R v Verdins; R v Buckley; R v Vo [2007] VSCA 102

R v Verdins; R v Buckley; R v Vo [2007] VSCA 102 - VSCA 2007 case summary — Zoe

[63]

Counsel for the appellant's complaint is that in neither of these passages did the learned Judge state that the weight being given by her to general deterrence was being moderated or reduced at all. This, it is contended, was sentencing error.

39 In our view, this submission is without substance. There was no inconsistency between, on the one hand, saying that the appellant's depression moderated the requirement for general deterrence and, on the other, emphasising the need for others to be deterred from reacting violently to the breakdown of a relationship and, in particular, from using their vehicles on a public highway in such fashion. To moderate the significance of general deterrence did not mean to eliminate it altogether. The learned sentencing Judge declared that she had treated the appellant's condition as moderating the requirement of general deterrence and, in our view, the sentence imposed does not suggest otherwise.

40 As to moral culpability, her Honour did say that she had taken the appellant's depressed state into account as a "mitigating factor". This is to be taken as meaning that she regarded the seriousness of his conduct, or his culpability for it, as being reduced because of his depression. Again, there is nothing in the sentences imposed to suggest otherwise. There would be a range of views reasonably open as to the extent to which the appellant's mental condition did reduce his moral culpability. For example, it was not suggested that the appellant was unaware of exactly what he was doing or that what he was doing was wrong.[41] On the other hand, it may be assumed that his judgment was significantly affected. As the sentencing Judge noted, the attack on L was premeditated. The appellant brought with him a pistol and ammunition to a pre-arranged meeting. He then shot her not once but twice and there was an interval between the shots, during which he got rid of a fired cartridge and reloaded the weapon.

41 The final ground of appeal was that the sentence was manifestly excessive. In essence, this submission relied on the matters which we have already considered, concerning general deterrence and moral culpability. Counsel for the appellant also relied on the other mitigating factors referred to by the sentencing Judge, namely, his youth; his early pleas of guilty; his remorse; and his good prospects of rehabilitation. All of those matters were taken into account and, as we have already indicated, we think that the sentences imposed were well within the range open to her Honour, giving full weight to the significance of the mental impairment.

42 It was for these reasons that we announced at the conclusion of argument that the appeal would be dismissed.

R v BUCKLEY

43 The appellant pleaded guilty in the County Court to one count of aggravated burglary, 21 counts of burglary, one count of handling stolen goods, one count of obtaining property by deception and 78 counts of theft. On the count of aggravated burglary, he was sentenced to two years and six months' imprisonment; on the counts of burglary, to sentences ranging from three months to two years; and on the counts of theft, to sentences ranging from seven days to 18 months. The total effective sentence was five years, and the non-parole period three years.

44 There were two reports before the Court concerning the appellant's mental state. The first was a Forensicare report dated 12 January 2004, obtained by the Magistrates' Court with respect to proceedings in early 2004 concerning a breach by the appellant of an intensive correction order. The report was written after he had commenced committing the offences with which we are concerned. The breach of that order had taken place in mid-2003, but only four of the 102 counts currently under consideration occurred in 2003, and three of those four were in November 2003.

45 According to the report, the appellant had had significant substance abuse problems in the period 2000-2002. He had become a daily user of amphetamines. He reported feeling depressed as he was decreasing his use of amphetamines. He also reported a psychotic episode induced by amphetamines, with paranoid symptoms. His daily use of amphetamines had caused "significant impairment in his occupational, financial and relationship functioning." The conclusion of the report was that the breach of the ICO had occurred while the appellant was experiencing a depressive episode which resulted in him "not prioritising (compliance with) his ICO over his employment." By early 2004, however, his mood was reported to be improving.

46 The other report was from Mr Ian Joblin, a forensic psychologist, who assessed the appellant in October 2005, before his plea hearing took place in the County Court. Mr Joblin noted that there appeared to be a significant connection between the appellant's "virtually uncontrolled use of amphetamine(s)" and the dishonesty offences. Mr Joblin's assessment was in these terms:

[64]

"At the time of my interview with [the appellant] he presented reasonably well. As indicated above, there was no evidence of psychological dysfunction with him. He is certainly not psychotic. He is a man of reasonable intellect. I did not consider that he would fulfil the diagnostic criteria for a personality disorder.

