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[2007] VSCA 208
Court of Appeal (Vic)
2007-09-26
CHERNOV and REDLICH JJA and KING AJA
Original judgment source is linked above.
CRIMINAL LAW - Adequacy of directions - Accomplice warning - Whether dangerous witness direction required - Corroboration - Sufficiency of evidence.
SENTENCING -Tsiaras principles - Amelioration of sentence.
**1 We have had the benefit of reading the draft reasons for judgment of King AJA in this matter. The circumstances giving rise to the applicant's trial and the appeal are fully set out in her Honour's reasons, as are the issues that were argued on appeal.
2 We agree that, essentially for the reasons given by her Honour, there is no substance in ground 1 that alleged inadequacy in her Honour's directions to the jury concerning their consideration of the evidence of Anderson. We can discern no deficiency in the judge's charge. It adequately dealt with the need for, and what may constitute, corroboration of Anderson's evidence, the assessment of his evidence in light of his role in respect of the armed robbery, the potential for his being re-sentenced, that he had received a sentencing discount and that he was committed to give a version of events at trial. We also consider that, as her Honour said, the accomplice warning given by the trial judge in relation to Anderson was sufficient. In relation to the matters summarised in her Honour's reasons concerning Anderson's position that were highlighted in argument by the applicant's counsel, we are also of the opinion that, as her Honour explained, no special directions were required by the trial judge
3 Under cover of ground 2, it was claimed that the trial judge erred in leaving to the jury, as evidence capable of amounting to corroboration, the applicant's answer in his record of interview that he thought the getaway car was blue. In our view, essentially for the reasons given by her Honour, there is no substance in the complaint.
4 In the result, and given that ground 3 was not pressed, we agree with her Honour that the application for leave to appeal against a conviction should be refused.**
**5 We consider that the same fate should befall the application for leave to appeal against sentence. Primarily for the reasons given by her Honour, the trial judge, we think, did not engage in a two step sentencing process as was claimed by the applicant's counsel. Similarly, we consider that in sentencing the applicant, contrary to the submission of his counsel, the trial judge sufficiently took into account his mental condition both in moderating general and specific deterrence and in considering the impact of imprisonment upon him. There is nothing on the face of the sentencing reasons that indicates that her Honour erred as was alleged. And the sentence, we think, is within the relevant range given the seriousness of the offence and the offending conduct and the applicable sentencing principles, balanced against the applicant's personal circumstances and other mitigating factors.
6 We would also refuse the application for leave to appeal against sentence.**
**7 The applicant, Paul Andrew Stewart Williams, by application dated 21 July 2005, applies for leave to appeal against his convictions of 31 May 2005. He also seeks leave to appeal against his sentence of 7 years' imprisonment, with a non-parole period of 5½ years, for one count of armed robbery and one count of theft of a motor vehicle, both offences occurring on 2 October 2001.
8 The grounds of appeal as set out in the Full Statement of Grounds dated 9 March 2006 are:**
Ground 1: The Learned Trial Judge misdirected the jury as to the manner of their consideration of the evidence of the witness Darryl Anderson
Ground 2: the Learned Trial Judge erred in directing the jury that the evidence of the witness Darryl Anderson could be corroborated by:
(a) evidence that the applicant had spent the night before the day of the commission of the armed robbery in the company of the co offender Griffin, and
(b) Evidence of the applicant's assertions in his interview that he thought the getaway car was blue.
Ground 3: The Learned Trial Judge erred in failing to give any or any adequate direction to the jury as to the use of the evidence of the description of what was said by the Crown to be the applicant and co offender fleeing the scene of the robbery.
