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[2011] VSCA 438
Court of Appeal (Vic)
2011-12-20
Warren CJ
Original judgment source is linked above.
R v Filippi, Kosterman and Vergados (Unreported, County Court of Victoria, Judge Lacava, 10 August 2009)
CRIMINAL LAW - Appeal against sentence - Appellant convicted of numerous property and violence offences committed during methamphetamine binge - Young offender suffering mental impairment and depression - Appellant sentenced to eight years' imprisonment with a non-parole period of five years and four months' imprisonment - Sentence manifestly excessive - Failure to properly moderate sentence by reason of appellant's mental impairment and depression - Appeal allowed - Appellant re-sentenced to five years and six months' imprisonment with a non-parole period of three years and six months' imprisonment.
1 On 1 May 2009, the appellant pleaded guilty to a number of violence, arson, motor vehicle and property related offences for which he was sentenced on 10 August 2009 to a total effective sentence of eight years' imprisonment with a non-parole period of five years and four months' imprisonment, disqualified from driving for five years, and ordered to pay compensation of $42,500. The appellant was sentenced to the following individual terms of imprisonment for these offences:
100 penalty units or two years' imprisonment or both
2 The appellant seeks leave to appeal his sentence on five grounds. Ground 1 asserts manifest excess in both the total effective sentence and each individual sentence. The appellant relies on his early guilty plea; the absence of any prior history of violent offending; his mental impairment; his youth and prospects for rehabilitation; his drunkenness and drug addiction; and his depression. The remaining four grounds allege discrete errors which overlap with the appellant's submissions under ground 1. The appellant submits that the learned sentencing judge failed to have any, or any adequate, regard to his impaired mental functioning (ground 2); gave inadequate weight to his youth and prospects of rehabilitation (ground 3); failed to have any, or adequate regard, to the connection between his drunkenness and/or drug addiction and his offending (ground 4); and gave no, or inadequate, weight to evidence of his depression (ground 5).
4 The offences were committed on three occasions over a two week period between 30 December 2008 and 13 January 2009 when the appellant went on what he described as a 'two to three week ice[2] binge'.
5 On 30 December 2008, the appellant broke into a house (count 1, burglary). He stole cash to the value of $1,000, a computer, a television, a mobile phone, and a set of car keys (count 2, theft). Those car keys allowed him to steal the owner's car; a new Toyota Kluger four-wheel-drive (count 3, theft).
6 On 4 January 2009, the appellant was travelling on a tram with two men, Filippi and Kosterman. Their tram passed a tram stop on the opposite side of the road at which a young man named Downs was sitting. Downs was a stranger to the appellant and his companions. One of Filippi, Kosterman and the appellant gestured rudely at Downs, and he returned the same gesture. The appellant and his two co-offenders disembarked at the following tram stop and boarded the next tram travelling in the opposite direction. Downs attempted to board that second tram when it stopped. He was met in its centre doors by Kosterman who punched him on the chin. After getting on the tram, Downs was set upon by all three men who began punching him, and then struck him over the head with the base of a 'long-neck' beer bottle. As he escaped off the tram and ran away the beer bottle was thrown at him.
7 The learned sentencing judge correctly described this as 'a vicious, cowardly and unprovoked attack.' Downs suffered serious injuries which left him with ongoing facial scarring. In particular, he sustained a laceration to his right temple requiring six sutures, a laceration to the top of his head requiring three sutures, bruising to his left temple and under his eye, and two chipped teeth which required root canal treatment and capping. Neither the appellant nor his two co-offenders admitted to hitting Downs with the beer bottle. It was accepted that each of them were equally culpable for this offence having acted in concert. For this attack, the appellant was convicted of one count of intentionally causing serious injury.[3]
8 On the evening of 13 January 2009, the appellant was driving the stolen Toyota Kruger (summary charge 36, unlicensed driving). He arranged to meet a friend, Kinross. She brought her sister, and a friend named Wilcox. The appellant and Kinross took turns driving the car around the Heidelberg area. Whilst Kinross was driving the car down Oriel Road she saw a group of seven males crossing the road outside the West Heidelberg Mall (the 'group'). The group included Alford, Inglis, Sideras, Makin, Staff and Smith. The appellant grabbed the steering wheel without warning with his right hand and swerved the car as if to try and hit the group at the same time yelling "Run them over, run them over" (count 4, reckless conduct endangering a person) Kinross forcefully pushed the steering wheel in the opposite direction to avoid hitting anyone.
9 As the vehicle continued past the group, Kinross and Wilcox recognised some of its members and turning the car around drove back to talk with them. The occupants of the vehicle and the group spoke for about two minutes before the appellant, apparently angry that one of the group members was holding a bar taken from a supermarket trolley, began yelling abuse. The appellant made comments such as: "What are you gunna do with the stick. I'll run ya's all over."
10 Kinross drove away and turned the car into Tobruk Avenue off Oriel Road, and then into a street which branched off Tobruk Avenue. The appellant pulled the steering wheel down for a second time forcing the car to crash into some bushes. He said to the females in the car "Get out. I'm going to find your sister's mates to kill them. You can make your own way home from here."
