Aggelidis v The Queen
[2014] VSCA 6
•7 February 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0288
| ARTHUR AGGELIDIS |
| v |
| THE QUEEN |
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| JUDGES | MAXWELL P, PRIEST and COGHLAN JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 22 October 2013 |
| DATE OF JUDGMENT | 7 February 2014 |
| MEDIUM NEUTRAL CITATION | [2014] VSCA 6 |
| JUDGMENT APPEALED FROM | (Unreported, County Court of Victoria, Judge Coish, 2 November 2012) |
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CRIMINAL LAW – Appeal – Conviction – Reckless conduct endangering life – Victim driving moving car – Appellant held knife to victim’s throat – Whether victim ‘placed in danger of death’ – Whether ‘appreciable risk of death’ – Relevance of surrounding circumstances – Conviction not unsafe – Whether evidence of warrant for appellant’s arrest caused miscarriage – Appeal dismissed – R v Abdul-Rasool (2008) 18 VR 586 applied – Crimes Act 1958 (Vic) s 22.
CRIMINAL LAW – Appeal – Sentence – Reckless conduct endangering life – Conviction after trial – Sentenced to 4 years’ imprisonment, non-parole period 2 years and 9 months – Long history of mental illness – Illness operative at time of offending – Reduction of moral culpability – Moderation of general and specific deterrence – Appellant released on parole without adequate support – Sentence manifestly excessive – Re-sentenced to 3 years’ imprisonment, non-parole period 18 months.
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| APPEARANCES: | Counsel | Solicitors |
For the Appellant | Mr M D Phillips | Victoria Legal Aid |
| For the Respondent | Mr T Gyorffy SC | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P:
Following a trial, the appellant was convicted by a jury of one charge of reckless conduct endangering life, under s 22 of the Crimes Act 1958 (Vic). He was sentenced to four years’ imprisonment, and a non-parole period of two years and nine months was fixed.
The appellant sought leave to appeal against his conviction and sentence. On 6 August 2013, a judge of this Court granted him leave to appeal against sentence but refused his application for leave to appeal against conviction. He has elected to renew that application, which was heard together with his appeal against sentence.
For the reasons which follow, I would refuse leave to appeal against conviction but would allow the appeal against sentence. I would re-sentence the appellant to three years’ imprisonment, and I would fix a non-parole period of 18 months.
Circumstances of the offending
On 20 April 2011, the appellant was granted parole in relation to prior offending. He was released on 27 April 2011. The circumstances of his release are described below.[1] On 20 May 2011, the appellant’s parole was cancelled and a warrant was issued for his arrest.
[1]See [28]–[33] below.
On the evening of 20 May 2011, the appellant, then aged 29, made a number of phone calls to his mother. He sounded distressed and agitated. He was yelling and swearing. He said he was not coping and needed money. The appellant has a long history of serious mental illness, and suffers from paranoid schizophrenia complicated by drug abuse. At about midnight, his mother rang the police and expressed concern that the appellant may not have been taking medication for his psychiatric illness and may harm himself or someone else.
At 1.30am the following morning, Leading Senior Constable Dowling received a radio call indicating that the appellant was near Reservoir railway station and that there was an outstanding warrant for his arrest. Mr Dowling was given a verbal description of the appellant. He subsequently encountered the appellant at the entrance to a nearby supermarket, and spoke to him while remaining in his police car. He asked the appellant his name, and when the appellant asked why, told him that he believed the appellant was ‘somebody we are after’. The appellant refused to comply and ran towards the supermarket carpark.
Mr Dowling turned his car, obstructing the appellant’s path. He observed the appellant holding a knife in his right hand. The appellant ran towards the police car and reached into the front driver’s side window with his left arm, putting Dowling in a headlock. With his right arm, he held the knife blade against the right side of Dowling’s neck. Mr Dowling said he felt the blade slide from the rear to the front of his neck. He managed to accelerate away, shaking off the appellant, and called for police assistance.
The appellant was arrested at 5:00am in a house where he had been living following his release on parole. He was remanded in custody and has since remained in prison. As a consequence of breaching his parole, he was required to serve the final year of the earlier sentence before commencing to serve the present sentence.
‘An appreciable risk of death’
The application for leave to appeal against conviction rests on two grounds. The first ground is that the conviction on the charge of reckless conduct endangering life is unreasonable and unable to be supported by the evidence, given the absence of evidence of:
(i) the capacity of the knife held to Mr Dowling’s neck to penetrate deeply enough to cause fatal injury; or
(ii) the degree of force required for the knife to cause injury beyond that which was caused.
The physical element of s 22 of the Crimes Act 1958 (Vic) is engaging in ‘conduct that places or may place another person in danger of death’. This element is proved by establishing that, viewed objectively, the conduct in question carried ‘an appreciable risk of death’.[2]
[2]R v Abdul-Rasool (2008) 18 VR 586 [19]; R v Marijancevic (2009) 22 VR 576, 580 [17].