9 The facts of the case can be briefly stated. Not long prior to 2 October 2001, the applicant, a co offender named David Griffin (who died prior to charges being laid) and Daryl Anderson had all agreed to commit an armed robbery of a jewellery store. Anderson, who was to be a witness at the trial, had agreed to this with Griffin a few days prior to the planned armed robbery. The applicant had been introduced to Anderson as Pav. In the result, on the morning of 2 October 2001, between 8 and 9 o'clock, Anderson was collected by the other two men in a white Pulsar or Laser, which was the vehicle belonging to Griffin or his mother. Whilst travelling in the vehicle, Anderson noticed a sawn off shotgun in a bag on the back seat, near where he was sitting, as well as gloves. He passed that gun and the gloves to Pav whom he identified at trial as the applicant.
10 They drove to where a stolen car had been earlier secreted and the applicant left the current vehicle, entered the stolen vehicle and then all three proceeded in convoy to a service station in the white vehicle and the stolen car. At the service station they stopped and the applicant indicated that the vehicle he was driving was not good enough for the job and in the result they agreed to steal another vehicle. They all drove to another shopping centre car park at which the applicant stole another car, a blue Ford. As they drove along Warrigal Road near a friend of Anderson's he stated that he could not go through with the armed robbery, and asked to be let out of the car. Griffin agreed and let him out and said they would come back in about an hour to see if he had changed his mind and wanted to join them in the armed robbery. They said they were going to put the getaway car somewhere. They returned at approximately 11.00 o'clock and Anderson continued to decline to join in the armed robbery and he did not see them from that point. He later pleaded guilty to the theft of the motor vehicle and was given, without conviction, a fine of $3500.
11 The evidence from there is that two men went to a jewellery shop in Canterbury at about midday armed with a sawn off shotgun and a sledge hammer and robbed the store using the butt of the gun and the sledge hammer to break open the glass cases containing the jewellery. During that process the sawn off shotgun discharged. The two men were captured on security video at the store.
12 The two men were pursued by two of the persons from the store and one noted the registration number of the escaping blue vehicle. They the lost sight of the vehicle but later saw it again. They then observed a white Laser leave the area of the blue car, and pursued the white Laser which stopped near Toorak Road, at which point an offender got out of the vehicle and pointed a shotgun at the pursuers. The pursuers reversed and the offenders got into the vehicle and despite again giving chase to the white Laser, it was ultimately lost.
13 Pamela Griffin, the mother of the deceased co offender Griffin, gave evidence that the applicant had stayed overnight with her son at her home on 1 October 2001, the night before the armed robbery, and that he had never done so before. Her son did not normally live at home. He owned a white Ford Laser registration QKA0256, and she lived a 20 minute walk from Fountain Gate Shopping Centre which has a Bunning's store. She identified a video from Bunning's store as showing her son and the applicant who she knew as Pav.
14 An employee of Bunning's produced a surveillance tape from the Fountain Gate Bunning's store showing the applicant and the deceased co offender in the tools area at approx 8.30 pm on the evening of 1 October 2001 and a receipt for the purchase of a sledge hammer, similar to that shown in the video footage of the armed robbery, which corresponded, approximately, with the time that the applicant and the co offender were seen on the video footage in the Bunning's store.
15 A telephone intercept of 30 September 2001 of a conversation between the applicant and Griffin was played to the court. It appeared to record an agreement between the applicant and Griffin to stay at Griffin's home and 'to do it Tuesday'.
16 The applicant was interviewed by police in December of 2001, shortly after his release from a psychiatric institution. He made a series of denials as to his nickname being Pav, knowing the witness Anderson, recalling attending a Bunning's store, or buying a sledge hammer. He denied any involvement in the armed robbery and when asked about it said that he had seen a news program and he recalled that the vehicle used in the commission of the offence was blue.
17 It was submitted under cover of ground 1 that the learned trial judge erred by giving the corroboration warning and then directing the jury that there was:**
evidence which I direct you is, as a matter of law, capable of amounting to corroboration if you find Mr. Anderson is an accomplice to either or both of these crimes.
**18 It was submitted in paragraph 7 of the outline of the applicant's submissions that to have described the evidence in this fashion is unhelpful and confusing and may lead it to assume a status that it does not deserve.