11 The appellant then drove the car back down Tobruk Avenue and into Oriel Road. Another car driven by a man named Jowett had stopped on the same corner. Jowett had gotten out of his car and was speaking to the group on the nature strip. Whilst they were talking, the appellant drove his car out of Tobruk Avenue (with his headlights turned on) and up to the rear of Jowett's car. Without warning, he accelerated over the gutter, up onto the nature strip and drove directly at the group. Witnesses estimated his speed at between 40 kph and 60 kph. Some group members were unable to get out of the way and were struck by the Toyota Kruger.
12 Of the group, Alford suffered serious injuries, including a fractured right ankle and elbow, a lacerated liver, facial fractures, a fractured rib, a laceration requiring seven sutures above his right eye, right subdural bleeding, and grazes, cuts and abrasions to his body (count 5, recklessly causing serious injury). Staff suffered injuries including bruising and grazes to his lower body and ongoing problems with his back (count 6, recklessly causing injury). Inglis suffered a graze to his left knee, a cut to his right knee, and grazes to the toes on his right foot (count 7, recklessly causing injury). The appellant did not stop to render assistance to the injured group members (count 8, failing to render assistance). Emergency services attended the scene a short time later.
13 Later that night the appellant drove the stolen vehicle to a park known as the Sullivan Memorial Park. The particular day, 13 January 2009, was a day of total fire ban. There he set fire to the car (count 9, arson; summary charge 39, lighting a fire on a day of total fire ban). The car was completely destroyed. Furthermore, the car fire burnt out several acres of parkland adjacent to residential properties before being extinguished.
The appellant's personal circumstances****[4]
14 The appellant was born on 17 April 1988. He was twenty years old at the time of his offending and twenty one years old when sentenced. He is now twenty three years old.
15 The appellant is the youngest of three children. His parents are first generation immigrants from Greece. After coming to Australia, his father worked as a factory-hand, whilst his mother worked at home. His home life was stable and he enjoys a supportive relationship with his parents and siblings.
16 The appellant attended a local primary and then a series of secondary schools, the last of which was a special school. His highest level of attainment was described as a 'Year Seven pass'. He is effectively illiterate.
17 The appellant began to use alcohol at the age of nine. At the age of twelve he began to use marijuana. In his early teenage years he also began to use methamphetamine to which he became addicted. The appellant used alcohol, marijuana and methamphetamine until he was incarcerated. Whilst in prison prior to being sentenced, he was the subject of at least two urine tests to which he tested negative.
18 When the appellant was thirteen years old his parents sent him to live in Greece with relatives to separate him from a negative peer group. He returned to Australia some years later and from the age of sixteen lived 'in and out' of his family home because of his methamphetamine abuse. He was offered, but refused a Disability Support Pension. At the time of the offending he was unemployed, although he had previously worked for six months making roof insulation. Between being arrested and sentenced, the appellant had begun working in the prison laundry.
19 At seventeen, the appellant began a relationship with a young woman which continued for three years. That relationship produced a daughter before ending acrimoniously, which was apparently a trigger for the appellant's self-confessed 'ice binge' and the offences committed during that period.
20 The appellant had no prior convictions for offences of a violent nature. He had seven prior appearances for theft, handling stolen goods and driving without a licence. It is relevant to the appellant's disposition to set these matters out.
Dismissed without conviction on undertaking to be of good behaviour for six months.
Adjourned without conviction to 14 April 2006 upon entering into a bond of $100 to be of good behaviour in the meantime.
Sentenced without conviction to be released on probation for 12 months on condition that appellant attend drug and alcohol counselling and appropriate day program.
Sentenced without conviction on Community Based Order for 6 months on condition that appellant perform 25 hours of community work.
Sentenced without conviction on Probation to 9 November 2007.
21 The learned sentencing judge also had the benefit of two psychological reports prepared by a Dr Gee dated 14 May and 30 July 2009 respectively.
22 The first of those reports was prepared at the request of a Magistrate. This came about because, at the same time as the appellant was facing the charges out of which this appeal arises, he was also facing multiple drug, violence and property charges in the Magistrates' Court.
23 First, the appellant was charged with stealing and then selling a motorcycle, as well as purchasing two stolen motorcycles. Secondly, the appellant was charged with cultivating, using and possessing cannabis, in this case four marijuana plants which he was growing at his home. Thirdly, the appellant was charged with assaulting his de facto partner during an argument in their home.
24 The second psychological report was requested by the learned sentencing judge.
25 The two reports largely overlap. In both reports by Dr Gee, the appellant's cognitive abilities were 'estimated to fall within the extremely low - borderline range'. He was assessed as exhibiting 'symptoms consistent with a depressive state' including 'visual and auditory hallucinations' and as meeting the criteria for 'Major Depression and Substance Dependence'.
