Raoof v The Queen [2016] VSCA 180

1 I invite Justice Whelan to deliver the first judgment.

2 On 17 May 2016 the applicant (now aged 34), pleaded guilty to one charge of criminal damage, one charge of making a threat to kill, one charge of aggravated burglary, one charge of assault, and a summary charge of failing to answer bail. Following a plea on 17 May and 24 May, the applicant received a sentence on 24 May 2016 that did not comply with s 11(3) Sentencing Act 1991. On 26 May 2016 that error was addressed and the applicant was re-sentenced as follows:

Criminal damage [Crimes Act 1958,

s 197(1)]

10 years [Crimes Act 1958, s 197(1)]

Threat to kill [Crimes Act 1958,

s 20]

10 years [Crimes Act 1958, s 20]

Aggravated burglary (offensive weapon, person present) [Crimes Act 1958, s 77(1)]

[Crimes Act 1958, s 77(2)]

[Crimes Act 1958, s 320]

Fail to answer bail [Bail Act 1977 s 30(1)]

2 years [Bail Act 1977 s 30(1)]

Orders for restitution made on Charge 1 ($500 to Rubeena Raoof; $350 to Zaniel Raoof).

Order made pursuant to s 464ZFAAA Crimes Act 1958 for the taking of a forensic sample.

3 The applicant does not rely upon the error made on 24 May 2016 and takes no issue with the means by which it was corrected on 26 May 2016.

4 The applicant seeks leave to appeal on grounds that the sentencing judge made a specific error in relation to the applicant's motivation, that he made a specific error in applying the principles in R v Verdins,[1] and that the total effective sentence, the individual sentences, and the non-parole period are manifestly excessive.

5 At the time of the offences the applicant was aged 33 years. The victims of his offences were his mother, then aged 59, and his younger brother, then aged 31.

6 On Saturday 28 February 2015 at approximately 1.30 pm, the applicant's mother and brother were at their home when the applicant's mother saw the applicant walking down the street towards the house. She was immediately apprehensive. She locked the front door and called to her son to warn him.

7 The applicant approached the front door and made demands for money. When he was refused entry he began smashing windows. He smashed the stained glass window beside the front door and he used rocks to break other windows. While he did so he shouted threats to kill directed at his mother (make threat to kill).

8 Neighbours came out into the street to investigate the commotion and the applicant picked up and threw a shoe rack towards them. He also picked up a large pot plant and threw it through the rear window of his younger brother's car which was parked in the driveway (together with the broken windows - criminal damage).

9 Police sirens could be heard in the distance when the applicant put his hand through one of the smashed glass panels, unlocked the door, and entered the premises. He was armed with a wooden stake approximately 40 centimetres long, square in shape and with a pointy end (aggravated burglary - person present and in possession of an offensive weapon).

10 The applicant's mother and younger brother attempted to flee the house but the applicant took hold of his mother, grabbing her by the jaw with his right hand while he held the stake over her in his raised left hand (assault). He was furious and was demanding money.

11 The applicant's younger brother managed to evade the applicant and leap over a fence where he was met by the police. He told the police that his brother was inside and that his mother was in danger.

12 After an initial verbal confrontation, the police persuaded the applicant to come out of the house. He surrendered himself, was arrested, and was taken to a police station where he was assessed as requiring involuntary psychiatric treatment.

13 He was admitted to an adult mental health inpatient unit. He remained there until 20 April 2015. On his discharge he was re-arrested and interviewed by police.

14 Relevantly, in the record of interview the applicant admitted his activities on the day including the threats he had made and his intention to inflict violence upon the victims. He said he was motivated by the fact that he wanted money 'for clothes, for food, for anything'. He referred to a family dispute in relation to an inheritance to which he claimed to be entitled. In that context at one point he said: 'I don't give a shit how they feel, how they cry. The house and the money don't belong to 'em'. In the course of the record of interview he made threats directed at his mother. At one point in the record of interview he denied being affected by drugs or alcohol at the time of the offending but at another point he said: 'I wasn't high or anything but there's something in my mind that just clicks and I don't remember and I forget everything ... I was drunk ... I don't know where I was but I knew where I was but I didn't know what - I think I took a lot of methylamphetamines, just a few days ago and it doesn't get out of your body straight away'.

15 The applicant was granted bail but failed to appear when the matter was listed at the Melbourne Magistrates' Court on 13 July 2015 (fail to answer bail).

16 Neither of the victims filed victim impact statements.

17 On 27 July 2015 the applicant committed an offence of contravention of a family violence order. The applicant was arrested on 15 September 2015 and remanded in custody. On 8 April 2016 a sentence of 30 days' imprisonment was imposed on him at the Ringwood Magistrates' Court in relation to the offence of contravention of the family violence order. As at the date of the plea the applicant had been in custody for 245 days, of which 215 days constituted pre-sentence detention.

18 The applicant has prior convictions for shop stealing, failing to answer bail and drug possession. He does not have prior convictions for violence. In 2012 he was placed on a 12 month community correction order which he did not complete as a result of a failure to comply with conditions and further offending.

