment, and that the maximum sentence for the offence of theft was also 15 years' imprisonment. In fact, the prescribed statutory maximum penalty for each offence is 10 years' imprisonment. The applicant's counsel conceded that the error in relation to counts 9, 10 and 11 was of no consequence. However, he submitted that it is not open to this Court to be satisfied that the error with respect to counts 6, 7 and 8 could not have materially affected the sentences imposed on those counts. Counsel submitted that the error was material, not only in respect of the sentence imposed in respect of those counts, but also in the fixing of the non-parole period.

32 When a judge makes a mistake as to the applicable maximum sentence, the sentencing discretion is re-opened unless the Court of Appeal is satisfied that the mistake could not have materially affected the sentence.[4] In this case, I am persuaded that the error made by the sentencing judge could not have materially affected the sentence. If the applicable maximum sentence had been 15 years, then the sentences imposed on counts 6, 7 and 8 each constituted 3.3 percent of that maximum sentence. By comparison, they constituted 5 percent each of the maximum sentence of 10 years' imprisonment prescribed in respect of each count. It cannot be sensibly maintained that the error by the sentencing judge could have affected her judgment as to the appropriate sentence to impose in respect of each of those counts. On either view, the sentence would have been a small percentage of the maximum sentence. The offences charged in counts 6, 7 and 8 were of some gravity. The two accused forced the three victims, Zhan Gao, his wife and his mother, into the toilet at knife point and tied them up. By this stage Zhan Gao had been injured, and his father Zhen Gao was lying on the floor of the shop bleeding from his stab wounds. Their young children, including an infant, were in the shop. In those circumstances, it is hardly likely that the trial judge would have imposed a lower sentence, had she properly apprehended the applicable maximum sentence in respect of each offence.

33 Counsel for the applicant further submitted that, even if the error did not materially affect the sentence imposed in respect of each of those three counts, nonetheless it could not be said to have not materially affected the minimum non-parole sentence imposed by the judge. In my view, such a proposition flies in the face of the realities of the sentence. Given the head sentence, and given each of the component sentences comprising that head sentence, it would be an exercise of extraordinary artificiality to contemplate that the error made by the sentencing judge could have affected the manner in which her Honour fixed the non-parole period. Such a proposition is plainly counter to the realities of the sentences imposed in this case.**

**34 Ground 6 is that the sentence imposed on the applicant is in all the circumstances of the case manifestly excessive.

35 In support of that ground, counsel for the applicant relied on the mitigating circumstances which had been established before the sentencing judge. In particular, he relied on the applicant's plea of guilty, the fact that she had signified her intention to plead guilty at an early stage, her lack of previous convictions, her remorse, her ill-health, and the steps which she had taken to rehabilitate herself since the commission of the offence. In particular, counsel relied on the matters relating to the applicant's health which were recognised by the judge as having the consequence that a term of imprisonment might thereby weigh more heavily upon the applicant than it would upon a person of normal health.

36 I readily accept that the extenuating circumstances put to the judge, and accepted by her Honour, were cogent, and provided a sound basis for mitigating the sentences which might otherwise have been imposed upon the applicant. On the other hand, it must be borne in mind that the offending for which the applicant was sentenced was particularly grave. The applicant and her co-accused deliberately chose a "soft" target. It has been repeatedly emphasised that the principles of general deterrence are to the fore when sentencing those who perpetrate armed robberies on vulnerable victims such as occurred in this case.[5] The sentencing judge accurately described the applicant's role as that of an "active willing participant (which) could not be described as minimal". The applicant was involved in the preparation for the robbery. She covered the number plate of the vehicle in which she and her co-accused were travelling with a piece of cardboard. She and her co-accused disguised themselves. The use of knives during the robbery was not only fraught with the risk of injury to any victim, but also added to the terror deliberately created by the miscreants in the minds of the innocent victims. The robbery in question was a violent one. The victims were a defenceless family seeking to make a gainful living by working on a Sunday. As I have already observed, the offences of false imprisonment had a particularly callous characteristic about them, in light of the injuries which had already been sustained by Mr Zhen Gao and Mr Zhan Gao.