26 Dr Gee concluded in his 30 July 2009 report that:
...Mr Vergados's formative years were characterised by considerable social disruption, learning difficulties, bullying by his peers, poor academic attainment, a limited sense of identity, and an undermining of his self-esteem. Similarly, his transition through adolescence appeared deprived of adaptive and prosocial experiences. That is, following his return from Greece when aged 15 years, Mr Vergados became increasingly dependent on alcohol and illicit substances as a source of self-regulation; experienced a lack of secure intimate/adult relationships; was potentially subjected to abuse (although the exact nature and timing remains unclear); failed to obtain/maintain gainful employment; presented with an escalating pattern of aberrant behaviours; maintained an antisocial peer network; and appeared to further entrench antisocial attitudes and beliefs. Taken together, these experiences have led to the development of several interlinking psychological mechanisms that appear to underpin his current disposition; and in part help explain his past aberrant behaviour. These factors include, amongst others: emotional and behavioural mis/dysregulation (resulting in unstable mood, impulsivity, increased frustration, 'acting out' during times of distress, an external loss of control, and a reliance on substances); deficits in cognitive capacity (limited problem solving skills, a tendency to express himself non-verbally), social skills deficits (low self-efficacy - especially with respect to prosocial functioning outside of the drug culture); and antisocial attitudes/pro-criminal thinking style (resulting in limited consequential thinking, a perceived need for autonomy, anti-authoritarian stance).
...Mr Vergados presents with significant limitations in his cognitive/intellectual functioning; which, at very least, would hinder his ability to adaptively interact with the world around him. Such deficits would also increase Mr Vergados' tendency to rely on behavioural expression, as he clearly struggles to express his distress in more adaptive ways. At present it remains somewhat unclear if the noted perceptual experiences (that is, auditory and visual hallucinations) are indeed part of a psychotic process; or whether they stem from underlying Trauma-based symptomology.
27 The appellant's prospects of rehabilitation were assessed as being dependant upon treating his mental and substance abuse problems:
In light of Mr Vergados's history, together with his current clinical picture, he presents with at least a Moderate-High risk of future general violence in the community if no further intervention is provided. However, this risk would be dependant on, and moderated by: ongoing monitoring of his mental state and alcohol/substance dependence; where he resides; his motivation for intervention; what clinical services he accepts/receives; his ability to self-monitor and regulate cognitive/behavioural/emotional states; his desire to remain offence free, especially during times of adversity; and his ability to accept and maintain pro-social adjustments.
28 In this case, it is convenient to approach manifest excess by reference to the particular submissions made under cover of grounds 2 to 5.
29 I turn first to ground 2. It was not disputed before this Court that the appellant suffered, and continues to suffer, from a cognitive deficiency that satisfies the definition of a mental impairment for the purposes of those propositions set out in R v Tsiaris[5] and elaborated and refined in R v Verdins.[6] Verdins established that a temporary or permanent impairment in mental functioning was relevant to sentencing in at last 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.
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]
30 However, no submission that these principles ought to be applied in the present case was made on the plea.
31 In his sentencing remarks, the learned sentencing judge extracted those paragraphs of Dr Gee's second report which I have already set out[8] and indicated that he had taken that report into account.[9] His Honour then stated that '[t]here are further sentencing principles that it is important to note', and proceeded to discuss general deterrence, specific deterrence, community protection, rehabilitation and denunciation. His Honour did not explicitly state that the appellant's sentence had been moderated by reason of his cognitive impairment.
32 The appellant submits that the sentencing judge should have moderated his sentence because his cognitive impairment in combination with his youth and drug addiction reduced his moral culpability as well as the need for specific and general deterrence and increased the burden of any imprisonment upon him.
33 Ordinarily, when an offender is represented on the plea, the sentencing judge is not required to consider the possible effects of any psychological or psychiatric disability other than those expressly relied on. The judge is not bound to scour evidence and other material in order to identify any unidentified psychological or psychiatric disability which may go in mitigation.[10] Two psychological reports were before the sentencing judge which clearly identified that the appellant suffered from both major depression and a serious mental impairment. Significantly, those reports drew a causal link between those conditions and the appellant's course of offending. Hence, in contrast with such cases as Zander and White, in my view, the necessity to consider the application of the Verdins propositions leapt from the page irrespective of the submissions made by the appellant's counsel on the plea.
34 Nevertheless, there was no indication before the sentencing judge that the offender's low cognitive ability would either significantly increase the burden of imprisonment or that his cognitive ability would deteriorate further by reason of that imprisonment. If anything, the material before the judge indicated that the supervision and structure of prison life had curtailed the appellant's drug use, had allowed him the opportunity to undertake constructive life-skill and drug use courses and also had provided him with the opportunity and motivation to work.
35 An offender suffering from a mental impairment may 'not [be] an appropriate medium for making an example to others'.[11] Whether that is so 'depends upon the nature and severity of its symptoms and its effect upon the mental capacity of the accused.'[12] The appellant's cognitive abilities were estimated by Dr Gee to fall within the extremely low - borderline range. It is readily apparent that his cognitive deficiencies form the background to his life of ennui, drug use and criminality. They have prevented him from enjoying the normal path to adulthood experienced by most adolescents and young people. It is not difficult to identify a causal relationship between the appellant's borderline intellectual ability and his decision to respond to the break-up of his de facto relationship through drug and alcohol abuse and anti-social behaviour. The psychological material before the sentencing judge indicated that the appellant was prone to behavioural expression which was inclined to take anti-social forms. The volition and self-control present in a person of ordinary intelligence are lacking. These factors combined with his personal circumstance meant it was necessary to moderate the appellant's sentence to allow for a reduced need for general deterrence. Furthermore, insofar as the appellant suffered from a permanent impairment in his ability to reason consequentially, function as a member of the community, and exercise appropriate judgement, which in turn led to him forming and being susceptible to negative peer influence, the capacity of punishment to operate as a form of specific deterrence was also reduced.