19 The plea hearing was conducted on 17 May 2016 and was adjourned for the preparation of a report as to the applicant's suitability for a community correction order until 24 May 2016.

20 The Community Correction Order Assessment Outcome Report indicated that the applicant was assessed as being a high risk of re-offending. In particular, he was assessed as a risk of attempting to contact his mother in contravention of an intervention order. The applicant was assessed as not being suitable for a community correction order. He had not convinced the assessing officer that his circumstances and attitude had changed since 2012 when he had failed to comply with conditions and had committed further offences whilst on a community correction order.

21 On the plea counsel on behalf of the applicant relied upon his guilty plea and placed particular emphasis upon what was said to be his 'deteriorating mental illness' at the time of the offending. In that respect reliance was placed upon reports of the consultant psychiatrist, Dr Lester Walton, one dated 24 November with an addendum dated 25 November 2015, and one dated 9 March 2016.

22 Dr Lester Walton's report of 24 November 2015 was couched in qualified terms because Dr Walton did not have access to the applicant's psychiatric records when preparing it.

23 Dr Walton gave a history as relayed to him by the applicant. That history included the fact that on the day of the offending the applicant estimated that he had consumed 'a full bottle of bourbon'. Dr Walton referred to the applicant's history of drug and alcohol abuse observing that 'from 2007 the principal drug of abuse has been methamphetamine, up to one gram daily'. He recorded the applicant telling him that he had not used methamphetamine on the day in question but had used it the day before and had been using it regularly.

24 In his report of 24 November 2015, Dr Walton was not prepared to make a diagnosis. By an addendum to that report dated 25 November 2015 Dr Walton advised that he had just received a copy of the applicant's psychiatric file. He noted that the applicant had been diagnosed with 'schizoaffective disorder with polysubstance abuse on a background of anti-social personality'. Dr Walton expressed the opinion that the applicant was suffering from a schizoaffective disorder, which may well have been aggravated by drug abuse, but, he said, this is not a situation of drug induced psychosis simpliciter.

25 In his further report dated 9 March 2016, Dr Walton addressed the relationship between the applicant's psychiatric condition and the offending. He repeated the opinion he had expressed that the applicant is suffering from a schizoaffective disorder possibly aggravated by drug abuse. He expressed the opinion that 'it is highly likely, in my view, that his psychotic disturbance made a central contribution to his offending'. He went on to observe that there seemed to him to be a 'reasonably close nexus between this man's mental disorder and his offending'. He indicated that the applicant's condition is likely to be permanent. He referred to the applicant's failure to express 'appropriate remorse' and observed that that should not be accepted 'at face value' given his mental illness. Dr Walton referred to the fact that the applicant was taking medication at the time of the offending 'albeit in a context of parallel drug abuse'. He expressed the opinion that the applicant's longer term prognosis will relate closely to his compliance with treatment and avoidance of 'further illicit substance abuse'.

26 Counsel on behalf of the applicant on the plea accepted that the applicant's drug use had had an impact on his illness, but submitted that he had some insight into his condition and had been compliant with medication in custody. It was submitted that the principles of Verdins applied to the applicant's case and that there should be 'some moderation of general deterrence, and specific deterrence'.[3]

27 The applicant is not a citizen and counsel on his behalf referred to the fact that he was at risk of deportation if a sentence of imprisonment of more than 12 months was imposed and that this would make prison more burdensome for him.

28 It was submitted on behalf of the applicant that the offending had been spontaneous. Reference was made to the applicant's admission to a psychiatric unit immediately after the offending. It was submitted that whilst he had been compliant with his psychiatric medication, he had admitted using drugs and alcohol at a time proximate to his offending.

29 The judge referred to the circumstances of the offending which he described as a 'violent rampage'. In that context the judge said: 'It seems you were trying to get money to serve your drug addiction'.

30 The judge referred to Dr Walton's reports and concluded that '[c]learly the Verdins principles are enlivened'.

31 The judge considered that the applicant had prospects for rehabilitation and observed that his early guilty plea did indicate remorse as did some of his very early comments made to police. The judge referred to the saving of community expense and time as a result of the applicant's guilty plea.

32 The judge accepted the submissions that were made to him as to the applicant's vulnerability to deportation. He also indicated that he would take the 30 days' imprisonment into account in the context of totality.

33 Amplifying the application of Verdins principles, the sentencing judge said:

The Crown also very fairly submitted that Verdins principles were relevant to moral culpability in a limited way to both specific and general deterrence and to more burdensome prison time in your case. I accept those submissions.

As well as matters personal to you, to which I have referred, I must also take into account other relevant sentencing considerations. General and specific deterrence must still be given weight in this sentence. The community cannot and will not tolerate offending which so seriously compromises its citizens right to feel safe in their homes. These comments particularly apply to your offences which were committed in the context of sustained domestic violence.