37 In those circumstances, and notwithstanding the cogent set of mitigating circumstances accepted by the sentencing judge, I am unpersuaded that, on the materials which were then before her Honour, the sentence imposed on the applicant was manifestly excessive, in the sense that it was so "unreasonable or plainly unjust" as to bespeak error, otherwise not identified, in the exercise by the sentencing judge of her sentencing discretion.[6]**

38 Ground 5 of the grounds of appeal is as follows:

"There has been a substantial miscarriage of justice (such that a different and lesser sentence should now be imposed) by reason of the circumstances in which the applicant has been required to serve the custodial portion of the term of imprisonment imposed upon her and the consequences of same upon her physical and mental health."

**39 The submissions made in support of the applicant on this ground were based on the proposition that, since sentence, there has been such a significant deterioration in the physical and mental health of the applicant that the applicant is not serving her term of custody in the manner which was, or could have been, anticipated by the judge at the time of sentence. Thus, it was submitted that, owing to the deterioration of the applicant's mental and physical health, the sentence to be served by her is such as to constitute a substantial miscarriage of justice.

40 It has been long recognised that, while the ill health of an offender cannot be allowed to become a licence to commit crime, nonetheless it may be a relevant mitigating circumstance, if it is established that imprisonment will constitute a greater burden on the offender by reason of his or her state of health, or if there is a serious risk that imprisonment might have a gravely adverse effect on the offender's health.[7] Further, in exceptional cases, an appellate court may admit and rely on evidence relating to the applicant's health subsequent to sentence, where that evidence is relevant to demonstrate the true significance of facts which were in existence at the time of sentence.[8] The authorities have emphasised that such cases, by definition, must be "rare and exceptional"[9], and that Courts should only accede to a submission based on such facts "very sparingly".[10] It is important to note that the evidence must relate to the true significance of relevant circumstances which existed at the time of sentence. An applicant is not entitled to rely on an event, occurring after sentence, which was not in existence at the time of sentence.[11] That limitation is important, because it focusses on the principle which is applicable, namely that the evidence is designed to demonstrate the true significance of facts which were actually in existence at the time of the sentence. It is, however, permissible to rely on facts which were in existence, but not known, at that time.[12] Once the evidence is admitted, the question for the Court of Appeal is not whether the sentencing judge has erred in the exercise of her sentencing discretion. In such a case, the question is whether, on the material before the Court, a different sentence should be substituted for that passed by the sentencing judge.[13]

41 In support of ground 5, the applicant put before the Court a substantial body of material consisting of medical reports which related to her condition after her incarceration. It was submitted that those reports disclose that the applicant's medical and psychiatric condition has significantly deteriorated in a number of significant respects. First, it was submitted that there has been a deterioration in the management and control of the applicant's Crohn's disease. Secondly, the applicant has been diagnosed as suffering from hepatitis C. The medical reports establish that that was an undiagnosed condition at the time of her sentence. Thirdly, concern has been expressed as to the management of the applicant's epilepsy. Finally, evidence has been adduced as to a deterioration in the applicant's emotional and psychiatric state.

42 The material which was put before the Court is detailed. We have also received, in response, reports provided by the medical staff responsible for the treatment and care of the applicant in prison. I shall not refer to the entirety of the material, but I shall endeavour to elicit the salient features of it in order to analyse the submissions made on behalf of the applicant.

43 The starting point for consideration concerns the applicant's Crohn's disease. As I have already noted, Dr Debinski's evidence before the judge was that the applicant's condition was particularly complex. Dr Debinski had remarked that the best that he could do was to maintain the applicant on drugs, which were not devoid of side effects, and to monitor her and support her regularly. In another medical report (not tendered on the plea), Dr Debinski stated that the applicant was so afflicted with her condition that she would be considered to be amongst the 5 to 10 percent of those who had the most extreme form of the illness.

