R v Walsh [2006] VSCA 87

Court of Appeal (Vic)|2006-04-05|Before: BUCHANAN, VINCENT and NEAVE, JJ.A.

CRIMINAL LAW - Sentence - Attempted murder - Unprovoked attack on victim unknown to appellant - Appellant suffering depressive illness - No apparent link between depressive illness and offence - Relevance of general and specific deterrence - use of sentencing statistics in fixing term of imprisonment - Term of 11 years with non-parole period of 8 years not manifestly excessive.

Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions

1 The appellant pleaded guilty to a charge of attempted murder. She was granted leave by a single judge of this Court to appeal against a sentence of eleven years imprisonment, with a non-parole period of eight years.

2 The appellant stabbed the victim, Karen Emmerzael, in an unprovoked attack. The victim was seriously injured. She has been left with scarring on her face and has limited capacity to use her hands (particularly the left one). She suffers pain from these injuries and from another stab wound in her back. She has on-going psychological problems as a result of the stabbing.

3 The offence occurred in very unusual circumstances. The victim was a security guard at premises of the Commonwealth Bank in Batman Street, Melbourne. The appellant had worked at these premises when she was employed by the Bank. The appellant went to her former workplace at 1.00 a.m and attracted the victim's attention. She told the victim that her car had broken down and asked to use the phone.

4 After the appellant was admitted to the premises by the victim she asked to use the toilet and was allowed to do so. While the victim was escorting her back to the foyer, the appellant stabbed her from behind with a kitchen knife that she had brought with her. After the victim managed to escape, the appellant drove home, washed the knife and replaced it in the drip tray on the sink. The clothes she had been wearing were covered with blood. She hid them in a plastic bag in the garage.

5 The police came to her house shortly afterwards. The appellant initially denied the offence and claimed to have been home all night, but in the police interview she admitted to stabbing the victim several times. She also said that if the victim had not escaped she did not doubt that she would have killed her. The appellant was completely unable to explain why she was carrying a knife with her and why she attacked the victim. There was evidence that she had visited the same premises about a week earlier and had unsuccessfully tried to persuade a different security guard to let her in.

6 The case is a sad one for the appellant, as well as for the victim. At the time of the offence the appellant was aged 45 years. The sentencing judge found that when she was a child she was sexually abused by a relative for more than five years. In the mid 1990s she and her sister reported the offences and gave evidence against this man at trial. He was acquitted.

7 The stress of giving evidence at the sexual offences trial exacerbated difficulties in the appellant's marriage and she separated from her husband in 1998. In 1999 her son, the oldest of her three children, was killed in a car accident. The appellant lost contact with family members after these events. She was first treated for depression in 1998 and her depression increased following the death of her son. From that time she suffered from severe and persistent depression. For a time she doubled her dosage of a prescribed medication to deal with her symptoms.

8 Her only previous conviction was for theft from the Commonwealth Bank. Because of her depression and for other family reasons the appellant resigned from her job at the bank in 2000. In 2001 she visited a friend at work. While she was left alone at a computer terminal she transferred $100,000 into her own account. Again, the circumstances of the offending were unusual. The appellant made little attempt to conceal the transfer of funds, and it was detected very promptly.

9 Dr Lester Walton prepared a psychiatric report on the appellant after she was charged with that offence. He commented that:

"[Her] offending arises as quite out-of-character behaviour in a context of clinically significant depressed mood, and while it is more common for middle-aged depressed women to engage in less spectacular offending as a "cry for help," rather than the more common practice of shop theft, [the appellant] opportunistically availed herself of her knowledge and circumstances regarding the bank. From the outset she seems to have appreciated that she would be promptly apprehended and, at a psychological level, that was what she was seeking to achieve, her behaviour representing a distorted communication of her distress and seeking of assistance. There is a component of a deliberate seeking of punishment to assuage the underlying pathological guilt which relates to the death of her son principally."

10 The sentencing judge commented that he had great difficulty understanding why the appellant had attacked a victim unknown to her, who had gone out of her way to help her. He accepted that the appellant was genuinely remorseful and noted her early guilty plea and her co-operation with the police. He referred to other mitigating factors, including the fact that she was a victim of serious sexual abuse, that she suffered from severe and persistent depression following the death of her son and that according to the evidence of a number of witnesses the attack was quite out of character. He found that the appellant's prospects of rehabilitation were "at least reasonably good."

11 On the other hand, his Honour said that the vicious and unprovoked nature of the attack and the seriousness of the injuries suffered by Ms Emmerzael, required denunciation. He regarded general deterrence as a factor of considerable significance. The appellant's previous conviction for theft was regarded as relevant to the issue of special deterrence.