Against that, one notes the offending. Basically it is my strong opinion that the offences occurred in a context and it was that context that was responsible for the psychological state related to the offending. Outside that context in my opinion there would be a question as to whether the offending would have occurred.

That context began when he found his best friend, a man he had trusted for many years, with his wife. This was totally unconscionable for him. He reported that he simply could not accept that his best friend would do that to him, nor that his wife would. He reported that at that time because the business had lost the insurance company contract he had been working extremely long hours and he acknowledged that she probably became lonely. In his mind that does not excuse her behaviour.

From that point there were a host of difficulties. He could not return to work at his business and that was sold at a large loss. He remained in the house for some time but then moved to live with his parents and the house was sold. He had to pay his wife in settlement. He sold his assets. Importantly in trying to deal with all of this he developed what became a serious amphetamine addiction from what had previously been a use of amphetamine to assist him in working long hours. He then simply deteriorated in his psychological state. Any money he had he spent on amphetamine or gambling. His resources were quickly depleted. Under these conditions the offences occurred.

These offences, therefore, were based on a need to support an amphetamine and gambling habit. [The appellant] reported that all the items taken were either sold prior to being taken or taken on order. [The appellant] reported considerable regret about any persons present in the addresses when he was there." (emphasis added)

[73]

In short, it was argued, the appellant was a professional burglar and thief. On occasions, he stole to order, having already arranged buyers for the goods he was planning to steal.[42] Counsel for the Crown submitted that the appellant's offending merited a significant term of imprisonment, notwithstanding the mitigating factors.

51 In our view, the contention of manifest excess must fail. As noted by the learned sentencing Judge, many of the offences were aggravated by the fact that they were committed while the appellant was either undergoing some other sentence or was already on bail or on a recognisance to be of good behaviour. Furthermore, the appellant was prepared to enlist the services of a 14-year-old boy for two of the offences and his 19-year-old girlfriend for other offences. Given his significant criminal history, which the Judge rightly regarded as being "highly relevant", the individual sentences and the orders for cumulation made by her Honour were well within range.

52 Lastly, counsel for the appellant argued that the sentences imposed on the appellant offended against the principle of parity, given that his co-offender had been released on a 12 month community-based order, and ordered to perform 250 hours of unpaid community work over a 12 month period. While acknowledging that there were differences between the offenders. Counsel for the appellant argued that the disparity between the sentences was too great.

53 The Crown submission was that the circumstances relating to the appellant on the one hand and the co-offender on the other could not have been more different. The co-offender was only 19 and had only one prior conviction, for shoplifting. She had been entitled to a significant discount in sentence, her very early plea of guilty having been accompanied by co-operation of the authorities, including an undertaking to give evidence against the appellant. In our view, the Crown's submission was clearly correct.

54 It was for these reasons that we announced at the conclusion of the argument that the appeal would be dismissed.

R v VO

55 The appellant pleaded guilty to one count of murder. He was sentenced to 18 years' imprisonment, with a non-parole period of 14 years. (At the date of the offence, the appellant was aged 23. He is now 26.)

56 The circumstances of the offence were as follows. In mid-2002, the appellant became friendly with a 14-year-old ("AW"). In early 2003, they began going out together. They saw each other three or four times a week and spoke by telephone every day. They went out for meals together and to the movies.

57 In mid-2003, AW tried to end the relationship, having decided that the appellant was not the right person for her. She told him that she did not want to see him any more. Subsequently, the appellant went to AW's house late at night, after she had gone to bed, and knocked on her window. AW did not respond but went into her mother's bedroom and lay down in her mother's bed. The appellant entered the house and went into the mother's bedroom. AW had fallen asleep and was woken by her mother shouting at the appellant and telling him to leave. AW's mother telephoned the police, who arrived a few minutes later and directed the appellant to leave.

