R v Zander [2009] VSCA 10

1 I invite Dodds-Streeton JA to deliver the first judgment.

2 The appellant, Peter Zander, on 20 August 2007, pleaded guilty in the County Court to three counts of causing serious injury intentionally (counts 1, 2 and 3) and one count of possessing a drug of dependence (count 4). On each of counts 1, 2 and 3, he was sentenced to two years' imprisonment and was ordered to serve six months of each sentence on counts 2 and 3 cumulatively with the base sentence on count 1, resulting in a total effective sentence of three years' imprisonment, with a minimum non-parole period of two years. He was declared to have served four days pre-sentence detention. On count 4, he was convicted and fined $100.

3 In relation to counts 2 and 3, the appellant was declared to be a Serious Violent Offender pursuant to ss 6A and 6C of the Sentencing Act 1991.

4 The maximum sentence for intentionally causing serious injury is, pursuant to s 16 of the Crimes Act 1958, 20 years' imprisonment.

5 On 30 May 2008 Kellam JA granted the appellant leave to appeal.

6 The maximum penalty for possessing a drug of dependence contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981 is five penalty units.

1. The sentence is manifestly excessive
2. The non-parole period is manifestly excessive

8 Before us, however, ground 1 was not pressed. Moreover, the appellant did not complain of the sentence on count 4.

9 The appellant, who was born on 10 October 1973 and was aged between 29 and 32 years of age at the time of the offending, was employed by the Department of Human Services as a care worker supervising four severely intellectually disabled, 'high needs' young men, including the victim ('DH') at a community residential unit. DH was a slightly built, non-aggressive intellectually disabled man, who could communicate only by a combination of a little speech and hand signals. He reportedly could be anxious when supervised by the appellant and tended to soil himself.

10 The following three incidents of offending occurred.

11 On 25 May 2003, when the victim soiled himself and requested assistance, the appellant violently pushed the victim out to the rear yard of the unit, hosed him with cold water while fully dressed, then ordered him to undress and continued to hose the naked victim, abusing him throughout with degrading taunts. A short time later, after the victim re-entered the residence, the appellant forced him to drink a cup of dishwashing detergent (forcing it down his throat as he gagged,) while continuing to insult and abuse him. The appellant then burnt the victim's bare foot three times with a lighted cigarette, whilst the victim screamed and struggled. The conduct took place over about a fifteen-minute period. A disturbing and unexplained feature of the case is that the conduct was witnessed by several of the appellant's co-workers, who, it appeared, did not restrain or report him at the relevant time or take any steps to help the victim.

12 On or about 11 or 12 March 2005, the appellant inflicted five or six circular cigarette burns on the victim's neck and back whilst other staff and occupants were absent on an outing. A doctor erroneously diagnosed and treated the burns as infected ulcerated eczema.

13 On or about 12 or 13 April 2005, the appellant again inflicted circular cigarette burns on the victim's lower back, together with numerous multiple bruises and abrasions. The injuries were noticed by other staff members. When asked who inflicted them, the victim named the appellant. Medical practitioners subsequently assessed the abrasions as caused by at least a dozen blows with a blunt object and by kicking, indicating a sustained assault.

14 The appellant wrote an injury report about the April 2005 incident, which stated that unexplained injuries were found on DH that morning.

15 On 27 January 2006, the appellant was arrested and during a police search of his residence, 11½ grams of cannabis, (the subject of count 4), were located. During his police interview the appellant denied the offences against DH, accusing other staff members at the care unit of having attempted to set him up.

16 The sentencing judge recounted the history of the offending. Her Honour also noted the appellant's relevant personal circumstances, including the traumatic accidental death of the appellant's brother when the appellant was aged 17. The appellant suffered a breakdown two years later.

17 The sentencing judge also referred to the report of Dr Deacon, a consultant psychiatrist, who interviewed the appellant on 13 April 2007. Dr Deacon set out the appellant's history of four episodes of hospitalisation for psychiatric illness. Dr Deacon (relying on the report of Dr Chen, a consultant psychiatrist employed by Austin Mental Health Clinical Service United dated 16 March 2007), noted that the appellant was first admitted as an involuntary patient from 30 November 1992 to 26 February 1993 and diagnosed as suffering from drug-induced psychosis following marijuana abuse. He was treated with medications and was followed up intermittently. The appellant was next hospitalised from 24 October to 13 December 1994, with symptoms of disturbed behaviour and delusions of special powers. He was diagnosed with schizo-affective disorder and treated with lithium and other medication, including Pimozide, which he continued to take for two years following discharge. Those early episodes were followed by a lengthy period of mental stability, although in 2000 the appellant commenced taking Arapax, an antidepressant.

