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[2006] VSCA 83
Court of Appeal (Vic)
2006-04-20
WARREN, C.J., CHARLES and CHERNOV JJ.A.
Original judgment source is linked above.
Criminal Law - Sentencing - Evidence of events occurring after sentence - Whether admissible on appeal - Appellant assaulted while in gaol - Significant deterioration in appellant's psychiatric wellbeing - Expert evidence as to appellant's state of mind not taken into account - Specific and general deterrence of less significance - Appellant re-sentenced.
1 On 3 February 2005, the appellant pleaded guilty in the County Court to two counts of burglary, one count of theft, one count of robbery and one count of administering a substance capable of interfering substantially with bodily functions committed on 3 April 2004. On 1 June 2005, a total effective sentence of four years' and four months' imprisonment was imposed and a non-parole period of two years and two months was fixed. Moreover, the appellant was ordered to pay compensation in the sum of $700 to Nada Storer and $500 to RACV Insurance with respect to the monies stolen. The appellant was granted leave to appeal against sentence pursuant to s.582 of the .
2 Prior to the offending, the appellant worked as a carer for the elderly whereby she would visit elderly persons in their own home and attend to their needs. This employment provided the appellant with much satisfaction and pleasure against a personal background of estranged parents, placement in institutionalised care as a child and teenager, treatment by violence and the suffering of ill health, including depression and associated medication. At the time of the offending, the appellant was 39 and had settled into a stable marriage with her husband and his two children and her own child from an earlier marriage. The appellant had little education.
3 On 3 April 2004, the appellant, having had an argument with her husband, did not sleep and consumed alcohol. At one point she took the entire family budget money for the week and visited a relative from whom she had bought some methyl amphetamine based drugs known as "Ice". She did not return home and had difficulty in recalling what she had done during that time. The appellant suffered a let down after taking the drugs and went to the beach near Beaumaris. Her intention was to purchase some more drugs. As a result, she found herself near the home of a former client, Nada Storer, an 83 year old woman, who lived alone at Beaumaris. The appellant had cared for Ms Storer in the past. The appellant called at the home of Ms Storer, who informed the appellant that she was packing to go away. The appellant offered assistance and Ms Storer allowed her into her home. The appellant set about helping Ms Storer pack her bag but at one point left the appellant alone in the bedroom. The appellant found the sum of $700 and took the money. Later, when interviewed by police about the incident, the appellant admitted entering Ms Storer's home with the intention of stealing. The conduct with respect to Ms Storer was the subject of Count 1, burglary and Count 2, the theft of $700.
4 On the same day, the appellant visited another elderly woman, Ms Rene Barrett, an 88 year old woman who lived alone. The appellant had previously provided care for Ms Barrett. The appellant persuaded Ms Barrett to allow her into the home but as she was wary of the appellant, the appellant left. The appellant admitted to the police subsequently that she entered the home of Ms Barrett with the intention of stealing from her. This conduct was the subject of Count 3, burglary.
5 Next, the appellant went to the home of Ms Ethel Matthewson, a 92 year old woman who lived on her own. The appellant entered through the front door of Ms Matthewson's home. It was her practice to have the front door open to allow workers to enter because it took her a long time to answer the door. The appellant had previously provided care for Ms Matthewson. Upon entering the home, Ms Matthewson did not recognise the appellant, who said she was from the Council and had come to check on Ms Matthewson who was sitting in a chair. The appellant moved to the back of the chair and placed an apron around the elderly woman's head as a blindfold. Ms Matthewson tried to remove the apron because it was tight and the appellant said, "If you keep on struggling I'm going to have to strangle you." Ms Matthewson was terrified and said "Don't strangle me, I'll stop". She believed that she would die. The appellant repeated "If I have to I will strangle you." At this stage the appellant was overcome and began to cry and said to Ms Matthewson, "I didn't want to do this to you, Ethel, but I had to." The blindfold was then removed and Ms Matthewson was able to observe the appellant. The appellant removed an alarm pendant from around the neck of Ms Matthewson and asked her where she kept her money. The appellant found $500 under the lid of Ms Matthewson's mobile walker. The appellant took the money. The appellant had some Serepax tablets with her and next she demanded that Ms Matthewson take three of those tablets. When the elderly woman declined to do so, the appellant forced the tablets down her throat. Next, the appellant used a teatowel to wipe down surfaces to remove fingerprints. Then the appellant moved the mobile walker away from Ms Matthewson into the hallway so that it was out of reach. The appellant told Ms Matthewson that she should not call the police for at least half an hour or that she would return. The appellant told Ms Matthewson that she would reimburse the stolen money within a month and then left. The appellant later told the police that she gave Ms Matthewson the Serepax because she was upset and resisted taking them.
