R v Safatli [2008] VSCA 232

1 Extra Transport Group Pty Ltd is a storage, warehousing and transport company located at Sims Street, West Melbourne. On Saturday 6 August 2005, Extra was storing a number of shipping containers, one of which held plasma television sets, valued at approximately $5000 each. In the early hours of that day, the premises were burgled and that container was broken into. 68 sets were removed and placed into an Isuzu truck owned by Extra.

2 The truck was then driven to a house in 10 Scarborough Road, Epping occupied by the estranged wife of the appellant. When it arrived at about 3.00am, the boxes containing the sets were unloaded by the appellant, an accomplice, identified as Semir or Sammy, and the appellant's 14 year-old step-son, who was living at the premises. 65 were placed in the driveway, behind a high corrugated fence, and three in a garden shed with the intention that they were to be retained by the appellant. After the boxes were unloaded, the appellant left with the accomplice in the truck which they subsequently abandoned.

3 When the company's staff arrived later that morning, the theft of the truck and the plasma television sets was detected and police were notified. As the vehicle was fitted with a GPS system, it was a relatively simple matter to ascertain its location and the fact that it had stopped at the Scarborough Road house. In due course, the police went to the house, where the 68 boxes were still located.

4 Initially, when interviewed, the appellant denied any wrongdoing, but later admitted that he had handled the stolen goods and pleaded guilty in the County Court, on 6 August 2007, to the commission of that offence. He also admitted a number of convictions in the Magistrates' Court at Melbourne, arising out of appearances on 18 December 2000 and 31 August 2001 for obtaining financial advantage by deception and obtaining property by deception.

5 After hearing a plea in mitigation of penalty, the sentencing judge, on 10 August 2007, imposed a term of imprisonment of three years in respect of which a non-parole period of 21 months was fixed.

6 Having been granted leave by a judge of this Court, the appellant seeks to have that sentence set aside on the grounds -

1. The learned sentencing Judge erred in his approach to sentencing by concluding that the court must denounce the appellant's conduct by punishing him severely.

2. The sentence is manifestly excessive in that:

(a) The Learned Sentencing Judge erred in giving no weight to the appellant's psychological and physical problems.

(b) The Learned Sentencing Judge erred in giving excessive weight to the appellant's prior convictions.

(c) The learned Sentencing Judge erred in his approach to the question of remorse.

(d) The learned Sentencing Judge erred in giving insufficient weight to the issue of delay.

The court should receive further evidence of the appellant's ill health and psychological problems at the time of the commission of the offence in order to avoid a miscarriage of justice.

8 With respect to the contention contained in ground 1, reliance was placed upon the statement of the sentencing judge that -

The court must denounce your conduct by punishing you severely to send a message of deterrence to you and members of the community minded to get involved in large scale handling of stolen property.

9 The reference to severe punishment, counsel for the appellant argued, reflected error. Of course, there is no necessary correlation between proper weight being given in the determination of an appropriate sentence to the principle of general deterrence on the one hand and the imposition of a sentence that 'punishes' the offender 'severely', on the other. Nor does the court's denunciation of conduct, which is directed to the vindication of the rights of victims and the breach of societal standards and values involved in the behaviour, necessarily require the handing down of a sentence that punishes the offender severely. The retributive, deterrent and public denunciation purposes of sentencing are separate although related. Obviously, on occasions, the objective of deterring a particular offender, or persons generally, from engaging in the type of behaviour involved may in the proper exercise of discretion necessitate the imposition of a sentence that could be described as condign or severe punishment. Whether, and to what extent, these various sentencing considerations are represented in the disposition arrived at must depend upon the totality of the circumstances relating to the offence and offender concerned.

10 In the present case, whilst divorced from its context, the language employed by the sentencing judge is unclear, we do not take his Honour to have been implying that a sentence of greater severity than that which would have otherwise been imposed when all matters were taken into account was being handed down in order to 'send a message of deterrence', but rather that, having recognised the significance of both specific and general deterrence as sentencing considerations in the case before him, he formed the view that the proper exercise of sentencing discretion in all of the circumstances required the imposition of a substantial term of imprisonment.

11 That his Honour was mindful of his obligation to take all relevant principles and factual considerations into account in the determination of an appropriate sentence and had not fallen into the error which it is now sought to attribute to him is evident from the very passage in his remarks in which the impugned sentence appears -

The basic purposes for which a Court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation and protection of the community. In sentencing, I must have regard to a range of factors such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim, if any. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society. Here, the learned Crown prosecutor sought an immediate custodial sentence.