18 Dr Deacon expressed uncertainty over the date of the appellant's next (that is, his third) admission for treatment for mental illness, as the appellant disputed the date assigned to it by Dr Chen. According to Dr Chen, the appellant's third admission for psychiatric care was from 13 January to 27 January 2004, that is, after the first incident of abuse of the victim but prior to the two remaining episodes of offending. Dr Chen stated that at that time 'there was associated marijuana abuse and assault by a patient. Further alcohol abuse was and remained a problem'. The appellant was diagnosed at the time as suffering from bipolar disorder.

19 The appellant, however, informed Dr Deacon that his third admission occurred in January 2003, in which case it preceded his first assault on DH. The appellant also stated that prior to the admission he was assaulted by a client with a chair. He claimed that he had resumed work only four weeks before his first assault on DH and, at the time, was taking both lithium and Olanzapine. Dr Chen's report (which stated the date of the appellant's admission to be 13 January 2004 to 27 January 2004) was based on Dr Chen's perusal of the hospital notes and file and the interview with the appellant. Further, the appellant's mother, in her examination-in-chief, confirmed that the assault on the appellant at work resulted in his hospital admission in January 2004. She testified that she was in regular and frequent contact with the appellant and could not recall having any concerns about his mental health in May 2003 or in April and May of 2005. Dr Quek, a consultant psychiatrist, in her report (which I discuss further below) also confirmed that the third admission occurred in January 2004. Thus it would appear, and before us counsel for both parties accepted, that the dates ascribed by Dr Chen were correct.

20 In his report Dr Deacon observed that at the time of the offence in May 2003, the appellant was still taking a combination of lithium and Olanzapine, prescribed after a client assaulted him and he was diagnosed with bipolar disorder. That, however, would be inaccurate if Dr Chen correctly dated the appellant's third admission to hospital to January 2004. Dr Deacon stated that from April 2004 until early 2006 the appellant took only Aropax.

21 Dr Deacon stated that the appellant's fourth admission occurred in March 2006, when he presented in a manic state with symptoms of disorganised thoughts, impulsive behaviour, insomnia, over-spending, increased energy and grandiosity. He received medication, after which his mental state stabilised. He was discharged on a community treatment order, which remained in place, and he received follow-up consultations.

22 Dr Deacon observed that the appellant was a 33-year-old man with a clearly documented history of major mental illness, who had experienced at least four significant episodes of marked mental deterioration in his mental state, requiring involuntary in-patient psychiatric treatment. He had, however, stabilised on medication and was currently taking prescribed medication. He also reported abstinence from alcohol and marijuana. Dr Deacon stated:

It is difficult to confirm Mr Zander's mental state at the time of the offences given the lack of clinical information available both from clinical notes and from Mr Zander's memories. Speculatively it is possible that Mr Zander's illness was unstable in May 2003 and in April/March 2005. The specific nature of any bipolar symptoms is uncertain. Notably Mr Zander appears to have been admitted to hospital in January 2003, (although there are inconsistencies within reports available if it was 2003 or 2004). His illness may have been unstable in May 2003. Further, Mr Zander was reportedly working excessive hours in May 2003; a stress that may have contributed to illness instability. In 2005 Mr Zander was only being treated with an antidepressant. It is well recognised that in patients with Bipolar Disorder antidepressants as a single treatment can contribute to destabilisation and even trigger manic episodes.

The behaviours exhibited by Mr Zander appeared inconsistent with his general conduct. He does not present as typically antisocial in nature and personality style. Mr Zander's behaviour may be consistent with manic features but this is unclear and speculative. Further characteristics of Mr Zander's behaviour at the time of the offences would be required to confirm a greater likelihood of any correlation between his mental illness and conduct. Mania can be associated with irritability, dysphoria, frustration, intolerance, reactivity, aggression, false confidence and power, and altered judgement.

Mr Zander currently presents well. He is compliant with his medication and displays good insight into his illness. Mr Zander is on a CTO and this will be nominally maintained for a further 12 months. Mr Zander may experience considerable stress if he was to receive a custodial sentence. His mental state will require close observation and monitoring for any signs of relapse. Mr Zander will require indefinite psychiatric treatment and is likely to require this treatment through an Area Mental Health Service.

23 Dr Chen, a consultant psychiatrist, provided a report on the appellant dated 16 March 2007. Dr Chen stated:

On mental examination on 8th February 2007, he presented as a mildly dishevelled man. He was pleasant but anxious throughout the interview. There was good eye contact. He engaged well and there were no abnormal movements. His effect was restricted in range but appropriate and well communicated. Thought stream and form were normal. He was preoccupied with his upcoming court case. He did not have any overt psychotic nor major depressive phenomena. He denied suicidal or homicidal ideation, plans or intent. His insight into his mental illness was good; he was happy to continue taking his medication and wanted continued psychiatric help.

