Ross v The Queen [2015] VSCA 302

CRIMINAL LAW - Evidence - Expert evidence - Procedural fairness - Psychologist's report - Unchallenged opinion evidence - Whether judge obliged to accept expert opinion - Opinion based on facts reported by offender - Whether independent proof of facts required - Whether judge obliged to inform counsel that proof required - Failure to give notice - No inherent risk of rejection of report - Breach of natural justice - Breach immaterial - Humphries v The Queen [2010] VSCA 161 applied.

Ms V Anscombe, Acting Solicitor for Public Prosecutions

1 The appellant ('AR')[1] pleaded guilty to charges of aggravated burglary, intentionally causing injury and making a threat to kill, and a related summary charge of unlawful assault. He was sentenced on 30 January 2015 as follows:

2 The offending took place in the early hours of Monday 22 September 2014.[2] The previous evening, AR had consumed a 700ml bottle of vodka, used six Imovane tablets and smoked a gram of cannabis at his residence.

3 At approximately midnight, AR walked to the house of a person he knew ('K') and told her that he was going to do a 'run through' of a house. AR offered no other specific details.

4 At approximately 1:00 am, AR went to an address nearby. Having observed no lights or noise coming from within the house, he unsuccessfully attempted to open a locked front security door. AR picked up a tyre lever on the front patio and used it to pop the security door lock and open the door. He proceeded to try to open a secondary wooden door but it, too, was locked. AR used his right foot and kicked the door three times before it smashed open.

5 Still holding the tyre lever, AR entered the home, walked down a corridor and entered the bedroom of a sleeping six year old child (Charge 1: Aggravated Burglary). When confronted by the victim ('S') in the corridor, AR hit him with the tyre lever to the head multiple times (Charge 2: Intentionally Cause Injury). AR said, 'I'm gonna kill you' (Charge 3: Threat To Kill).

6 A scuffle broke out between AR and S. AR was ultimately forced out the front door, with S holding the door shut from the inside. AR picked up a metal drawbar and, using it as a ram, violently smashed the wooden door in an attempt to get back inside.

7 S's partner, who was also inside, told AR that there were children present and that she was going to call the police. AR ran from the address and returned to K's house. When he arrived there, he had a shower and sat on the couch in K's bedroom.

8 At one point, he became angry because he could not find his tobacco. He punched K's bed three times. K told AR he would need to leave because of his behaviour. She pushed him to the front door. Whilst standing at the front door, AR punched K to the left side of her face, causing immediate pain, swelling and redness (Summary Charge: Unlawful Assault). AR walked out the front door and picked up a metal bin and threw it at the front door before returning to his home address.

9 S was taken to the Emergency Department by ambulance. He received 17 stitches to the top of his head and treatment to a cut on the bridge of his nose. K received no medical treatment for her injuries.

10 At approximately 9:00 am on the day of the offending, AR was arrested and formally interviewed. He made full and detailed admissions. He told police that he had been in a physical altercation with S 12 years prior to the offending and that he had never forgiven S for it. AR said he had not spoken with S for 10 years.

11 On 21 May 2015, AR was granted leave to appeal on the following grounds, namely that:

(a) the judge erred in finding that he had been 'threatening [the victim] for some time';

(b) the judge erred in finding that the principles in R v Verdins[3] were not engaged and, in particular, by:

(i) finding that AR suffered from an IQ in the 'low average borderline range';

(ii) finding that AR does not suffer from an acquired brain impairment;

(iii) finding that there was no causal link between AR's mental state and his offending;

(iv) finding that AR would not find a term of imprisonment any more difficult to serve than most;

(v) failing to account for reduced moral culpability and general deterrence; and

(vi) failing to moderate the importance of specific deterrence;

(c) the sentence on charge 1 is manifestly excessive; and

(d) the judge denied AR procedural fairness when rejecting the neuropsychology report on which the defence relied.

12 For reasons which follow, we would dismiss the appeal. It is convenient to begin with grounds (b) and (d), which require an examination of the neuropsychology report.