36 Therefore, in my view the sentencing judge ought to have moderated the appellant's sentence having regard to the reduced need for both specific and general deterrence. It is not clear from his Honour's reasons that he did so, particularly when the severity of the sentence imposed is considered.
37 Insofar as ground 2 relates to the question of moral culpability, it was submitted on the plea that the offences[13] were committed whilst the appellant was under the influence of the drug ice. The ingestion of that drug appears to have engendered a violent, unpredictable psychosis which completely subsumed the appellant's ordinary mental functioning. It was that psychosis, rather than any mental deficiency, which impaired his judgment. Even were that not so, his mental impairment was not such that he would lack the understanding of an ordinary person of the gravity of his offending, its likely consequences or its criminal character had he not been suffering from the psychological effects of illicit drugs. Therefore, insofar as it concerns the offences set out in presentment Y00216712, the appellant's argument with respect to the first Verdins proposition must fail.[14]
38 I turn to the single count on presentment C0806490. It was not suggested that this offending was committed whilst under the influence of ice. There was no evidence that the appellant's low-borderline cognitive ability impaired his ability to understand the gravity of this offence, or its likely consequence. [15] However, I do not regard that as the end of the enquiry. As I have already discussed, the psychological material before the learned sentencing judge indicated that the appellant's low-borderline cognitive abilities impaired his capacity for independent thought, his ability to exercise sound judgment, and rendered him susceptible to negative peer influence and impulsive behaviour. Much like a child he appears to have been inclined to 'go along' with the rest of the group, Filippi and Kosterman. Whilst there was no evidence that any member of this group was the 'ringleader' of the assault, it was not disputed that Kosterman struck the victim Downs first as he entered the tram through its centre doors, and that the appellant and Filippi only joined in once Downs had boarded the tram. By reason of the appellant's peculiar susceptibility to negative peer influence, and his limited ability to exercise ordinary judgment, I would regard his moral culpability for these offences to have been reduced giving rise to a corresponding need to moderate his sentence for this offence. In contrast, the appellant's other offences were committed by himself alone. It does not appear that the learned sentencing judge made such an allowance, or if his Honour did so, he failed to make that fact explicit in his reasons.
39 From the foregoing, it appears that the learned sentencing judge failed to make sufficient allowance for the appellant's impaired mental functioning in accordance with the third and fourth Verdins propositions as regards the entirety of the appellant's offending, and an additional allowance for the appellant's reduced moral culpability with respect to the single count on presentment C0806490. However, I hasten to add that a submission based on Verdins was not put on the plea and it ought to have been. Hence, it was difficult for the sentencing judge in all the circumstances. It follows that ground 2 is made out both as to the approaches to general and specific deterrence and the application of Verdins.
Ground 3 - the appellant's youth and prospects for rehabilitation
40 I turn next to ground 3. The appellant submits that the learned sentencing judge failed to give sufficient weight to his youth and prospects of rehabilitation and placed too much emphasis on punishment. In his sentencing remarks, his Honour emphasised that 'the importance of [the appellant's] rehabilitation [could] not be overstated' and his need 'to be given access to proper programs to enhance [his] prospects of not re-offending when released'. The judge drew attention to the need to treat the appellant's 'depression' and provide him with 'education in language and job skills'. His Honour stated:
The law in this state provides that in sentencing a young offender youth should be a primary consideration for the sentencing court where that matter properly arises as it does here. Further, in sentencing a young offender rehabilitation is usually far more important than application of the principle of general deterrence
41 There is no indication that the sentencing judge failed to have regard to the appellant's youth, and the consequent need to give great consideration to the issue of rehabilitation. Quite the contrary. This case involved alcohol and drug fuelled violence, including striking a stranger in the face with a glass bottle, sometimes known as 'glassing', and the reckless and dangerous use of a motor vehicle.
42 In assessing the appellant's prospects for rehabilitation, it is clear that the learned sentencing judge relied upon the forensic reports provided to him. As I already observed, the second report of Dr Gee assessed the appellant as having 'a Moderate-High risk of future general violence in the community if no further intervention [was] provided'.[16] No conclusions could be drawn that the appellant was capable of addressing his alcohol and substance abuse issues at the time of the plea, and his Honour properly made no prediction about the appellant's rehabilitative prospects.
43 However, the judge appears to have overlooked the fact that the appellant had worked for six months making insulation before being incarcerated. In his sentencing remarks he describes the appellant as never having worked, despite that particular period of employment being noted in both of the psychological reports prepared by Dr Gee. Again, he does not appear to have received the assistance on the plea that he ought. The oversight may find its genesis in counsel for the appellant below making the following erroneous statement during the plea:
He's a gentlemen who has never had employment and the barriers to that, or the barrier, the main barrier to that is of course his level of literacy.