58 After that incident it appeared that the appellant had accepted that the relationship was over. AW and the appellant had contact only occasionally and he appeared to be willing to be just a friend of AW's. A month or two later, however, their contact again became more frequent, with the appellant insisting that they see each other much more often. The appellant made another nocturnal visit to AW's house, and knocked on her window. AW went out and spoke to the appellant. From then on she began ignoring his telephone calls.

59 In September 2003, AW was walking home from school when the appellant approached her. Once again she told him that she did not want to see him any more. He demanded otherwise and became very emotional. In order to break free of him, AW told him that she would keep seeing him, whereupon he let her walk away. Similar behaviour was repeated over the following month.

60 On one occasion, the appellant came to AW's house and demanded that she come with him to his house. He grabbed her by the arms and dragged her into the back yard. He then pulled her into his car and drove down the road. He sat and talked at AW for a couple of hours, repeatedly telling her how hurt he was. The following day AW told her mother what had happened and her mother said that the next time the appellant came over she would call the police.

61 A few days later the appellant returned to the house after midnight. He knocked on AW's window and woke her up, saying that he wanted to talk to her. She went to her mother's room. The mother went to the back door and told the appellant to leave. Once again, the mother telephoned the police who attended a few minutes later and found the appellant in the front yard. Police advised AW that if she did not want to see the appellant again she would need to obtain a court order.

62 Between 3 December 2003 and 26 January 2004, AW was overseas on holidays. Her mother joined her for the latter part of the holiday. On 27 January 2004, the day after their return from overseas, the appellant arrived at the house at about 11:00 am. AW was at home alone. At first she ignored the appellant when he knocked on the front door. He then went into the back yard and knocked on the back windows. Eventually AW answered the door. He told her that he had entered the house and taken the key. He said that he had done this in order to see whether she was lying to him or not (about not having another relationship). He handed back the key and said that he knew the relationship was over and that he would not be coming back again.

63 On 5 February 2004, AW received a telephone call from a mutual friend of hers and the appellant's. The friend told AW that the appellant had said that, if AW were to end their relationship, he would do something to her parents. AW then telephoned the appellant who, she later said, sounded normal. Another mutual friend recounted a similar communication from the appellant.

64 On the night of 8 February 2004, AW went to bed at about 11:00 pm. Her mother was in the living-room watching television. About 20 minutes later, AW heard knocking on her bedroom window. She opened the curtains and saw the appellant standing outside, gesturing to her to come out of the house. AW went to her mother, who walked to the back door and out into the back yard. The appellant was no longer there. Five minutes later, the appellant telephoned AW on her mobile telephone, demanding that she come and talk to him. AW said that she would speak to him the following day, to which he replied, "No. I want to talk to you now". He went on, "I was good, but I have chosen to be bad now". AW said "Do whatever you want" and hung up.

65 AW went back to bed. About five minutes later she heard knocking on her window. She left her bedroom and told her mother that the appellant was still outside. Her mother said that she would tell him to get out. AW followed her mother to the back door. Her mother walked out to the back yard and shouted at the appellant, "Get out of my house". Through the glass panel in the door, AW saw her mother walk towards the appellant, to the point where she was just visible. AW then heard her mother screaming and calling out for AW.

66 AW ran outside and saw her mother on the ground bleeding from the stomach. She saw the appellant holding a knife in his right hand and bending down over AW's mother, who had stopped screaming and was breathing very hard. AW ran straight towards the appellant and tried to take the knife from him but he pushed her away. AW saw her mother raise her left arm. AW shouted at the appellant, "If you want to do something, do it to me". AW then saw the appellant strike her mother twice on the back of the head. She thought she heard her mother scream for help again. Once more AW tried to take the knife from the appellant but was forcefully pushed away and fell to the ground. As she stood up, AW saw the appellant stab her mother once more.

67 The appellant grabbed AW by the arm and said "You can come with me". He was still holding the knife. AW screamed, "No" and called out for help. The shouting and screaming attracted the attention of neighbours, who came out and intervened. The appellant jumped over a side fence and ran down an adjacent driveway into the street. Police and ambulance arrived soon after. AW's mother was already dead. The appellant was apprehended in a laneway nearby. He did not flee and was cooperative as the police effected the arrest.

