Criminal Law - Sentence - Relevant factors - Nature and circumstances of offender - Mental disorder - Severe borderline personality disorder - Competing considerations of reduced moral culpability and need to protect public.

Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465; R v Verdins [2007] VSCA 102; (2007) 16 VR 269, followed.

Judgment Number: [2010] TASCCA 5

1 The appellant, having pleaded guilty to a charge of aggravated armed robbery, was sentenced to three years six months' imprisonment, and it was ordered that she not be eligible for parole until she had served two years six months of that sentence.

2 She has appealed against the severity of her sentence. Her first ground of appeal is that the sentence is manifestly excessive. This ground was not pursued, and rightly so. The sentence imposed is plainly within the range of penalties that are appropriate for the appellant's crime.

3 Her second ground of appeal relates to the manner in which the learned sentencing judge dealt with evidence of the appellant's mental state. Counsel for the appellant says that the essence of this ground is that the learned sentencing judge did not give any, or any sufficient, weight to a submission made in the course of the sentencing hearing that the appellant's criminal responsibility was diminished by reason of her mental state at the time of the crime, as explained by psychiatric and other evidence put before the Court of the appellant's severe borderline personality disorder.

4 As to the circumstances of the crime, its impact on the victim, and the appellant's background, the parties accept the accuracy of the following portion of the learned sentencing judge's comments on passing sentence:

"Affected by alcohol and an illicit drug, she decided to rob a newsagency at Chigwell while armed with a broken glass bottle. She was not in need of money at the time. She waited for customers to leave before committing the crime. When the female proprietor resisted, she swung at her with the broken bottle and cut her neck, cheek and nose with it. She grabbed money from the till. A struggle developed between her and the proprietor and a customer. She managed to escape by slipping out of her top and fled without the money. In the course of the struggle she was screaming, kicking and hitting at the others. Not long after, police arrested her.

The proprietor suffered a four centimetre cut at the side of her throat, several scratches to the right side of her face, and a deep cut to the tip of her nose which required suturing. She had defensive wounds to her right hand, fingers and wrist, and bruises and abrasions on her arms. According to a victim impact statement, she also suffered a fracture to her big toe and bruising to all of her body. She has been severely affected psychologically.

The accused is 44 years old and has had a 13 year old child living with her. She has an appalling record that commenced with an assault when she was 13 years old. Particularly relevant in her record are the following, with the approximate number of them: 14 assaults, 23 assaults on police officers, one aggravated assault, two arsons, two unlawfully setting fire to property, and 69 offences of dishonesty. She has also committed a great number of other forms of offences. She has been sentenced to imprisonment many times. She was released from prison only about four months before this crime.

She had an appallingly dysfunctional upbringing that included violence, alcohol and drugs. She manifested behavioural difficulties from a young age. She was a ward of the State. She ran away from home at age 13. Her life has involved alcohol and drug abuse, overdosing, self-injury and admissions to psychiatric facilities. She has been diagnosed with a borderline personality disorder, which is demonstrated by instability in personal relationships and affect, marked impulsivity, alcohol and substance abuse, self-harm, anger and other misbehaviours. Her disorder is regarded as beyond treatment. She consistently causes trouble and trouble finds her."

5 The appellant's complaint about the manner in which the learned sentencing judge dealt with the evidence of her mental state at the time of the crime is focused on the last sentence of the following paragraph of his Honour's comments on passing sentence:

"Her counsel urged the Court to regard the case as one involving diminished responsibility. While I understand the basis for the submission, regard to her record persuades me that the Court's sentence must be proportionate to her crime and her record. She must be held fully responsible for her actions."

Counsel for the appellant submits that the learned sentencing judge's use of the phrase "fully responsible" demonstrates error as it shows that his Honour did not give any, or any sufficient, weight to the appellant's mental state at the time of her offence.

6 There is no question that an offender's impaired mental state may be relevant to the sentencing process. In R v Verdins [2007] VSCA 102; (2007) 16 VR 269, Maxwell P, Buchanan and Vincent JJA said at par[32]:

[32] Impaired mental functioning, whether temporary or permanent ('the condition'), is relevant to sentencing in at least the following six ways:

1 The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.

2 The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.

3 Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.