13 AR was assessed by a neuropsychologist, Dr L M Vowels. In her written report, which was tendered on the plea, Dr Vowels described the purpose of the assessment in these terms:

To investigate concerns about Mr Ross' memory and general cognitive functioning in the light of several significant risk factors for acquired brain impairment. [Defence counsel] is concerned that [Mr Ross] may have a mild but significant brain injury which would have contributed to his unacceptable and dangerous behaviour on September 21st, 2014. There are also some issues relating to Mr Ross' childhood and early life which need to be brought to the attention of the court as they may have contributed to his impulsive and unplanned behaviours making it harder for him to prevent himself acting in a way which was so concerning for his victim as well as so counterproductive to himself given his recent past when he has been able to refrain from any offending.

14 The next section of the report was entitled 'Risk factors for acquired brain injury' and was in the following terms:

Mr Ross reports that when he was six years old, and somewhat 'out of control' following the death of his mother the previous year, he was playing with ropes with hooks and pulled a piece of the roof off which fell and hit him on the head knocking him out. His father took him to a local doctor and an X -ray revealed a 'haemorrhage in the top of the head' which, given the father's resistance to hospitals, meant that he was not admitted but recovered at home. It sounds as if it may have been a serious injury in a young child given the amount of time he had away from school etc. Mr Ross also reports an episode of near drowning in a local dam aged 9 or 10 from which fortunately he was rescued and resuscitated. However, it sounds as if these incidents may have led to some form of brain damage as he had academic and behavioural difficulties in school which sound to have been in excess of the distress expected of a child who had lost a parent especially considering that his siblings completed most of High School and both parents are reported to have coped well with school although not matriculating.

His other risk factors for ABI include a twenty seven year history of heavy alcohol use drinking anything and everything from the age of about 13 often to the point of 'blacking out'. There is no family history of alcoholism either in parents or siblings. At the age of 16 he started to use cannabis which he has consistently smoked till in his late 20s. He denies he has ever had any psychotic symptoms from that. At the age of 20 he started to use amphetamines by injection and does consider that he became quite paranoid while using that. He had no overdose episodes from that. He also acknowledged abusing prescription drugs in that period but denies convincingly that he has ever even tried heroin or inhalation of solvents.

Mr Ross has had several serious injuries to the head from altercations and assaults which have been the cause of some of his convictions. He described episodes in 1997 in which he was beaten around the head by a group of arresting police. This level of violence led to a loss of consciousness and admission to a hospital for suturing of wounds to the scalp. As an adult he has not had any falls, motor vehicle accident or anoxic episodes such as attempted self-harm. He acknowledges several prison sentences following convictions for assault, drug offences and damage arising from uncontrolled anger reactions. He was last released in 2003 following a period in

Port Phillip Prison and since that time has had no further episodes of illegal behaviour - 'not even a speeding fine'.

15 As to intellectual capacity, Dr Vowels concluded that 'a conservative estimate of intelligence' would put AR's intellectual abilities in the 'low average to borderline range', that is, giving an IQ score of between 70 and 80. The tests which she administered on this occasion, however, would

suggest an overall IQ considerably lower than that suggesting that there may have been a deterioration probably related to his cumulative head injuries and chronic alcohol and substance abuse.

The testing showed his full scale IQ to be 71, meaning that only two per cent of the population would perform more poorly.

16 The report described AR's limitations in 'executive functioning'. His limited capacity to verbalise complex concepts was, in the opinion of Dr Vowels,

part of the cognitive impairment from the more recent head injuries and substance abuse as well perhaps as part of his more longstanding intellectual limitations.

could be considered [disabled] at a mild to moderate level on the basis of cognitive alterations in his competence arising from his history of cumulative minor head injuries and alcohol/substance excesses in the past interacting with his verbal difficulties in addition to his poor education. His anxiety and distress are a concern but I did not think it would be the sole contributor to poor decision making of itself.

17 Dr Vowels expressed her conclusions in these terms:

The information gathered and test results obtained demonstrate that Mr Ross is displaying the symptoms of an Acquired Brain Injury (ABI) probably related to his acknowledged previous period of ongoing alcohol and substance abuse and the cumulative head injuries suffered as a child with the falling of a roof piece onto his head as well as in several assaults. His longstanding limitations in intelligence and poor educational outcome mean that he has a reduced level of cognitive reserve and hence the childhood injury is most likely as an initial cause which has been exacerbated by ongoing substance abuse and physical trauma to the head.

