Shaw v The Queen [2012] VSCA 78

Mr C Hyland, Solicitor for Public Prosecutions (Ms S Aridas)

2 The appellant was granted leave to appeal against the sentence imposed upon him on 14 February 2011 in the County Court.

3 He had been sentenced to 4 years' imprisonment for aggravated burglary (count 1), 18 months' imprisonment on each of two counts of threatening to kill (counts 2 and 3) and 9 months' imprisonment for threatening damage to property (count 4). The sentences on counts 2 and 3 were to be concurrent and the sentencing judge directed that 12 months of that sentence were to be served concurrently with the sentence on count one. Six months of the sentence on count 4 were to be served concurrently with the sentence on count 1. There was a total effective sentence of 4 years and 9 months' imprisonment and a non-parole period of 3 years was fixed.

4 The judge declared under s 6AAA of the Sentencing Act 1991 that, but for the guilty plea, he would have imposed a sentence of at least 6 years' imprisonment with a minimum term of 4 years.

5 The Crimes Act 1958 provided for maximum sentences of 25 years' imprisonment for aggravated burglary, under s 77, 10 years' imprisonment for threatening to kill, under s 20, and 5 years' imprisonment for threatening property damage, under s 198.

6 The appellant's co-offender, Rodney Lonsdale, was sentenced to 2 years' imprisonment, wholly suspended for 3 years, for his sole offence of aggravated burglary.

1. The sentencing judge erred in applying the principles relating to concurrency and cumulation of individual sentences.
2. The sentencing discretion miscarried because the sentencing judge failed to make findings and/or give reasons on the question of whether the appellant's psychiatric condition contributed to the offending.
3. The individual sentences, the orders for partial cumulation and the non-parole period are manifestly excessive.

8 On 12 May 2009, the 43 year old appellant and Rodney Lonsdale were drinking at a hotel. They met a 16-year-old co-offender, 'H'. H falsely informed them that he had been raped by an older man whose parents had stood by and allowed it to happen. The appellant and Mr Lonsdale believed him. H told them that the alleged offender lived with his parents and they decided to go to the parents' house to assault the occupants. Lonsdale drove them there.

9 The only person at the house was the first victim, Sandra McNamara. She was asleep in bed, recovering from recent surgery. The appellant entered through an unlocked security door. Mr Lonsdale and H remained outside. The appellant went into Ms McNamara's bedroom and woke her by yelling. He made accusations about a sexual assault on H and demanded to know the whereabouts of her husband and son. Ms McNamara said that her husband was at work and would not be back until 5.00 pm. The appellant said, 'I'm going to stay right here and wait for him. I'm going to bash him'.

10 Ms McNamara was wearing only a tee-shirt and underwear. She asked the appellant to leave the bedroom so she could get dressed. He refused, staying and blocking the doorway, until she sat on the bed and put on pants. The appellant continued to intimidate her for about five minutes, after which she moved towards him and shouted for him to leave. He retreated to the front verandah.

11 Ms McNamara noticed Rodney Lonsdale and H on the front lawn. She recognised H as the brother of a boy who had accused her son of sexual abuse. She was able to convince the offenders that her son did not live at the house and that her husband was not responsible for any sexual assaults. The appellant continued to make threats whilst on the front verandah. The threats included words to the effect of, 'I'm going to burn your house and shoot your dogs.' Ms McNamara then yelled at the offenders, ordering them all to leave.

12 Thomas McNamara, Ms McNamara's father-in law and the second victim, lived next door. He had come to the dividing fence. As the appellant left, he told Mr McNamara to 'stay out of it or we'll burn your house down.'

13 The appellant further threatened both victims, claiming friendship with 'bikies' and threatening a 'run through' of their houses if they reported the offence to police. He threatened to punch Ms McNamara and said, 'I'm going to find your son. I'm going to put him on a stake and burn him and shoot him and shoot your husband and bury him beside [your son].'

14 The appellant and co-offenders drove to Mrs McNamara's husband's workplace. Seeing the gates closing there, they left without incident.

15 The offences have had significant effects upon Ms McNamara, who was humiliated and felt degraded by her treatment. Fearing threatened repercussions, she is uneasy and afraid and no longer feels safe sleeping in her own home alone. Her husband has also lost his sense of security and his reaction has upset her. He has installed security doors and plans to put up a high fence. Ms McNamara's children are reluctant to visit her home.

