Ahmed El-Lababidi v The Queen
[2018] VSCA 116
•9 May 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0065
| AHMED EL-LABABIDI | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | TATE, KYROU and ASHLEY JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 1 May 2018 |
| DATE OF ORDERS: | 1 May 2018 |
| DATE OF JUDGMENT: | 9 May 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 116 |
| JUDGMENT APPEALED FROM: | DPP v El-Lababidi (Unreported, County Court of Victoria, Judge Smith, 19 March 2018) |
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CRIMINAL LAW – Appeal – Sentence – One charge of intentionally causing injury (charge 3), two charges of resisting emergency worker on duty, one charge of failing to answer bail – Charge 3 involved injury to police officer – Sentencing Act 1991 s 10AA(4) prescribed minimum sentence of 6 months’ imprisonment for that charge unless court finds under section 10A ‘special reason exists’ – Magistrate found special reason existed based on applicant’s impaired mental functioning at time of offence and imposed 2-year community correction order – On appeal by Director of Public Prosecutions, County Court judge found no special reason existed and imposed sentence of 6 months’ imprisonment on charge 3 – Crown concessions that judge made findings on erroneous factual basis and denied applicant procedural fairness – Appeal allowed – Matter remitted to County Court with directions as to scope of further hearing – Sentencing Act 1991 ss 10AA, 10A – Criminal Procedure Act 2009 s 286.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D D Gurvich QC with Mr P J Smallwood | Starke Westwood Lawyers |
| For the Respondent | Mr M D Phillips | Mr J Cain, Solicitor for Public Prosecutions |
TATE JA
KYROU JA
ASHLEY JA:
Introduction
On 1 May 2018, this Court made the following order:
1 Leave to appeal is granted.
2 The appeal is allowed.
3The sentences imposed by the County Court in the orders made by Judge Smith on 19 March 2018 are set aside.
4 The matter is remitted to the County Court and it is directed that:
(a) the further hearing be conducted by a different judge;
(b)the scope of the further hearing be limited to the following questions for the Court:
(i)whether the appellant has discharged the onus of establishing that his impaired mental functioning substantially reduced his culpability, for the purpose of determining whether a ‘special reason’ exists within the meaning of s 10A(2)(c)(i) of the Sentencing Act 1991;
(ii)whether there are substantial and compelling circumstances that justify making a finding that a ‘special reason’ exists, for the purpose of s 10A(2)(e) of the Sentencing Act; and
(iii)what is the appropriate sentence in all the circumstances.
5The appellant attend upon the County Court for mention on Tuesday 8 May 2018 at 9:00 am.
In making the order, the Court accepted a concession by the Crown that the sentencing discretion had miscarried, and submissions by the parties that the matter should be remitted to the County Court for further hearing. We also accepted the applicant’s submission that the scope of the further hearing should be limited to the issues set out in the order.
At the time we published the order, we stated that we would provide our reasons at a later time. These are those reasons.
Overview
The applicant pleaded guilty in the Melbourne Magistrates’ Court to the charges set out in the table below and, on 30 November 2017, he was sentenced to a 2-year community correction order (‘CCO’). The Acting Director of Public Prosecutions (‘Director’) appealed against that sentence to the County Court. On 19 March 2018, the appeal was allowed and the applicant was resentenced as set out in the table below.[1]
[1]DPP v El-Lababidi (Unreported, County Court of Victoria, Judge Smith, 19 March 2018) (‘Sentencing remarks’).
Charge Offence Maximum[2] Sentence Cumulation 3 Intentionally causing injury [Crimes Act 1958 s 18] 10 years 6 months – 6 & 7 Resisting emergency worker on duty [Crimes Act
s 31(1)(b)]5 years 1 month
(Aggregate)– 9 Failing to answer bail [Bail Act 1977 s 30(1)] 2 years $500 fine – Total Effective Sentence: 6 months’ imprisonment Non-Parole Period: Not applicable Pre-Sentence Detention Declaration: Nil [2]As the charges were dealt with summarily in the Magistrates’ Court, the maximum penalty that Court could impose was 2 years’ imprisonment for each charge and 5 years’ imprisonment on a cumulative sentence. See Sentencing Act 1991 ss 113, 113A, 113B.
The offending the subject of charges 3, 6 and 7 occurred when the applicant punched a female police officer to the face three times while resisting arrest.
As discussed in more detail below, because the victim of the offending the subject of charge 3 was an ‘emergency worker’[3] on duty, s 10AA(4) of the Sentencing Act 1991 required the sentencing court to ‘impose a term of imprisonment of not less than 6 months unless the court finds under section 10A that a special reason exists’. The magistrate found that special reason existed and therefore the mandatory minimum sentence did not apply. He did so on the basis that, at the time of the commission of the offence the subject of charge 3, the applicant had impaired mental functioning that was causally linked to the commission of the offence and substantially reduced his culpability.[4]
[3]As appears from [28] below, s 10AA(8) of the Sentencing Act defines ‘emergency worker’ to include a police officer.
[4]See s 10A(2)(c)(i) of the Sentencing Act which is set out at [28] below.
On appeal, the County Court judge found that no special reason existed and therefore the mandatory minimum sentence applied.