This is in addition to his newer Psychiatric Disability of a Depressive Disorder with Anxiety which may have been exacerbated by or related to his excessive alcohol and drug abuse in his younger life and which is now apparent and expressed as difficulties with adjustment and control of anger reactions. Although he is now receiving pharmacological treatment, it seems that in September 2014 the acute level of this disorder contributed significantly to his extremely insightless decision making and violent actions leading to the injuries and damage described in the charges he is facing (as well as the undue sensitivity to substances).

...

His executive functions are mostly below the normal range and with a compromised capacity for new learning and planning and organisation which are probably important abilities for ongoing rehabilitation from earlier criminal activity. However, he showed an incompetent and inefficient capacity in the areas of abstract reasoning, spontaneity and selective inhibition which would justify the diagnosis of Dysexecutive Syndrome at the moderate level. The difficulties were more concerning when using verbal stimuli or conditions suggesting an asymmetrical injury with the head trauma. My impression was that the abnormal performances would be likely to be qualitatively worse because of his psychological distress despite current medication regime. His less reliable selective inhibition is probably indicative of a lifelong difficulty with self-monitoring on top of a longstanding tendency to impulsivity which has been well controlled for the period since his last release from prison but with the cumulative effect of newer depression and acute intoxication became dangerous for others as well as for himself. The level of remorse and regret he is now able to express at such escalation of his disabilities is convincing.[4]

18 On the plea, defence counsel (who did not appear on the appeal) relied on the report in submitting that, at the time of the offending, AR's judgement had been affected by the following combination of factors:

• his low level of functioning;
• his low IQ;
• 'the diagnosis of possible ABI', resulting in a 'reduced level of cognitive reserve';
• the depressive disorder with anxiety, and difficulty in controlling anger; and
• poor executive function.

19 The defence submission was that these factors in combination would have 'contributed significantly to his poor decision'. Asked by the judge to clarify whether the 'poor decision' was the decision to drink the full bottle of vodka or the decision to go to the victim's house, counsel responded that it was

firstly to drink and mix drugs, and then go to the house. ...[I]n this case there are a number of factors which apparently affected him over a period leading up to the offending at this time and perhaps caused him to indulge [in] drink and drugs. He had a friend ... who had apparently suicided two days before Christmas 2013. [And] about seven years before my client had found one of his best friends, who'd hung himself in his yard, and that was a matter that upset him greatly. He had been involved with a car accident with his car about three months before this and a relationship that he'd been involved in had finished as well some time before. So apparently these were all factors that were playing upon his mind, factors which affected his psychological state. He then became more depressed and anxious and unfortunately indulged in these activities which have been described [taking alcohol and drugs] before these matters occurred.

20 It should be noted that this submission acknowledged the immediate causative factors which led to the offending, that is, events of a personal nature which had caused AR great distress and made him 'depressed and anxious'. This account was consistent with what Dr Vowels had said (in the concluding section of the extract set out above) about AR's 'psychological distress' and the 'cumulative effect of newer depression and acute intoxication [becoming] dangerous for others as well as for himself'.

21 The sentencing judge recorded the opinion of Dr Vowels as being that

because of prolonged and excessive use of alcohol and drugs, and also various accidents and misadventures, which you advised her about but which were otherwise not documented in any way, where you allegedly suffered head injury, that you may suffer from an acquired brain injury which affects your reasoning capacity.[5]

Relying on this report [defence counsel] submitted that at the time of your offending and, now when you fall to be sentenced, because of your low IQ and the fact you suffer from depression, I should reduce any sentence I impose applying the principles expressed by the Court of Appeal in a decision known as Verdins. I do not accept that submission and I do not accept that which is found in the report of Dr Vowels. Dr Vowels report was based entirely on what facts you related to her at interview. The extent of any head injury previously suffered by you is not verified independently in any way. The diagnosis that you may suffer from an acquired brain injury because of previous head injuries and/or excessive and prolonged alcohol and drug abuse, in my view, is somewhat speculative and based entirely upon self-report.