44 The period of employment making insulation had, and has, bearing on the appellant's prospects for rehabilitation. However, in light of the appellant's overall circumstances, his long history of petty criminality and drug and alcohol abuse and the fact that Dr Gee observed a 'level of pro-criminal thinking' in him, I do not regard this error as likely to have seriously altered the learned sentencing judge's opinion of the appellant's prospects for rehabilitation.
45 Therefore, ground 3 of the appellant's notice of appeal must fail.
Ground 4 - impact of the appellant's drunkenness and drug addiction on his moral culpability
46 Relying on the decision in R v Koumis,[17] the appellant submitted that the learned sentencing judge ought to have found that his moral culpability was reduced by reason of his high level of drug use at the time of the offending. The judge observed in his reasons for sentence that the appellant's offending was 'said to be drug related through ingesting amphetamines,'[18] but his Honour refused to moderate the appellant's sentence by reason of his 'drug addiction'. Relying on Koumis his Honour stated that '[d]rug addiction provides no justification for the purposes of sentencing.'
47 The decision in Koumis was concerned with the effect that drug addiction would have on the moral culpability and rehabilitative prospects of an offender convicted of trafficking a drug of dependence in order to satisfy that addiction. It was not, as is the case here, concerned with any relationship between criminal offending and the psychological effects of ingesting drugs. Such cases are governed by the principles laid down by this Court in Director of Public Prosecutions v Aryanitidis.[19]
If the respondent was aware that by taking the drug, his judgment would be so affected that he would behave irrationally or that it would effect his ability to exercise control, his self-induced mental state would not constitute a mitigating circumstance. It was for the respondent to establish on the balance of probabilities that he did not know that the drug would have such effects.
48 No evidence was led by the appellant on the plea, and no new evidence has been led before us, which establishes that the appellant was unaware of the effect that the voluntary ingestion of ice would have on his behaviour. An argument might be made that insofar as the appellant suffers from impaired mental functioning, his moral culpability for his drug induced criminal offences might be reduced because, despite being aware of the risks of ingesting drugs, his was incapable of exercising the judgment reposed in an ordinary person to assess the likely consequences of his behaviour. However, no such argument was made on behalf of the appellant.
49 The learned sentencing judge properly accepted that the appellant's former drug addiction was relevant to his prospects of rehabilitation. There was no indication, especially in light of the material prepared by Dr Gee that his Honour misapprehended those prospects as they existed at the time of sentence.
51 Relying upon Verdins, the appellant contends that although the learned sentencing judge referred to the concluding section of Dr Gee's report, which included a diagnosis of 'Major Depression', he failed to moderate the appellant's sentence by reason of that fact. He submits that such depression was relevant to the first, third, fourth and fifth propositions articulated in Verdins.[20] Again, this argument was not made on the plea, although it was open on the evidence before the sentencing judge.
52 It is clear from his Honour's reasons for sentence that he was conscious of the appellant's depression. His Honour recognised the need to treat that depression whilst the appellant was incarcerated. However, his Honour did not address explicitly the question of whether or not that depression required the appellant's sentence to be moderated.
53 In order for the first, third and fourth principles enunciated in Verdins to have application to the sentencing task, there must be a connection between the mental impairment and the appellant's moral culpability or the need for general and specific deterrence. In this case, I cannot identify a connection of sufficient strength to warrant any significant moderation of the appellant's sentence. The appellant's depression as described in the Dr Gee reports appears to stem from his incarceration, no doubt compounded by the serious charges which he was facing at the time, the prospect of a lengthy jail sentence and the psychological effects of drug withdrawal. There was no need to seriously moderate the sentence by reason of the depression arising under the first, third and fourth Verdins propositions. In my view, it was not a factor which ought to have been accorded significant if any weight by the learned sentencing judge.[21]
54 However, in my view, the appellant's sentence ought to have been moderated by reason of his depression pursuant to the fifth Verdins proposition.[22] When regard is had to the length of the sentences imposed, both individually and collectively, the inference is difficult to escape that his Honour failed to accord sufficient weight to the increased burden of incarceration that the appellant would suffer by reason of that depression. In my view, that failure constituted error, and appears to have resulted in the sentencing task miscarrying.
55 Therefore, to the extent the learned sentencing judge failed to accord sufficient or any weight to the effect of the appellant's depression on the burden of imprisonment, ground 5 is made out.
56 It is now possible to consider manifest excess more broadly.
57 Under ground 1, the appellant submits that the individual sentences, the total effective sentence and the non-parole period are manifestly excessive.
58 In respect of count 7, recklessly causing injury, and the summary charge of lighting a fire on a day of total fire ban (summary charge 39), the appellant submits that the sentences are manifestly excessive even without having regard to his personal circumstances.
59 Sentencing is not a process amenable to segregating objective and subjective factors and then analysing the sentence imposed only by reference to one or the other of these two subsets.[23] Therefore, it is not possible to accept a submission about the excessive nature of this individual sentence without having regard to all the factors relevant to the proper exercise of the sentencing judge's discretion.