19 For this submission counsel for the applicant relied upon the decision of R v Kendrick[1] in which Winneke P stated:**
If a judge tells the jury that he has already ruled that certain evidence is 'capable of amounting to corroboration' there is a risk that the jury will consider that the evidence has a status which it does not deserve.
Once the judge has made his determination it is preferable, I think, for him to introduce the evidence to the jury as 'evidence upon which the Crown relies as corroborative of the accomplice's evidence'.
In the light of current practice, however, it cannot be said, in my view, that the manner in which the learned trial judge introduced this topic to the jury was a misdirection.
**21 It is clear that the learned trial judge did not misdirect the jury. The issue of whether there is evidence that amounts to corroboration is a matter for the jury, and her Honour made it clear that determination of that issue was a decision for them. The criticism of the charge relating to the use of the word corroboration is in my view without merit and accordingly there is no substance to the submissions contained in paragraphs 6 and 7 of the applicant's outline of submissions.
22 Complaint is then made at paragraphs 8 and 9 that at the conclusion of the listing of items capable of amounting to corroboration her Honour qualified the warning by stating that 'if you do not find any corroborating evidence you must regard the warning that I have given you.'
23 It was argued that the qualification of the warning would have led the jury to believe that the warning was only applicable in the case of corroboration not existing, and to so qualify the operation of the warning was inappropriate.
24 Her Honour had prefaced the direction with the statement**
you should apply the following directions when considering his evidence. It is the experience of the law that the evidence of accomplices is frequently unreliable. Accomplices seek to justify their own conduct, in doing so they often seek to shift the blame wholly or partly onto others, and in the process they construct untruthful stories which tend to exculpate the guilty and implicate the innocent.
25 Her Honour had subsequently concluded the accomplice warning with the statement;
it is dangerous to convict an accused on the uncorroborated evidence of an accomplice. You may do so, if after subjecting the accomplice's evidence to close and careful scrutiny, you are satisfied by it, and satisfied to act upon it, notwithstanding its source and notwithstanding that it is uncorroborated.
**26 Such a direction was in accord with the decisions of this Court in R v Ali (No.2)[2] and R v Parsons and Stocker[3] and counsel for the applicant ultimately conceded that there was no misdirection in respect of her Honour's charge on this point and did not press the point. The same argument was rejected in R v Tran.[4] Accordingly I find that there is no substance in the matters raised in paragraphs 8 and 9 of the applicant's outline of submissions.
27 In paragraph 10 of the applicant's submissions complaint is made of the failure of the trial judge to instruct the jury in relation to the use that they could make of the fact that the witness Anderson had given an undertaking to give evidence in accord with his statement at the time of being sentenced, and the incentive this would have provided for him not to depart from that version of events in his statement.
28 It was submitted that her Honour should have charged the jury on the effect of an undertaking, and the potential consequences of a breach of such undertaking including the liability to be re-sentenced for the offence upon which he has already been sentenced. There were three points that counsel submitted should have been made by her Honour in her directions to the jury.**
**29 During her charge the learned trial judge dealt with the issue of the witness Anderson at pages 345 ff. Her Honour commenced by giving the jury the general comments relating to assessments of witnesses, then warned the jury that Anderson was a person who potentially fell into a particular category of witness, which would have an impact upon how they would consider his evidence. Her Honour then dealt with what is an accomplice, and reminded the jury that the Anderson had pleaded guilty to the count of theft of a motor vehicle and then she dealt with his evidence.
30 The evidence in chief was summarised in a general manner and then when dealing with the cross examination of Anderson her Honour went into far more detail, referring specifically to a series of questions put by counsel for the applicant and answers given by the witness. Her Honour said:**
You also heard Mr. Anderson in cross examination asked a series of questions about why he pleaded guilty to the theft of the motor vehicle and in what circumstances he did so. That is you heard Mr. Durston put to him that he did so by doing a deal with the police, to give evidence in this trial and accept a plea to the car theft and thereby have the police not proceed with the armed robbery charges against him.