24 Her Honour also referred to the report of Dr Quek, a consultant psychiatrist at Austin Health, dated 20 February 2004. Dr Quek stated that the appellant was in her care during his admission to the unit from 13 January 2004 to 27 January 2004 as an involuntary patient, and had a history consistent with a manic episode coinciding with an assault at work. Dr Quek stated:

Mr Zander's history is consistent with a diagnosis of Bipolar Affective Disorder. Intermorbidly, he appears to function quite well, even without medication for many years prior to his most recent episode. He will be vulnerable to psychosocial stressors, which is well known to trigger relapses in people with this condition in general, and as has been demonstrated historically in Mr Zander's case. The sequence of events leading to his most recent relapse supports the role of the assault in precipitating his manic episode. However, it must be noted that he was on a low dose of antidepressant at the time (10mg Paroxetine). The role of the latter in contributing to his predisposition to a manic relapse cannot be completely discounted.

25 The sentencing judge referred to the reports of Dr Quek and Dr Deacon, the evidence of the appellant's co-workers on his capacity for bizarre or unusual behaviour and his mother's evidence about his pressured return to work, with which, however, he appeared to cope well. Her Honour observed that the offences involved a very serious breach of trust towards a vulnerable and helpless man placed in the appellant's care, and therefore warranted significant weight to general deterrence and strong denunciation. Her Honour stated:

This is a case in which the principles of general deterrence must be given significant weight. The court must strongly denounce such crimes and send a message to others that they will be harshly punished. In committing these offences you are guilty of a very serious breach of trust. The care of a vulnerable and helpless man was placed in your hands. It is clear that although you were suffering severe mental disability, you were functioning well at the time and indeed were able to complete a progress report in relation to DH on the morning of 12 March 2005 which indicated that he had slept through the night and seemed happy. Whatever triggered the attack, it would be speculative to conclude that it was due to your mental health condition. All I can conclude is that it is likely that your illness played some part.

It has been established in a number of cases commencing with R v Tsiaras and more recently R v Verdins that a mental disorder suffered by an offender should reduce his moral culpability and the need for general deterrence should be reduced or moderated accordingly.

The sentencing judge stated, however, that despite the evidence of the appellant's inappropriate or even bizarre behaviour:

...there is no evidence that you were influenced in this way by your illness at the time of each of the three attacks on the victim, except of course for the attacks themselves. It is puzzling that you committed the first offence in full view of your fellow staff members and indeed in the open where members of the public could hear the screams of the victim. This lends some support to the characterisation as bizarre behaviour consistent with your illness as described by Dr Deacon.

Despite the uncertainty of the evidence, I am satisfied that I should moderate the need for general deterrence by some small degree.

Her Honour also noted that the appellant had no prior convictions or history of violence and pleaded guilty at the earliest opportunity after the committal. Further, the sentencing judge observed that the victim's physical injuries were at the low end of the range, despite his subjection to pain, terror and 'cruel and callous torture'.

26 The appellant before us did not press ground 1, but submitted that the non-parole period of two years was manifestly excessive. Counsel submitted that although the sentencing judge accepted that the appellant's psychiatric illness played some part in his offending, her Honour accorded it insufficient weight in circumstances where, during the period of the offending, he was prescribed medication which could produce instability, irritability, disinhibition and aggression; his workplace was challenging and highly stressful, which could trigger instability in his illness and result in a low stress tolerance; and the appellant returned to work under pressure after a four month absence during which he was admitted to a psychiatric ward, and which absence followed the assault by a client.

27 The appellant relied also on his co-workers' evidence of his bizarre or unusual behaviour, his mother's evidence of his stress and pressure on return to work, and, in particular the evidence of Dr Deacon. Counsel submitted that the sentencing judge's observation that the appellant was functioning well at the time of his offending was contrary to the evidence, as Dr Deacon's report left that matter unclear. Further, counsel submitted that the sentencing judge's observation that the appellant could complete a progress report on DH's injuries following the third incident of offending demonstrated an erroneous adoption of an overly high threshold in relation to the mitigation of penalty by reason of mental illness, predicated, perhaps, on the view that (contrary to relevant authority), the capacity to act rationally precluded mitigation. Counsel also submitted that there was scant evidence on which to conclude that the appellant was capable of acting rationally at the relevant time and the judge's observations reflected the erroneous assumption either that he was not psychiatrically ill or that his illness played no part in the offending. More fundamentally, the appellant submitted that the sentencing judge erred in under-estimating the contribution of the appellant's psychiatric illness to his offending, which led her Honour in turn to over-emphasise general deterrence and to mitigate the sentence insufficiently. As I understood it, the appellant submitted that the sentencing judge erred in concluding that:

Whatever triggered the attack, it would be speculative to conclude that it was due to your mental health condition. All I can conclude is that it is likely that your illness played some part.