I do accept that your intelligence quota may be in the low average borderline range and I do accept you may now suffer from some depression for which you are treated with modest daily dosage of the medication Effexor 75mg. I do not accept these factors influenced your reasoning capacity at the time of your offending. At the time of offending your reasoning capacity was influenced by excessive alcohol and drug use which you voluntarily chose to imbibe not long before the offending occurred. I do not accept that the report of Dr Vowels provides any evidence that you will find a term of imprisonment any more difficult to serve than most, or any basis for tailoring the sentence to suit your personal disposition.[6]

23 In submissions on the appeal, counsel for AR advanced three distinct complaints about this analysis, as follows:

(a) there having been no challenge to the content of the Vowels report, his Honour was bound to accept it;

(b) if his Honour was disposed not to accept the report, he was bound to put the defence on notice that this might occur, and no such notice had been given; and

(c) no other conclusion was reasonably open but that AR's intellectual disability and the other conditions affecting his mental functioning reduced his moral culpability, and necessitated a moderation of specific and general deterrence, and would make his experience of imprisonment more burdensome.[7]

24 As to the first of these, there is no rule of law or evidence that the tribunal of fact is obliged to accept the unchallenged opinion evidence of an expert. As Vincent JA said in R v Hillman[8] (to which counsel for AR helpfully drew attention):

Of course, it does not follow that, namely because there is no contrary opinion to that expressed by an expert witness, the opinion must be accepted and a sentencing judge act upon it. As juries are regularly instructed, opinion evidence has to be evaluated in the same way as any other evidence adduced in the Court, having regard to such matters as the degree of expertise of the witness, the information upon which the opinion was based, the steps taken by the expert in order to ensure that the opinion was well based, and the limitations set by the witness or evident in the circumstances upon the opinion.[9]

25 There is, however, more force in the second complaint. In Humphries v The Queen,[10] Maxwell P and Redlich JA said:

It is uncontroversial that an ingredient of the court's duty to accord procedural fairness involves the giving of a fair opportunity to a party to correct or contradict any prejudicial or adverse finding which the judge may make, unless the risk of such a finding necessarily inheres in the issues to be decided.[11]

26 In the present case, the principal basis of the judge's rejection of Dr Vowels' opinion regarding an acquired brain injury was that it was based entirely on the history which AR had given her at interview. In our respectful opinion, the risk of the expert's assessment being rejected on this ground did not 'necessarily inhere' in the issues to be decided.

27 Psychological reports of this kind, based on statements made by the person being assessed, are routinely relied on by defence counsel in support of pleas in mitigation. In the same way, defence counsel are routinely permitted to make statements of fact from the bar table. Of course, such statements do not constitute evidence, less still independent evidence.[12] But it is the standard practice of sentencing courts to accept such statements, without the requirement of proper proof, unless (authorised by the Evidence Act 2008) the judge directs that evidence in proper form will be required. That did not occur here. The judge gave no indication in the course of the plea that he might not accept the expert's opinion by reason that the facts stated by AR to Dr Vowels had not been independently verified.

28 In the circumstances of the present case, however, the lack of warning was immaterial. Put simply, the judge did not accept that the offending was relevantly attributable to any of the factors identified by Dr Vowels. As already noted, his Honour's conclusion was that what had affected AR's reasoning capacity at the time of the offending was the 'excessive alcohol and drug use [sic] which you voluntarily chose to imbibe not long before the offending occurred'.

29 His Honour had clearly signalled on the plea that he might take this view. In response to defence counsel's submission that AR's judgement had been affected by his cognitive and psychological difficulties, his Honour said:

HH: At the time of the offending ... he must have been very affected by alcohol at least.

Counsel: He was.

HH: At least.

Counsel: Absolutely.

HH: I mean anyone who drinks a 700ml bottle of vodka is going to have their thinking affected by that, are they not?

Counsel: Of course.

30 As noted earlier, defence counsel had linked AR's intoxication with the distress he suffered because of the recent suicide of a close friend and other personal factors. These matters had 'apparently affected him over a period leading up to the offending at this time and perhaps caused him to indulge [in] drink and drugs'.

31 Defence counsel's concession about the effect of a full bottle of vodka was obviously correct. It was well open to his Honour, in our opinion, to conclude that it was this grossly excessive alcohol intake, combined with the prescription drugs which AR was taking, which prompted him to act in this very violent way. Indeed, the fact that AR had stayed out of trouble for many years, notwithstanding his cognitive and psychological difficulties, reinforced the conclusion that it was the intoxication, rather than those underlying conditions, which had been causally significant on this occasion. Dr Vowels herself had commented that AR's 'lifelong difficulty with self-monitoring on top of a longstanding tendency to impulsivity [had] been well controlled for the period since his last release from prison'.

