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[2018] VSCA 219
Court of Appeal (Vic)
2018-08-29
Ms J, Mr J, Maxwell P, Priest JA, Niall JA
Original judgment source is linked above.
DPP v Wilson (Unreported, County Court of Victoria, Judge Montgomery, 24 July 2015)
CRIMINAL LAW - Appeal - Sentence - Fresh evidence - Criminal damage, arson, theft - Sentenced to 5 years' imprisonment, 3 year non-parole period - Continuing criminal enterprise offences - Disgruntled employee sabotaged plant and equipment - Reduction of moral culpability on the basis of mental disorder - Further expert report obtained after sentencing - Fresh diagnosis of Autism Spectrum Disorder - Fresh evidence ground conceded - No alteration in sentence warranted - Orders for cumulation merciful - Leave to appeal granted - Appeal dismissed.
1 On 21 July 2015 the applicant pleaded guilty in the County Court at Ballarat to seven charges of criminal damage, three charges of arson, two charges of theft and one charge of burglary. The offending occurred between 1 May and 22 July 2014, when the applicant was 31 years old. He is now aged 35.
(25 years' pursuant to CCE provisions)[3]
(25 years' pursuant to CCE provisions)[4]
(25 years' pursuant to CCE provisions)[6]
Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:
8 years' imprisonment, with a non-parole period of 6 years
3 On 21 June 2017, the applicant filed a notice of application for leave to appeal against sentence, along with an application for extension of time ('EOT') within which to appeal. On 20 September 2017, the Deputy Registrar refused the EOT application. The applicant then elected to have the EOT application determined by the Court of Appeal.
4 On 24 January 2018, the applicant filed a revised notice of application for leave to appeal against sentence, and a revised written case which included a new ground (ground 4). On 9 April 2018, the court granted leave to add the new ground of appeal, and granted the EOT Application.
(a) The application of Verdins;
(b) Current sentencing practices;
(c) The applicant's motivation and intention;
(d) The objective circumstances and relative gravity of the offending; and
(e) Matters personal to the applicant.
6 The applicant was employed by DJP Scoria Pty Ltd (the 'company') at the time of the offending. He commenced work for the company in January 2014. The company was contracted to complete a carpark for a speedway at the relevant time.
7 The project site was at 395 Parwan Road, Parwan. Scoria are fragments of dark lava, often referred to as cinders or slag. The site was being converted into a carpark and the company dug up and sold the excess scoria.
8 The excess scoria was removed from the ground and put through a rock crusher, which crushed the scoria into different aggregates. The scoria was then run through a machine called an Extec screening plant, which ensured that the scoria was crushed to the size required for sale.
9 The applicant was employed to drive the front end loaders to load trucks with the scoria. He was one of three people working on the site. The others were James Carter, Director and Site Manager, and Simon Wilson, mechanic.
10 An Impact rock crusher, two Extec screening plants, three WA 500 front end loaders and a bulldozer were kept on the site and secured there overnight. The Extec screening plants were leased by the company from another company.
11 Between the evening of 26 March and the early hours of 27 March 2014, the Impact rock crusher and the two Extec screening plants were damaged by an unknown person or persons at the site. Dirt had been put into the engine oil intake of the crushing machine and the two screening machines. The applicant started the crusher as directed but it subsequently shut down because the dirt had been circulated throughout the engine. The dirt was located by Simon Wilson in the crusher, and then in the two screening plants.
12 As a result of the damage, Carter installed locks on all oil intakes and lockable screens on the access points of the engines. Sometime after the dirt was located in these three machines, the applicant told Simon Wilson that he had been talking to his (the applicant's) father and that they were lucky that the person who put the dirt in the engine did not put wax in the engine, because wax can set blocking ports and holes in the engine.
13 On 1 May 2014 at about 2:00 pm, there was a stoppage in the Impact rock crusher due to dirt build-up in the crusher feeder. The feeder was cleared. The applicant then inserted oil into the hydraulic oil tank of the rock crusher (charge 1 - criminal damage). The applicant then approached Carter and told him that there appeared to be wax around the filler cap. The presence of wax in the machine would not cause any damage while the machine was in operation, but Carter sought advice and drained a large quantity of hydraulic fluid to remove the wax. Carter then replaced it with 200 litres of hydraulic oil. Had the machine been turned off at the end of the working day the wax would have cooled and solidified, blocking the pumps and valves.