44 Shortly after her incarceration, the medical staff at the prison made a decision to cease prescribing Xanax, which had been taken by the applicant in order to control her anxiety condition. Instead she was placed on Valium. That decision sparked a strong debate between the prison staff and Dr Debinski. Dr Debinski expressed the firm view that the applicant required the use of the anxiolytic medication Xanax. He stated that withdrawal of that medication had produced grand mal convulsions in the past. He also stated that anxiety and stress can lead to the serious exacerbation of Crohn's disease. In addition, Dr Debinski expressed the view that Valium had proven to be ineffective in the past, and the applicant had not done well on it. Ultimately the applicant was placed back on Xanax, but a program was instituted whereby it was progressively withdrawn from her over a short period of time.

45 On 1 August 2007, Dr Debinski attended at the prison and assessed the applicant. He found her to be symptomatic of active Crohn's disease. She was experiencing from 5 to 10 loose bowel actions per day with bright rectal bleeding at times. She had been vomiting on one or two occasions per week, and was managing her symptoms by eating little. She had eruptive skin lesions over her abdomen, which were consistent with metastatic Crohn's disease involving the skin. It appeared that on two occasions the applicant had been given inappropriate toxic doses of methotrexate (the drug used to control her Crohn's disease), which were almost four times the prescribed dose. (It appears that the error occurred because the applicant had incorrectly insisted that the higher dose had been prescribed for her). In addition, the drug Keppra, which had been used as an anti-convulsant medication to prevent epileptic fits, had not been administered regularly. Dr Debinski considered that the applicant's anxiety levels had increased since she had ceased taking Xanax. He was of the view that the applicant should be prescribed supplemental treatment with Humira. In addition, he noted that there had been a strong move for the applicant to commence anti-depressants. The applicant had resisted those medications and Dr Debinski supported her stance. He stated that that medication had only made her bowel symptoms worse and that she had had no improvement at all relating to her anxiety. Dr Debinski also noted that the applicant had been diagnosed with hepatitis C liver disease, and he expressed the view that the most likely source of the infection would have been intravenous drug abuse sometime in 2006. He noted that that diagnosis posed enormous problems in the management of both the Crohn's disease and the hepatitis infection. In short, the medication which was apposite for the Crohn's disease - methotrexate - can be toxic to the liver. Equally, therapies which might be used to treat the hepatitis C condition might exacerbate the Crohn's disease. Dr Debinski stated that the applicant's condition would require careful consideration, and that "within specialist circles this would be considered a complex problem to manage".

46 Dr Freilich, the neurologist, provided a short report dated 2 August 2007. In that report Dr Freilich stated that he had read Dr Debinski's report and that he would concur with Dr Debinski's comments concerning the need for Keppra to be administered regularly. He stated that the applicant is at a "very high risk of having seizures" if the medication is not administered on a regular basis.

47 I next turn to the evidence relating to the applicant's current psychiatric condition. As I have stated, Dr Sullivan, a consultant psychiatrist, gave evidence before the sentencing judge, and a report by Dr Sullivan was tendered to her Honour. Dr Sullivan's evidence then was that the applicant had features of a borderline personality disorder, that she suffered from poly-substance abuse, and that she had a history of depression and anxiety. However, at the time of the report, the applicant had taken positive steps to address her poly-substance abuse. Her depression had predominantly resolved, and there was no indication of significant mood disturbance involving anxiety.

48 On 9 June 2007, Dr Sullivan interviewed the applicant in the medical centre at Dame Phyllis Frost Centre. Dr Sullivan found that the applicant was struggling to cope. She had anxiety about her Crohn's disease and about the ongoing prescription of benzodiazapines. She was highly anxious and distressed and felt unable to relate to other women in the prison. She had limited coping skills in prison. Dr Sullivan was of the view that the applicant would benefit from the prescription of antidepressant medication. He recommended that the applicant have ongoing intensive psychiatric and psychological support.