6 Later, the appellant was located and arrested by the police. Initially, the appellant denied her involvement in the offences and was committed for trial. Subsequently, she pleaded guilty to all counts on 2 February 2005. Eventually, the matter came on for the hearing of a plea on 30 May 2005 and the appellant was sentenced on 1 June 2005.
7 On sentencing the appellant, the County Court judge observed that the appellant had experienced an extraordinarily difficult life, and took into account the fact that, at the time the offences were committed, she was not only heavily in debt and had been arguing with family members, but also on the day before the offence she had left home and spent the night consuming a combination of the drug Ice, Serepax and alcohol. His Honour further noted that there was no satisfactory evidence that the appellant had a significant depressive illness at the time of offending and that the two reports of a forensic and clinical psychologist, Mr Michael Crewdson, which detailed the appellant's difficult life and drug-induced state at the time of offending, were, respectively, "not terribly helpful inasmuch as it [the first report, dated 29 January 2005] suggests that the behaviour is unlikely to be repeated". As for Mr Crewdson's second supplementary report, dated 25 May 2005, the judge below noted that it was "along the same lines" as the first report and did not "provide much assistance from a sentencing perspective". However, his Honour allowed for the fact that the appellant's behaviour was "out of character"; that she pleaded guilty almost at the earliest opportunity; that she had a good work history and that her future prospects may be regarded as "fairly positive", particularly given her lack of prior convictions and willingness to create a better life for herself and her family. His Honour also pointed out that the crimes against the three elderly ladies were serious, particularly having regard to the aggravating circumstances of her crimes against Ms Matthewson.
8 The appellant appeals against the sentence on the basis of manifest excess on Count 4, the robbery offence against Ms Matthewson, and, secondly, failure to give sufficient weight to remorse, the burden on imprisonment and depressive illness. With respect to Count 4 alone, the sentencing judge sentenced the appellant to three and a half years' imprisonment, but directed that three months of the sentences on Counts 1 and 3 (the burglaries committed against Ms Storer and Ms Barrett) and four months of the sentence on Count 5 (the count related to the administering of a substance to Ms Matthewson capable of interfering with bodily functions) be served cumulatively on the sentence for Count 4. In the appellant's outline of submissions, 11 factors were listed as supporting the contention that the sentence imposed on this count was excessive. In particular, the last two factors, namely the appellant's apparent substantial remorse and the opinion of Mr Crewdson that incarceration would be particularly burdensome for the appellant given her depressive illness and the nature of the crimes committed, were highlighted by the appellant as not having been mentioned in the sentencing remarks. Those two factors were also dealt separately under ground 2.
9 The appellant seeks leave to amend the grounds of appeal to include a new ground, that the sentencing discretion ought be re-exercised as a consequence of two matters. Firstly, evidence of events that occurred subsequent to sentence but which are relevant to an appreciation of the true significance of the facts which were in existence at the time of the sentence. Secondly, that imprisonment had a gravely adverse effect on the health of the appellant.
10 In support of the new ground, the appellant applied for leave to file new evidence. The evidence related to an assault upon her by a fellow prisoner or prisoners whilst in custody, the physical and psychological ramifications of the assault, the nature of her incarceration and her medical treatment subsequent to the assault.