16 Ms McNamara feels insecure in public as well. She is wary and nervous of people in vehicles similar to that in which the appellant was travelling and of men with shaved heads like his. Constant memories of the events distract her and she is terrified of being alone with men, even her employer. She receives counselling and has been prescribed Valium and sleeping tablets.

17 The appellant's personal circumstances are detailed in reports from a forensic psychiatrist, Dr Alan Jager, who saw him on 16 February 2010, and Dr Simon Kennedy, a forensic psychologist, who saw him on 7 December 2010.

18 The appellant was born on 8 November 1965 and adopted at two weeks by a police officer and an aged-care nurse, whom he describes as good people. He admired his father. He has an older sister and two younger brothers and grew up in Echuca, Wangaratta and Bendigo. He was introverted and quiet. At the age of nine, he was brutally raped by a 17-year-old boy, but did not tell anyone about this incident until 2009.

19 The appellant was educated to Year 11 level, which he completed at White Hills Technical School. He was victimised because of his large ears and his father's occupation. He had some friends, but after the rape he became introverted. He initially worked up to the age of 30, sorting mail and in factories, before moving to Kalgoorlie to work in mining.

20 He had started drinking alcohol at 16 and was still binge drinking two or three times a week in February 2010. By 2009, he had been continuously using marijuana from the age of 16 and amphetamine from 17. He had also used ecstasy and hallucinogenic drugs.

21 The appellant had three significant relationships. His first ten year de facto relationship broke up after his partner's association with another man had produced twins whilst the appellant was working in Western Australia. He became depressed. He told Dr Jager that he had been spending $2000 a week on amphetamine at the time. A second relationship lasted for about five years, until he was 42.

22 When his father became ill in 2004, the appellant had returned to Bendigo. He was unemployed from June 2009, having lost his job at a mine after making a worker's compensation claim.

23 After the collapse of his second relationship, he had suffered two nervous breakdowns and his health had declined. He had been prescribed antidepressants, but was using alcohol and drugs. He described himself as a 'steely faced, argumentative, angry bastard'.

24 The appellant began living with a third woman and her two children in May 2009. It would appear that the relationship ended about three days before the 12 May 2009 offences. He had then gone on a three-day 'bender', drinking alcohol, using amphetamine and not sleeping. He told Dr Kennedy that he had not slept and took amphetamine for 10 days. He had spent $8,000.

25 His offences were committed on the last day of the bender. He estimates that he had drunk 40 pots of beer and had used two grams of amphetamine since 9.00am. He had met H at about 4 pm at a pub in White Hills. His mental state was 'scattered' and he felt distraught.

26 The appellant returned to the pub after the offences and then informed his parents about what had happened. On the following day, he attempted suicide by carbon monoxide poisoning. He was rescued and admitted to a hospital psychiatric ward for a week.

27 Subsequently, he spent a month at the Salvation Army Rehabilitation Program at The Basin, but did not cope. He then had three months' psychological treatment and counselling in relation to drug and alcohol and life skills. Later, on Dr Jager's recommendation, he had also attended CASA in relation to his past sexual abuse. He has never been under psychiatric care.

28 The appellant had been taking the anti-depressant, Effexor, for a long time, but had stopped by December 2010. He had ceased taking drugs after the incidents in 2009 and had not used them in the three months before December 2010 (when he saw Dr Kennedy). He still drank alcohol, occasionally to excess.

29 The appellant was arrested and interviewed by police on 15 May 2009. He admitted attending the McNamaras' home in an agitated state. He gave what the sentencing judge described as a 'sanitised version' of events, likening his actions to those of a big brother to H and expressing some limited remorse about giving 'old people a hard time', if he had done so.

30 Dr Jager concluded that the appellant had experienced a major depressive disorder, which was in partial remission by February 2010, and that he had been appropriately treated by anti-depressants. He had a polysubstance dependence in early remission. His history suggested either an antisocial personality disorder or a more likely intermittent explosive disorder.

31 In Dr Jager's opinion, his psychiatric condition therefore contributed causally to the commission of the offence. His judgment and ability to make rational choices were probably impaired and he was disinhibited when he offended; he was intoxicated by alcohol and amphetamine, emotionally upset and probably suffering from a major depressive disorder.