14 On 2 May 2014, the applicant put dirt into the hydraulic oil of the Impact rock crusher via the breather hole (charge 2 - criminal damage). Carter drained and replaced 400 litres of oil at a cost of $1,567.50.
15 On another occasion between 2 May and 30 May 2014, the applicant told Carter that he was going to the site after hours to check the equipment. Carter was concerned that it might not be safe for the applicant to go alone because he (Carter) thought someone was targeting the site and might harm the applicant. During that evening the applicant cut three wire looms on the Impact rock crusher (charge 3 - criminal damage). Either before or after doing so, the applicant sent a text message to Carter telling him that he had been to the site and everything was in order.
16 The following day Carter found that three wire looms had been cut on the Impact rock crusher. The damage to the electrical system cost $14,000 to repair.
17 On or about 14 July 2014, the applicant attended at the site. He set fire to the Impact rock crusher (charge 4 - arson). He also smashed the windows of the Big Bucket WA 500 front end loader with large rocks and set fire to it (charge 5 - arson). He also twice punctured the engine of the radiator to an Extec screening plant with an unknown object (charge 6 - criminal damage). The radiator cost $450 to repair.
18 On 14 July 2014 Carter was notified that there had been a fire at the site. He visited the site and observed the damage. Police were notified. Justyn Brennan, a forensic officer with the Victoria Police Forensic Services Centre, attended and analysed the damage caused to the Impact rock crusher and the WA 500 front end loader.
19 Brennan concluded that the cause of the fires on the Impact rock crusher was the ignition of the available combustible materials around the electrical box on the north-eastern side and around the electrical box and hydraulic box on the south-western side. He considered that direct ignition by way of a match or cigarette lighter was the most likely source, given that there appeared to be multiple ignition points on the rock crushing machine.
20 Brennan concluded that the cause of the fire in the WA 500 front end loader was the ignition of the available combustible materials within the passenger cabin, such as the seating material and foam, the dashboard, the fittings and the personal contents. The source of ignition considered most likely was direct ignition by way of a match or cigarette lighter.
21 The Impact rock crusher, valued at $330,000, could not be repaired. The bill for repairs to the burnt WA 500 front end loader was approximately $170,000.
22 Between 14 and 16 July 2014, the applicant put dirt in the hydraulic oil of the Big Bucket WA 500 Front End Loader (charge 7 - criminal damage). The dirt caused damage to the internal components of the engine and cost approximately $35,000 to repair.
23 On 16 July 2014, the applicant was driving the Small Bucket WA 500 Front End Loader. At some point whilst in charge of the machine, he made a hole in the machine's radiator (charge 8 - criminal damage). He then reported to Carter that the Small Bucket WA 500 Front End Loader had seized while he was driving it.
24 When Carter examined the engine he noticed a hole in the radiator, which was similar to the hole found in the Extec screening plant on 14 July 2014. Carter also observed that there was a wet patch on the ground below the radiator, which was indicative of the radiant coolant having leaked out while the machine was stationary, rather than while it was in motion as the applicant had described. The Small Bucket WA 500 Front End Loader was repaired for $5,000.
25 In July 2014, keys to the locked panel of the Extec screening plant were kept on site in a shipping container. The applicant had access to that container. On 17 July 2014, the applicant cut the wires on the Extec screening plant and stole its battery (charge 9 - criminal damage; and charge 10 - theft).
26 To cut those wires would have necessitated unlocking the locked panel. When Carter found that the wires on the Extec Screen had been cut, he saw that the panel was still locked. The battery was later located at the site under the chute for the Extec Screen.
27 On 22 July 2014, the applicant set fire to the Extec screening plant with firelighters he purchased from the supermarket (charge 11 - arson). The Extec screening plant was destroyed. It was valued at $200,000. Police were called. The scene was subsequently examined by John Kelleher, a forensic scientist at the Victoria Police Forensic Services Centre.
28 In relation to the Extec screening machine, Kelleher said that the pattern of damage suggested that the fire started in the engine compartment and had spread in both directions along the conveyor belts. The machine was not in use at the time of the fire, and the covers over the engine bay had been removed by cutting the padlocks with bolt cutters. The cut padlocks were beneath the locking mechanisms, and burning to the covers indicated they had been in place at the time of the fire.
29 Kelleher concluded that the cause of the fire was the ignition of combustible wiring, hoses and other parts in the engine bay. Remnants of firelighter material and what was probably a firelighter plastic packet were found on the north-eastern caterpillar track, indicating that firelighters were used to assist the ignition. The source of ignition was not determined, but was likely to have been a match or a cigarette lighter.