11 In an affidavit sworn by Nella Buccheri, the appellant's solicitor, it is deposed that instructions were taken recently from the appellant at the Dame Phyllis Frost Centre which disclosed that the appellant was assaulted by a fellow prisoner in her cell in the protection unit of the prison which resulted in the applicant being knocked unconscious and sexually assaulted. The circumstances in which this occurred were as follows. Upon being sentenced on 1 June 2005, the appellant was taken to the Dame Phyllis Frost Centre and placed in a unit known as "Unit A6" which is a special needs unit. Two days later, on 3 June 2005, she was relocated to a protection unit, "Unit A7". The relocation occurred as a consequence of present staff becoming alerted to a plan by inmates to harm the appellant. Some ten weeks later, on 13 August 2005, the appellant encountered some trouble with other prisoners and she was sent to "Coventry". As a result, the appellant retired to her cell when there was a knock at the door. She opened the door and a fellow prisoner grabbed her hair with one hand and used the other hand to grab the appellant by the throat. The attacker then pushed the appellant backwards and she believed that she hit her head either on the window or the floor. The appellant believed she was rendered unconscious and she could not recall very much about the assault. Upon regaining consciousness, she saw that there were other prisoners in her cell yelling at the attacker to let the appellant go. The appellant told her solicitor that she was in considerable pain. Her prison issue tracksuit pants were down and the appellant pulled them up. She saw that there was a toilet brush with faecal matter on it lying nearby. The appellant discovered that she was suffering profuse anal bleeding and pain. She was terrified, shocked and disgusted and realised that the toilet brush had been inserted by her attacker into her anus and rectum.
12 As a result of the commotion in the cell, prison officers made their way to it and the other prisoners left the room. The appellant got up off the floor and when prison officers enquired as to what had happened, the appellant told them that nothing had happened.
13 After the incident the appellant suffered heavy anal bleeding. She did not seek medical attention because of fear of reprisals. The morning after the attack, the appellant was threatened by the prisoner who attacked her and warned that if the appellant told anyone about the incident she would be stabbed. On the day after the attack, the appellant continued to bleed and sought assistance from the psychiatric nurse at the prison. By that time, the appellant was hysterical and unable to tell the psychiatric nurse about the assault. She requested relocation from the protection unit and was placed into isolation in the area known as "Unit A2". On about 15 August 2005, the appellant saw a doctor at the prison and stated that she had been physically assaulted but did not provide any details. The appellant was diagnosed with broken ribs and prescribed painkillers.
14 On 20 August 2005, the appellant was relocated to the protection unit, Unit A6. She suffered severe difficulties in the presence of other prisoners and isolated herself by remaining in her cell with the door locked at all times. The appellant did not tell anybody about the assault as she was fearful for her safety. She did not tell her family, in particular, her husband, as she did not believe he would cope if he knew about the assault, the husband feeling guilty as it was about the appellant being in prison. The appellant maintained her silence until November 2005, when she informed the psychiatric nurse at the prison and then, later, her solicitor about the assault. On 21 November 2005, the appellant was admitted to Thomas Embling Hospital where she remained for approximately six weeks until her discharge on 3 January 2006. Upon discharge, the appellant was provisionally diagnosed as suffering post traumatic stress disorder with symptoms of distress, nightmares, panic attacks, uncontrollable shaking and incontinence.
15 The appellant was relocated to the protection unit, Unit A6 and has remained there, isolated from other prisoners, fearful for her safety. She only leaves her unit for medical treatment and to see visitors.
16 Reports from the Thomas Embling Hospital exhibited to the affidavit of the solicitor included a report from a psychiatrist, Dr Emma Tueno, that notes the assessment of the appellant as suffering post traumatic stress disorder. Dr Tueno describes the appellant as a person "with a history of severe developmental trauma whose traumatic experiences have been reactivated by a further violent assault in prison." Relevantly, the report notes a previous history of depression and a history of the appellant overdosing and cutting her wrists.
17 On 10 February 2006, the appellant was seen by Mr Crewdson who had seen her prior to sentence and provided the reports referred to earlier that were before the sentencing judge. In those reports, Mr Crewdson observed the appellant to be suffering anxiety and depression and to be in a "quite desperate psychological state". He observed the appellant to suffer panic attacks, be highly anxious and semantically tense. Mr Crewdson considered the appellant to have been greatly affected by her earlier experiences, notwithstanding her condition, and to have had no effective psychological support. He noted that the actions involved in the offences were "uncharacteristic" and "bizarre". He considered that the appellant demonstrated deep remorse and shame for her actions and that she had good prospects of rehabilitation but suffered a major degree of depression. It is important to note that Mr Crewdson mentioned a number of times in his first report, dated 29 January 2005, that the appellant suffered depression to a "major degree". Mr Crewdson concluded that the appellant would carry a heavy depressive burden that had been imposed on her since her childhood.
