R v Sebalj [2006] VSCA 106

2 The applicant was found guilty by the jury empanelled on his trial of the murder, on 20 December 2001, of Clare Helen McKenna.

3 After hearing a plea in mitigation of penalty, the learned sentencing judge, on 6 June 2004, imposed a term of imprisonment for 15 years with a non-parole period of 12 years for this offence.

4 The applicant now seeks leave to appeal against that sentence on the ground that it was manifestly excessive in all of the circumstances. A further ground, to which I need not refer in detail, was treated by counsel appearing on the applicant's behalf as providing particulars of this claim.

5 The following brief description of the circumstances relating to the death of Ms McKenna has been prepared from the Crown summary with which the Court has been provided, the written outline of submissions filed on behalf of the applicant and the judge's sentencing remarks.

6 During the evening of 20 December 2001 the applicant stabbed Ms McKenna, who had been his partner for approximately four years, with a butcher's boning knife, penetrating her heart and causing her death. He was at the time of this offence aged 29 years and, the sentencing judge accepted, in love with the deceased. Save for the development of a serious problem of addiction to drugs, the background of the applicant was unremarkable. He had, and has, a loving and supportive family who raised him in accordance with their Christian beliefs that he indicated to the court, at the time of sentencing, he still held.

7 After leaving school upon the completion of year 9, the applicant commenced an apprenticeship as a butcher. At the age of 18 he was runner-up for the apprentice of the year award and quickly took managerial roles in various shops. Two employers testified in the course of the proceeding as to his trustworthiness, diligence and competence. He continued in that form of employment until 1997, when, seeking a change, he secured employment with a company involved in the communications industry. On being retrenched in February 2001 - it appears through no fault of his own - he returned to work as a butcher but ceased employment in about October or November of that year for reasons related to his use of drugs.

8 With respect to that aspect, the evidence indicated that the applicant began inhaling amphetamine at the age of 18. Some time later, he commenced to inject this drug and began to smoke cannabis. By the age of 25, he had graduated, if that is an appropriate term to use, to the daily use of heroin. He attempted to address this problem through an unsuccessful Naltrexone detoxification program and then a methadone program in 1999. Upon resuming work as a butcher in 2001, and seemingly to enable him to keep up with more robust workers, he recommenced the use of amphetamine.

9 Some weeks prior to the death of Ms McKenna and in an endeavour to control the situation, he stopped work to deprive himself of the income required to purchase drugs. I note in this context that, unlike so many of those persons who appear before this Court and who are involved in the use of drugs, he did not develop a criminal history associated with his addiction. Thereafter he began to experience symptoms of paranoid psychosis in the form of visual and aural hallucinations. He felt that he was under surveillance from unknown persons and robotic objects and had intrusive thoughts that there were others intending to kill him. He expressed fears to his parents that his food and drink were being tampered with and reported this concern to his general practitioner on 15 December 2001, which I point out was five days prior to the death of the deceased. He requested that drug tests be conducted to ascertain whether he was being subjected to this kind of treatment, but, unsurprisingly, they produced a negative result. The applicant returned to his

doctor on 17 and again on 19 December 2001 suffering from symptoms of anxiety. He sought help at the Angliss Hospital on 19 December, but it appears, because he was experiencing a paranoid fear that those from whom he was seeking assistance might intend to harm him, he did not fully disclose his symptoms.

10 Early in the morning of 20 December 2001, that is, the date of the death of the deceased, after a sleepless night he went to the general practitioner's surgery in a further attempt to secure assistance. On finding by reason of the early hour of his arrival that the surgery and all shops in the area were closed, he wondered whether they had been shut to make it look as though there was no one around. He then went to the Boronia police station to enquire about what was happening, and complained to the police members, to whom he spoke, of problems in his head. He was referred by them to the Maroondah Hospital, which he attended and his psychotic state was diagnosed. He was treated with tranquillising and antipsychotic medication and released into the care of Ms McKenna.

11 Arrangements were made for a member of a crisis assessment team to visit his home that evening. When the psychiatric nurse allocated to this task arrived and telephoned identifying himself, the applicant hung up without speaking. The nurse redialled and spoke to Ms McKenna, who assured the applicant that he had come to help. Being unable to secure entry, the nurse telephoned again and Ms McKenna invited him to come to the bungalow in which they were residing, saying that the applicant was confusing him with someone else. As the nurse approached, he heard banging and crashing noises and what he described as a high-pitched very loud yelling from both a male and a female, and he heard the female call out "Tom". He was concerned and returned to his car, from which he called again, and the applicant answered, saying, "It's too late". The applicant subsequently emerged from the bungalow covered with blood. He had cut his wrists, lacerating multiple tendons, nerves and arteries, and had wounded himself in the chest. The body of Ms McKenna was found on the floor of the bungalow. The applicant, it was accepted, had stabbed her in the belief that she was in the process of admitting an individual who had come to kill him. It was not disputed that in his psychotic state he considered that he was acting in his own defence.

12 At the trial, it was also accepted as a consequence of a Ruling made by Smith J at an earlier stage in the proceeding that, on the basis of the material then before him, the applicant was suffering only from a drug-induced psychosis and not a disease of the mind as that term has been interpreted in the authorities, and, accordingly, the defence of mental impairment was not available to him. His Honour reasoned, and there has been no challenge made to his finding, that a simple drug-induced psychosis did not constitute a disease of the mind as understood in the common law and the statutory provisions in force.