The series of questions and answers on this issue from Mr. Anderson's evidence effectively culminate in this way, and I am going to read to you, members of the jury directly from the transcript. Mr. Durston said to Mr. Anderson, "You had a conversation with the police, didn't you, that went something like this: if you plead guilty to the theft of this car and undertake to appear in court to give evidence in relation to an armed robbery you won't be charged with an armed robbery. That's right isn't it? Mr Anderson answered, "No, I couldn't tell you about that. I'm sure my solicitor or a barrister of whatever you call it, informed me on that. He was the one that spoke to me about it. They might have mentioned something like that but I didn't say anything until I spoke to my legal representative and he done it all but I can't remember having a conversation no." Mr. Durston said, "All right, is it your understanding that the police in the first place were going to charge you with armed robbery but when you pleaded guilty to the theft of the car and you undertook to give evidence, the matter about you and the armed robbery didn't go any further?" Answer from Mr. Anderson: "Bernie said, it will look a lot better for you if you plead because you actually did steal the car, and I said no, I didn't. I didn't hop in the car, I didn't. he said, but you were part of it. He was the one that sort of made me realise I was involved, but I couldn't tell you if I had - I didn't have a conversation with the police or whatever. They - they had mentioned that to my barrister and my barrister informed me about it." Mr. Durston says, "so you're agreeing that there was a conversation or some communication took place between the police and either you or your legal representative, that ended up in you not having to be charged in relation to the armed robbery because you'd pleaded guilty to the theft of the car, is that right?" Mr. Anderson answers, "Yes, but that's how it was. I had no - nothing to do with it, no part of it. I got out. I had a gut feeling I was going to do it but I - I stopped well before. I had no involvement in that whatsoever. I can understand the car, yes, I was there, but the other thing, I don't know what happened and how and I had no involvement so yes I am innocent." Mr. Durston says, "That wasn't the question, Mr. Anderson, it was not the question. The question was, were you aware of communications between the police and yourself, whether it was directly or indirectly, that resulted in you pleading guilty in relation to the car and not having to be dealt with in relation to the armed robbery because you were going to give evidence for the Crown?" Mr. Anderson says, "Bernie told me that to plead guilty on the car theft, yes. I remember Bernie saying it, but I can't recall the police telling me. The police told Bernie and he relayed it to me." Mr. Durston, "So you're satisfied that on the basis of the police not proceeding with any charges in relation to your armed robbery you would plead guilty to the theft of the car; is that right?" Mr. Anderson answers, "Yes, yes. Mr.Durston says "thank you." Mr. Anderson says "Because I didn't want to be charged for a higher thing when I had no part of it"
31 There was one point at which the applicant established that there was an undertaking of some sort given by Anderson which was at page 164 of the transcript:
Question: You undertook to the court to give evidence about an armed robbery of Mr. Griffin, who is now deceased, of course, or Williams was presented in relation to that that's right isn't it --- What do you mean by that?
Question: You told the court you would be prepared to give evidence in relation to any prosecution over an armed robbery on this day?" ---I'm here today and I ....
Question: Okay, and that was taken into account when you were sentenced in relation to the theft of the motor car wasn't it? --- I couldn't tell you on that.
Question: You don't remember what the result was? --- I know that my solicitor or barrister was saying but if you - he told me that if you plead guilty to this it will probably be a lot better for you.
Question: And you undertook, didn't you to give evidence, because that's why you are here today? --- Yes I have.
**32 It was submitted by counsel for the applicant that the questions and answers clearly established that Anderson had agreed that there was a formal undertaking to give evidence in the armed robbery trial. I agree that there has been established that there was some form of undertaking. However, counsel at the trial did not pursue that the undertaking was on oath, or the terms of the undertaking or the consequences of any breach of the undertaking, neither did counsel pursue that Anderson was locked into a version, which was the reason he was appearing in court and giving a particular version of the evidence. No request was made or exception taken that such a direction should be given to the jury. The points that counsel made in the trial during cross examination were clearly highlighted by her Honour during her charge to the jury, when she read the specific questions and answers that had been elicited from the witness by counsel on these issues, to which reference has already been made .