12 Initially the appeal was based on two grounds. First, it was submitted that the sentence was manifestly excessive in view of the appellant's admissions to and co-operation with police; her remorse and her guilty plea; the fact that she had no prior convictions for violence; her contribution to the community prior to the death of her son; her longstanding psychological or psychiatric condition; and her personal circumstances, including the history of sexual abuse, her experience of giving evidence at a trial concerning that abuse, the breakdown of her marriage and the death of her son.

13 Secondly it was submitted that the sentencing judge had placed undue reliance on other sentences for attempted murder. In his sentencing remarks his Honour commented that that many sentences recently imposed for attempted murder were not substantially below those fixed for murder itself. Counsel for the appellant argued that His Honour had taken an irrelevant consideration into account by referring to sentences for murder.

14 At the commencement of these proceedings Mr Kassimatis sought leave to add a further ground of appeal. This was that the sentencing judge had been led into error by counsel's concession on the plea that the appellant's case was not a case similar to R v Tsiaras[1] or R v Anderson.[2]

15 The Court decided to hear argument on this matter and to defer its decision on whether leave should be granted to add this further ground of appeal.

16 The evidence is that the appellant was seriously depressed when she committed the offence. Counsel for the appellant submitted that the sentencing judge should have inferred that the attack was caused by her "deeply buried psychological or psychiatric disturbance." This inference was said to be irresistible because of the irrationality of the offence, the appellant's inability to explain her conduct, which was quite out of character, and the severe psychological distress she had suffered over the preceding eight or nine years as a result of the sexual abuse trial and the death of her son.

17 Although the sentencing judge had referred to factors mitigating the offence, including the prior sexual abuse suffered by the appellant, her reaction to the death of her son and the out-of-character nature of the attack, it was submitted that his Honour gave these matters insufficient weight, or that he gave too much weight to specific deterrence. In his oral submissions counsel argued that the sentencing judge should have taken account of the "all-pervasive effect" of her depression and the extent to which it reduced her moral culpability. He submitted that this had not occurred because of the concession made by her counsel that this was not a case similar to R v Tsiaras[3] or R v Anderson.[4]

18 In R v Tsiaras[5] the Court of Appeal identified five ways in which a serious psychiatric illness falling short of insanity may be relevant to sentencing.

"First, it may reduce the moral culpability of the offence, as distinct from the prisoner's legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective.

Second, the prisoner's illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.

Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time.

Fourth, specific deterrence may be more difficult to achieve and is often not worth pursuing as such.

Finally, psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health."

19 It appears to me that the concession made by the appellant's counsel at the plea hearing was primarily directed to the first of these points-that is the fact that a serious psychiatric condition may reduce a person's moral culpability for an offence. There were a number of reports on the appellant's mental state. Ms Clency Bernard, a psychiatric nurse, provided a report dated 29th December 2004, before the appellant's committal hearing. She commented that the appellant denied command hallucinations but displayed some dissociation with the offences and was at a complete loss to explain her actions.

20 A report by Dr Danny Sullivan dated 21st January 2005, also prepared for the Magistrates' Court, discussed whether the appellant had a basis for arguing that she attacked the victim while she was in a state of automatism or while mentally impaired. He rejected both these possibilities, and commented that her report of fragmented memories is "not uncommon in accidents involving extreme violence." He was unable to find how her psychiatric state affected the commission of the offence, but indicated that "due to her age, background and separation from her family she was likely to find incarceration difficult."

21 A later report prepared by Dr Sullivan at the request of the appellant's solicitors, dated 21st May 2005, again referred to difficulty in explaining why she had committed the offence. The appellant had "expressed bewilderment of events, expressed contrition at the effects on the victim and had no further insights into her motivation or actions. " The appellant had not intimated any desire to harm others. He indicated that she was in remission from depression, but that her mood would require further monitoring to prevent relapse.

22 The main basis for the submission that the sentencing judge should have regarded the appellant's moral culpability as significantly reduced because of her severe depression, was that the offence was irrational and completely inconsistent with her previous behaviour and character. The difficulty with this submission is that the psychiatric evidence did not support the existence of a causal link between her mental state and the stabbing. The fact that the appellant had symptoms of dissociation following the stabbing does not establish such a link. For this reason I do not think that the trial judge erred by failing to infer that the appellant's mental state caused the stabbing. The fact that a person acts violently at a time when they were depressed does not of itself establish that the offence was caused by depression.