30 Prior to setting fire to the Extec screening plant, the applicant also forced his way into the office where security cameras had been installed. He took the two hard drives on which the security footage was recorded and placed them in the engine bay of the screening plant prior to setting the machine alight (charge 12 - burglary; and charge 13 - theft).
31 The applicant was arrested and interviewed on 22 July 2014. He made partial admissions. He denied causing damage to the Impact rock crusher in May 2014.
32 In relation to the arson offences committed on 14 July 2014, the applicant claimed that he cut the electrical wires and they had short-circuited, catching on fire. He stated that the embers from the rock crusher set the front end loader on fire. He stood and watched the fire burn. He admitted causing the damage to the windows and the radiator and said that he did this to make it look like vandals had been on site and started the fire.
33 He admitted to damaging the Extec screening plant and stealing the battery on 16 July 2014. He denied puncturing the radiator of the Small Bucket WA 500 Front End Loader.
34 He admitted setting fire to the Extec screening plant on 22 July 2014 using firelighters that he purchased at the supermarket. He admitted to breaking into the office and stealing the hard drives with the security footage.
35 On the plea, defence counsel relied on three expert reports, provided respectively by Dr Ranjit Menon, a consultant psychiatrist, Dr Lester Walton, another consultant psychiatrist, and Mr Anthony Stott, a registered psychologist. Particular reliance was placed on the reports of Dr Menon and Dr Walton.
36 The relevant part of Dr Menon's report was in these terms:
Impression:
A 31 year old man with a long history mixed anxiety and depressive difficulties with a more recent episode of an electric shock which potentially could have caused some concussion like syndrome which can usually result with increased anxiety, mood difficulties as well as cognitive difficulties with concentration. He reports subsequent of this he has developed this single voice which emanates from both inside head and outside his head which is egosyntonic with how he feels and which appears to tell him about the frustrations he is perceiving. This appears to be in the absence any other delusional beliefs of other modalities of perceptual abnormalities.
My findings at this stage suggest pseudo psychotic symptoms associated with mood difficulties and anxiety and potentially related to his recent concussion after the electric shock. However, I cannot categorically rule out a brief psychotic episode either. In any case this appears to be settling of its own volition, there are really no other factors right now that appear to be of concern except for his mood and anxiety. There are no other particular risk issues.[10]
37 The relevant part of Dr Walton's report was in these terms:
Routinely I strive, as much as is reasonably possible, to provide unequivocal diagnoses but in this case I confess to some uncertainty. There would seem to be no doubt about the fact that Mr Wilson has been troubled by fairly longstanding mood disturbance, at least intermittently. His mental state seems to have deteriorated, in terms of worse mood disturbance, after the incident of electrocution, which is a common enough phenomenon. It is after that incident that Mr Wilson begins to speak of hearing voices. They seem to be exclusively inside his head whereas auditory hallucinations indicative of psychotic illness are usually perceived to be external and, all things considered, I am inclined to concur with Dr Menon that the perceptual distortion amounts to so-called pseudo-hallucinations, heightened perception attributable to anxiety rather than a symptom of psychotic illness.
...
On the one hand, Mr Wilson, having been injured at work himself, had a straightforward and understandable concern about safety at the workplace which turned to resentment against his employer that changes towards better safer working did not occur. Thus there is an uncomplicated motive in relation to frustration and anger directed at the employer.
That is not necessarily mutually exclusive with behaviour which may have been delusionally driven or the product of irresistible command hallucinations but I remain to be convinced that those psychotic phenomena were occurring.
...
As indicated above, it is my opinion that this man's mental disorder has made some contribution to his offending and therefore the sentencer may view it as open to invoke Verdins considerations, at least to a relative degree. Now that Mr Wilson's psychiatric symptoms have subsided, the specific onerousness which may have attached to them if he is incarcerated is now diminished but not eliminated. Mr Wilson does impress as being quite terrified of being imprisoned and that might usefully be exploited by way of specific deterrence as I suspect that the mere threat of incarceration should be effective.
38 Counsel submitted that three 'potential findings' were open to the sentencing judge, namely, that the offending was the result of:
(a) simply a desire for vengeance;
(b) a combination of a desire for vengeance and impaired mental functioning; or
(c) impaired mental functioning alone.
39 Counsel submitted that, on the basis of the expert evidence, the judge should view the applicant's moral culpability as reduced and should also moderate the application of general deterrence. As to moral culpability, it was submitted that the applicant's impaired mental functioning had affected his ability to make a calm and rational choice and to think clearly.