33 It was further submitted by counsel that irrespective of whether these matters were raised by counsel during the trial or during counsel's final address, there was an obligation on the judge to inform the jury of the matters referred to earlier, being potential re-sentencing for breach, discount on sentence, and locking into a version of events. I do not agree. The obligation of the judge is to instruct the jury in relation to the law relating to the elements of the offence, and the basic processes of a jury in matters such as inferences, assessment of witnesses and similar and also to any relevant matters that have been raised by counsel which may require direction such as consciousness of guilt, delay, dangerous witness warning etc. The duty of the judge is to give such directions as would, in the circumstances of a particular case ensure a fair trial.
34 It is not the obligation of the learned trial judge to put arguments to the jury that were not raised by counsel. The system under which the courts operate is an adversarial system. If counsel for the applicant or the Crown do not put before the jury a particular argument, which, in my view, is what is being submitted by counsel for the applicant here, I do not accept that there is any obligation upon the trial judge to direct a jury upon matters that were never sought to be argued by counsel for the applicant or the Crown. What is being argued in this ground by counsel for the applicant is an attempt to try to correct what is now perceived as an error of trial counsel, without making the conduct of the trial by counsel as a ground of appeal. In my view there is no substance in the matters raised in paragraph 10 of the outline of submissions.
35 Paragraphs 11, 12 and 13 all essentially deal with the need for a form of dangerous witness warning in relation to the witness Anderson. It was argued that was necessary, despite the accomplice warning, as the issue of whether Anderson was an accomplice in relation to both the armed robbery and the theft of the motor vehicle was left as an issue for the jury to determine.
36 The witness had given evidence of withdrawing from the armed robbery and her Honour instructed the jury as to what may constitute withdrawal from a crime. Counsel submitted that an appropriate warning of the type envisaged in R v Miletic[5] and R v Minaoui[6] should have been given by her Honour.
37 Despite the submissions contained in paragraph 11 of the outline of submissions, it is clear that the law in respect of the determination of the status of a witness as being an accomplice, is a matter for a jury, and not for a judge, unless there is no evidence upon which a witness could be classed as a participant.[7]
38 In respect of the submission that the circumstances required a dangerous witness warning, the learned trial judge has, in my view, dealt with the matter adequately by giving the warning in relation to an accomplice. The accomplice warning as I have already pointed out, includes a warning that they may use that witness's evidence, even if uncorroborated, only after subjecting the evidence to close and careful scrutiny, and being satisfied by that evidence, and satisfied to act upon it, notwithstanding its source and notwithstanding that it is uncorroborated.
39 Although her Honour had correctly left the issue of whether the witness was an accomplice as an issue for the determination of the jury, she stated to them;**
The accomplice may share it by being one who planned it or who helped prepare for it. He may share it by being one who deliberately benefited from it. He may share it by having concealed its commission or by having helped its perpetrator's to escape justice. It is for you, the jury, to consider whether you should regard Daryl Anderson as an accomplice to the theft of Mr. Sadiki's car and/or the armed robbery on Precious Metals jewellery store.
You have heard his evidence that he considered himself guilty of the car theft even though it was only after he had it explained to him by his legal representative. Indeed, you have heard his evidence that he pleaded guilty to that car theft.
**40 The jury were properly instructed as to what constitutes an accomplice, and would have undoubtedly viewed the witness Anderson as an accomplice for the purposes of assessing his evidence, albeit in all likelihood as an accomplice upon the count of theft of the motor vehicle.