32 He did not need psychiatric treatment, but Dr Jager recommended continued psychological counselling, drug and alcohol counselling and contact with CASA in relation to the past sexual abuse.

33 Dr Kennedy thought that the appellant presented as an emotional man who had had an extremely disturbed upbringing, as a consequence of his rape. He had dealt with substantial resulting mental health difficulties by using drugs and alcohol. Addiction followed and been an aspect of all his criminal offending. He had 'marked problems' with personality functioning and suffered from a borderline personality disorder, secondary to the abuse and related childhood factors. He had offended, acting out of his own distress associated with the issues of sexual abuse, whilst also markedly affected by his amphetamine and alcohol intoxication.

34 The appellant had twelve prior convictions. He incurred fines for offensive behaviour and public drunkenness on 22 August 1994 and for causing injury intentionally or recklessly on 10 November 1997. On 23 April 1998, he had been sentenced to five months' imprisonment, wholly suspended for 12 months, and fined, for causing serious injury recklessly and two unlawful assaults. On 21 February 2000, he was sentenced to three months' imprisonment, wholly suspended for 12 months, and fined for trafficking, cultivating, possessing and using cannabis. He had also appeared on charges of drunkenness in a public place and assaulting police on 18 September 2007. The charges had been adjourned without conviction with a special condition for a payment of $1,000

35 Whilst on bail in relation to the offences the subject of this appeal, the appellant was charged with numerous offences of driving whilst disqualified, driving an unregistered motor car and careless driving. In June and July 2009, he was also convicted of breaches of intervention orders. In December 2009, he was fined for drunkenness in the preceding three months.

36 The appellant expressed remorse to Dr Jager on 16 February 2010 and Dr Kennedy thought him genuinely and appropriately remorseful on 7 December 2010.

37 The appellant indicated his intention to plead guilty early, at the committal, subject to investigation of a possible mental impairment defence. The matter resolved in an early plea on 7 May 2010.

38 The sentencing judge quoted from numerous references attesting to the appellant's service to the community. He had coached junior football and cricket and was held in high esteem and respected by players and their families. Indeed, he had been granted life membership of the White Hills Cricket Club in recognition of over 20 years of contributions as player, coach and committee member, with special recognition of his involvement in the development of young cricketers. Past employers thought him hardworking and honest and he gardened, on a voluntary basis, for a referee and her elderly mother.

Ground 1 - The sentencing judge erred in applying the principles relating to concurrency and cumulation of individual sentences.

39 The appellant argues that it is unclear how the sentencing judge took into account the continuing nature of the offending and the operation of the statutory presumptions with regard to concurrency and cumulation.

40 I am not persuaded that his Honour erred in this way.

41 Once having been convicted and sentenced on count 2, the appellant was to be sentenced on count 3 as a 'serious violent offender' under s 6B of the Sentencing Act 1991. Under s 6E, his sentence of imprisonment for that serious violent offence was, subject to direction to the contrary, to be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed before or at the same time as that term.

42 Orders for concurrency were made in respect of the sentences on counts 1, 2 and 3. The sentences on counts 2 and 3 were to be wholly concurrent themselves and I think it is evident that the judge intended that the sentence on count 3 be partially concurrent with the base sentence on count 1 (despite his use of the words 'that sentence' in the context of his concurrency order in relation to the sentences on counts 2 and 3). The orders for concurrency suggest that the judge took into account the continuing nature of the offending covered by those counts.

43 Although his Honour failed to direct concurrency between the sentence on count 3 and that on count 4 and the effect of s 6E would have been that the sentence on count 3 would have been served cumulatively upon that on count 4, it is clear from the order relating to the total effective sentence that his Honour intended them to be served concurrently.[1]

Ground 2 - The sentencing discretion miscarried because the sentencing judge failed to make findings and/or give reasons on the question of whether the appellant's psychiatric condition contributed to the offending

44 The appellant argues that the sentencing judge summarised the submissions on the plea in relation to his mental health without reaching any conclusions. He Honour failed to deal with the issue as to any causal connection between his mental state of ill health and his offending, leaving this and the manner in which he took the appellant's mental health into account as matters for speculation.