40 Counsel summarised his submission as being that a
level of anxiety developed after Mr Wilson was electrocuted, and it's not the first time he suffered anxiety, but it certainly was the catalyst for this second round of anxiety. That built up by way of treatment by employers, by way of not being provided with compensation, having issues with the safety of the work equipment and the prospects of injuries to others. That was all manifested in his mind, but borne from the anxiety that he was contemporaneously feeling. ... [T]hen what appears to have happened is that the anxiety was at such a level that he was hearing voices.
41 After setting out lengthy extracts from the respective expert reports, the judge concluded as follows:
After a consideration of all of that material I am satisfied on the balance of probabilities to accept the conclusion of Dr Walton. That is, that your mental disorder made some contribution to your offending, however it was not the only factor affecting your behaviour at the time.
As I have said, if one carefully goes through Mr Stott's analysis it seems that finally he comes, more or less, to the same conclusion. Dr Walton is an eminent consultant psychiatrist who is very familiar to those of us in the criminal jurisdiction. After considering all those reports I have no hesitation in accepting his conclusion.
Dr Menon's report, and the history taken, supports Dr Walton's conclusion, but is conclusive as to a connection between the electric shock and what he described as [the applicant's] 'pseudo-psychotic symptoms'.
Finally; Mr Stott, as I have said, seems to come to a conclusion that is not dissimilar to Dr Walton's. [Counsel] asked me to consider obtaining a further report from Forensicare, but upon a detailed reading of those reports I am not convinced that such a report would further progress this submission. Thus, in sentencing you I take into account a reduction in your moral culpability, as expressed in the conclusion of Dr Walton. That is, your mental disorder made some contribution to your offending.
It is clear that there was an additional factor; that is, your resentment towards your employer borne out by a number of factors including the injury you suffered at work, your anger at being forced to return to work and your concern for workplace safety.[11]
42 The judge was critical of two of the reports. He said:
[R]eports should not be tendered to the Court where psychiatrists or psychologists seem to argue the case of Verdins. That is not their role.[12]
We respectfully agree. Since 1 July 2017, the limits on the scope of expert opinions in this field have been clearly set out in Practice Note SC CR 7, which relevantly states:
It is for the sentencing judge to decide whether any of the sentencing considerations listed in [Verdins] is applicable to the case before the Court. It is beyond the scope of an expert report to express an opinion on whether any of those considerations is applicable to the exercise of the sentencing discretion.[13]
43 The applicant was sentenced on 24 July 2015. In February 2017, a new expert report was obtained from Dr Dion Gee, a forensic psychologist. Dr Gee expressed the opinion that the applicant had 'an undiagnosed neuro-developmental disorder' which met the diagnostic criteria for 'autism spectrum disorder'('ASD'). The report relevantly stated as follows:
Regarding the nexus between Mr Wilson's impaired mental functioning and the index offences, whilst it is difficult to assert a direct causal nexus, there would seemingly be a clear association mediated through his severe psychopathology, deteriorating mental state, and the unresolved consequences of his workplace injury. That is, his significant deficits in social connectedness, autonomy, and adaptive self-regulation; coupled with hallucinatory experiences, trauma sequelae, and the effects of prolonged sleep deprivation, seemingly predisposed Mr Wilson to act out his perceived distress and (potentially realisable) concerns for the welfare of his work colleagues in an aberrant manner. The combined disinhibiting effects of the foregoing presentation, coupled with his clearly deteriorating mental state would have placed Mr Wilson in a position where he would certainly have been more vulnerable than the average person to act in a manner without having given due consideration to the consequences of his actions; would have impaired his ability to make reasoned and ordered judgments; and seemingly eroded his ability to control his urges and resist what he described were auditory hallucinations pressuring him to act. That said, it appears that during the period of offending, Mr Wilson's level of impaired mental functioning did not significantly obscure his intent to commit an offence, although his ability to truly appreciate the wrongfulness of his conduct seemed somewhat more opaque. Of salience, as noted above, while Mr Wilson's impaired mental functioning might not have directly caused his aberrant behaviour; clinically there appears to be a clear association between Mr Wilson's psychopathology and his subsequent aberrant behaviour.[14]
44 Dr Gee provided a further report in June 2018, shortly before the hearing in this Court. Counsel for the applicant had foreshadowed an application to have Dr Gee's evidence admitted on the appeal as fresh evidence, in accordance with the principles set out by Redlich JA in R v Nguyen.[15] In the event, no ruling was necessary, as the Crown conceded that the requirements for the receipt of fresh evidence were satisfied.