41 In the cases relied on by the applicant on this point,[8] it is clear that there must be 'an identifiable factor or group of factors calling for a direction to be given. Counsel for the applicant must identify a specific factor or group of factors that could not safely be left to trial counsel to deal with in his address but required a direction that had the authority of the judge's office.'[9]
42 In the submissions presented to this court, counsel for the applicant relied upon a number of points which were contained within paragraph 13 of the outline of submissions which included;**
**43 Dealing with these points seriatim: in relation to the first point, an appropriate accomplice warning was given as referred to earlier, which included the warning about those who are involved seeking to minimise their own involvement and blame others. The jury would clearly have heeded her Honour's warning and examined the witness's evidence as an accomplice at the least in respect of the count of theft. It is hard to conceive that having examined his evidence in this manner, they would then re-examine it on a different standard in respect of the count of armed robbery.
44 The second point, which was the issue of whether Anderson was actually charged with the armed robbery or apprehended that he was going to be charged with the armed robbery, would have been of little relevance to his credibility for the jury as he agreed that he was co operating with the police and giving evidence so as to avoid being charged with the armed robbery.
45 The third point, that he did not initially tell the police the truth, would have been clearly established by cross examination.
46 The fourth point, being the fact that the witness Anderson was a party to a joint enterprise with Griffin and the applicant to commit the armed robbery, albeit that he withdrew at a later stage after the theft of the getaway car, was an issue that was squarely before the jury and capable of being assessed by them.
47 The fifth point and the eighth points involve puttage, in that it was put to the witness that he had been involved in the armed robbery and not the applicant. It was equally put to Freddy Kinnane that he had been involved in the armed robbery. Both of those matters were denied and no evidence was led to contradict those answers. As juries are repeatedly told, it is the answer to the question that is the evidence, not the question, and to attempt to elevate a question or questions which received a negative response to the level of material upon which a special warning would be required would be to make a nonsense of the law.
48 On the sixth point, it should be noted that no evidence was adduced that an undertaking was given to the court at the time of his sentence, or the terms of such an undertaking.
49 Finally, that the witness had prior convictions for dishonesty. It is difficult to imagine that a jury of 12 members of the community would not understand the significance of relevant prior convictions, and that such prior convictions, in combination with the other factors identified earlier, would require a special direction warning them to take extra care when assessing the evidence of this witness.
50 Taken either separately, or in combination, it is my view that the factors relied upon were not such that they required a special direction with the full force of the judge's office. The learned trial judge had given an appropriate warning in respect of an accomplice, and it was unnecessary to require in the circumstances of this case a further warning of a 'Faure 'type. Counsel for the applicant took no exception to the charge, nor requested that such a direction be given. A further Faure direction would in fact have undermined the defence claim that Anderson was an accomplice and co offender.
51 Complaint is made that the evidence of the applicant's answer in his record of interview, that he thought the getaway car was blue, was left to the jury as evidence capable of amounting to corroboration. Counsel did not press the first complaint under this ground of evidence capable of amounting to corroboration being that of where the applicant had spent the night before the armed robbery, conceding that it was in fact capable of amounting to corroboration.
52 The getaway vehicle that was used in the robbery was a blue Falcon, and that car had been shown in some television news footage on the night of the robbery. The prosecution lead the evidence of the television footage to demonstrate the accuracy and knowledge of the applicant at the time of his interview some months later. The news footage was aired by Channels 7 and 9 on the day of the robbery being 2 October 2001 and the applicant was interviewed by police on 12 December 2001. During that interview the applicant stated that he did not commit the armed robbery he was being questioned about, but had observed on the news program that the vehicle used in the commission of the offence was blue. In that interview he said he could not recall if he had ever been to his alleged co offenders home, or a Bunning's store at Fountain Gate shopping centre, purchased a sledge hammer there the day before the robbery, or if he had a nickname of 'Pav'.
53 In respect of the corroboration of the blue getaway car, it was argued that it was not possible for the jury to reject his explanation for his knowledge that the car was blue, as the evidence produced to the jury demonstrated that two news programs had shown the getaway car used. If it was not possible for the jury to reject his explanation, it was submitted, leaving such material before them would have caused a miscarriage of justice. It was further submitted that the jury would not have been capable of rejecting his explanation as there was no independent evidence to contradict his statement that he watches news programs.