According to the appellant’s submission, it was not open to the jury to be satisfied beyond reasonable doubt that his conduct had created an appreciable risk of death. Proof of that risk depended on showing that there had been an appreciable risk of the knife penetrating Mr Dowling’s neck more deeply. In the absence of any evidence as to how sharp or how sturdy the knife was, or as to the degree of force required to cause the knife to penetrate more deeply, it could not be established that there was a risk of deeper penetration.
The knife not having been recovered, the only relevant evidence was that of Mr Dowling, who saw the knife in the moments leading up to the attack. He described it as ‘a kitchen-type knife’, about 30cm long, with a blade about 20cm long. These observations could not be regarded as reliable, it was said, given the highly stressful circumstance in which Mr Dowling found himself and given that he saw the knife only momentarily.
Nor, it was submitted, could the injury sustained by Mr Dowling have established the existence of the necessary degree of risk. Mr Dowling sustained an 11cm abrasion across his neck, which the medical witnesses described as a ‘superficial graze’ or ‘point abrasion’. Though a deeper cut in the same location may well have been life-threatening, the injury caused was not.
The respondent contended that, in demonstrating an ‘appreciable risk’ of death, it was necessary only to prove that the behaviour engaged in carried a ‘real and potential danger’[3] of fatal injury. It was not necessary to show that the danger was high, or that it had actually materialised (in a life-threatening injury). The appellant had held a knife, sharp enough to break the skin, against the neck of a person driving a moving vehicle. That was sufficient to create the requisite degree of risk.
[3]Neal v The Queen (2011) 32 VR 454, 482 [103].
In my opinion, the respondent’s submission should be accepted. To concentrate — as the appellant did — on the characteristics of the knife is to misapprehend the scope of the factual enquiry which this element of the offence both authorises and requires. The physical act of the accused person cannot be separated from the circumstances in which it occurs. On the contrary, the question for the jury is whether:
there in fact exist[ed] a danger of death in the impugned conduct in the surrounding circumstances.[4]
[4]R v Abdul-Rasool (2008) 18 VR 586, 596 [41] (emphasis added).
In the present case, the surrounding circumstances were critically important. The physical act of bringing the knife into contact with Mr Dowling’s neck occurred:
(a) while the car, and Mr Dowling as the driver, were in motion;
(b) after the appellant had placed Mr Dowling in a headlock;
(c) at a time when, understandably, Mr Dowling was in great fear; and
(d) shortly before Mr Dowling accelerated, in an attempt to escape.
Moreover, the appellant drew the knife along the side of Mr Dowling’s neck, from back to front.
In those circumstances, in my opinion, it was well open to the jury to conclude that the appellant’s conduct created an appreciable risk of death for Mr Dowling. Obviously enough, the fact of the car’s motion, the appellant’s hold on Mr Dowling’s neck, and Mr Dowling’s inevitable desire to extricate himself from what he perceived to be a life-threatening situation, made the use of the knife highly dangerous. Viewed objectively, a reasonable person in the appellant’s position, engaging in that conduct in those circumstances, would have realised that the conduct placed — or, at the very least, might place — Mr Dowling in danger of death.[5]
[5]R v Wilson and Carmal [2005] VSCA 78 [17].
Doyle CJ adopted a similar analysis in Nelson v Police,[6] a decision to which the respondent referred. There the accused had driven his vehicle in a dangerous manner, performing ‘burn outs’ in close proximity to a crowd of spectators. He was convicted of engaging in conduct which gave rise to a real or substantial risk of harm. Dismissing his appeal, his Honour said that the prosecution case had properly relied on the ‘existing aspects of the circumstances in which Mr Nelson drove his vehicle’:
Mr Nelson’s driving was likely to cause harm because it was a form of driving that gave rise to a real risk that due to a momentary loss of control, or a slight miscalculation, his vehicle could move suddenly and unexpectedly in an unpredictable direction. There were spectators quite close to the vehicle. Having regard to the fact that there was no barrier between the spectators and the car, and no-one preventing spectators from moving wherever they wished, there was an evident risk of a spectator moving too close to the car. This combination of circumstances means that the act was one likely to cause harm. It might be harm resulting from a miscalculation or loss of control by Mr Nelson, or simply from someone getting too close to the car.[7]
[6][2011] SASC 55.
[7]Ibid [24] (emphasis added).
Ground 2: the existence of a warrant
The second ground of the conviction appeal is that the trial judge should not have permitted the prosecution to lead evidence of there having been a warrant out for the appellant’s arrest, given the unfair prejudice which this evidence was likely to create. It was submitted that the trial miscarried by reason of its admission.
Counsel for the appellant contended that the evidence was of little probative value, in circumstances where the defence had not sought to challenge the propriety of police conduct in apprehending the appellant, and where that conduct was sufficiently explained by the evidence of the appellant’s mother that she had called police and requested that her son’s welfare be investigated.
Conversely, the prejudice occasioned by the admission of this evidence was said to have been considerable. It suggested a propensity to break the law and an involvement in the criminal justice system which, in concert with the appellant’s history of severe mental illness, was likely to have been given disproportionate weight by the jury.
The respondent’s written case emphasised that the evidence of the warrant gave an intelligible context to the apprehension of the appellant, and to the discussion between Mr Dowling and the appellant in which Mr Dowling told the appellant that he was ‘somebody [that the police] are after’ and that he was obliged to state his name.