60 At the hearing of this application, counsel for the Crown conceded that the sentence imposed with respect to summary charge 39 was excessive and, therefore, attended by error.
61 Under cover of ground 1, the appellant also submitted that the sentence imposed with respect to summary charge 39 fell foul of the principle enunciated in Pearce v The Queen which forbids double punishment for a single act forming an element of two separate, but charged, offences.[24] That submission was no doubt correct. However, in my view making it under cover of ground 1 was misconceived. An argument that a sentence is manifestly excessive is itself an admission that a specific error cannot be identified, but can be inferred from the plainly unreasonable and unjust result arrived at in the exercise of the sentencing discretion.[25] Nevertheless, to the extent that the appellant falls to be re-sentenced by this Court, the rule against double punishment must be properly integrated into the sentence imposed.
62 To complete consideration of ground one, I turn first to the individual sentences imposed on the appellant, and the orders for cumulation made with respect to those individual sentences.
63 In my view, the sentences imposed with respect to the first occasion offending, and the orders for cumulation of those sentences were manifestly excessive, even in light of the appellant's previous property offences. The appellant received two years each for, first, breaking into a house, secondly, stealing cash and electronic goods from those premises, and thirdly, using keys taken during that burglary to steal a motor car. One year of the sentence for stealing a motor car was cumulated as part of the appellant's total sentence. These sentences were out of proportion to the offending in question. In particular, to order one year of imprisonment to be served by a young offender for stealing a car ignored the need for rehabilitation in such cases. Therefore, his Honour erred in both the individual sentences imposed on these counts and the order for cumulation which he made with respect to count 3 of presentment Y00216712.
64 The appellant received a three year sentence with respect to the single count on presentment C0806490.
65 This Court has expressed repeated concern with the phenomenon known as 'glassing'.[26] In the ordinary case, the appellant's behaviour would warrant great weight being given to the principles of denunciation and general and specific deterrence.[27] However, in light of the appellant's impaired mental functioning it was necessary to moderate the sentence to make allowance for his lower moral culpability, and the reduced need for general and specific deterrence. No proper allowance appears to have been made for this.
66 The appellant's use, both attempted and successful, of the stolen car in which he was travelling as a weapon represented a serious violation of community safety. Of particular concern is the fact that the victims of the appellant's attack were unknown to him. It appears that at the time at which these offences were committed the community at large was at risk from the appellant, who was in control of a large motor vehicle. It was indeed most fortunate that no-one was killed by the appellant.
67 In cases involving 'wanton and unprovoked viciousness', the Court has observed that 'youth and rehabilitation must ... take a "back seat" to specific and general deterrence.'[28] In the instant case, that principle must be tempered by the need to moderate the appellant's sentence by reason of the factors particular to him. However, I cannot regard the sentences of two years' imprisonment, three years' imprisonment, and two years' imprisonment imposed on counts 4, 5 and 6 as excessive. These are all appropriate sentences in light of the appellant's conduct, the risk it created, and the need to deter others from acting in a similar manner, even if that need is moderated by the appellant's personal circumstances.
68 However, I can find no reason for the distinction the learned judge drew between counts 6 and 7 in light of the injuries sustained by the respective victims of those counts. His Honour provided no reasons for the year long difference between these two sentences. His Honour did not explain why it was that he ordered differing periods of cumulation with respect to these two counts; nor why a higher level of cumulation was ordered with respect to the sentence imposed on count 7 than was imposed in respect of the higher individual sentence imposed on count 6. In light of the nature of the injuries sustained by Inglis, compared with Alford, a sentence of three years' imprisonment was excessive.
69 I turn next to the count of failing to render assistance after an accident in contravention of s 61(3) of the Road Safety Act 1986 (Vic). The maximum penalty for that offence is ten years' imprisonment. This case did not involve an accident within the accepted meaning of that term. It was not disputed that the appellant deliberately accelerated the car which he was driving into the group. The appellant used that car as a weapon to effect an assault, akin to a knife or a gun. In these circumstances, little additional moral culpability attaches to his decision to leave the scene of the accident without rendering assistance; it followed inevitably, and was subsumed, in his decision to attack the group using the car in the first place. Nor would any deterrence operate on either the appellant or other members of the public if an additional penalty was imposed for this offence. Commonsense dictates that a person who decides to attack someone with a vehicle is unlikely to be induced to render assistance by the prospect of punishment for fleeing the scene of the assault. For these reasons, I regard the sentence imposed with respect of this count to be manifestly excessive.
70 Finally, the appellant's decision to light a fire close to a residential area in order to destroy evidence of his earlier offences was also a serious violation of community safety which again placed persons unknown to him, in this case the residents living around the location of that fire, at risk. It was a dangerous act, presumably carried out to conceal and avoid detection for his previous offences. Community safety, and its maintenance, must be prominent in imposing sentences for arson, and create a need for both denunciation and, in particular, general deterrence.[29] The fact that this act of arson occurred on a day of total fire ban, aggravated that risk and called for a greater measure of denunciation and deterrence,[30] though allowance for that fact fell to be made under the rubric of summary charge 39, rather than count 9, to avoid doubly punishing the appellant for this offence. In the instant case, the need for general and specific deterrence required moderation in accordance with the third and fourth Verdins propositions. Taking all of the appellant's personal circumstances and the nature of the fire started into account, I regard the sentence imposed to have also been manifestly excessive and erroneous.