54 This is evidence that, in my view, is clearly capable of amounting to corroboration if a jury is satisfied that he is not being truthful as to the source of his knowledge. If the jury rejected his claim that he saw the incident on television on 2 October and remembered it on 12 December was rejected as being false, then his knowledge of the colour of the getaway car was independent evidence from which a jury could clearly infer that he was involved in the incident in which this car was used.[10]
55 I would reject the complaint as to the admissibility of the corroboration.
57 Accordingly I would refuse the application for leave to appeal against conviction.
58 The ground of appeal relating to sentence is that her Honour erred in her application of the principles stated in R v Tsiaras,[11] in particular where her Honour stated, 'your apparent unstable mental health reduces your moral culpability to some extent. However it must be said that this has to be offset against your many years of persistent criminal offending, throughout which there was no apparent psychiatric illness'.
59 The submission made in relation to the point was that her Honour failed to ameliorate the sentence that she imposed in this case in the light of her findings that the applicant had unstable mental health which reduced his moral culpability. It is said that her Honour instead indulged in a two step sentencing processing, offsetting one aspect of mitigation against one aspect of culpability, being the mental health issue, and the extensive criminal history of the applicant.
60 It was further submitted that the learned sentencing judge, despite stating that she would take into account the applicant's mental condition both in moderating general and specific deterrence, and in considering the impact of imprisonment upon him, had failed to do so in the imposition of the sentence.
61 The material advanced upon the plea of the applicant demonstrated that by 9 December of 2001, some two months after the armed robbery, the applicant was admitted as a Mental Health inpatient at Wangaratta District Base Hospital, and discharged on 12 December 2001. The discharge summary was an exhibit tendered to her Honour on the plea. The diagnosis on that occasion was a 'a 28 year old man with acute stress reaction, and differential diagnosis drug induced psychosis'.
62 A comprehensive report from Dr. Deborah Wood, which examined a number of other reports relating to the applicant's mental status, was tendered and her Honour referred to that report at length. It demonstrated, she concluded, that the applicant had a deteriorating mental status from the time of that first contact in Wangaratta. The Doctor also noted the applicant's placement, whilst in custody, in Thomas Embling hospital, the St. Paul's psychiatric unit of Port Phillip Prison, and a return subsequently to the Thomas Embling hospital.
63 The report of Dr. Wood concluded that the applicant had, by March of 2005, a final diagnosis of chronic paranoid schizophrenia. There were also reports by Dr. Walton, who believed that by October 2003 the applicant was suffering a major psychiatric illness, which he believed was schizophrenia rather than a simple drug induced psychosis, and Dr. Joy Quek, on 4 October 2004 which concluded that he was suffering from schizophrenia, cannabis abuse and an antisocial personality. The final report relied upon was that of Dr. Andrew Carroll 7 June 2005 which stated that the applicant was suffering from a psychotic illness most likely schizophrenic in nature.
64 Her Honour accepted that matter as established and concluded that the applicant was currently suffering from a psychiatric illness of schizophrenia. The learned sentencing judge sought to determine whether the psychiatric illness had any impact in relation to the issue of his moral culpability for the offences for which she was sentencing him, in line with the well established principles in Tsiaras, and she stated;**
Despite your long history of prison admissions, including in the months leading up to these offences, you had not apparently been diagnosed or treated for any psychiatric illness prior to December 2001. Indeed, there was no evidence of any diagnosis for a psychiatric illness from any source prior to the December 2001 admission to Wangaratta District base hospital. Neither was there any material linking this offending to the psychiatric illness you have since been diagnosed with, in the sense of evidence of a convincing nexus between the offending and the psychiatric illness you have now.