In this case, given the seriousness of the offence and your prior convictions, considerations of punishment, both general and specific deterrence, and denunciation weigh heavily. The Court must denounce your conduct by punishing you severely to send a message of deterrence to you and to members of the community minded to get involved in large scale handling of stolen property. Although you have pleaded guilty, you have shown little remorse for this offence and, given your prior convictions, you cannot be said to have gone into this as a result of some naïve action. At your age, you must be taken to be aware of the implications of your actions and were prepared to take the risk. I have however taken into account the mitigating matters raised by your counsel.

Although the community has an interest in punishing you and denouncing your conduct, it also has an interest in your rehabilitation. You are now undertaking counselling for your depression and are reunited with your wife. For the last two years, you have not been the subject of further dispositions.

I have taken those matters into account in fixing your sentence and a non-parole period.[1]

12 There is no need to identify the many occasions on which this Court has pointed out that a judge's sentencing comments are not to be interpreted as if they were the words of a statutory provision. Error is not to be attributed to the judge simply by reason of his or her employment of infelicitous language where the import of the remarks is reasonably clear, or by reference to a word, phrase or passage that separated from its context may be capable of an interpretation indicative of error. We are far from persuaded that this ground has been made out.

13 Although ground 2 advances the assertion that the sentence imposed was manifestly excessive, counsel argued that the judge fell into specific error in accepting the prosecution's submission that 'there was little evidence that ill health and depression were factors in your culpability for the offence'. It is to that contention that we now turn.

14 With respect to this claim, his Honour's summary of the material before him is informative. He stated:

On your plea, your counsel submitted a medical report from Dr Yacoub. That report referred to the fact that you have been suffering from knee pain, ankle pain and chronic lower back pain. It also said that you suffer from depression, suicidal thoughts and agitation due to family problems, and noted you were under counselling and a psychologist's care. A report from Pamela Metcalf, psychologist, was produced. She stated that you were referred to her on 8 February 2007 because you were having family problems and felt very depressed and upset. Since that time, you have been undertaking counselling. Ms Metcalf indicated that you were very depressed when you presented for counselling. She also stated that you were not wanting to advise your treating doctor about the matter and this indicated that you felt ashamed of the mess you found yourself in. On your plea, counsel also submitted reports from the Rochdale Medical Centre providing details of the stress that both your wife and your stepson were under.[2]

Generally, the measure of culpability of an offender under the criminal law rests upon the extent to which the individual can be seen to be personally responsible for both the prohibited acts and their consequences. Little thought is required to appreciate that the greater the level of insight and understanding possessed by him or her concerning the act and its potential harm, the higher becomes the level of culpability for then deliberately engaging in the conduct involved. The Court in Tsiaras and Verdins[3] (citations omitted) recognised that sometimes as a consequence of the contribution made to the commission of an offence by a mental disorder from which a perpetrator was suffering at the time, it would be unjust to attribute to the offender a full measure of personal responsibility. The presence of the disorder could bear upon the sentencing judge's assessment of the individual's motivation and level of culpability, prospects of rehabilitation, the need for specific deterrence and the appropriateness of giving full effect to the principle of general deterrence. However it follows, when addressing the question of the significance of the disorder for these purposes, that the nature and extent of its possible effect upon the offender's behaviour must be carefully explored.[4]

16 The offence was committed on 6 August 2005 and there was no reference of any kind in the reports of his general physician, Dr Yacoub, or the psychologist, Pamela Metcalf, concerning the appellant's state of mind at that time. His wife, who gave evidence on his behalf in the Court below, was not asked anything about this aspect either.

17 Acknowledging the absence of any direct expression of opinion concerning the presence of a relationship between the appellant's physical and mental problems at the time and his decision to become involved in the criminal activity, counsel in the Court below submitted that the inference of a connection had to be drawn. The appellant, he pointed out, had experienced appalling abuse, trauma and poverty as a child and young adult in Syria and Lebanon. He had sustained a serious back injury that had prevented him from working from about 1997 and, at one stage, had developed a gambling problem. At the time of the offence, he was experiencing marital and financial difficulties. In these circumstances, counsel argued, it was unreasonable not to accept that his later diagnosed depression was affecting him at the time he offended.

