Teryaki v The Queen [2019] VSCA 120

5 Sometime later, the applicant collected her female co-offender, Ms Woolard, from her home. The applicant was driving the stolen Hyundai. Later that night, they drove the car to a petrol station, where the applicant's male co-offender filled the tank. They drove off without paying for the petrol (charge 2 - theft).

6 At about 4 pm the following day, the applicant drove the Hyundai to a service station along the Western Highway. Ms Woolard filled the tank, and again, the car drove away without paying for the petrol. That led to a charge of theft against Ms Woolard, but not against the applicant.

7 About 10 minutes later, the applicant was involved in an attempt to carjack a vehicle belonging a woman, who will be designated as 'T'. She was driving a Toyota Yaris along a suburban street in Mooroolbark when she pulled over to check various house numbers. She noticed the Hyundai drive past somewhat erratically, and pull into a driveway about 20 metres from her vehicle. She saw two women get out of that car and approach her vehicle. The applicant banged on the window of the driver's side door, yelled, and gestured to T to get out of the car. T sounded the car horn to deter the offenders, but to no avail. She drove off with the two offenders initially hanging onto the mirrors of the car. She managed to drive a few metres before the driver of the Hyundai smashed that vehicle into the right-hand front light of T's car. The two women then ran back to the Hyundai, and drove off (charge 3 - attempted carjacking).

8 At about 10 pm that night, a woman who will be described as 'N' parked her Honda Civic at a gym at the Keilor Downs Shopping Centre. As she opened the car door, the applicant and two of the younger co-offenders approached her. Ms Woolard remained in the Hyundai, which was parked nearby.

9 One of the offenders demanded N's car keys. She refused to hand them over and closed the car door from the inside. A male co-offender produced a knife and grabbed the door handle as N struggled to close the car door. That male offender stabbed N in the right thigh, causing a small laceration. N got out of the car and ran. As she still had the immobilisation chip on her person, her assailants were unable to start the vehicle. The applicant and her co-offenders then left the scene in the Hyundai (charge 4 - attempted aggravated carjacking).

10 At about 3 am on the following morning, the applicant drove the Hyundai out of a car park at Federation Square. Police followed and activated their lights and sirens. The applicant refused to pull over. Police did not continue the pursuit (summary charges of driving when directed to stop, and unlicensed driving).

11 Shortly afterwards, the applicant was intercepted by police, arrested and interviewed. She was provided with coffee. While reaching for the cup, she surreptitiously took a paper clip from the table. She later used that paperclip while held in police cells to self-harm by cutting her arm with it, and drawing blood (summary charge - detainee possessing a thing without authority).

12 The applicant was later interviewed by Police. She admitted to having stolen the Hyundai. She said that she had used 'ice', and could not remember any of the matters giving rise to the specific allegations put to her.

13 The applicant has been in custody since her arrest on 16 July 2017. The judge declared a period of 488 days as pre-sentence detention as at the date upon which the applicant was sentenced, 16 November 2018. Since then, she has been in custody for a further 200 days, making a total of 688 days.

14 The applicant was aged 22 at the time of the offending. She was 23 when she came to be sentenced. She is of Lebanese descent. Her parents are deeply religious, and follow traditional religious practices. She is the youngest of six children.

15 In early primary school, the applicant was identified as having cognitive difficulties. She was sent to a special school, although her parents refused to accept that she had any problems of that kind. At home, there was conflict between the applicant and her parents. She suffered physical abuse, and was bullied by her sisters.

16 Officers of the Department of Health and Human Services eventually became involved. In 2013, with their support, the applicant moved away from home and began living independently. She was then 18 years of age. The transition was not an easy one.

17 The applicant now no longer has contact of any kind with her father. She has only occasional dealings with her mother and siblings. Nonetheless, they were present in court on the day she came to be sentenced.