The trial judge gave directions to the jury on the proper use of this evidence, in the following terms:
I want to give you some directions in law about the evidence that there was a warrant out for the arrest of Arthur Aggelidis. Do not draw any inference adverse to the accused from the fact that there was a warrant out for his arrest. Do not speculate about the reason for the warrant. Do not reason that because there was a warrant for the arrest of the accused, that he was the kind of person likely to have committed this offence. Do not draw any conclusions from the fact that the police had a warrant for the arrest of Arthur Aggelidis.
In my opinion, there was no miscarriage of justice. The judge’s directions were strong and clear, and must be taken to have been followed.[8] On that assumption, the jury would have treated the existence of the warrant as a relevant part of the background circumstances, and no more. The fact that identity was in issue does not alter the analysis. As the Crown pointed out, the issue of identity was litigated by reference to two key pieces of evidence — the photo board identification by Mr Dowling and the finding nearby of a jacket containing papers belonging to the appellant.
[8]Dupas v The Queen (2010) 241 CLR 237, 248 [28]–[29].
This ground, too, must be rejected.
Sentence appeal
The sole ground of the sentence appeal is that the sentence imposed was manifestly excessive in light of the appellant’s serious psychiatric illness, his personal history and the considerations of totality which were relevant to the exercise of the trial judge’s sentencing discretion.
Several points were raised under cover of this ground. First, as noted earlier, this offending was in breach of the appellant’s parole, and he was obliged to serve the remainder of the sentence for the previous offence, being a period of 12 months. (He had been sentenced in October 2008 to four years and six months’ imprisonment, after being found guilty of intentionally causing serious injury.)[9] As a result, it was said, he was in effect serving a term of five years, with a non-parole period of three years and nine months.
[9]R v Aggelidis [2008] VSC 445.
Second, attention was drawn to the circumstances of his release on parole on 27 April 2011, less than one month before the present offending. This was his third parole release since 24 July 2009. On each previous occasion, he had breached his parole and was returned to custody.
Evidence was led at the plea of the appellant’s long history of mental illness, and of previous occasions on which he had relapsed into serious mental illness after being released from custody without appropriate community supports.
Defence counsel told the judge that, on both of the earlier occasions when the appellant was released on parole — in July 2009 and May 2010 — he had been given no form of identification and no medication. Counsel explained that, without identification, he was unable to obtain a prescription for medication. Without medication, and without support services, he quickly relapsed — and re-offended — and his parole was cancelled.
Exactly the same thing occurred — for the third time — when the appellant was released on 27 April 2011. No provision had been made for appropriate accommodation; he did not have a referral to an Area Mental Health Service; there had been no pre-release visit from Centrelink; and he was not given personal identification documents, which he needed in order to obtain assistance and treatment.
Counsel for the appellant maintained that his release in such circumstances triggered an involuntary relapse into severe mental illness, which substantially diminished his personal culpability for this offending, and the relevance of both specific and general deterrence.
Counsel for the respondent acknowledged the appellant’s history of mental illness and conceded that he ‘clearly had been poorly managed at the time of his release on parole’. It was accepted that his mental illness called for moderation of the weight to be given to general deterrence. Counsel submitted, however, that the sentence imposed reflected a moderation of general deterrence, and showed that the trial judge had also been mindful of the principle of totality. The submission emphasised that the appellant’s actions had had a profound effect on Mr Dowling; that Mr Dowling was a police officer executing his duty at the time of the attack, which was an aggravating factor; and that the appellant had used a knife in previous offending.
The judge faced a particularly difficult task in sentencing the appellant, as illustrated by the competing submissions set out above. On the one hand, this was a very serious offence, committed by a person who had just been released on parole
after serving a sentence for intentionally inflicting serious injury with a knife. On the other hand, the appellant’s mental illness and the circumstances of his release on parole were powerful mitigating circumstances.
I am persuaded, nevertheless, that the sentence was outside the available range, given the particular circumstances of the case. The crucial feature, in my view, is that the appellant‘s relapse into mental illness — and into offending behaviour — can be traced directly to the inexplicable failure of the correctional authorities, at the time of his release on parole, to make the necessary arrangements for his transition back into the community. Given what had occurred on the two previous releases on parole, this relapse was both entirely predictable and almost certainly preventable.
In the circumstances, the fact that the appellant has had to serve a full year of the previous sentence, because of his breach of parole, has much greater significance than it might otherwise have had. Both the appellant and the community were entitled to expect that the authorities would take all reasonable steps to ensure that, following his release, he was in a position to maintain stability in his mental health. That he was unable to do so meant that this offending was, in an important sense, involuntary. It also had the consequence that a brave policemen was unnecessarily exposed to grave danger.
A lower head sentence was called for, and a shorter non-parole period, in view of the appellant’s mental health difficulties and the need to maximise the scope for therapeutic supervision. I would re-sentence the appellant to three years’ imprisonment and I would fix a non-parole period of 18 months.
PRIEST JA:
I agree with Maxwell P.
COGHLAN JA:
I agree with Maxwell P.
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