68 Subsequently, in a tape-recorded interview, the appellant made extensive admissions. He said that he had taken a kitchen knife with him when he went to AW's house. The knife was about 30 centimetres long. He said he had intended to frighten AW with the knife. His account of the subsequent confrontation with AW's mother, and his infliction of multiple stab wounds, was substantially consistent with the account given by AW.

69 When asked why he had stabbed AW's mother, the appellant said that he thought that, once her mother died, he would be able to have AW. He said he had thought about this a long time before.

[77]

(1) Because of the stress surrounding his presentation on the charge of murder in mid-2005, the appellant had decompensated psychiatrically to the point where he had developed an acute psychosis. That condition was "simply reactive to the recent stressful circumstances."[43]

(2) As at the date of the plea hearing, the appellant was clearly suffering from a major mental disorder - tentatively diagnosed as schizophrenia - although he was "much weller than he was".[44] The appellant was well and had no symptoms of psychosis. The anti-psychotic medication had been withdrawn, largely at the appellant's own insistence.[45]

(3) The major psychotic illness which developed in mid-2005 did not manifest itself until after the offence was committed.[46] The psychosis did not manifest itself until months later.[47] There was no basis for a defence of mental impairment in relation to the killing.[48] Nor did the appellant have a serious mental illness short of metal impairment (ie. he did not fall into the category defined in R v Tsiaras) at the time of the killing.[49]

(4) The appellant had seemingly had a "very intense sort of passion" for AW but it could not be said that it had reached delusional proportions at the time of the incident.[50]

(5) There is a so-called prodrome [precursor or forerunner; premonitory symptom][51] to the onset of a psychotic illness like schizophrenia. The prodrome is usually recognised in retrospect. Subtle changes in personality, different behaviour, the expression of somewhat unusual ideas and changes in emotion often precede the emergence of the full-blown illness. The description (by defence counsel) of the appellant as having had a "dramatic change" in personality and having developed a fixation on AW was "entirely consistent" with there having been such a prodrome.[52]

(6) No sensible prediction could be made about whether the appellant would have further acute psychotic episodes. The most likely prognosis was that there would be recurring episodes of psychosis over the years.[53] Relapses could occur spontaneously in the absence of stress.[54]

[83]

"19. The psychiatrist, Dr Walton, examined you on 26 July 2005, soon after your trial. He was not asked to attempt an assessment of your state of mind at the time of the killing. At the time of your trial you were being treated with ante-psychotic (sic) medication and this treatment has continued until recently. The investigations of Dr Walton have disclosed that since May of this year your mental state had deteriorated significantly, particularly as the trial date approached. Then in July when you were admitted to the prison psychiatric unit you were experiencing paranoid delusions, auditory hallucinations and suicidal ideas. This responded to medication, so that there was no question of your being unfit to stand trial. The medication has, in October, ceased and you presently suffer from no psychiatric condition.

20. Dr Walton expresses the opinion that, at the time of the killing, you might have suffered from a nascent or non-diagnosable form of psychosis which did not manifest itself until mid-2005 when it may have been triggered by the stress caused by the imminent trial. I do not conclude, however, from this speculation that the conduct with which you have been charged was the result of any psychiatric illness. I do not understand your unreasonable suspicions directed to [AW] as an indication of mental illness; but rather as the fantasies of a disappointed lover. Dr Walton considered it likely that you may suffer from recurrent episodes of the psychotic condition which he identified.

21. You pleaded guilty on the second day of your trial. By so doing you spared the State the cost of the trial and, more importantly, you spared [AW] the ordeal of reliving her memory of that terrible evening. I take this into account in your favour notwithstanding that your plea was very late. This is a case where the sentence must reflect the value which the community places on the life of one of its members. Murder is a serious offence - the most serious of all.

22. The sentence which I impose must serve as a warning to those who may be minded to carry knives.

23. It is not uncommon for young people to experience the disappointment and desolation of rejection by a person whom they love. It is entirely unacceptable that you or any one else should see the use of a knife as an appropriate means of resolving such a situation. The sentence must serve as a deterrent to such persons.