45 Dr Gee's June 2018 report confirmed the diagnosis ASD. Dr Gee said that ASD was
a life-long neuro-developmental disorder that emerges at birth and impacts all aspects of a person's development and functioning. This condition is enduring in nature, is outside of one's control, and is not 'treatable'; with its life course and impact on functioning being similar to that of other neuro-developmental disorders (eg intellectual disability).
Mr Wilson's offending must be understood through the gauze of ASD (and arguably also PTSD) as these enduring conditions continue to have a pervasive impact on how he understands the world, his connection to it, and his role within it; with Mr Wilson labouring under both the chronic and/or acute pathology of these conditions at the time of the index offences. Practically, ASD impacts the core fabric of reasoning, judgement and decision-making due to the insidious nature of its symptomology within the interpersonal and social/moral domains. Further, PTSD has clear potential to impair insight and one's capacity to control oneself, especially when labouring under acute symptomology. Suggesting that such pathology would not have a significant impact on Mr Wilson's mental functioning would, in this author's view, be to accept that neuro-developmental disorders (including disorders such as intellectual disability) do not have a salient impact on an individual's mental processes giving rise to impaired mental functioning; a proposition that is simply inaccurate from a clinical perspective.
47 As to the impact of imprisonment on the applicant, Dr Gee said:
Mr Wilson's trajectory through the prison system both has, and will continue to have, a significant impact on his mental functioning; including the potential to actively contribute to further harm through the maintenance and/or exacerbation of his core pathology. The way Mr Wilson connects with the prison system/regime, and indeed the way that custodial environments will connect with him (in their traditionally risk aversive way) will likely see ongoing restrictions in his placement, management issues, periods in isolation, reduced liberties and access to psychological intervention/support services, and deteriorations in mental health; all of which may further contribute to a risk to self and enhance his risk of future aberrant behaviour.
...
Mr Wilson's current placement has ― from a psychological perspective ― continued to significantly compromise his mental health; actively contributing to a further deterioration in mental functioning. At this time, it must be accepted that Mr Wilson's mental health from a psychiatric perspective appears to have been maintained at its baseline through the provision of psychotropic medication and psychiatric monitoring; albeit with a seeming dip in functioning that appears to have coincided with a recent reduction in his antipsychotic medication.
...
As noted in the aforementioned report, whilst Mr Wilson has received best-practise psychiatric services within custody, to date he has received minimal intervention services to either manage or ameliorate his psychological symptoms; psychopathology that will not resolve without specialist psychological services. If nothing changes, Mr Wilson's presentation is expected to progressively worsen: as mainstream custodial environments are not placed to intervene/manage (or warehouse) individuals with ASD, nor effectively intervene with PTSD or his personality pathology.
48 At the request of counsel for the Director, Dr Gee attended before this Court for cross-examination. In his helpful responses to questions from counsel for the Director, and from the Court, Dr Gee confirmed that:
[W]e can effectively address his acute symptoms, so how he's presenting today. We can medicate him for that, um, which means we can get rid of the depression and anxiety from a psychiatric perspective. What we can't get rid of is the recurring trauma-based symptoms that he will display, and quite clearly, he rotates through, because trauma is a cyclic disorder. At some points it will be better, and at some points it will get worse. His autism is more connected to the way that he engages with the system and the system engages with him. What we see in the prison system is clients who ― I think it was nicely portrayed with some of his unusual ways he's engaged to date ― he will go and tell on a prisoner who has stolen his hair clippers, and as a result, he'll get himself beaten up. As a result, he'll stop coming out of his cell, which will then cycle him into a period of depression. He will then start again re-experiencing his hallucinations, which he appears to now be doing. At the point they dropped his medication from to ten to five milligrams, he's reporting a re-emergence of these quasi, or pseudo hallucinations, both I think because of this court case coming up, because they are stress-related as well, but also because he ― he is now struggling more with his environment because the environment is not helping him with the psychological conditions.[16]
50 Counsel for the applicant filed a supplementary submission, contending that the connection between the applicant's mental disorder and his offending had been shown by Dr Gee's evidence to be
more significant than was previously understood and [hence] some further moderation of moral culpability and reduction of general and specific deterrence is appropriate.