18 The judge noted that the applicant has a remarkably lengthy criminal history. For one so young, her criminal record is quite astonishing. Her Victoria Police criminal history report records 16 pages of prior convictions. For the most part, these involve matters dealt with in various Magistrates' Courts. They include numerous offences of dishonesty, criminal damage and low-level assaults. However, they also include more serious offences, including an armed robbery, and an attempted armed robbery. The applicant has been sentenced to many short terms of imprisonment, ranging from one day up to 5 months. She has also repeatedly contravened conditions of bail.

19 Much of the applicant's offending appeared to her Honour to be linked to her obvious mental impairment. It was noted that in 2016, the applicant had been dealt with for armed robbery and put on a 2 year Community Correction Order (CCO) with a Justice Plan condition. Perhaps unsurprisingly, she had breached that CCO, and later served 5 months in prison.

20 In 2013, the applicant was accepted for Disability Services Support. The judge observed that from that time, she had been provided with case management assistance. In 2015, her IQ was assessed at 56. A clinical neuropsychologist, Jane Lofthouse, characterised that figure as denoting an 'extremely low' level of intellectual function. The applicant was also diagnosed as having a possible borderline personality disorder. She was said to be at risk of acting impulsively and aggressively, without apparent justification or excuse. She had limited coping skills, and a reduced capacity to reason, or to engage in informed problem solving.

21 By 2014, the applicant had been admitted several times to Orygin Youth Health, a youth mental health program based in Melbourne. She had begun living at a mental health treatment facility, Furlong House, in Parkville.

22 At the time of the current offending, in July 2017, the applicant was living at Perry House, a residential facility for young people with intellectual disabilities. That facility was part of Jesuit Social Services.

23 In August 2018, when the plea was heard, the applicant was being treated with anti-psychotic and anti-depressant medication. It seems that she had attempted suicide while in custody. It is unnecessary for present purposes to go into the details of what had prompted that particular act of desperation.

24 After that, the applicant had been held for two months at the psychiatric unit at Dame Phyllis Frost Centre. She had been treated by psychiatric staff. Regrettably, she had been highly disruptive to those around her, including staff and other inmates. She was said to have caused what was described as 'staff burnout'.

25 The Acting Assistant Commissioner of Corrections Victoria, Jennifer Hosking, provided an affidavit, sworn on 8 August 2018, setting out the circumstances in which the applicant was being held in custody. It described her challenging behaviour, including a 'handcuff regime' to which she was constantly subject, on the basis of various incidents involving resisting and assaulting staff and other inmates. At various times, she had been subject to the highest of three levels of that handcuff regime.

26 The applicant had engaged in a great deal of self-harming behaviour. She had, at one stage, smashed her television set, and had used a piece of the glass to cut her left arm in another apparent suicide attempt.

27 There is no need to recount in detail the vast litany of incidents involving the applicant whilst in custody. As a consequence of the complex combination of her very low level of intellectual function and her borderline personality disorder, she has proved to be almost unmanageable. Throughout her time in custody, she has engaged in violent and irrational conduct, and continues to do so. There are literally dozens of acts of this kind extending over the whole of the period that she has been at Dame Phyllis Frost Centre. No one seems able to come up with a practical solution of how to deal with her, apart from keeping her effectively isolated, and under the most stringent conditions of incarceration imaginable.

28 Of particular note is the fact that as at 1 August 2018, the applicant had self-harmed by tying, or attempting to tie, ligatures around her neck on no fewer than 49 occasions. Similarly, she had by that date, self-harmed by cutting herself or reopening wounds on 44 occasions.

29 On 20 May 2019, Brendan Money, Assistant Commissioner of the Sentence Management Division of Corrections Victoria swore an affidavit updating the position regarding the applicant's situation in custody. He noted that since 1 August 2018, the applicant had self-harmed by tying, or attempting to tie, ligatures around her neck on 12 further occasions. Similarly, she had also self-harmed by cutting herself or reopening wounds on an additional 26 occasions.

