Stewart v The Queen [2015] VSCA 368

Ms V Anscombe, Acting Solicitor for Public Prosecutions

1 The appellant was involved in two separate incidents of very serious violent offending. On the first occasion, he and three associates punched and beat their victim before stealing his pants, jacket, wallet and mobile phone. He pleaded guilty to one charge of robbery, and was sentenced to five years' imprisonment.

2 In the second incident, some 10 days later and with different co-offenders, the appellant inflicted serious injury on a different victim, in the early hours of the morning. The appellant pleaded guilty to one charge of affray and one charge of recklessly causing serious injury. He was sentenced to one year's imprisonment on the charge of affray, and four years' imprisonment on the serious injury charge.

3 Orders for cumulation were made, as set out in the table below, resulting in a total effective sentence of seven years' imprisonment. A non-parole period of four years and six months was fixed.

4 The appellant was granted leave to appeal on the single ground that the sentence for robbery, the total effective sentence and the non-parole period were manifestly excessive. On the plea, he had relied in mitigation on his 'extremely low' level of cognitive function, which was said to be relevant to his moral culpability. The judge rejected that submission, as it was well open to his Honour to do. On the appeal, the manifest excess submission emphasised a different aspect of the appellant's circumstances, namely, his disadvantaged background.

5 Circumstances of deprivation and disadvantage are always relevant to sentencing. But their significance necessarily decreases in a case such as this, involving serious violent offending by a repeat offender. Other sentencing considerations, such as community protection and specific deterrence, loom large.

6 In my respectful opinion, it was reasonably open to the judge to impose this sentence on this offender, taking proper account of his difficult background. The appeal must therefore be dismissed.

7 On 27 August 2014, the appellant and three unidentified associates followed the victim ('M') home from a shopping trip to the housing estate where M lived. They followed M into his building. Fearful of the men discovering where he lived, M made his way towards a friend's residence.

8 After M alighted from the lift on the 12th floor, the appellant and his associates caught up with him as he walked down a nearby corridor, and began to attack him. M was punched to the face, around the eyes and nose. The punches were of sufficient force to cause him to fall to the ground and lose consciousness.

9 Following this, the men removed M's pants and jacket, before stealing his wallet (containing approximately $300) and mobile phone. The appellant and his associates then left M unconscious in a semi-naked state and left the estate. M regained consciousness a short time later and alerted his mother, who called the police.

10 M was taken by ambulance to St Vincent's Hospital and treated for swelling to the face (particularly the left eye), a broken nose and bruising to the face, shoulders and back. He gave the following description:

I feel painful because I have an injury on my left eye and on my right eye ... All of my body is sore and I'm very tired. I feel very bad and I was scared when they rob me.

11 M was aged 39 at the time of the offending. He was on a disability support pension, following treatment and surgery for a brain tumour, which had left him in a depleted state of health.

12 Ten days later, in the early hours of 6 September 2014, the appellant initiated an unprovoked and sustained attack on a different victim ('G'), in a fast food restaurant. The appellant first struck G to the head, then punched and kicked him to the head, upper body and leg. G was then knocked to the ground, where he was further assaulted by multiple kicks and punches.

13 As in the first incident, the appellant did not act alone in inflicting the violence. A succession of co-offenders joined him in punching and kicking G. Two of them were sentenced on the same occasion as the appellant.

14 G was subsequently taken to the Royal Melbourne Hospital. He was found to have sustained injuries which included a broken left leg which required surgery, a broken left ankle, severe bruising and swelling to the face and loose teeth. G remained at the hospital for 14 days and then spent a further six days at the Royal Park Rehabilitation Hospital.

15 In support of his contention that the sentences imposed were outside the range open to the sentencing judge, the applicant relied on:

(a) his deprived and traumatic background as a child;

(b) his borderline intelligence (an overall IQ of 70);

(c) his persistent depressive disorder, which was said to engage principle 5 of R v Verdins;[1]

(d) his plea of guilty, which was made at the earliest opportunity; and

(e) the 'Sentencing Snapshot' published by the Sentencing Advisory Council for the offence of robbery, revealing that he received the highest recorded sentence for robbery (five years) in the period 2008-09 to 2012-13.