49 Dr Sullivan provided a further report dated 30 July in respect of an interview which he undertook with the applicant on 27 July. The applicant had been prescribed antidepressants, but was not taking them. She did not wish to take the antidepressants because she believed that they had previously had an adverse effect on her. The applicant was distressed at the diagnosis of hepatitis C. Dr Sullivan found that the applicant was unsettled and was struggling to cope with incarceration. There were no delusions or perceptual abnormalities, but there were numerous subjective depressive and anxiety symptoms. She presented as markedly distressed and demoralised. Dr Sullivan noted as follows:**

"Her diagnosis remains consistent with adjustment disorder with depressed and anxious mood. This reflects ongoing distress at imprisonment. Although not suicidal, Ms Orbach has remained isolative, preoccupied, and anxious, with irritability and sensitivity to noise. Her Crohn's disease remains active, possibly reflecting her ongoing stress and its effects on bowel function in those with inflammatory bowel disease.

She continues to respond to situations inappropriately due to her diagnosis of borderline personality disorder. Ms Orbach has been unable to accept medical recommendations, and idealises her community doctors and counsellors, while devaluing those in prison. This prevents her from making use of the increased provision of psychiatric and psychological input now available at Dame Phyllis Frost Centre."

**50 Dr Sullivan recommended that the applicant accept the antidepressant medication, and suggested that she undertake psychological support.

51 In addition, the applicant relied on a report of Dr Jagoda, who had visited the applicant in prison on 20 June. Dr Jagoda noted that the applicant appeared deeply depressed. She was particularly distressed at the change of her medication from Xanax to Valium. Dr Jagoda observed that the applicant appeared to be psychologically and physically breaking down after only a brief stay in prison, there appeared to be an exacerbation of her Crohn's disease, and she was in a constant state of panic associated with her agoraphobic symptoms. Dr Jagoda stated that her condition was in contrast to the last occasion when he saw her on 5 May, when her emotional state was quite stable.

52 The respondent has also filed material from the medical staff at the prison in relation to a number of the matters raised in the material to which I have just referred. Dr Cameron Loy has provided a number of reports. In his first report, he explained that the Dame Phyllis Frost Centre had adopted a relatively rapid reduction regimen for benzodiazepine. Those medications are highly addictive, and the withdrawal programme has not, in the past, been shown to be productive of any harm. Dr Loy noted that Dr Sullivan had also suggested that the applicant cease taking benzodiazepines, and that she should commence on antidepressant medication. Dr Loy noted that he had suggested cognitive behavioural therapy and antidepressant medication for the applicant as early as 19 June, but she had rejected that suggestion. At the time of that report, Dr Loy noted that the applicant was in the early stage of her imprisonment, and was in a period of readjustment. He stated that the medical staff at the centre had experience of prisoners with significant medical problems, which improved clinically while in incarceration. He stated that at that stage he could not conclude whether prison would be beneficial or detrimental to the physical and mental health of the applicant.

53 Dr Toal, consultant psychiatrist, reviewed the applicant on 7 June 2007. At that time she found the applicant to be calm and reactive, with significant motivation to remain "drug free". Dr Toal did not find the applicant to be acutely depressed or anxious at interview. She discussed with the applicant her concerns about the inappropriateness of the use of benzodiazepine in the treatment for her symptoms. In her report, Dr Toal outlined the reasons why she considered that benzodiazapines are detrimental to the applicant. Dr Toal stated that she considered that the applicant had tolerated the reduction in her medication. She expected to review the applicant regularly while in prison.