18 Considerable attention was given by the prosecutor to this matter in his submissions to the sentencing judge. He emphasised the absence of any evidence of a circumstantial or opinion kind linking the diagnosed depression from which the appellant was suffering 18 months after the commission of the crime, and which was attributed to his personal situation in early 2007, with the events under consideration, putting his argument as follows:

[THE PROSECUTOR]: Your Honour, the other factor that my friend relies upon I believe is the issue of the depression. While the report cannot be doubted that he is receiving treatment and has been receiving treatment and counselling, or by way of counselling this year. When one looks at the report ---

[HIS HONOUR]: Which report?

[THE PROSECUTOR]: This is the report from Pamela Metcalf, it's interesting for what it doesn't say, as these reports often are. It does not say that he was suffering from any effect on his judgment at the time, it does not say that depression arose two years ago and is evidenced as currently treated, as often these reports can say. Certainly the courts would see many psychological or psychiatric reports which say, it would be consistent with his pattern of behaviour in 2005 and he's currently depressed. What it really says is, he is currently receiving treatment for a current problem. To suggest that this judgment was affected in some way is just not borne out on the evidence.[5]

19 As we have mentioned, counsel for the appellant responded that, given his client's personal history, the financial and other pressures under which he was operating at the time he offended and the later diagnosis, the inference of a connection was irresistible. He was then challenged by the prosecutor -

This can be resolved quite easily if my friend wishes to pursue submissions such as 'he must have been depressed at a certain time. There must have been consequences, he must have been sad and depressed because of his situation of unemployment and the like. He must not have been able to lift the boxes,' for example.

My friend didn't say that, but you get that question that must arise from looking at a medical report that seems to suggest the man can't work and yet he's able to lift or be involved in lifting 68 heavy plasma televisions. This can be resolved quite easily if my friend wishes to pursue those implications to the point that Your Honour could accept them as being anything other than hopeful, which is to call the relevant medical authorities.[6]

... Your Honour, there has to be an end to this, and in my submission, if you'll accept this from me, this man's lucky to be even represented here today. Various members of his community had to take up a collection so that he could be represented.

I'm not going to invite Your Honour to - there's no funding to call doctors and experts. It's ridiculous that this should be suggested. I'm going to rely upon the material that's been presented and I submit that it's adequate. But there has to be an end to this. There's no resources for this in any event, and I submit that Your Honour has sufficient material to sentence this man in all the circumstances.[7]

21 Before us, the argument was advanced that the appellant's counsel was in a difficult situation. His client was impecunious and it was unrealistic to suggest that he would have had the financial resources to arrange for the attendance of these witnesses. In that situation, it was submitted, the judge's finding was unreasonable and, in the interests of justice, this Court should receive further reports concerning the possibility of any such contribution or connection.

22 There is more than one obstacle lying in the path to the acceptance of this submission. First, it must be borne in mind that counsel who appeared in the Court below could have requested the judge to obtain the necessary reports before sentence. As he has been practising in this area of law for many years, there is no reason to suppose that he was not well aware of this option and chose not to adopt it. It is, we think, reasonable to infer that he did not consider that his client would suffer any disadvantage in consequence. In this context, we have been informed that he had first become engaged in the matter on the day of the appellant's arrest and had represented him throughout the following two years; appearing at three directions hearings and when the matter came before the Court in the Trial Reserve List on the day before the appellant's plea of guilty was entered. At no stage, it seems, was any request made for a pre sentence report or assistance from Victoria Legal Aid[8] and no adjournment was sought when the issue arose before the sentencing judge to enable the calling of further evidence.

23 There is also no reason to suspect that the judge may not have given serious consideration to any such request, or to directing that a pre-sentence report be obtained, bearing in mind that the prosecutor had challenged the defence to adduce evidence on an important matter affecting the sentence to be imposed and his Honour had been told that the person before him may not have been able to respond due to his financial situation.