16 As the sentencing judge noted, the appellant has a large number of prior convictions for crimes involving violence, from 14 court appearances, dating back to January 2004. These include convictions for robbery, armed robbery, recklessly causing serious injury and injury, and intentionally causing injury.[2]

17 On the plea, defence counsel relied on a report by Dr Aaron Cunningham, a forensic psychologist. Dr Cunningham conducted psychometric testing to assess the appellant's level of cognitive function. According to the report:

Mr Stewart's [full-scale IQ score] was assessed as 70 within a range of 67-75. He performed better than 2 per cent of his age peers where 98 per cent of his age peers would do better. His thinking and reasoning abilities were in the Extremely Low to Borderline range of functioning. He would benefit from assessment by Disability Services to determine his eligibility.

...

He reported a long history of antisocial behaviour. He stated that his anger stemmed from his past sexual assault and his depression stemmed from his lack of connection with family. He has not been able to maintain stable accommodation or employment. It appears that his only connection is with other antisocial peers. In my opinion, Mr Stewart's offence behaviour is connected to his drug and alcohol abuse and negative peer associations.

On the basis of psychometric testing, Mr Stewart presents with thinking and reasoning skills in the bottom 2 per cent of his age peers. In my opinion, Mr Stewart's thinking and reasoning impairments contribute to his difficulty in sourcing and maintaining accommodation and employment as well as prosocial supports. Mr Stewart's intellectual functioning would likely contribute to his impairments in emotional regulation. This would likely lead to difficulty controlling anger, depression and anxiety. He presents with limited emotional coping strategies. He was only able to model his childhood behaviour from adults who abused alcohol and were violent. In my opinion, Mr Stewart's drug and alcohol abuse is an attempt at mood management. He would likely require support and case management from Disability Services to maintain stability in the community.

18 Defence counsel submitted to the judge that the appellant's low IQ had impaired his ability to exercise appropriate judgment and make rational choices, and that there was a causal connection between his intellectual limitations and the offending. Counsel also submitted that, because of his depressive disorder, the appellant would find imprisonment more burdensome than would a person without that condition.

19 The judge rejected both of these submissions, saying:

[Defence counsel] submitted that because of your extremely low to borderline range of cognitive functioning and the consequence from this that you have difficulty controlling anger, depression and anxiety that your moral culpability for your offending should be reduced. I do not accept that submission. You committed these offences whilst drug affected. Doubtless that played a role in your committing these offences and helps to explain why the offending occurred but it does not excuse it.

[Defence counsel] also submitted that your depressive disorder is likely to make you time in custody weigh more heavily on you than on a prisoner in normal health. There is no evidence to support that submission and I reject it, although I have taken your overall psychological, cognitive and emotional state into account in arriving at an appropriate overall sentence and in fixing a non-parole period.[3]

20 There was no challenge to these findings on the appeal. If I might say so respectfully, this case provides a further illustration of the rigour with which sentencing judges evaluate submissions based on the principles restated in Verdins.[4] As mentioned earlier, the focus of the submissions on the appeal was on the appellant's disadvantaged background, to which I now turn.

21 The written case for the appellant listed the following under the heading 'deprived and traumatic background':

(i) Sexually abused as 10 year old.

(ii) Exposed to domestic violence and alcoholism from mother and stepfather.

(iii) Expelled from primary school.

(iv) Completed year eight.

(v) Unable to maintain steady employment.

(vi) Unable to maintain steady accommodation.

(vii) Lived on the streets as a child.

(viii) Chroming and smoking cannabis from 14.

(ix) Intoxicated on daily basis.

(x) Methylamphetamine abuse.

22 In summary, it was said, the appellant fell to be sentenced as someone who:

(a) had had 'an upbringing marked by brutality and violence';

(b) had suffered 'serious physical and sexual abuse' during his formative years;

(c) was 'ill-equipped with emotional and life skills'; and

(d) was 'significantly psychologically damaged by reason of his childhood experiences'.

23 The appellant relied on the following passage from the joint reasons of Redlich and Tate JJA in Marrah v The Queen:[5]

Circumstances of deprivation, abuse and other social disadvantage occurring during an offender's formative years are more than matters of historical significance to the administration of justice. The effects of such social disadvantage do not generally diminish with the passage of time, and are likely to have profound and lasting consequences. The common experience of the law is that very frequently such disadvantage precedes the commission of crime, and often explains and contributes to an offender's criminal behaviour. The frequency with which criminal conduct can be explained by such disadvantage does not relieve each sentencing judge of the obligation to take such matters into account. Though they do not provide an excuse for offending behaviour, they must be given due weight in the sentencing calculus. That is not to say that an offender's social disadvantage has the same mitigatory relevance for all of the purposes of punishment. It may so explain the offender's conduct that the offender's moral culpability may be substantially reduced, yet it will increase the importance of protecting the community from the offender. It will not diminish the need for the sentence to vindicate the dignity of a victim and reflect the community's disapproval of the offending.