23 In my view, it was appropriate for the sentencing judge to give some weight to general deterrence. In R v Yaldiz[6], Yaldiz was convicted of attempted murder by stabbing his wife. He was suffering from post-traumatic stress disorder, as a result of having been attacked and shot in the face, but there was no evidence that the offence was caused by his mental state. Batt JA commented that

"general deterrence is not eliminated, but still operates, sensibly moderated, in the case of an offender suffering from a mental disorder..."[7]

Winneke ACJ, with whom Hampel AJA agreed, said that

"Whether in a particular case a psychiatric condition should reduce or eliminate general deterrence as an appropriate purpose of punishment will depend upon the nature and severity of its symptoms and its effect upon the mental capacity of the accused."[8]

24 While the appellant's insight and judgment may have been affected by her depression, the circumstances of the offence show that she was well aware of what she was doing. The appellant had attempted to gain entry to the premises a week earlier; she armed herself in advance of her attack with a kitchen knife brought from home and she tricked the victim into allowing her to enter the premises. After she stabbed the victim she went home and concealed evidence of the offence.

25 Both the stabbing and her earlier offence may have been motivated by some grudge against the bank, though the appellant denied this in her first interview with Dr Sullivan. The nature of the appellant's psychiatric condition and the element of premeditation differentiates the case from R v Kasulaitis,[9] where the appellant was found on the basis of psychiatric evidence to have stabbed his eight year old son while experiencing a total breakdown in psychological functioning. In the case of this appellant, the sentencing judge did not err by giving some weight to general deterrence.

26 The extremely violent and premeditated nature of the offence also made it appropriate for the sentencing judge to regard special deterrence as a relevant factor in sentencing.

27 The sentencing judges' remarks show that His Honour considered mitigating factors arising from Ms Ward's sad personal history, including the sexual abuse she experienced as a child and her grief at the death of her son. He also took account of her severe and persistent depression, her genuine remorse and her prospects of rehabilitation.

28 Counsel for the appellant submitted that the sentencing judge had erred by relying too heavily on sentencing statistics for attempted murder. The sentencing judge commented that

"I have studied most, if not all, of the recent sentences for attempted murder imposed in this court. Some have been reviewed in the Court of Appeal. While one must allow for many variables, the broad picture is that many sentences imposed recently for attempted murder have not been very substantially below those fixed for murder itself."

29 In R v Bangard the Court of Appeal recognised that although,

"each sentence involves a unique synthesis of diverse factors stemming from the circumstances of the crime and the character and antecedents of the offender."[10]

sentencing statistics can provide useful guidance on general trends in sentencing.

30 In the same case Eames JA referred to the usefulness of computer data bases such as the Victorian Sentencing Manual, to sentencing judges, particularly judges who are not able to call on their own experience in making sentencing decisions.[11]

31 There is no basis for a finding that the sentencing judge placed undue reliance on sentencing statistics. While referring to other sentences for attempted murder, the sentencing judge explicitly acknowledged the "many variables" between different cases and took account of the circumstances of the particular offence and appellant.

32 The appellant submitted that the sentencing judge's comment that "many sentences imposed recently for attempted murder have not been very substantially below those for fixed for murder itself" showed that he had taken account of an irrelevant consideration. I do not agree. A conviction for attempted murder requires the jury to be convinced that the appellant had an intention to kill. The appellant's police interview suggests she might well have killed Ms Emmerzael if she had not escaped. Further, His Honour's reference to sentences for murder seems to have had little, if any, influence on the sentence which was imposed, which is well below both the average and median sentences imposed for murder in recent years.

33 In R v Kittikhoun[12], Chernov JA commented that

"It must not be forgotten that the burden, or the duty, of sentencing the offender has been placed on the shoulders of the sentencing judge and not this Court. We can only interfere with a sentence if a specific error on the part of the sentencing judge has been demonstrated such as to vitiate his or her sentencing discretion or the sentence is plainly wrong."

34 In R v Boaza[13] Chernov JA alluded to increases in sentences for attempted murder, over recent years. The attack in this case was unprovoked and brutal and will have lasting effects on the victim. The sentence in this case, though relatively high, is not outside the range of sentences for attempted murder. I can find no basis for concluding that the sentencing judge erred.

35 With respect to proposed ground 3 of the appeal my previous comments show that the sentencing judge took account of the appellant's serious and persistent depression as a mitigating factor and did not disregard her psychiatric condition. For this reason proposed ground 3 lacks substance. In my view leave to amend the grounds of appeal should be refused.

39 The order of the Court is that the appeal is dismissed.

[5] [1996] VicRp 26; [1996] 1 VR 398 at 400 per Charles and Callaway JJ. A and Vincent AJA

[10] R v Bangard [2005] VSCA 313 at para 11 per Buchanan JA, see also Nettle JA at para 40 and R v Giordano [1998] 1 VR 544 at 549

[11] [2005] VSCA 313 at para 31-33. See also R v Kasulaitis [1998] 4 VR 224, 231 per Batt JA

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