73 On the hearing of the appeal, counsel for the appellant tendered a new psychological report prepared by Dr Cunningham and dated 19 September 2011. The Crown did not object to that report being admitted into evidence. I do not believe this document sheds any substantial, new light on the facts as they existed at the time the offences were committed or the appellant was sentenced. However, five points require consideration.
74 First, the report indicates that as well as working previously at making roof insulation, the appellant worked as a roof tiler with his uncle whilst living in Greece. Secondly, the report notes that his depression and anxiety have improved, but not abated whilst in prison, and that he has ceased taking any medication for these conditions. Thirdly, it purports to describe the appellant's mental state at the time of each occasion of offending. These statements appear to be self-serving and inconsistent with the facts of those offences as considered on the plea. I accord no weight to them. Fourthly, Dr Cunningham concludes that the appellant's 'Intellectual Disability impaired his judgment with respect to his offending behaviour and their consequences' and made him vulnerable to 'negative peer association and drug abuse'. He states that the appellant's 'methylamphetamine abuse would have caused further impairment in his thinking and reasoning skills'. For the reasons already discussed, I believe that fact was sufficiently clear from the reports prepared by Dr Gee, and required greater weight to be accorded to the appellant's mental impairment by the learned sentencing judge than appears to have been the case.
75 Fifthly, Dr Cunningham concludes that imprisonment would have a 'significant[ly] adverse affect' on the appellant's mental health by placing him at serious risk of institutionalisation and negative peer influence. Again, I am not convinced that the appellant is at greater risk of institutionalisation by reason of his mental impairment. From the evidence before us, including that provided to the Court after the hearing of the application,[31] it appears that the appellant has responded well to the structured environment of prison, has worked, and continues to work there, has completed a number of courses designed to address his behaviour and substance abuse problems, and has consistently tested negative during repeated drug screening.[32] Indeed these facts formed part of the submissions made by his counsel.
76 The experience of the appellant in prison allows us to accord weight to the appellant's rehabilitation which the learned sentencing judge could not. I also note on this point, that the appellant showed a similar capacity to work and address his drug and alcohol issues when he was sent to Greece and was placed in a structured environment away from negative peer influence.
77 As I have already mentioned, at the time of the plea, the appellant was facing concurrent charges in the Magistrates' Court. On 27 August 2011, the appellant pleaded guilty and was convicted of some of those charged offences. Whilst, it is unclear what became of the remaining charges, the appellant received a five month aggregate sentence for one count of possessing cannabis, one count of using cannabis, six counts of recklessly dealing with the proceeds of crime, one count of burglary, and one count of failing to answer bail. In all the circumstances of this case, I do not attach any particular weight to those convictions.
78 During oral argument, counsel for the Crown pressed that because the appellant suffered a permanent mental impairment which will not diminish over time, he was not a fit vehicle for the application of the principles articulated in R v Mills[33] should he be re-sentenced by this Court. In my view, that argument was misconceived. It is certainly not to be found, or able to be drawn by implication, from any of the precepts or reasons expressed in that case.[34] More recently, this Court in Azzopardi[35] has confirmed that view. It is not disputed that the appellant is the subject of a permanent mental impairment that will affect his prospects for rehabilitation. Nevertheless, the appellant is a youthful offender. Within the scope of his own diminished capacities, it is expected that he will mature over time. His capacity for reform and rehabilitation are demonstrated by his ability not to abuse illicit drugs whilst imprisoned, his capacity to engage constructively with his own depression and his decision to undertake work whilst incarcerated. The community retains a strong interest in ensuring, both for the appellant's benefit and also its own protection, the appellant's rehabilitation. The principle articulated in Mills is equally apposite to the instant case. Nevertheless, as the learned sentencing judge observed, that principle must take account of both the serious nature of the offences of which the appellant has been convicted, and also of his prior criminal convictions.
79 Having regard to all of these considerations I would re-sentence the appellant as follows. For each of the appellant's property offences, being counts 1, 2 and 3, I would impose a sentence twelve months' imprisonment on counts 1 and 3, and six months' imprisonment on count 2. I would impose the same sentences as were imposed on count 4 (reckless conduct endangering life), count 5 (recklessly causing serious injury), and count 6 (recklessly causing injury). I would impose a sentence of two years' imprisonment on count 7 (recklessly causing injury), three months' imprisonment on count 8 (failing to render assistance after an accident), and one years' imprisonment on count 9 (arson). I would impose a sentence of two years' imprisonment on the single count on presentment C0806490 (intentionally causing serious injury). I would impose a sentence of three months' imprisonment on summary charge 39 (lighting a fire on a day of total fire ban).