34 The proposed grounds of appeal are the following:

Ground 1 - The learned sentencing Judge made a specific error when he found that the offending was motivated by a desire for money with which to purchase drugs with the effect that:

(a) Any assessment of the offender's objective level of moral culpability would have been infected by the error; and

(b) Any reduction in moral culpability afforded to the applicant by the applications of the principles in Verdins would have been insufficient

Ground 2 - The learned sentencing Judge made a specific error in relation to the application of the principles in Verdins when he found that moderation applied in a 'limited way' to principles of general and specific deterrence as:

(a) There was no evidence upon which a finding could have been made that the applicant was an appropriate vehicle for general deterrence; and

(b) There was positive evidence to support the fact that the applicant would have a reduced capacity to understand specific deterrence, particularly in the context of a further relapse of his psychotic illness.

Ground 3 - The total effective sentence, the individual sentences on counts 1 - 4 and the non-parole period imposed are manifestly excessive in the light of:

(a) The absence of any prior convictions for violent matters;

(b) The application of the principles in Verdins.

35 On behalf of the applicant it was submitted that the sentencing judge had made a specific error when he had said that the applicant had been motivated by the desire for money for drugs. It was submitted that there was no evidence upon which that conclusion could have been based. It was submitted that this error should be seen as pervading the judge's analysis because the judge had 'an erroneous starting point'. It was submitted that this erroneous starting point had influenced the judge's assessment of the applicability of Verdins principles in that the judge had accepted the Crown submission that those principles applied only in some 'limited' way.

36 It was separately submitted that the judge's confinement of the application of Verdins principles to some 'limited' way was a specific error in itself and that there was no basis upon which the judge could properly 'limit' the relevance of Verdins principles in this case.

37 It was submitted on behalf of the applicant that the errors referred to singly or in combination had resulted in an overall sentence that is manifestly excessive.

38 It was submitted that the sentence which ought to have been imposed was a sentence of imprisonment equivalent to approximately the time which had been served with what was described as a 'well-structured' community correction order thereafter.

39 The respondent referred to the material which was before the sentencing judge indicating that the applicant habitually abused both drugs and alcohol, methamphetamine in particular. The respondent submitted that in the plea no submission had been made about the motivation for the applicant's offending. It was submitted that on the material the judge's finding as to motivation was 'well open'. It was submitted that in any event what the judge had said was a 'passing comment' which had not been treated as a circumstance of aggravation.

40 It was submitted on behalf of the respondent that the judge's approach to the application of the Verdins principles was appropriate in the circumstances and reflected the submission that had been made by counsel for the applicant on the plea to the effect that there should be 'some moderation' of general deterrence and specific deterrence. It was submitted that the sentences imposed were very moderate and were explicable by reference to the fact that significant weight must have been given to the Verdins principles.

41 It was submitted that the sentence imposed was not manifestly excessive and was indeed very modest in the circumstances, particularly given the aggravated burglary. Reference was made in that respect to this Court's decision in Hogarth v The Queen,[4] to this Court's recent decision in DPP v Salih,[5] and to the sentencing statistics for aggravated burglary compiled by the Sentencing Advisory Council.[6]

42 The respondent submitted that even if an arguable material error was demonstrated, this was a matter where leave to appeal should be refused on the ground that there is no reasonable prospect that the Court of Appeal would impose a less severe sentence than the sentence imposed below.[7]

43 Leave to appeal on proposed grounds 2 and 3 should be refused because they are not arguable. The sentencing judge applied the principles in Verdins in a way which reflected the submissions put to him on behalf of the applicant. The aggregate sentence imposed was very moderate in the circumstances. The offending was extremely violent. It was, as the sentencing judge said, a violent rampage. The sentencing judge's finding that there were indications of remorse seems to me to have been a generous one in favour of the applicant. I agree with the submission put on behalf of the respondent that the very moderate sentence imposed is explicable only by virtue of significant weight being given to the application of Verdins principles in this case.

44 I do not accept the submission that the judge had been wrong not to impose a lower term of imprisonment with a community correction order. Given the Community Correction Order Assessment Outcome Report, it seems to me to have been well open to the judge to consider that a community correction order was not appropriate in this case.

45 It is arguable that the sentencing judge made a specific error when he observed that it 'seemed' that the applicant was trying to get money to serve his drug addiction. Assuming this conclusion was relied upon as a matter adverse to the applicant, it seems to me that the evidence before the sentencing judge did not establish it to the requisite standard. It is not clear, however, that the sentencing judge did consider it to be material in relation to the sentence he imposed.

46 It is arguable that the sentencing judge did make a specific error in relation to motivation but in my view leave to appeal should be refused because there is no

reasonable prospect that the Court of Appeal would impose a less severe sentence even if this error were to be established. I have reached this conclusion for the reasons I have expressed in relation to the other two grounds of appeal.

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

[2] This account of the circumstances is drawn from the Summary of Prosecution Opening and from the record of interview which were tendered on the plea.

[3] Plea Submissions on Behalf of the Accused dated 16 May 2016, Introduction para (p).

[4] [2012] VSCA 302; (2012) 37 VR 658.

[5] [2016] VSCA 107.

[6] Sentencing Snapshot No 184 June 2016. Median sentence of imprisonment 2 years 6 months, and median total effective sentence 3 years.

[7] Criminal Procedure Act 2009 s 280(1) and (2).