On the material produced before this court I am satisfied that you are now suffering from a psychiatric illness which appears to be schizophrenia. As to whether or not you were suffering from this illness at the time of the offending, I find on balance, taking into account the evidence of Mrs. Anna Aley with whom you lived on and off over the past 14 years, who described your odd behaviour over those years, together with the admission to Wangaratta District Base Hospital about eight weeks after this offending, I find on the those two pieces of evidence it would seem on balance that you were most probably in a fragile state of mental health at the time of the commission of these offences.
The effect of these findings as to your current psychiatric illness and your probably fragile mental health at the time of these offences is two fold, in my view. First, whilst there is no evidence of any convincing nexus between your diagnosis in December 2002 and the commission of these offences in October 2001, your apparent unstable mental health reduces your moral culpability for these offences to some extent. However, it must be said that this has to be offset against you many years of persistent criminal offending, throughout which there was no apparent psychiatric illness.
65 It is those words that are complained of particularly as demonstrating that her Honour indulged in a two step process, off setting one factor against another. It is clear that when one reads those words in context, the learned judge was attempting to determine whether the applicant's current illness, which was not diagnosed at the time of the offending, had an impact upon his moral culpability and was expressing the factors that she was taking into account in determining that matter. At no stage was she using a two step process to determine the appropriate sentence for the offending. In fact her Honour continued and stated:
Second, that you are now clearly suffering from a major psychiatric illness, even though it may not have developed until after these offences were committed, leads me to conclude that the requirements of general and specific deterrence are modified by you now existing illness.
I come to this conclusion on the basis of a considerable line of authority of cases such as R v Tsiaras, R v Yaldiz and R v Sebalj. Even though your specific mental illness may have developed after these offences were committed, the principles of a necessary moderation of general and specific deterrence still apply. Further there is considerable authority for the conclusion that I should take into account your mental illness in mitigation of your sentence on the basis that imprisonment may weigh more heavily upon you than someone who was in good mental health. Indeed, there is much evidence in the material tendered that at least some of your delusional and persecutory beliefs revolve around those in the prison system itself, which invariably makes prison weigh more heavily upon you.
**66 Her Honour then continued and went through the applicant's personal history, his criminal history, the seriousness of the offence and his prospects of rehabilitation and management upon medication in the future.
In summary, in coming to an appropriate sentence there are a number of factors which I have considered as relevant. It is inescapable that this armed robbery you participated in is a most serious example of the offence of armed robbery, and but for the effect of your current mental illness as discussed, would require the strongest measure of general deterrence. There was planning and premeditation constituted by conversations with the co-accused Griffin that were the subject of telephone intercept, the purchase of the hammer to use in the armed robbery, the subject of the video surveillance, and the wearing of disguises and the obtaining by theft of the getaway car. You were aggressive and threatening in your manner, including urging Griffin to shoot Patrick Griffiths after he threw the chair at you. The firearm was again pointed at Holloway and Griffin (sic) when they were in pursuit of you. By your urging Griffin to shoot Griffiths you demonstrated you knew the gun Griffin was carrying was loaded and you were apparently prepare to have him use it to avoid apprehension. Indeed, that the gun was loaded was an aggravating feature.
68 Examining all of the factors to which her Honour has referred and her Honour's sentencing remarks, it is clear that she properly ameliorated the sentences which she imposed upon the applicant for the offending of which he had been convicted. The matters complained of are not in my view made out and the sentence was a properly merciful sentence on the facts of the case. For these reasons, the application for leave to appeal against sentence is refused.
[1] [1997] 2 VR 699, 707.
[4] [2007] VSCA 19, [53]-[56].
[7] R v He and Bun [2001] VSCA 58; (2001) 122 A Crim R 487, [28] ff.
[8] R v Miletic [1997] 1 VR 593, R v Minaoui [2004] VSCA 126.
[9] R v Miletic [1997] 1 VR 593, 605.
[10] Radford v R (1993) 66 A Crim R 210, 237.
R
Williams [2007] VSCA 208
(2005) 13 VR 257
(1996) 1 VR 398