30 In effect, the applicant has either self-harmed, or attempted suicide, on no fewer than 131 occasions during the 20 months or so that she has been at Dame Phyllis Frost Centre. Sadly, her situation does not appear to be improving, and may in fact, be worsening.

31 The judge recognised just how difficult a task it was to sentence this applicant. Her Honour said:[2]

In recent times, your behaviour was managed somewhat better, perhaps because of weekly and later daily visits by a worker from Jesuit Social Services, a service which apparently cannot continue once you are sentenced and no longer a remand prisoner. There has been no explanation for this or for why this may be the case.

You were seen by a forensic psychiatrist, Dr Fiona Best, in April 2018 and more recently in August this year. You told her that you had smoked ice since you were 18, when people gave it to you, and that you had been drinking alcohol since then. You said you wanted to stop using both.

You told Dr Best that you had committed the offences when the friends you were with told you to get the lady's car keys, and that you knew it was wrong and did not want to do it, but they told you to.

Dr Best proffered her opinion in a report dated 9 May 2018 that there are effective strategies in place for the management of what is described as your 'challenging behaviour' in the unit. She thinks you would benefit from ongoing psychiatric support, with a supportive therapeutic program and social skills training tailored to your intellectual capacity, to assist you to develop better ways to manage interpersonal relationships.

Dr Best gave some examples of those challenging behaviours that she referred to as including those things that I mentioned from Dr Hosking's affidavit: physically threatening or assaulting staff, and turning your frustrations onto yourself with self-harming behaviour.

Dr Best said you need help in managing relationships because you are easily led by others, particularly when affected by ice, and at such times, you are unable to think through the consequences of your behaviour, and your judgment is significantly impaired.

32 Shortly afterwards, her Honour continued:[3]

Dr Best also said that a custodial sentence would be more difficult for you than for other people, and may have an adverse effect on your mental health, as has perhaps already been demonstrated by your suicide attempt. She said your intellectual disability makes you more vulnerable to developing a mental illness.

I mentioned before that Dr Best saw you again and provided an updated report, dated 8 August, and she said in that report that you told her that you are usually locked down for 23 hours a day with perhaps sometimes only one hour in the open air. You said you would like to return to Perry House and live independently.

Dr Best was informed by Corrections officers that in the previous two weeks, you had again attempted to harm yourself twice and mental health staff told her that your mental state was 'changeable minute-to-minute', with poor impulse control and poor emotional regulation. This results in those behavioural outbursts against staff and self-harm in the context of boredom, isolation, and overstimulation.

During your plea hearing last time, Dr Best gave evidence, and her recommendation was that you be referred to the Disability Forensic Assessment and Treatment Service, which is known as DFATS, a state-wide disability forensic service that delivers time-limited treatment, support and residential services for people with disabilities such as yours who are involved in the criminal justice system.

A service like this could enable you to take part, in theory at least, in a therapeutic treatment program that addresses offence-related needs, and to learn skills to improve internal control and understand your behaviour.

33 Regrettably, the judge was forced to go on and say:[4]

I have now been informed that although such a residential service is available for male offenders who are eligible, there is no provision for women, so there is no place there for you. That is a sorry state of affairs, because other options for sentencing you effectively are limited.

Your counsel, Ms Woodward, was left with a limited submission as to sentence, because apart from a Community Correction Order, there is no treatment regime which can be imposed by the court. A Community Correction Order would likely be unmanageable as it is tailored for those with better capacity for compliance.

It is a great concern that when you committed these offences, you had been released from custody only three days earlier, and the risk of similar decline into renewed offending is high.

It is not part of my judicial role to consider the likelihood of you being eligible for parole if given a non-parole period as part of a prison sentence. However, the evidence I have heard suggests a high likelihood of therapeutic services being offered to you in prison which would assist you in progressing towards eligibility for parole.