80 I would order the count of intentionally causing serious injury on presentment C0806490 form the base sentence, that six months of the sentence imposed on count 3, two years of the sentence imposed on count 5, three months of the sentences imposed on counts 6 and 7, and five months of the sentence imposed on count 9 of presentment Y00216712 be cumulated on that sentence, as well as one month of the sentence imposed on summary charge 39, making a total effective sentence of five years and six months' imprisonment. As the Crown conceded before this Court, the appellant is an individual who would benefit from a longer parole period. I would order a non-parole period of three years and six months be served by the appellant.
81 I indicate that but for the appellant's early plea of guilty I would have imposed a total effective sentence of six and a half years and a non-parole period of five years' imprisonment.
82 For convenience, I set this out in the following table.
100 penalty units or two years' imprisonment or both
83 I agree with the Chief Justice that the appeal should be allowed and that the appellant should be re-sentenced as her Honour proposes.
[1] Although in his reasons for sentence, the sentencing judge indicated his intention to impose a non-parole period of six years' imprisonment, the endorsed return of prisoner indicates a non-parole period of five years and four months' imprisonment was actually imposed.
[2] 'Ice' refers to the drug crystal methamphetamine hydrochloride.
[3] This charge formed the only count on presentment C0806490. The remaining charges were contained within presentment Y00216712.
[4] The circumstances described are those set out in the material before the learned sentencing judge, rather than before this Court. Additional material was filed both during and after the hearing of the application which shed further light on the appellant's personal circumstances.
[6] [2007] VSCA 102; (2007) 16 VR 269 ('Verdins').
[9] Cf. Romero v The Queen [2011] VSCA 45, [11].
[10] R v Zander [2009] VSCA 10, [36] (Nettle JA): see also [33] (Dodds-Streeton JA) ('Zander'); R v White [2009] VSCA 177, [16]-[17] (Lasry AJA, Buchanan and Dodds-Streeton JJA concurring ) ('White').
[11] R v Anderson [1981] VicRp 17; (1981) VR 155, 159 (Young CJ and Jenkinson J).
[12] R v Wright (1997) 93 A Crim R 48, 51 (Hung CJ) ('Wright').
[14] See R v Wise [2007] VSCA 266, [16] (Ashley JA).
[15] See Wright 51. Even allowing for the appellant's impaired consequential thinking.
[16] Although this was conditional: 'However, this risk would be dependant on, and moderated by: ongoing monitoring of his mental state and alcohol/substance dependence; where he resides; his motivation for intervention; what clinical services he accepts/receives; his ability to self-monitor and regulate cognitive/behavioural/emotional states; his desire to remain offence free, especially during times of adversity; and his ability to accept and maintain pro-social adjustments.'
[17] [2008] VSCA 84; (2008) 18 VR 434, 438 [54]ff ('Koumis').
[18] Referring to his earlier statement: 'I was told that your offending in presentment Y00216712 occurred whilst you were under the effects of methylamphetamine.'
[21] 'Where the offender suffers from a mental illness or disorder at the date of sentence the sentencing court may have to make an allowance in the sentence, if it is determined that by virtue of that illness or disorder the offender is not an appropriate vehicle for general deterrence. Specific deterrence may also have to be moderated. But a reduction may not be required where the supervening condition arises because of the discovery of the offender's crime and the offender's reaction to the prospect of a lengthy term of imprisonment.' R v RLP [2009] VSCA 271, [26] (Neave and Redlich JA, Hollingworth JJA).
[23] Wong v R [2001] HCA 64; (2001) 207 CLR 584, 611 (Gaudron, Gummow and Hayne JJ).
[24] In this case, the original act of arson: Pearce v The Queen (1998) 194 CLR 610, 623-24 [40]-[43].
[25] House v The King [1936] HCA 40; (1936) 55 CLR 499, 504-5 (Dixon, Evatt and McTiernan JJ).
[26] See R v Winch [2010] 203 A Crim R 197; a summary of these cases may also be found in DPP v Giannoukas [2011] VSCA 296, [27]-[41] (Neave JA).
[27] Director of Public Prosecutions v Baran Aslan [2010] VSC 518, [21] (Whelan J).
[28] Director of Public Prosecutions v Lawrence [2004] VSCA 154; (2004) 10 VR 125, 132. See also, R v Azzopardi & Ors [2011] VSCA 372, [29]-[55] (Redlich JA, Coghlan and Macaulay AJJA concurring) ('Azzopardi').
[29] The Queen v Bowman (1998) BC9800473 [14] (Batt JA).
[30] AG v Bancroft 29 March 1982 CCA Vic.
[31] After the hearing, counsel for the appellant provided the Court with a supplementary note containing details of the appellant's experience in prison including his drug testing, work record and the educational qualifications he has received whilst incarcerated. This material indicated that the appellant continued to test negatively to drugs whilst imprisoned, and has worked in the kitchen and now the prison garden since being sentenced.
[32] Since being incarcerated the appellant has been tested for the presence of illicit substances thirteen times.
[35] [2011] VSCA 372, [29]-[55] particularly [44] (Redlich JA, Coghlan and Macaulay AJJA concurring).
Vergados
The Queen [2011] VSCA 438
(2008) 18 VR 434
(1998) 194 CLR 610
(1998) 4 VR 235
(2007) 16 VR 269
(2001) 207 CLR 584
(1936) 55 CLR 499
(2004) 10 VR 125