4 Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both. See for example, Payne at 444, [43].

5 The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.

6 Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment."

7 The learned sentencing judge was not provided with a psychiatric report or the like which specifically addressed the effect of the appellant's personality disorder on her mental capacity at the time of the aggravated armed robbery for which she was being sentenced. Three psychiatric reports were put before his Honour, the most recent of which was dated 1 August 2007. The reports were to the effect that the appellant suffered from a severe personality disorder that was probably beyond treatment. The most recent report included the following: "It is clear that Ms Startup can barely manage in the community. She finds trouble - and trouble find her. Her life is likely to continue along this chaotic crisis prone pathway." An earlier report dated 5 February 2004 included the opinion that the appellant's history of offending often involved her retaliating when allegedly victimised by men and that her disproportionate responses were in part a manifestation of her personality disorder. The subject crime could not be linked to the appellant's personality disorder in this way, and in the course of the sentencing hearing, his Honour made a comment to this effect to the appellant's counsel. In responding, her counsel acknowledged that this was so, but submitted that the appellant's crime was completely out of character.

8 The absence of a direct link between the appellant's personality disorder and the crime in question does not render this aspect of her mental state irrelevant. It simply reduces its impact on the sentencing process. It is relevant to moral culpability and the needs of general deterrence. It has no bearing on the kind of sentence that should have been imposed. It is beyond dispute that the only appropriate sentence was immediately effective imprisonment. There was no evidence to suggest that because of her mental state the sentence that was imposed would weigh more heavily on her, or would have an adverse affect on her mental health.

9 In his comments on passing sentence, his Honour referred to the permanent nature of the appellant's mental disorder and, as set out above, noted that it involved: "instability in personal relationships and affect, marked impulsivity, alcohol and substance abuse, self-harm, anger and other misbehaviours." These features of the disorder have a general relevance to sentencing as they explain matters such as her entrenched criminal behaviour and history of drug addiction. It is to be noted that she was drug-affected when she committed the subject crime, however the manner in which she carried it out and sought to avoid detection showed considerable presence of mind. Considerations such as these left it open to the sentencing judge to ascribe a significant level of moral culpability to the appellant_._

10 When dealing with a first offender, or an offender with comparatively few prior convictions, the impact of the offender's mental state on the need for personal deterrence, retribution and other factors can be significant. However, that impact is reduced markedly in the case of a repeat offender, and it may be reduced to the point that it has no impact in the case of a recidivist whose conduct puts other members of the community at risk. An obvious example is a recidivist arsonist. This does not mean that a sentence imposed on a recidivist may be increased beyond that which is proportionate to the crime in order to protect society against the risk that the offender may re-offend. The following passages from the decision of Mason CJ, Brennan, Dawson and Toohey JJ in Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 476 and 477 are apposite:

"[A] mental abnormality which makes an offender a danger to society when he is at large but which diminishes his moral culpability for a particular crime is a factor which has two countervailing effects: one which tends towards a longer custodial sentence, the other towards a shorter. These effects may balance out, but consideration of the danger to society cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality.

...

[T]he antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. ... The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted."

11 Returning to the present appeal, we are not persuaded that the learned sentencing judge erred as asserted. His Honour noted that the appellant's counsel urged the Court to regard the case as one involving diminished responsibility, but his Honour said that the appellant's record persuaded him that the sentence "must be proportionate to her crime and her record" and that "she must be held fully responsible for her actions". By these comments, his Honour said no more than that in the circumstances of this case, bearing in mind the appellant's record, she should be held fully responsible for her crime. In essence, his Honour dealt with her on the basis that her reduced mental state should not moderate her sentence because of the risks associated with her re-offending, that is, the countervailing effects of her mental state balanced out. In so proceeding, his Honour did not err. This approach was open to his Honour and, in the circumstances of this case, it was the correct approach.