18 In the second report, dated 25 May 2005, Mr Crewdson observed that the appellant had deteriorated. He said that she was quite depressed and that the level of depression had increased. He noted that the appellant was stressed by delays in the court hearing below. He observed:
"She has effectively isolated herself in her own house. She told me that her bedroom was the only sanctuary that she had. She is using obsessionally based psychological defences to control her anxiety and sense of panic. As an example, she arranges objects carefully in groups, obsessively folds towels in a particular way and becomes agitated if the order, which has been imposed on material objects, is threatened in any way."
19 Mr Crewdson concluded in the second report (less than a week before sentence) that there had been a shift in the appellant's situation, which reflected a move to a depressive disorder.
20 In the reasons for sentence delivered on 1 June 2005, the sentencing judge found that there was no satisfactory evidence that the appellant had a significant depressive illness at the time of her offending.[1] As we have already remarked, the finding ignored the unchallenged assessment of Mr Crewdson as to the state of the appellant's depression. After referring to the two reports in the reasons for sentence, his Honour nevertheless considered that the reports did not provide much assistance for sentencing purposes. These statements are difficult to accept given the gravity of the diagnosis of the appellant by Mr Crewdson. In our view, the psychologist flagged matters that weighed upon the sentencing discretion but which his Honour seems to have ignored. In particular, Mr Crewdson identified deterioration in mental health, increased depression and the need for psychological management and therapy of the appellant.
21 Subsequent to the sentence, Mr Crewdson saw the appellant again in prison, some eight and a half months after his previous assessment. In this third report, dated 13 February 2006, Mr Crewdson observed the appellant to have suffered a substantial deterioration and aggravation of her previous psychological condition arising from the assault in prison already described. He noted that the appellant's condition included "long standing elements of moderate depression and a moderately high level of anxiety". Mr Crewdson diagnosed the appellant as suffering from moderate to severe post traumatic stress disorder as a result of the incident which aggravated her previous historical experiences. Mr Crewdson was critical of the medical care prescribed for the appellant in prison and observed that some of her present medication may exacerbate her psychological problems. He observed that she was not being treated for post traumatic stress disorder while in prison. He concluded:
"It is important to contemplate the appropriate treatment for PTSD and make appropriate arrangements for it to be made available. When she is released there is likely to be a further need as she comes to terms with the 'rebound' effect of the release...There is likely to be self -recrimination and some anger that she will find hard to handle. The parole period will be of importance in monitoring her psychological condition and providing her with support."
22 The appellant was treated at the Thomas Embling Hospital for only six weeks. Apparently because of a shortage of beds, she was then returned to prison. As the appellant was previously attacked in a designated "protection" section of the prison, she has sought to be placed in isolation, or, as Mr Crewdson described it, in the "slot" - that is, solitary confinement, normally viewed as a form of punishment - because she considered it to be the only place where she would feel safe.[2] As a consequence, her period of imprisonment is rendered far more difficult and onerous than would have ordinarily been the case or than was envisaged by the sentencing judge for sentencing purposes. Prisons are places of punishment. They are intended to achieve retribution, deterrence and rehabilitation through exclusion from the community and deprivation of freedom. Although their running is invariably for the administrative arm of government, they should not be places where prisoners are subjected to punishment over and above that ordered by the courts.[3] The assault on the appellant and her consequential suffering of post traumatic stress disorder ought to be of serious concern to the correction authorities. The lack of adequate medical and psychological care made available to the appellant also ought to be of concern. The treatment of the appellant in prison is a matter about which the Court can do little save to draw these matters to the attention of the corrections authorities. If it is the case that the appellant was unable to receive appropriate medical treatment at the Thomas Embling Hospital because of a shortage of beds, then that too ought to be a matter of concern to corrections authorities. Unfortunately, it seems the condition of the appellant has been neglected and thereby exacerbated by her experiences in prison. Whether this is caused by the neglect of the prison authorities or by the exigencies imposed on those authorities, the fact remains: the appellant is suffering above and beyond what was initially contemplated by the sentencing judge.