The submission quoted the following passage from Dr Gee's evidence:
When he gets hooked on something, it's like he's on autopilot. He was hooked, and whatever caused him to get hooked onto it ― whether revenge, fear, a number of things ― his ASD and his life-long issues mean he can't disentangle himself from it, like we normally would when we go 'this is a dumb idea!' ... He couldn't or didn't have the capacity to disconnect from the sense of resentment, entitlement, financial loss, I don't know; all of it'.
51 It was further submitted that, on the basis of Dr Gee's evidence, the Court should be satisfied that the applicant's health conditions had led to
a far more burdensome term of imprisonment than was anticipated ... at the time of sentence and...[than] would be experienced by a person without these conditions.
His presentation, it was said, is expected to progressively worsen in custody, and has already worsened.
52 The Director's supplementary submission contended that the fresh evidence did not warrant any reduction in the sentence. The sentence imposed should be seen as 'modest', given the seriousness of the offending. According to the submission, a substantially higher sentence would have been within range for a first offender - as the applicant was - who did not have his impairment of mental functioning.
53 As to the effect on the applicant of incarceration, the respondent conceded that the judge had not had regard to propositions 5 and 6 in Verdins.[17] The respondent maintained, however, that even taking those matters into account there was no basis for concluding that a lower sentence was justified. This was very serious offending, and the sentences actually imposed reflected very considerable weight having been given to matters in mitigation.
54 Grounds 1-3 may be considered together, for they all concern the significance for sentencing purposes of the applicant's impaired mental functioning. For reasons which follow, we are not persuaded that the fresh evidence warrants any alteration in the sentence.
55 This was very serious offending. It was a sustained course of conduct, engaged in over a significant period of time. It was purposeful, methodical, persistent and devious. The sequence of events demonstrates that the applicant was well able to plan, and carry out, a series of acts of sabotage on different machines and to acquire the necessary materials to light the fires.[18]
56 Moreover, as Priest JA pointed out in the hearing, the applicant had enough presence of mind, having destroyed a very expensive item of plant by fire on 22 July, to break into the office and steal the hard drives. His purpose, of course, was to destroy the evidence of the CCTV footage which would have revealed his criminal conduct.
57 We accept Dr Gee's evidence that the applicant's ASD has a significant impact on how he engages with the world. But, crucially, Dr Gee acknowledged that there was nothing in the diagnosis of ASD which could be described as causative of conduct of the kind engaged in here. Dr Gee conceded that the applicant was obviously able to formulate and execute a plan. He also accepted that the applicant's various grievances about what had gone on in the workplace were significant contributors to the offending.
58 As noted earlier, the judge accepted that the applicant's moral culpability should be viewed as reduced.[19] The fresh evidence confirms the correctness of that conclusion but does not, in our view, require any different result.
59 As to the effect of incarceration on the applicant, it is a matter of obvious concern that, in Dr Gee's opinion, there are not the treatment facilities within the correctional system to deal with the applicant's ASD. That is an issue of some complexity, to which the correctional authorities should give urgent attention.
60 But we are not persuaded that those considerations require any alteration of the sentence. Given the seriousness of the offending, and the admitted animosity which motivated it, we regard the sentence imposed as lenient in the circumstances. The orders for cumulation were merciful in the extreme, given the separate criminality involved in the successive incidents. We accept the respondent's submission that, but for the applicant's impaired mental functioning, a substantially higher sentence would have been warranted.
61 As to ground 4, the respondent conceded that the applicant ought only to have been declared to be a serious arson offender on charges 5 and 11, and not on charge 4. We are satisfied, however, that this was an immaterial error, which did not affect the sentences imposed. We will amend the order accordingly.
62 Leave to appeal should be granted, on ground 1 alone, but the appeal dismissed.
[1] Crimes Act 1958 s 197(1) (the 'Act').
[9] R v Verdins [2007] VSCA 102; (2007) 16 VR 269 ('Verdins').
[11] DPP v Wilson (Unreported, County Court of Victoria, Judge Montgomery, 24 July 2015) [36]-[40] (emphasis added) ('Reasons').
[13] Supreme Court of Victoria, Practice Note SC CR 7 - Sentencing Hearings: Expert Reports on Mental Functioning of Offenders, 1 July 2017, 7.3.
[15] [2006] VSCA 184 [36].
[17] Verdins [2007] VSCA 102; (2007) 16 VR 269.
[18] See Carroll v The Queen [2011] VSCA 150 [20]-[22].
Wilson
The Queen [2018] VSCA 219
(2007) 16 VR 269