32 In other words, the judge rejected - as he was entitled to do - the causal hypothesis advanced by the defence. That being so, the failure to give notice of his reservations as to the basis of the expert's opinion was immaterial. Whatever their basis, the matters identified by Dr Vowels were not, in his Honour's opinion, causally relevant.

33 That being so, nothing in that report required the judge to conclude that AR's moral culpability was reduced or that there needed to be any moderation of specific or general deterrence. Once the finding of fact had been made about what led to the offending, there was nothing to suggest that AR was anything other than a proper vehicle for general deterrence.

34 Finally, as to the burden of imprisonment, counsel for AR acknowledged that the expert report did not include any 'direct opinion on the effect of prison'. It was nevertheless submitted that the cognitive shortcomings identified in the report gave rise to an 'inescapable inference' that AR would struggle in the prison environment.

35 We are not persuaded by that submission either. As we have pointed out, AR's history in the years leading up to this offending suggests that, when he avoids excessive alcohol, he is able to conduct himself quite satisfactorily and avoid conflict. As was pointed out on the plea, he had been able to hold down steady employment for a number of years. A reference from his employer described him as 'a willing worker ... trustworthy, reliable and polite', who 'likes to be a team player and works well with the other crew members'.

36 In support of this ground, counsel for AR relied on:

(a) his immediate and full admissions to police, and his early plea of guilty;

(b) the view of Dr Vowels that AR had expressed 'convincingly genuine' remorse and was extremely distressed that there were young children in the house when he committed the offences;

(c) the fact that his most prior conviction was in 2005 and his last conviction for violence in 1998, and that he had no history of aggravated burglary; and

(d) in the years since the 2005 conviction, AR had turned his life around and become a productive member of the community.

37 As invariably occurs when the ground of manifest excess is advanced, counsel drew attention to what were said to be comparable cases, in which much lower sentences were imposed. Counsel relied, first, on the decision in DPP v Battern,[13] where the offender had pleaded guilty to aggravated burglary and intentionally causing injury and was sentenced to 20 months' imprisonment on the first charge and six months' imprisonment on the second. There, as here, the offender had forced his way into the victim's house. He punched the victim a number of times and held a knife to his throat. Unlike the present case, the offender was accompanied by another man.

38 Reliance was also placed on the decision of this Court in Saxon v The Queen.[14] In that case, the victim of the aggravated burglary was the former domestic partner of the offender. She had taken out an interim family violence intervention order against him. Early one morning, following threats he had made the previous evening, the offender entered the victim's house through the roof. He kicked her, causing her to fall over, and punched her twice to the head.

39 The sentencing judge imposed an aggregate sentence of 20 months' imprisonment on the three charges to which the offender pleaded guilty, (aggravated burglary, common assault and contravening an intervention order). The Court rejected the complaints of specific error. Weinberg JA described the sentence of 20 months' imprisonment as 'on any view, moderate'. In his Honour's view, 'no lesser sentence could possibly be justified'.[15]

40 Both these cases involved what the Court of Appeal in Hogarth v The Queen[16] described as confrontational aggravated burglary, where the offender enters the victim's premises as a trespasser, intending to commit an act of violence because of some grievance against the victim.[17] Hogarth established that what were then current sentencing practices for serious forms of aggravated burglary needed to change, as they did not reflect the objective seriousness of such offending.[18] Aggravated burglaries which involve confrontation and violence, or threats of violence, should be viewed very seriously.

41 In the light of what was said in Hogarth, the sentences in Battern and Saxon must be viewed as anomalously low. More reliable guidance as to sentencing practice is provided by the recent decisions of this Court in Filiz v The Queen[19] and DPP v Meyers,[20] in each of which the offender had pleaded guilty to confrontational aggravated burglary. In Filiz, the Court rejected a contention that a sentence of two years and six months was 'very severe', saying that in the light of Hogarth 'a significantly higher sentence ... would have been within range'.[21] In Meyers, the Court increased the sentence for aggravated burglary from three years to four years, adding that the sentence would have been 'substantially higher' but for the position adopted by the prosecution on the plea.