13 However, there is some doubt raised by medical reports from two psychiatrists, Dr Lester Walton and Dr Danny Sullivan, consequent upon the subsequent diagnosis of the applicant as suffering from paranoid schizophrenia, as to the applicant's mental state at the time of the commission of the offence. Whilst there was said to be no doubt whatever that the applicant was psychotic at the time of the commission of the offence, whether that state could be attributed simply to the effect of drugs upon a vulnerable individual or whether it was a manifestation of his subsequently diagnosed schizophrenia would seem likely to remain a matter of conjecture. Whatever be the situation in that respect, it is clear that the applicant was in an acute psychotic state at the time that he brought about the death of the deceased. Whether that acute psychotic state constituted a disease of the mind, as I have indicated, it is not necessary to determine, but it is clear that it must be regarded as constituting a serious psychiatric illness. The applicant had, in the period leading up to the stabbing of Ms McKenna, become particularly concerned about his situation, had obviously developed some insight and had made serious endeavours to seek assistance for his condition. Viewed against that background, his level of moral culpability for what he did must be regarded as substantially lower than that which would otherwise be attributed to a person who acted in the fashion that he did.

14 As this Court has made clear, in Tsiaras[1] and in a number of other cases, concepts of denunciation and general and specific deterrence can only assume limited significance in the determination of an appropriate sentence in cases of this kind. Nevertheless, as Mr Gamble submitted, it is important to bear in mind that where the psychotic state of an applicant was the consequence of his ingestion of drugs or other conduct deliberately chosen by him, the extent to which it can be asserted that his level of moral culpability is reduced may become very much problematic. Whatever be the situation in other cases, what is clear is that the applicant did all that he could do to address the situation with which he was confronted, and over a number of days prior to the commission of the offence.

15 It is apparent from the judge's sentencing remarks that her Honour approached the task with which she was confronted in this case with a great deal of care. It has not been suggested, nor do I consider that it reasonably could have been, that she was not mindful of the relevant sentencing considerations or that she fell into specific error by way of omission or commission. Nevertheless, I am of opinion that the sentence at which she ultimately arrived could be described as manifestly excessive in all of the circumstances. In so doing, I wish to emphasis that I regard the present case as being particularly unusual in a number of respects. It would be seldom that a self-induced psychosis would result in a significant lowering of the sentence to be imposed. In this case, whilst the applicant acted deliberately, it is clear that he did so under the influence of paranoid delusions. Whether they were the manifestations of a transient psychosis brought on by his endeavours to withdraw from the use of drugs or indicative of the onset of the subsequently diagnosed illness of paranoid schizophrenia, his level of culpability must be regarded as low. There was no rational motive for his conduct and his relationship with the deceased was one of affection. There was no issue with respect to the genuineness of his remorse, nor indeed is there any indication from his history,

which involved only two earlier court appearances for what are in the circumstances insignificant matters, that he possessed or possesses any predisposition to violent behaviour. His prospects of rehabilitation were, in the assessment of the sentencing judge, quite good. Again, when one considers the totality of the circumstances, there is no reason to suggest why that would not be so.

16 Accordingly, I would grant this application, allow the appeal, set aside the sentence imposed in the court below and in lieu thereof substitute a sentence of imprisonment for 12 years with a non-parole period of nine years.

That finding makes it clear why the Tsiaras principles would be applicable whether or not the diagnostic category of schizophrenia applied to the applicant at the time of the murder. A person in the condition so described is severely disturbed and, in an important respect, out of touch with reality.

21 It would, in my opinion, detract from the utility and flexibility of the propositions set out in Tsiaras if there were to be undue focus on the classification of the particular condition, that is, on whether or not it was a recognised psychiatric illness of one kind or another. What Tsiaras does, if I might say so with respect, is to set out clearly and succinctly a set of propositions which provide guidance to sentencing judges. What matters in any given case is not the label to be applied to the psychiatric condition but whether and to what extent the condition can be shown to have affected the offender's mental capacity at the time of the offence[4] and/or at the time of sentence.

22 Exceptionally, this appeal has been heard and determined by a bench of two. This followed the decision of Neave JA to disqualify herself, the Director of Public Prosecutions having objected to her sitting. Her Honour's reasons are published separately.

23 After consulting with Vincent JA, and notwithstanding an objection by counsel for the applicant, I determined pursuant to s.11(1A) of the Supreme Court Act that the Court be constituted by two Judges of Appeal in this particular case. The circumstances are that the application for disqualification has only crystallised in court this morning. The objection has been accepted and her Honour has disqualified herself. The Court is ready to deal with the appeal. His Honour and I have prepared on the basis of the materials submitted.

24 In my opinion the interests of justice are clearly served by us proceeding, with this important proviso. The safeguard afforded by a bench of three is that, if there were disagreement, then it can be resolved by a majority decision. We will proceed with the appeal as a bench of two. If we should come to different views as a result of argument, we would then take a different course, in order to ensure that that difficulty was avoided. We would terminate the hearing and have the matter fixed for another day before a bench of three.

25 The orders of the Court will be:

At a glance

Court

Decision date

Before

Source

Judgment (12 paragraphs)

Parties