54 Dr Loy has provided two further reports. The first related to a review by Dr Loy of the applicant on 26 June. In that report, Dr Loy noted that there were a number of unresolved clinical issues. In addition, he stated that the applicant presented more animated and with more eye contact, but described ongoing overwhelming anxiety with some mild improvement. Dr Loy noted that the applicant was then off Xanax, and he reinforced his previous recommendation that she commence antidepressant medication. The applicant told Dr Loy she would not enter into discussions about additional therapy until after her bail application, which was then current, had been resolved.

55 In his latest report dated 7 August, Dr Loy noted that at consultations on 17 July and 31 July, the applicant expressed no significant complaint concerning her condition. On the first consultation the first applicant reported feeling symptomatically well, and on the second consultation she had no complaints. On the latter occasion, Dr Loy focussed on the fact that the applicant had failed to present for her medications, including methotrexate, which was prescribed for her Crohn's disease. Dr Loy stated that the medical staff at Dame Phyllis Forest Prison were aware of the complexities involved in the applicant's ongoing care. The most important consideration was the inability of the applicant to enter discussion regarding treatment options until her Court appeals had been exhausted. Dr Loy expressed the view that that aspect remained a significant barrier to addressing the applicant's care, and to organising and coordinating treatment options while she was in prison.

56 A report was also tendered on behalf of the respondent by Dr Ilona Dibella, a psychiatrist with the Marrmak programme attached to the Victorian Institute of Forensicare Mental Health. Dr Dibella noted that the applicant had been last reviewed by a psychiatrist, Dr Toal, on 28 June. At that time the applicant did not wish to commence antidepressant medication but was keen to engage in psychological therapies. The applicant commenced seeing a psychologist on 27 July and has agreed to weekly sessions. She was seen on 1 August, and was again to be seen in the week in which the appeal was heard. Dr Dibella noted that this could only be considered to be the initial engagement and rapport-building phase of the therapy.

57 Plainly, there are differences between the reported condition of the applicant as described in the various medical reports. In the absence of hearing direct evidence from the providers of those reports, it is not possible to determine the precise state of the applicant's condition since incarceration. Nonetheless, a number of salient matters are tolerably clear.

58 The first significant circumstance is that there has been a diagnosis of hepatitis C. On the evidence I accept that that condition was extant, but undiagnosed, at the time of sentence. As noted by Dr Debinski, the condition adds a significant layer of complexity to the treatment of the applicant for an already complicated medical state. In a very real sense, the diagnosis of hepatitis C has created a substantial medical dilemma. As noted by Dr Debinski, the applicant's condition is one which would be a significant challenge even to specialist practitioners.

59 Allied with that diagnosis is the circumstance that incarceration has substantially removed the applicant from those who have been responsible for her care. In turn, it has become evident that there is a marked difference of opinion and approach between the applicant's treating practitioners, and those responsible for her care while in prison. It is not possible for me to express any view as to whether the treatment provided to the applicant in prison has been appropriate. However, the differences of opinion have plainly been unhelpful in the treatment of the applicant's condition. It is evident from the reports of the prison authorities that the applicant has been somewhat resistant to their suggestions for her appropriate treatment. To some extent, the applicant has herself to blame for that attitude. However, it is understandable that someone with the applicant's complicated medical and psychological conditions would become particularly dependent upon the advice and treatment given to her by her usual practitioners. She had developed a close and trusting relationship with her treating doctors, and in particular with Dr Debinski, over the last decade. The events which have occurred since the applicant's incarceration give me little confidence that any such relationship could be achieved, in the foreseeable future, between the applicant and prison staff.

60 It is also unnecessary, and indeed undesirable, for me to express a view whether it was appropriate for the medical staff of the prison to withdraw Xanax from the applicant's treatment regime. However, the decision to withdraw the medication, made early after incarceration, has clearly impeded the requisite development between the applicant and the prison staff of a relationship necessary to enable her appropriate treatment in prison.