42 Reference should also be made to the decision of this Court in Carrington v The Queen.[22] In that case, the offender (who was aged 19 at the time) forced his way into the residence of his former domestic partner, and attacked her new partner with a large knife. The victim suffered severe lacerations to both forearms. The offender was sentenced to four years' imprisonment on the charge of aggravated burglary and five years' imprisonment on the charge of intentionally causing serious injury. His appeal against the sentence was dismissed.

43 It was not contended in that case that the sentence of four years for aggravated burglary was manifestly excessive. The Court described the offending as involving

deliberate and persistent conduct that must have been terrifying for the victim of the serious injury.[23]

Unlike the present case, the appellant there was able to rely on his youth and the primacy of rehabilitation as a sentencing consideration.

44 These decisions demonstrate, in our view, that the sentence of four years' imprisonment was well open to the sentencing judge in the present case. The complaint of manifest excess must be rejected.

45 The remaining ground draws attention to the following passage from the sentencing reasons:

You knew that house to be occupied by the victim in this offending and his girlfriend. You had past dealings with him and you had been threatening him for some time.

It was common ground that there was no evidence of any such threats. The submission for AR was that this was a material mistake of fact, which must have led the judge to view the offending more seriously than the true facts justified. Instead of being understood as a 'completely irrational spike of anger', the offending would have been viewed as 'previous threats escalating to an invasion'.

46 Notwithstanding the incorrect statement about threats, we are not persuaded that his Honour mistook the facts or misapprehended the seriousness of the offending. Later in the sentencing reasons, the judge set out (from the Crown opening) statements made by AR during his police interview, which included that he had had a physical altercation with his victim some 12 years earlier, had never forgiven him and - relevantly - had not spoken to him for 10 years. It was common ground that the sentencing should proceed on the basis of these stated facts.

47 More importantly, the judge's description of the offending made no mention of prior threats. His Honour said:

As the maximum penalty suggests, and as the Court of Appeal of this state has repeatedly said, the crime of aggravated burglary is a very serious offence. Your offending was a serious example of a very serious offence. You went to the home of a sleeping family in the middle of the night, forced your way into their home and carried out a violent and unprovoked assault upon your victim using a tyre lever. You threatened to kill him and having regard to the nature of the injury to his head, and the fact you were armed with a weapon, your victim was entitled to think you had every intention of carrying out your threat. After you left the scene and retreated to your friend's home you also assaulted her. You are obviously given to acts of violence. The fact you were obviously heavily affected by a cocktail of alcohol and drugs does not excuse your offending. It does in part explain your offending.

48 This was the basis upon which AR was sentenced. It can be seen that the erroneous reference to prior threats played no part. Even had that not been so, we would have dismissed the appeal. Having regard to the objective seriousness of AR's offending and taking into account the various matters put in mitigation by his counsel on the plea and before us, the sentences, orders for cumulation and non-parole period fixed by the judge were, with respect, entirely appropriate. There would have been no basis for imposing a different sentence.[24]

49 For these reasons, the appeal against sentence must be dismissed.

[1] The abbreviation is for ease of reference only.

[2] This description of the circumstances is drawn from the Registrar's Neutral Summary.

[3] [2007] VSCA 102; (2007) 16 VR 269 ('Verdins').

[5] DPP v Ross (County Court of Victoria, Judge Lacava, 30 January 2015) ('Reasons') [13].

[6] Ibid [14]-[15] (emphasis added).

[7] R v Verdins [2007] VSCA 102; (2007) 16 VR 269, 275 [27]-[30].

[8] [2005] VSCA 41.

[9] Ibid [15]. See also Gibbs v The Queen [2012] VSCA 241, [29].

[10] [2010] VSCA 161 [10].

[11] See Ucar v Nylex Industrial Products [2007] VSCA 181; (2007) 17 VR 492; R v Fisher [2009] VSCA 100; (2009) 22 VR 343, [65]; R v Lowe [2009] VSCA 268, [20].

[12] Evidence Act 2008 s 4(2).

[13] [2014] VCC 955 ('Battern').

[14] [2014] VSCA 296 ('Saxon').

[16] [2012] VSCA 302; (2012) 37 VR 658 ('Hogarth').

[19] [2014] VSCA 212 ('Filiz').

[20] [2014] VSCA 314 ('Meyers').

[22] [2015] VSCA 175.

[24] See s 281 of the Criminal Procedure Act 2009.