It will ordinarily be desirable that a sentencing judge make clear in the reasons for sentence the extent to which the offender's deprived circumstances have moderated the weight given to personal and general deterrence in favour of other purposes of punishment, including rehabilitation.[6]

24 Counsel for the appellant conceded that his background circumstances did not provide any excuse for his offending. It was submitted, however, that the circumstances of disadvantage were such that the judge should have reduced the weight to be given, respectively, to moral culpability, general deterrence and specific deterrence. The sentencing reasons, it was said, gave no indication that the appellant's deprived circumstances had moderated the sentence in any way.

25 As the Court noted in Marrah, circumstances of deprivation, abuse and other social disadvantage very frequently precede the commission of crime.[7] The recent report by the Victorian Ombudsman confirms in the starkest terms the link between disadvantage and imprisonment. According to the report, almost half of Victoria's prisoners had two or more characteristics of 'serious disadvantage' prior to their incarceration.[8] Fewer than 14 per cent of prisoners had completed secondary schooling.[9] As the Ombudsman commented:

The State needs a comprehensive approach - across the justice system, education, health and housing - to focus on the causes of crime rather than its consequences. Offenders need to be dealt with in ways that make it less likely they will reoffend - through alternatives to imprisonment where appropriate, or through a prison system with a greater focus on rehabilitation.[10]

26 Sentencing courts are obliged to take into account circumstances of hardship and deprivation, and routinely do so.[11] The task of the sentencing court is particularly difficult, however, in a case such as the present, where the offences before the Court are offences of violence, committed by a recidivist violent offender.

27 In DPP v Terrick,[12] the court distilled the following relevant propositions from the authorities dealing with the relevance of disadvantage to sentencing:

1. The individual circumstances of an offender are always relevant to sentencing.
2. Circumstances of disadvantage, deprivation or (sexual) violence may be explanatory, if not causative, of the offending or (if relevant) of the offender's alcohol or drug addiction.
3. The (relative) weight to be given to circumstances of disadvantage or deprivation is a matter for the sentencing judge, and will depend on:

(a) the nature and extent of the disadvantage;

(b) the nexus (if any) with the offending; and

(c) the (relative) importance in the particular case of sentencing considerations such as rehabilitation, deterrence (specific and general), community protection and social rehabilitation.

...

1. Where the offender has prior convictions, such that considerations of specific and general deterrence and community protection become increasingly important sentencing factors, the significance of personal circumstances will correspondingly decrease.[13]

28 The last of these propositions was of particular importance in the present case. As senior counsel for the Director emphasised on the appeal, the appellant's prior convictions for violence included two convictions for armed robbery, two for attempted armed robbery and five for robbery. He was released from prison on 14 March 2014 and these offences occurred less than six months later. As a result, specific deterrence and community protection were especially important in the

29 It is clear that the judge took into account all aspects of the appellant's deprived background. They were set out in full in the sentencing reasons. The contention that his Honour gave those matters insufficient weight can only be assessed, however, by examining the sentences actually imposed.[14]

30 In my view, given the seriousness of these offences, and the seriousness of the appellant's prior record, the sentences imposed were well within range, proper weight being given to the circumstances of disadvantage. As the Director submitted, had it not been for the appellant's personal circumstances, a higher sentence would have been open.

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

[2] DPP v Marshall [2015] VCC 476 [18] ('Reasons').

[4] See DPP v O'Neill [2015] VSCA 325 [80].

[5] [2014] VSCA 119 ('Marrah').

[6] Ibid [16]-[17] (citations omitted) (emphasis in original).

[7] See also Hogarth v The Queen [2012] VSCA 302; (2012) 37 VR 658, 666 [30].

[8] Office of the Victorian Ombudsman, Investigation into the rehabilitation and reintegration of prisoners in Victoria, (2015) 32 [179].

[11] See, eg, Bui v The Queen [2015] VSCA 313 [44]; Morrison v The Queen [2015] VSCA 249 [46]; R v Daing [2015] VSC 440 [22]-[23]; R v Cook [2015] VSC 406 [49]-[53].

[12] [2009] VSCA 220; (2009) 24 VR 457 ('Terrick').

[13] Ibid 468-9 [46] (citations omitted). See further Bugmy v The Queen (2013) 249 CLR 571, 595 [44].

[14] Terrick [2009] VSCA 220; (2009) 24 VR 457, 459-60 [5].