61 It is difficult on the evidence to make a precise assessment of the progress of the applicant's Crohn's disease while she has been in prison. However, the reports provided by the respondent do not, in my view, contradict the reports of Dr Debinski and Dr Sullivan that her Crohn's condition has become significantly more florid while she is in prison. Indeed, the reported heightened levels of anxiety, coinciding with the discontinuance of the anxiolytic medication Xanax, support such a conclusion. Coupled with that, I accept that there has been a marked deterioration in the psychological condition of the applicant to that which was reported by Dr Sullivan on the plea before the sentencing judge.

62 In her reasons for sentence, the sentencing judge, on the materials before her, correctly found that at the time of sentence the applicant's depression had predominantly resolved, there was no indication of significant mood disturbance, and she had an improved mental state. Her Honour also noted that the applicant had managed with anti-convulsant medication for her epilepsy. Based on the material which was then before her, the sentencing judge concluded that "a term of imprisonment may weigh more heavily upon (the applicant) than it would a person of normal health".[14] On appeal no issue was taken with that conclusion. Indeed, it was acknowledged that the conclusion thus expressed by her Honour was properly based on the materials placed before her.

63 It seems clear from the matters to which I have already adverted, that the applicant's condition has significantly altered, to her detriment, since her incarceration. In my view, the diagnosis of hepatitis C, the difficulty which the applicant has had in establishing an appropriate rapport with the prison's medical staff, her heightened levels of anxiety and depression, and the deterioration in the symptomatology of her Crohn's disease, are of particular significance in considering ground 5. Those changes must be viewed in the context of a woman who was already beset by physical and mental ailments at the time of her sentence. At that stage, her precarious psychiatric and mental conditions had been the subject of careful and complex ongoing management, so much so that they were, in relative terms, somewhat stable. The deterioration which has now occurred has, in my view, operated to alter significantly the circumstances in which the applicant would be required to serve the balance of her prison term, should the appeal be dismissed. In my view, the matters to which I have already referred, mean that if the applicant were required to serve the whole of the sentence imposed upon her, that term of imprisonment would weigh substantially more heavily upon her than it would upon a person of normal health. Further, and importantly, it would be significantly more onerous than was, or could have been, anticipated at the time of sentence. In addition, there is, in my view, a not insignificant risk that the applicant's physical and mental state may deteriorate further. The latter observation is of course important, given that the applicant's physical and mental state, at the time of sentence, while perhaps quiescent, was nonetheless precarious and serious.

64 Clearly this is a rare case. Not infrequently offenders come before the Courts with a whole host of different medical and psychiatric conditions. Ordinarily those circumstances may provide for some mitigation in sentence. However, the circumstances which pertain to the applicant are, it is fair to observe, of extraordinary gravity. In particular, if the sentences imposed on the applicant were not set aside, it is clear that those sentences would be a significantly more burdensome, and a substantially greater, imposition, than that envisaged when the applicant was sentenced. I am therefore persuaded that this is an exceptional case, which justifies the intervention of this Court on the basis contained in ground 5 of the grounds of appeal.

65 For those reasons, I have reached the conclusion that the materials tendered to us are admissible, and that it is appropriate that the Court should give the applicant leave to appeal on ground 5. I would therefore allow the applicant's appeal, and, on the basis of ground 5, set aside the sentences imposed on her.

66 Accordingly, it falls to this Court to re-sentence the appellant. As I have already observed, the offences to which the appellant pleaded guilty were grave. They arose out of an armed robbery which involved a significant degree of violence inflicted on innocent victims. The offences were callous and cowardly and would ordinarily call for the imposition of stern sentences. Notwithstanding the cogent mitigating circumstances which were before the sentencing judge, I am satisfied that the sentences imposed by her Honour were not only not manifestly excessive, but indeed were appropriate, in the circumstances in which those sentences were imposed. However, the medical evidence which has been adduced as to the condition and circumstances of the applicant since her incarceration have substantially altered that position. In my view, this is a particularly exceptional circumstance in which the Court should extend some mercy to the applicant by imposing a sentence which is particularly lenient in view of her current medical condition. The present circumstances persuade me that any further term of imprisonment imposed on the applicant would be significantly more onerous than such a term served by a prisoner in a normal state of health. Further, I do accept that there is a risk that the applicant's condition may deteriorate as a result of any prolonged incarceration of her.