35 Significantly, the judge referred to s 10AD of the Sentencing Act 1991. Her Honour noted that that section provides that a court must impose a term of imprisonment, and fix a non-parole period of not less than 3 years, in relation to an offence of aggravated carjacking, under s 79A of the Crimes Act 1958.[6] These consequences must follow unless the Court finds, under s 10A, that a 'special reason' exists for not imposing those requirements.

36 Correctly, the judge accepted that 'impaired mental functioning' allowed for the finding of a special reason in this case. The prosecutor on the plea readily conceded that this was so.

Grounds of application - submissions and analysis

37 The submissions put forward by each side, in their respective written cases, recognised the difficulties associated with sentencing this applicant.

38 On behalf of the applicant, it was submitted that by reason of her significant mental impairment, she fell squarely within the principles laid down in Verdins.[7] Her moral culpability should be regarded as greatly reduced, and she did not present as a suitable vehicle for general deterrence. Nor could specific deterrence feature heavily as a relevant factor in the exercise of the sentencing discretion. She was highly likely to reoffend, but the threat of imprisonment would not be likely to deter her from committing further offences.

39 It was accepted that the applicant was not a suitable candidate for any kind of CCO. It was also accepted that the chances of her being released on parole were negligible. It was submitted that all that could be done, in her interests, and the interests of the community would be to reduce the 3 year term, which had been imposed below, in the hope that, upon release, some form of therapeutic treatment could be found that might alleviate her difficulties, and better protect the community.

40 In that regard, the Court had the considerable assistance of Ms Debra Coombs, who appeared on behalf of Corrections Victoria to inform the Court of the applicant's present situation, and what was planned for her immediate future. We were informed that a new disability-specific unit, the Rosewood Unit, had just been established at the Dame Phyllis Frost Centre, and that the applicant was to be relocated to that Unit within the next week or so. Since the date of hearing, the applicant has been relocated to the Rosewood Unit.

41 Prior to this relocation, the applicant was kept in solitary confinement for 23 hours per day. She was handcuffed for much of the time, and certainly at all times when she is permitted out of her cell. Her behaviour within the prison has been worsening in recent times, and the staff appear to be struggling in knowing how to deal with her.

42 For that reason, it was submitted on behalf of the applicant that imprisonment had been more burdensome, in reality, than had been envisaged by the sentencing judge in August 2018, when the applicant was sentenced. Although the judge knew something of the applicant's difficulties associated with her time in custody, she almost certainly could not have anticipated that the situation would be as bad as it has turned out to be.

43 It is well established, having regard to the decision of the Court of Criminal Appeal in R v Eliasen,[8] that this Court, in dealing with an appeal against sentence may, if appropriate, permit evidence of matters that have occurred since the passing of the sentence. The additional evidence may lead to the imposition of a different sentence even where the judge's sentencing discretion has not necessarily miscarried. In particular, ill-health will be a factor warranting mitigation of punishment when it appears that imprisonment will be a greater burden by reason of an offender's health, or when there is a serious risk of imprisonment having a greatly adverse health effect.

44 In other words, this Court can have regard to matters that have arisen after sentence, which make it clear that imprisonment has been significantly more burdensome than might reasonably have been anticipated at the time the applicant was sentenced. The condition upon which new evidence of this kind can be considered by this Court is that the sentencing judge was aware in general terms, at the time of sentencing, of the problems the applicant was likely to face, but in light of the matters that occurred after sentence, had greatly underestimated their impact. That condition seems to us to have been clearly satisfied in this case.

45 We were asked therefore, on behalf of the applicant, to impose a lesser sentence than the 3 years fixed below. It was submitted that 'time served' (just over 680 days) might suffice. In the alternative, it was submitted that a reduced sentence, allowing the applicant, in the near future, to live independently again under the auspices of Jesuit Social Services (which we were told, would be prepared to take her in and provide her with appropriate therapeutic help) would be the 'least worst' solution to this otherwise intractable problem.