Further, the appellant argued that because the sentencing judge did not advert to the other matters set out in R v Verdins[1], it could be inferred that her Honour failed to attach sufficient weight to those matters in mitigation. The appellant also appeared to contend that the sentencing judge erred by failing to infer the causal effect of the appellant's mental illness from the surrounding circumstances, including the historical accounts prior to and after the offences, thereby revealing an insistence on an unrealistically high level of precision or expert evidence based on an offender's state at the precise time of the offence.

28 In my opinion, her Honour did not err as alleged. The sentencing judge did not misconstrue the effect of the evidence, including Dr Deacon's report, impose an unjustifiably high requirement for evidence of the causal effect of mental illness on the offending, or fail to attribute sufficient weight to such principles of Verdins as were relevant to the case. Her Honour, in my view, took full account of the available evidence in the appellant's favour, including the expert reports, psychiatric history and the observations of the appellant's co-workers and mother. Her Honour correctly concluded that, on a fair reading, there was no clear or compelling evidence that the appellant's mental disorder had played a causal role in his offending. Dr Deacon, although specifically addressing that issue in the light of the appellant's full psychiatric history, expressly acknowledged that he was unable to do more than speculate on the possibility that the appellant's illness was unstable at the time of the offending. Further, Dr Deacon's statement that the appellant's illness may have been unstable in May 2003 was apparently predicated on the assumption that he was admitted to hospital in January 2003, which appears incorrect. Dr Deacon's acknowledgment that the antidepressant could contribute to destabilisation or trigger manic episodes was simply a recognition of the possibility. Dr Quek's observation that the role of the antidepressant 'in contributing to [the appellant's] predisposition to a manic relapse cannot be completely discounted' is also a tentative acknowledgment of a generalised possibility.

29 The principles of Verdins do not dictate the automatic mitigation of sentence in an offender simply because he or she has suffered or is suffering from a mental illness, however severe. Rather, Verdins requires scrutiny and assessment, based on cogent evidence, of the relationship between the mental disorder and the offending and other relevant matters.

30 In the present case, her Honour did not adopt a narrow approach to the evidence in the appellant's favour. To the contrary, her approach was liberal and favoured the appellant. The evidence of any causal relationship between the appellant's illness and his offending, moral culpability and other matters was tentative and slight. Despite its deficiencies, her Honour accepted that the appellant's condition probably did contribute to the offending and she moderated the sentence on that basis.

31 Further, her Honour was clearly entitled to observe that the appellant was capable of completing the incident report in circumstances where it was suggested that he may have been suffering from a manic episode at the time. Taken in context, the observation was a recognition of a fact in evidence and did not signify a conclusion that the appellant was not psychiatrically ill at the time of the offending or that his illness had played no part.[2]

32 While Dr Deacon opined that the appellant may experience considerable stress in gaol, that is an almost universal reaction and there is no evidence of any significantly additional burden attributable to the appellant's illness. I am not persuaded that the mere fact of an offender's psychiatric illness or mental disorder or abnormality will, without more, establish that imprisonment will consequently be a greater burden. Although a psychiatric illness or mental disorder will doubtless frequently have that effect, it will depend on the nature and severity of the illness or disorder established by the relevant evidence.

33 Further, as I have previously stated,[3] I am not persuaded that a sentencing judge is obliged to refer to each factor in Verdins, irrespective of its apparent relevance to the facts of the particular case and whether it has been raised by counsel, as if completing a check list.

34 The non-parole period reflects the minimum period of detention required by the circumstances of the crime.[4] In my opinion, her Honour, in fixing the non-parole period in this case, correctly emphasised the compelling importance of general deterrence and denunciation invoked by the appalling nature of the appellant's offending, which subjected a helpless disabled person in his professional care to repeated acts of degradation, cruelty, terror and torture. The appellant's crimes were abhorrent in victimising one of the community's most vulnerable members, and demanded a substantial sentence. Although her Honour indicated that the mitigation based on the likely impact of the appellant's mental illness would be relatively modest, as counsel for the respondent submitted, the appellant's sentence (which should otherwise have been considerably higher), suggests that a not insignificant reduction was made.

36 I agree, and wish to express my particular agreement with her Honour's observations concerning the duty of a sentencing judge to take into account the several ways discussed in Verdins in which a psychological or psychiatric disability may go in mitigation of penalty. 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.

37 So to say is not to deny the possibility of some exceptions in some cases, depending upon the evidence and all the circumstances of the case. But any idea that a principle akin to Pemble[5] applies to sentencing would be misconceived.

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

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

[2] Nor, in my opinion, did her Honour err by failing to mention each consideration referred to in Verdins.

[3] R v McIntosh [2008] VSCA 242.

[4] Power v The Queen [1974] HCA 26; (1974) 131 CLR 623, 628; [1974] HCA 26.

[5] Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20.