24 When the matter came before this Court, counsel, now appearing for the appellant, sought to tender two further reports. We indicated that we would consider them and determine whether they should be received after hearing argument. Clearly, they could not, in the circumstances, be regarded as fresh evidence but it was submitted that they should be received in order to avoid a miscarriage of justice.[9] The first, a report from Dr Yacoub who had been attending the appellant from 2004, contained a more extensive description of the appellant's physical disabilities and indicated that -

Mr. Safatli exhibited symptoms of depression, suicidal thoughts and agitation around February 2007, due to the fact that his wife had taken an intervention order against him to see his children who he loves dearly, and due to the fact that he is unable to work as he is suffering from persistent Bilateral knee pain and lower back pain which has affected his quality of life.

...

He attended about these issues on the 31st January 2007, 8th February 2007 and the 18th April 2007 as he was suffering from mild reactive depression secondary to family related problems and long standing pain issues.[10]

25 As a matter of inference, it would appear that Dr Yacoub did not regard him as suffering from depression in 2005 or that, even in hindsight in 2008, he made any such connection. He did not express any opinion as to the applicant's state of mind or observation as to his presentation in 2005 that could provide support for the present claim.

26 We note that a further report was not sought from the psychologist, Pamela Metcalf, to whom the appellant had been referred by Dr Yacoub in 2007 for counselling and who had seen him on five occasions in that year.

27 However, another psychologist, Carla Lechner, who saw the appellant on one occasion only in June 2008, reported that 'Mr Safatli presents with a long history of depression', the manifestations of which the appellant claimed to have successfully concealed from everyone, including presumably his general practitioner and his counsellor.

28 She stated further that he had informed her that -

... at the time of the offence, he was under financial stress, his marriage was disintegrating and he had troubles with his teenage step-son. He further stated that he was offered amphetamines for the first time in his life and that he assisted his co-offenders whilst substance affected.

...

He was offered amphetamines by 'friends', who apparently told him 'it makes you forget problems ... do you want to live like this forever or get some money'. He admitted that he felt 'invincible, like Superman, in another world ... I went with them and did what we did ... now I've lost everything ... at the time I wasn't thinking, I didn't ask for anything ... they said I'd get something but I didn't know what'.[11]

29 The assertion that the appellant was affected by drugs when offending had never previously been made and would have to be regarded with grave suspicion, particularly when he told her that he had used illicit drugs only once in his life; that being the day of the offence. It can, we think, be accepted as highly unlikely that his counsel, who as we have earlier pointed out had acted for the appellant from the day of his arrest, may have known about but not mentioned this claim.

30 Whether or not Ms Lechner regarded that history as credible is not stated nor is there any indication given concerning any doubts that it may have raised in her mind with respect to the reliability of his narrative generally.

31 The extent to which Ms Lechner considered that underlying psychological difficulties, as opposed to the financial and family problems to which he was subject at the time, may have contributed to the commission of the offence is quite unclear in her report. The same may be said about the use of amphetamine if the history given to her was regarded as credible in the circumstances.

Having considered the medical material, I do not accept the submission of your counsel that your depression reduces your moral culpability for this offence. The medical evidence does not say that, and I am not prepared to infer it.[12]

33 That view was not only reasonably open but it would have been surprising had his Honour determined otherwise. This situation would be little different, if the later reports were taken into account. They contain nothing that could not have been addressed in the course of the hearing in the Court below and insofar as there is an expression of opinion by the psychologist concerning the relationship between the appellant's mental state at the time and his offending, it was given three years after the offence, was based upon a history not previously given and lacking in clarity. We consider that little weight could be given to it. In these circumstances, we have concluded that the reports should not be received.

34 The broader contention that the sentence imposed upon the appellant was manifestly excessive also lacks force. It is apparent upon perusal of his sentencing remarks that the judge was mindful of all relevant sentencing principles and factual circumstances relating to both the applicant and the offence. His Honour addressed specifically each of the considerations to which our attention has been drawn by the appellant's counsel, namely 'the appellant's physical and psychological problems, the weight to be attributed to his prior convictions, his expressions of remorse and his role in the events. We are by no means persuaded that his Honour fell into error with respect to any of them. The sentence at which he arrived was clearly available in the proper exercise of sentencing discretion.

[3] The Court pointed out that they were concerned here only with the significance of the presence of a disorder at the time of the commission of the offence and not its relevance for other sentencing purposes.

[4] DPP v Weidlich, R v Weidlich [2008] VSCA 203 [17].

[8] At one of the directions hearings, the judge informed the appellant in the presence of counsel that he could apply for legal aid. Counsel acknowledged that the matter would need to be explored.

[9] R v QMN [2004] VSCA 32.