R v White [2009] VSCA 177

1 I will ask Lasry AJA to deliver the first judgment.

2 On 25 September 2008, the appellant pleaded guilty to one count of criminal damage, one count of threatening to inflict serious injury and one count of causing serious injury. He admitted prior convictions which included 32 convictions from nine court appearances between May 1989 and January 2007 and were mainly connected with drug use, possession, dishonesty offences, and, relevantly, three counts of criminal damage and one count of causing injury intentionally or recklessly.

3 On 2 December 2008 the appellant was sentenced in the County Court as follows: on count 1, the count of criminal damage, he was sentenced to six months' imprisonment; on count 2, the count of threatening to inflict serious injury, he was sentenced to 12 months' imprisonment; on count 3, being the count of recklessly causing serious injury, he was sentenced to two years' imprisonment. The sentencing judge ordered cumulation of the sentences in that three months of the sentence on count 1 was to be served cumulatively upon the sentence imposed on count 3. That resulted in an effective term of imprisonment of two years and three months, and his Honour ordered that the appellant serve 12 months before being eligible for release on parole.

4 The facts of the offending were disputed by the appellant. However, after hearing evidence, the sentencing judge accepted the account given by the victim. The evidence may be summarised as follows. On 26 September 2007, the victim of these offences, Anna Maria Straddiato, was seated in her Mazda sedan in Queen Street, Norlane, in the Geelong area. The vehicle was parked in the driveway of a private home and she was talking to a friend who was seated in the driver's seat of the vehicle. The appellant approached the car in possession of a knife and stabbed at the car bonnet with that weapon. The knife penetrated the metal of the vehicle. He

later grabbed Ms Straddiato by the hair and told her that he would kill her, and dragged her from the vehicle by her hair. There was then repeated punching to Ms Straddiato's face and head by the appellant and other areas of her body. The motivation identified in the evidence was that in some way Ms Straddiato had caused him to lose custody of his child. The appellant also slashed the tyres of the vehicle with the knife, before leaving the scene on foot. He had consumed a large amount of alcohol and the drug Serapax.

5 The morning after the incident, the appellant was interviewed by police and gave a quite different version of events, suggesting that the two women had been the causes of the incident by approaching him with a stick. He maintained that the passenger in the vehicle attempted to stab him with a knife.

6 The sole ground of appeal argued before us is that the learned sentencing judge erred in giving no mitigating weight to the appellant's mental state at the time of offending. After evidence about the disputed factual issues had been given and his Honour had announced his conclusion, the matter was further adjourned in order that a pre-sentence psychiatric report be obtained. The sentencing judge already had reports from Mr Joblin and Dr van der Linden.

7 Dr van der Linden noted in his report of 21 July 2008 which was before the sentencing judge that he had consulted with the appellant for the purpose of treatment, not for the purpose of providing a forensic report. In his report he stated that he had first seen the appellant in May 2007 after a referral from the appellant's local general practitioner, for 'depression, anger management problems and anxiety'. Dr van der Linden noted that the appellant had said that his GP wondered whether the appellant suffered from a possible bipolar affective disorder; however, this query was not contained in the general practitioner's letter of referral. Dr van der Linden went on to report that he initially considered that the appropriate diagnosis of the appellant was one of borderline personality disorder and poor impulse control, and that as a result of continuing to see him on a regular basis, that diagnosis was confirmed. In addition, he diagnosed an ongoing problem with marijuana and benzodiazapine abuse.

8 During the course of the submissions made on behalf of the appellant before the sentencing judge, that report was identified and became Exhibit 3. His Honour noted that:

He [the appellant] has a drug-induced borderline personality disorder.'

9 In the report by Mr Ian Joblin, forensic psychologist, dated 21 July 2008, Mr Joblin endorses the diagnosis of borderline personality disorder. That report became Exhibit 1 on the plea proceedings.

10 As I have said, subsequent to receiving that material, the sentencing judge ordered the preparation of a Forensicare report to assist him in imposing sentence. That report was obtained and prepared by Dr Fiona Best and became Exhibit C on the plea. His Honour concluded that:

It is clear from that report that there is no evidence of any psychiatric disorder in relation to [the appellant].

His Honour referred in particular to the conclusion that appears in the document in the following terms in paragraph 5 of page 5:

Whilst it is difficult to make a comment about personality without collateral history, there appears to have been long-standing issues with assuming responsibilities for action, problematic conduct, antisocial attitudes, mood instability, and low impulse control for some years.

11 Counsel for the appellant before us submits that the sentencing judge erred in attaching no weight to Dr van der Linden's conclusion that the appellant suffered from a borderline personality disorder. It was submitted that such a disorder has been held to be a relevantly mitigating disorder and worthy of weight in the exercise of the sentencing discretion.

12 The Forensicare report was presented to the sentencing judge on 2 December 2008, which was a resumed hearing after the matter had been adjourned from October 2008. Counsel for the appellant on that occasion informed his Honour that he had the opportunity to look through the report and noted that there was an absence of mental illness, and particularly no indication of major depression. No further submissions were made about the effect of the appellant's mental state, either at the time when he fell to be sentenced or at the time of the commission of the offences.

13 In R v Verdins[1], this Court said, at 272:

Where a diagnostic label is applied to an offender, as usually occurs in reports from psychiatrists and psychologists, this should be treated as the beginning, not the end, of the inquiry. As we have sought to emphasise, the sentencing court needs to direct its attention to how the particular condition (is likely to have) affected the mental functioning of a particular offender in the particular circumstances, that is, at the time of the offending or in the lead-up to it, or is likely to affect him/her in the future.

The Court went on to identify the principles pursuant to which impaired mental functioning, whether temporary or permanent, was relevant to sentencing.

14 The sentencing judge in this case was not asked to apply those principles in the manner contemplated by the Court in Verdins. No submission was made that any of the six ways in which impaired mental functioning might be relevant to sentencing applied in this particular case.

15 With respect, on behalf of the appellant we are now asked to conclude that, in the absence of such submissions, the sentencing judge fell into error.

16 On behalf of the respondent it was submitted that none of the material which was relevant to the psychological and psychiatric condition of the appellant linked the diagnosed conditions to the commission of the offences, or highlighted difficulties which would arise in the serving of any sentence as a result of those conditions. It was submitted that, where a person in the position of the appellant is represented by counsel, the sentencing judge is not required to consider any effect of the psychological condition of that person where there has been no attempt to link

the psychological condition to a relevant sentencing factor. To support this submission, counsel for the respondent relied on the comments of Nettle JA in

Contrary to submissions advanced by counsel on behalf of the appellant, where a prisoner is represented by counsel, a sentencing judge is not ordinarily required to consider any possible effects of psychological or psychiatric disability other than those expressly relied on by counsel. Generally speaking, therefore, it is ordinarily not the duty of a sentencing judge to scour evidence and other material in order to identify not so identified psychological or psychiatric disability which may go in mitigation of penalty.

17 With respect, I agree with the submission on behalf of the respondent. The sentencing judge referred to the report of the treating psychiatrist in his conclusions during the course of the reasons for sentence. No submission was made on behalf of the appellant seeking to specifically link the appellant's diagnosed condition to the offending, therefore, the evidence regarding his condition is simply part of the background. In addition, the opinion expressed in the Forensicare report, which the sentencing judge quoted, seems to me to be consistent with the treating psychiatrist's report.

18 In my opinion there is no basis on which to conclude that the sentencing judge fell into error, and I would dismiss the appeal.

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

[1] [2007] VSCA 102; (2007) 16 VR 269.

[2] [2009] VSCA 10.