45 The respondent answers that, in the context of the evidence about the effects of drugs and alcohol upon the appellant, it is clear that the judge concluded that the evidence did not substantiate a causal link between mental illness and the offending conduct.

46 The respondent contends that the judge had accepted that the Verdins principles applied and that the characterisation of the offending as very serious and the sentences imposed indicate that the appellant benefitted from their application.

47 The sentencing judge noted the appellant's arguments for the application of the Verdins principle. His Honour also noted that the appellant relied upon Dr Jager's opinion that his psychiatric condition contributed causally to the commission of the offence.[2] He emphasised that the doctor had only said that the appellant was probably suffering from a major depressive disorder.[3]

[98] Mr Shaw, as your counsel has submitted, I accept, to some degree, that the principles of Verdins do and have to apply. In Verdins, it was said, 'Where a diagnostic label is applied to an offender, it usually occurs in reports from psychiatrists and psychologists, it should be treated as the beginning, not the end of the inquiry. As we have sought to emphasise, the sentencing court needs to direct its attention as to how the particular condition is likely to have affected the mental functioning of the particular offender in the particular circumstance. That is, at the time of the offending, or in the lead-up to it, or is likely to affect him or her in the future.'

[99] From this case there are six non-exhaustive ways they were picked up from Tsiaras, of course, in which temporary or permanently impaired functioning can be relevant to sentencing. What further confuses the predicament you find yourself in, is your intoxication from alcohol and drugs.

[100] [Counsel] submits that not only is your moral culpability compromised by your health problems, but it is also a serious risk of imprisonment, having significant adverse effects on your mental health. He also commented on how one must modify specific deterrence and general deterrence in issues such as have arisen here.

[101] I have quoted from Dr Jager. I am conscious of the opinion expressed by that psychiatrist. Dr Kennedy, forensic psychologist, among other things, says of you, 'In my opinion he has a borderline personality disorder, secondary to sexual abuse events and related childhood factors.' Dr Kennedy said this, 'Mr Shaw presents as an emotional man, who at the time of the criminal offending, acting out his own distress associated with the issues of sexual abuse. However, he was also markedly affected by his amphetamine and alcohol intoxication at the time of the incident.'

[102] Mr Shaw taking into account all that has been said by both Dr Jager and Dr Kennedy, and your counsel ... and also the submissions of the prosecutor, ... I will apply, as I see fit, the principles of Verdins in arriving at a just sentence.

49 There were issues as to the nature of any mental illness of the appellant and its causal effect, if any, in relation to his offending behaviour. In the circumstances, his Honour was obliged to consider the applicability and effect of the Verdins principles and to deal with those questions transparently in his sentencing remarks.[4] As he failed to make his findings clear in that respect, I am persuaded that he erred.

50 That error re-opens the sentencing discretion because I am also of the view that a different sentence should now be imposed.[5] In the circumstances, there is no need to address the ground of manifest excess.

51 The appellant argues that the head sentences and orders for cumulation should reflect the global nature of this one episode of offending within a limited period. The range of 12 to 18 months put by the prosecutor in the plea was sensible in light of the psychiatric and psychological material.

52 The respondent, on the other hand, characterises the offending behaviour as very serious, given its vigilante character, and the influence of the appellant's self induced intoxicated and drug affected state.

53 The appellant replies that his mental ill health was a contributing factor in relation to his substance abuse in the first place.

54 The appellant also relies upon uncontested new evidence of an injury sustained whilst he was being transported from the Melbourne Remand Centre to Loddon Prison on 11 March 2011. As the Court's sentencing discretion has been reopened by reason of error on the part of the sentencing judge, that evidence is admissible and should be taken into account as to the change in the relevant facts in re-sentencing.[6]

55 According to his affidavit sworn on 2 March 2012, the appellant struck the roof when the prison van in which he was travelling went over a speed hump. He claims not to have been restrained by a seat belt at the time. He was seen by a neurosurgeon.