24. It was put on your behalf that you suffered a serious psychiatric illness which should bear upon the sentencing process. In Tsiaras,[55] the Court of Appeal explained how, in the appropriate case this may be so. The fact is that I do not accept that, at the time of the offence or now, you suffered or suffer from such an illness.

25. My task is to weigh up the competing considerations which bear upon the sentence which I impose. I have mentioned already that the sentence must reflect the community's disapproval of your conduct, the harm you have inflicted on others and the need for general deterrence." (emphasis added)

[87]

Counsel for the appellant argued that it was not reasonably open to the learned sentencing Judge to reject the defence submission that the appellant had been suffering the incipient stages of the onset of his mental illness at the time the offence was committed.

79 Counsel for the Crown argued that there was no evidentiary basis for concluding that the appellant suffered from a serious psychiatric illness at the time of the murder, or that his offending conduct was referable to any such illness. He pointed out that the appellant had disposed of the murder weapon and had changed his clothes after the killing. There was, he argued, a rational motive for the murder, in that the appellant was angry at what he saw to be the victim's frustration of his attempts to continue his relationship with AW.

80 At the time of sentencing, counsel for the Crown submitted, the position as to the appellant's condition was "by no means clear". The question of whether his time in custody would be made more difficult because of his illness depended on the likelihood of his suffering a relapse, which Dr Walton could not predict with certainty. Accordingly, so it was submitted, it was open to the learned sentencing Judge not to be satisfied that there was any "serious psychiatric illness" relevant to sentencing.

81 We deal first with the question of the appellant's state of mind at the time of the offending. As already noted, his Honour did not accept that, at that time, the appellant suffered from a serious psychiatric illness of the R v Tsiaras kind. In the light of Dr Walton's evidence, no other conclusion could have been arrived at.

82 Nor did Dr Walton's reference to the "prodrome" justify a different conclusion. In the first place, Dr Walton had not had the opportunity to observe the appellant until almost 18 months after the murder. The best that he could say, in response to defence counsel's description of the appellant's apparent personality change, was that it was "consistent with" what would be expected to be observed in the prodrome state. But Dr Walton did not express - and could not have expressed - a concluded view that the appellant was, at the time of offending, in the prodrome state. Secondly, and in any event, the prodrome state is not the mental illness. Rather, it is a forewarning of the later onset of the mental illness. Hence the notion of prodrome as a "premonitory symptom".

83 Having concluded - correctly in our view - that there was no operative mental illness at the time of the killing, his Honour nevertheless gave full consideration to the appellant's state of mind at the time. Twice in the course of argument on the plea, his Honour referred to the appellant as having been at the time "a very disturbed young man".[56] Twice in his sentencing reasons he referred to the appellant's "confused state of mind". His Honour considered, as he was obliged to do, whether the effect of the appellant's obsession with AW was such as to reduce his moral culpability or materially affect the need for specific or general deterrence. His conclusions are apparent from the sentencing reasons set out above. We can discern no error in the analysis.

84 We turn now to the appellant's state of mind at the time of sentencing. Dr Walton was unequivocal in his diagnosis that the appellant was still suffering from the psychotic illness which had manifested itself floridly for the first time in July 2005. He expressed this opinion having also stated that the appellant was free of symptoms at that time and was not on anti-psychotic medication.

85 What mattered, in our view, was not whether the appellant still had the illness but what effect it was likely to have on his experience of imprisonment. Given the positive report from Dr Walton of the appellant's symptom-free condition, to the point where anti-psychotic medication had been terminated, his Honour was entitled to disregard the diagnosis for the purposes of R v Tsiaras proposition 5. That is, on the evidence before him, there was no material which would have enabled his Honour to decide that the appellant would find imprisonment more burdensome than a person not suffering from that illness. Dr Walton had candidly acknowledged that he could not predict the likelihood of a recurrence of psychotic symptoms, although he thought it was likely that this would occur. Although this was not stated, his Honour was entitled to assume that any such recurrence would, and could, be effectively dealt with by medication and, if necessary, by hospitalisation, a course which had proved successful following the psychotic episode in mid-2005.

Remorse

86 In his sentencing remarks, the Judge said that there was -

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