46 The respondent submitted that as unsatisfactory the outcome for the applicant has been, the sentencing judge had imposed a sentence that was within range and appropriate. The offending was extremely serious, and the applicant had an appalling criminal record. It could not be said that her Honour had fallen into any discernible error in approaching the matter as she had done.

47 Counsel for the respondent recognised the difficulty of dealing with the applicant in a manner that was fair and just. It was acknowledged that prison was not really appropriate given her circumstances, and that she needed intensive treatment and ongoing therapy. It was fairly accepted that the conditions of her incarceration were extraordinarily restrictive, and highly punitive. However, it was submitted that there were no viable alternatives, and that leave to appeal should, accordingly, be refused.

48 We note, for the sake of completeness, that the applicant also relied upon a ground of parity, in relation to the difference between the 3 year sentence that she received, and the CCO that was imposed upon her co-offender, Ms Woolard. There was obviously no substance at all in that ground. Ms Woolard was dealt with for only one offence of attempted aggravated carjacking, and did not have a criminal record of any consequence. The contrast between the applicant and Ms Woolard, in that regard, could hardly have been greater.

49 This application presents, as has been said, an intractable sentencing problem. There can be no doubt that the judge below took into account the mitigating factors associated with the applicant's mental impairment, and her numerous personal difficulties. The objective gravity of the offences, when coupled with the applicant's extraordinary criminal history, would have justified a sentence significantly in excess of that which was in fact imposed.

50 The legislature has made its views clear with regard to the offence of carjacking. This offence has become increasingly prevalent in recent years, and the maximum sentence for aggravated carjacking, 25 years' imprisonment, speaks for itself.

51 At the same time, the applicant finds herself in an utterly deplorable situation. It seems as though she is in desperate need of some form of intensive therapeutic treatment. For reasons that are not immediately apparent, facilities are available to provide such treatment in secure institutions, but only for male offenders. That situation is obviously unacceptable. It must not be allowed to continue. As this case graphically demonstrates, it needs to be remedied without delay.

52 Through no fault of her own, the applicant is mentally impaired to a significant degree. She also suffers from a series of personality disorders, some of them quite serious. Those impairments played a material role in her offending behaviour. Until the issues stemming from it are addressed, she will continue to reoffend, and her prospects of rehabilitation will remain bleak.

53 It should be noted that, in a report dated 30 April 2019, prepared by a Dual Diagnosis Senior Practitioner from Jesuit Social Services, Rebecca Halliday, and provided to the Court at its request to assist in dealing with this application for leave to appeal, the author stated that she had been working with the applicant in what was described as the 'Connexions Program' for a period of three years. She had been providing therapeutic support to the applicant, both in the community and at the Dame Phyllis Frost Centre, and had developed a strong and positive relationship with her.

54 Ms Halliday stated that she had been 'confronted, shocked and deeply saddened' by the conditions under which the applicant has been held at Dame Phyllis Frost Centre for the past 21 months. She described these conditions as extremely punitive and as lacking specialised therapeutic support and resources. She noted that the main methods used to manage the applicant were isolation and handcuffs. She observed that the applicant had limited access to activities and stimulation, and when seen by Ms Halliday, had been handcuffed to a table at all times.

55 Ms Halliday opined that the conditions under which the applicant was being held were completely inadequate and detrimental to her wellbeing. She said that the applicant's mental health and level of functioning had deteriorated considerably over that time, and that she was now at great risk. She commented that the applicant's aggressive behaviour was diminished when she was provided with a therapeutic response and supportive environment.

56 In one sense, it would be wrong to interfere with this sentence because, in reality, the judge had little choice but to do precisely what she did. There was not available, at the time of sentencing, any facility such as the newly created Rosewood Unit. More importantly, the judge was not in the same position as we are to understand the full extent to which the applicant's term of imprisonment has turned out to be more punitive than could realistically have been anticipated. Nor could her Honour have contemplated the extent to which the applicant's mental state would have deteriorated since she went into custody for these offences. In particular, her Honour's expectation of there being a high likelihood that the applicant would receive therapeutic services in prison that would assist in parole eligibility had proved to be utterly misplaced. In fact, there is not the slightest chance that the applicant would be given parole, having regard to her conduct in custody. In that way, ground 3 of the application is clearly made out.