23 It is well recognised in penological research that female prisoners have substantial psychological difficulties in the corrections system that warrant higher levels of treatment, support and care than is represented by their proportion of the entire prison population. Apart from their obvious gynaecological needs, it has been recognised that "[T]he mental health profile of a female prisoner is characterised by high rates of depression, anxiety disorders, substance abuse and personality disorders".[4] This is not so much a general sentencing consideration as an underlying factor to buttress claims of the appellant's kind. The steadfast rule that perpetrators should be sentenced on the facts peculiar to their case should not be displaced.
24 In light of these matters, we turn to consider the application for the admission of fresh evidence and, if allowable, the amendment to the grounds of appeal.
25 We are satisfied on the basis of the tests stated in R. v. Babic,[5] R.v. Rostom[6] and R. v. Eliasen[7] that the evidence of the above events subsequent to sentence ought be admitted. The circumstances of the assault of the appellant in prison, the treatment of the appellant at the Thomas Embling Hospital and the hospital diagnosis, the most recent report of Mr Crewdson, the deterioration of the appellant's condition and the development of post traumatic stress disorder, lead us to conclude that these matters are relevant to the true significance of the facts that were in existence at the time of sentence. As Crockett, J. observed in Eliasen[8]
"...once the evidence is admitted the question no longer is one as to whether the sentencing judge has erred...The question then which is for this Court to determine is whether on the material then before it a different and, if so, what sentence should be substituted for that passed by the sentencing judge".
26 In our view, a different sentence would have been imposed if the matters identified by the new evidence had been taken into account. It follows that we are satisfied that the fresh evidence should be admitted and, further, on the basis of that evidence, that the appellant be granted leave to amend the grounds of appeal as proposed.
27 The appellant's offending was shocking and frightening. She invaded the homes of elderly and vulnerable women and breached the trust that underlay her earlier employment as a carer for the elderly. The appellant frightened and even terrified her victims. We have read the victim impact statements filed at sentence. It is appalling that such independent and active senior members of the community have been reduced to a state of fear and intimidation. They have lost their previous confidence and capacity to enjoy the independent lives they previously led.
28 The gravity of these offences and their threat to the safety of the community cannot be understated and ought be borne in mind. We consider, however, that it is apparent that the sentencing principles that usually assume considerable importance in cases of this nature did not play as significant a role here. Thus, specific deterrence is not of great significance and the importance of general deterrence must, we think, abate, given the appellant's psychological state at the time of the offending. Similarly, we consider that it is apparent that the appellant will suffer considerable hardship in prison so that she has been, and will continue to be, punished while in gaol beyond that which might be contemplated as acceptable by a sentencing court. Moreover, on the evidence it seems that she will continue to experience difficulties and hardship upon release and, importantly, we consider that, from a practical point of view, she has reasonable prospects of rehabilitation. In the circumstances, we will re-sentence the appellant as follows:
- On counts 1 and 3: six months' imprisonment
- On count 2: one month's imprisonment
- On count 4: two years' and six months' imprisonment
- On count 5: six months' imprisonment
We order that three months of the sentence imposed on each of counts 1 and 3 and three months of the sentence imposed on count 5 be served cumulatively upon the sentence on count 4 and upon each other, thereby producing a total effective sentence of three years' and three months' imprisonment. In the particular circumstances of this case, we fix a non-parole period of 12 months' imprisonment.
[1] See para [23] of the reasons.
[2] Report by Mr M. Crewdson, Exhibit NB3 of the Appeal Book, dated 13 February 2006 at p.12.
[3] Save for internal prison disciplinary and regulatory procedures.
[4] M. Byrne and K. Howells, 'The Psychological Needs of Women Prisoners: Implications for Rehabilitation and Management' (2002) 9(1) Psychiatry, Psychology and Law 34 at 35.
[6] [1996] VicRp 60; [1996] 2 V.R. 97.
[8] At [396].
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S H [2006] VSCA 83