67 Of course, the dictates of mercy must be balanced against the other requirements of the sentencing discretion. Bearing that in mind, in my view the sentence which should be imposed by this Court should require the applicant to serve some further term of imprisonment, but one which is substantially less than that imposed by the sentencing judge. For those reasons, I propose that this Court should re-sentence the applicant as follows. The applicant should be sentenced:**

On Count 1 (armed robbery) to a term of 2 years' imprisonment;

On Count 3 (recklessly causing injury to Zhen Hua Gao) 6 months' imprisonment;

On Count 5 (recklessly causing injury to Zhan Gao) 6 months' imprisonment;

On Counts 6, 7 and 8 (false imprisonment) terms of 4 months' imprisonment each.

**68 I would make the following orders for cumulation. Count 1 is the head sentence. I direct that 2 months with respect to the sentence imposed in respect of count 3, one month in respect of the sentence imposed with respect of count 5, and one month in respect of each of the sentences imposed with respect to counts 6, 7 and 8, shall be cumulative upon each other and upon the head sentence imposed in respect of count 1. As a result, the total effective sentence is 2 years and 6 months' imprisonment. I would fix a minimum non-parole period of 8 months' imprisonment. I would make an appropriate declaration as to days of detention thus far served under s 18(4) of the Sentencing Act.

[1] R v Beary (2004) 11 VR 15 at [21] (Callaway JA).

[2] On the other hand, her Honour's treatment of counts 9, 10 and 11 could not have been affected by the mistake.

[3] Lowe v R [1984] HCA 46; (1984) 154 CLR 606, 610 (Gibbs CJ), 613 (Mason J), 623 (Dawson J); R v Taudevin [1996] VICSC 7; [1996] 2 VR 402, 403 (Hampel AJA); R v Nguyen [2006] VSCA 184, [25-26] (Redlich JA).

[4] R v Beary [2004] VSCA 229; (2004) 11 VR 151, [15-21] (Callaway JA); DPP v Aydin & Kirsch [2005] VSCA 86, [10] (Callaway JA).

[5] R v Lee [2006] VSCA 80, [24]; R v Swingler [2001] VSCA 26, [11].

[6] House v R (1936) 55 CLR 449, 504-5 (Dixon, Evatt and McTiernan JJ); Lowndes v R [1999] HCA 29; (1999) 195 CLR 665, 671-2.

[7] R v Smith (1987) 44 SASR 587, 589 (King CJ); R v Van Boxtel [2005] VSCA 175; (2005) 11 VR 258, [29]-[30] (Callaway JA).

[8] R v Smith (1987) 44 SASR 587; R v Eliasen (1991) 53 A Crim R 391, 395 (Crockett J); R v Nguyen [2006] VSCA 184, [36] (Redlich JA).

[9] R v Nguyen [2006] VSCA 184, [36].

[10] R v Eliasen (1991) 53 A Crim R 391, 394 (Crockett J); R v Rostom [1996] VicRp 60; [1996] 2 VR 97, 99 (Charles JA).

[11] R v Babic [1998] 2 VR 79, 81-2 (Brooking JA); R v McLachlan [2004] VSCA 87; (2004) 8 VR 403, [11] (Chernov JA).

[12] R v McLachlan [2004] VSCA 87; (2004) 8 VR 403, [10] (Chernov JA); R v Nguyen [2006] VSCA 184, [36].

[13] R v Eliasen (1991) 53 A Crim R 391, 396 (Crockett J).

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Judgment (92 paragraphs)

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Cases Cited (8)