57 What we were able to ascertain from Ms Coombs regarding the new Rosewood Unit suggests that it may represent a small improvement, so far as the applicant is concerned in her conditions of incarceration. We were told, for example, that there will be no handcuff regime of any kind within the Rosewood Unit, though it was emphasised that if the applicant is not able to control her behaviour, she may not be able to remain there.

58 At this stage, the Rosewood Unit represents only the most modest improvement so far as the applicant's conditions in custody are concerned. We were told that she will be permitted two hours (rather than one hour) a day, out of her cell. We understand that it is hoped that her conditions of incarceration may be relaxed depending upon how she behaves within the Rosewood Unit.

59 We are constrained to say that none of this is even remotely acceptable, still less satisfactory. Even within the Rosewood Unit, the applicant will be denied any real opportunity for proper treatment. She is also likely to be denied appropriate access to consultation with medical and other professional service providers.

60 Having given this matter careful consideration, the position we have arrived at is far from ideal. We have available to us a good deal of material regarding the applicant's situation that was not before the sentencing judge. We consider that, in accordance with Eliasen, and in the very unusual circumstances of this case, the applicant's total effective sentence of 3 years' imprisonment has been shown to be manifestly excessive. That is because the burden of the sentence to be served by her will be greatly increased by reason of her mental impairment, and associated disorders. As a consequence there is a real risk that the term of imprisonment to which the applicant was sentenced might seriously and adversely impact her mental health, and therefore her prospects of being able to rehabilitate in the community, when she has completed that term.

61 Accordingly, we would grant leave to appeal against sentence, on the basis that grounds 1 and 3 are made out. We would treat the appeal as having been heard and determined. We would substitute for the individual sentences that were imposed in the court below, sentences in the following form:

[s 79A Crimes Act 1958]

[s 74 Crimes Act 1958]

[s 79 Crimes Act 1958]

[s 321M & s 321P Crimes Act 1958]

[s 79A Crimes Act 1958]

[s 321M & s 321P Crimes Act 1958]

Driving a motor vehicle when directed to stop (first offence)

[s 64A Road Safety Act 1986]

[s 18(1)(a) Road Safety Act 1986]

[s 30B Bail Act 1977]

Detainee possessing item without authority - police gaol

[s 15(4) Corrections (Police Gaols) Regulations 2015]

6AAA Statement: 4 years' imprisonment with a non-parole period of 2 years and 4 months

- Disposal order

- Driving license or permit cancelled and disqualified from obtaining a new permit or license for a period of 5 years.

62 We should acknowledge the assistance that Corrections Victoria provided to the Court in this matter (as we have already done in relation to Ms Coombs). The sad thing is that there is no proper facility available for dealing with someone in the applicant's situation, and that situation urgently needs to be remedied.

63 We should also say that we are in no way critical of the sentencing judge's approach to this most difficult and sensitive matter. We allow this appeal on the basis of information that has become available to this Court, but which was not available to her Honour, on the specific basis of the Eliasen principles.

64 It is to be hoped that when the applicant is eventually released, she may take up the accommodation said to be available to her through Jesuit Social Services, and thereby receive the treatment that she so desperately needs, and which the community ought to provide.

[1] 25 penalty units or 3 months is recorded as the applicable maximum penalty in her Honour's reasons for sentence, DPP v Teryaki [2018] VCC 1876 ('Reasons') 7 [66].

[5] Ibid [118]-[120] (emphasis added).

[7] R v Verdins [2007] VSCA 102; (2007) 16 VR 269.

[8] (1991) 53 A Crim R 391.