56 Justice Health provided a 25 January 2012 court-ordered report from Dr M J Plunkett in relation to the alleged incident. It was compiled from notes in the appellant's prison file and also provided information about the appellant's general state of health, stating that :

• he suffered from hypothyroidism, secondary to an autoimmune disease, which was treated with medication and should have no long term sequelae;

• his serum iron stores needed monitoring as a result of genetic mutations which otherwise should cause him any long-term problems;

• the appellant had complained of neck, lower back and coccygeal pain and had associated neuropathic pain in his left upper limb;

• his cervical spine showed moderate pre-existing degenerative changes with bilateral foraminal stenosis in the mid to lower levels and he was to have surgery to alleviate symptoms which may have resulted from exacerbation of the degeneration by the alleged incident;

• CT investigation of the lumbar spine had revealed nothing, but did not exclude ligamentous strain or tears responsible for persistent lower back pain;

• the appellant had a minimally displaced fracture of the sacrum, unlikely to be symptomatic, but possibly indicative of ligamentous injury, causing right buttock pain on sitting; and

• '[his] long term prognosis was normal, although he may have long term problems with his musculoskeletal system'.

57 Further affidavits, providing some limited information in relation to the appellant's health, have been filed. They establish that he underwent the anticipated neck surgery on 15 March 2012. He has been recuperating at St John's Unit at Port Philip Prison. When the appellant swore an affidavit on 17 April 2012, he was to be transferred back to Loddon Prison, when his condition permitted. It seemed to him that the surgery had successfully dealt with his neck injury, alleviating his symptoms.

58 On 17 April 2012, the appellant complained about the conditions in the St John's Unit and was awaiting a doctor's visit. He had not had any treatment for his lower back and was considering 'putting up with that injury' and postponing any possible further surgery until after his release. He gave no other details of his prognosis or as to any other assessment of his medical condition.

59 Corrections Victoria is prevented by medical privacy considerations from accessing the appellant's medical files to provide any additional information to the Court.[7]

60 The aggravated burglary offence was a relatively serious example of the offence for the reasons identified by the sentencing judge and because of the vigilante character of the offenders' behaviour.

61 I am satisfied on the balance of probabilities that the appellant was suffering from a major depressive disorder causally connected with his offending behaviour. Not only is it relevant in terms of the importance of general deterrence and the appellant's moral culpability, but the disorder is likely to make his time in custody more onerous.

62 I do also take it into account that the appellant must have been significantly affected by his abuse of drugs and alcohol at the time of his offending, as he had been in the past when engaged in criminal behaviour.

63 He has taken steps to deal with his disinhibiting drug and alcohol abuse problems and has expressed genuine remorse. In light of his history, his prospects of rehabilitation depend upon how successfully he deals with those issues. He does, however, have support from the community to which he has contributed a good deal.

64 The evidence as to the effects of the appellant's recent surgery and treatment is limited. Even though he considers that his neck-related symptoms have been alleviated, it would appear that imprisonment will be somewhat more difficult for him than might otherwise have been the case, because of the state of his lumbar spine and his other health problems. I take these matters into account when re-sentencing him.

65 In the circumstances, the appeal should be allowed, the sentences of imprisonment imposed below quashed and the appellant resentenced as follows:

The Court should direct that 3 months of the sentence imposed on count 2 be served cumulatively on the sentence on count 1 and that otherwise the sentences be served concurrently.

The appellant should be sentenced for the offences the subject of count 3 as a serious violent offender under s 6B of the Sentencing Act 1991.

There should be a total effective sentence of 3 years and 3 months' imprisonment and a non-parole period of 2 years.

Under s 6AAA of the Sentencing Act 1991 I declare that, but for the guilty plea, the appellant would have been sentenced to 4 years and 6 months' imprisonment with a non-parole period of 3 years.

[1] See: R v McManus (Unreported, Victorian Court of Appeal, 17 February 1998, p 16, (Charles JA)).

[4] See R v Koumis [2008] VSCA 84; (2008) 18 VR 434, [62], (Redlich and Kellam JJA and Osborne AJA).

[5] See s 281(1) Criminal Procedure Act 2009.

[6] R v Carroll [1991] VicRp 87; [1991] 2 VR 509, 511 (Young CJ, Crockett and O'Bryan JJ); DPP v Gaw [2006] VSCA 51, [18], [19], (Callaway JA, (Eames and Ashley JJA agreeing)).

[7] See affidavit of Brendan Francis Money, Director, Sentence Management Branch, Corrections Victoria, sworn on 3 April 2012, para[3].