The grounds upon which the applicant sought leave to appeal are set out at [55] below. The Crown conceded that grounds 1 and 2 were made out and that the appeal should be allowed. It submitted that the matter should be remitted generally to the County Court for a rehearing of the appeal, rather than this Court resentencing the applicant. The applicant agreed that the matter should be remitted, but contended that the scope of the further hearing by the County Court should be limited in the manner discussed below. As is apparent from our order, we rejected the Crown’s submission that the remitter to the County Court should be unlimited.
Circumstances of the offending
At approximately 11:35 pm on 7 April 2017, the applicant’s neighbour observed the applicant trying to enter the neighbour’s premises on West Street, Glenroy, through a side gate. When the applicant saw his neighbour, he ran away. A short time later, another witness on West Street heard banging noises that sounded like someone kicking in a door. Police received emergency calls in relation to a burglary in progress and were later contacted about a male seen leaving a West Street house carrying a gaming console. The male was the applicant and he was carrying the gaming console from his own home.
At approximately 11:50 pm, Senior Constable Maxine Phillips and Constable Alisha Flynn attended West Street. They observed the applicant run towards the passenger side door of their police vehicle as it became stationary. He was acting erratically, was in an agitated and aggressive state and appeared to be drug affected. He was talking about playing basketball with LeBron James and the King being dead while emptying out his pockets and dropping receipts on the ground.
Senior Constable Phillips exited the vehicle and spoke to the applicant, moving him to the front of the vehicle. Constable Flynn joined them at the front of the vehicle. Senior Constable Phillips attempted to arrest the applicant and informed him that he would be handcuffed to allow a search to be conducted. She held his left hand and placed it in a handcuff while Constable Flynn held his right arm.
The applicant immediately began to resist, moving around violently in an attempt to break free (charge 6). While doing so, he kept saying ‘the King’s dead, I didn’t do it’. He managed to free his right hand and then struck Senior Constable Phillips to the right side of her face three times with a clenched fist. The blows broke one of her teeth, cut her lip and moved her entire top jaw (charge 3).
Two witnesses on West Street saw the assault and ran to assist the police. The applicant was forced to the ground and was held there until three additional police officers arrived at approximately 12:00 am. After they arrived, the applicant continued to resist police (charge 7).
Senior Constable Phillips was bleeding from the right side of her mouth. At approximately 2:50 am, she was conveyed to the Epworth Hospital and was found to have suffered lacerations to her upper and lower lips and a complete subgingival horizontal fracture to her upper left lateral incisor, which was still attached by soft tissue. The tooth required extraction and replacement with a dental implant (a process which takes 12 months).
Constable Flynn received grazes and bruises to her left hand and bruises to her left wrist.
On 11 April 2017, the applicant was arrested and interviewed. He said that Senior Constable Phillips had fallen into his right hand as he was falling backwards. He added that it was all a collision and that she walked into it. However, he admitted that he could have handled things better.
The applicant was released on bail on 11 April 2017, with the condition that he report at a police station three times each week. He failed to comply with that condition on 10 occasions between 5 and 27 July 2017 (charge 9). He claimed that his failure to report arose from his misapprehension that, after a court adjournment, he was no longer required to report and that he resumed compliance after he was apprised of the correct position.
In her victim impact statement, Senior Constable Phillips stated that her oral injuries had made eating and drinking painful for weeks. She also suffered injury to her neck and continued to undergo physiotherapy and attend medical and dental appointments to address her injuries. She suffered from nightmares, and felt self-conscious, particularly in social situations. She explained that she loved being a police officer but could no longer fulfil her usual duties and the enjoyment she felt at work every day had been taken away.
Personal circumstances
The applicant was 25 years old at the time of the offending and 26 years old when he was sentenced in the County Court. He is the second youngest of six siblings. His father died suddenly from a heart attack when the applicant was 13 years of age. The applicant’s mother died when he was 16 years of age after battling cancer for a number of years. From that time, he was raised by his siblings, particularly his second eldest brother. The applicant’s formative years involved considerable grief and social disadvantage.
The applicant left school at the end of Year 10 and commenced working part-time at a fast-food restaurant. He undertook training as an electrician but did not complete it, instead remaining at the restaurant for five years before leaving when there was a change of management. He then worked building caravans for three months, after which time he has largely been unemployed and in receipt of Centrelink benefits. In early December 2017, he began to work as a casual full-time meat packer, and maintained that employment until he was taken into custody after he was sentenced in the County Court.
The applicant has had one serious two-year relationship which began in 2015 but ended at the time he ceased work building caravans.
The applicant began intermittently smoking cannabis in Year 8 and progressed to using methylamphetamine (‘ice’) in his teenage years. His use of ice escalated after the death of his father. He commenced using significant quantities of ice and experienced brief psychotic breaks referable to his drug use. He never received any treatment for his drug use.
As discussed in detail at [37] below, on 11 August 2014, the applicant was admitted to a psychiatric facility as an involuntary inpatient due to a drug-induced psychosis.
The applicant suffers from depression, which began with the death of his father and was compounded by the death of his mother. He has experienced rebound depression when coming down from drug use. He also suffers from high levels of anxiety and paranoia.
In 2014, the applicant was convicted of unlawful assault.[5]
[5]Sentencing remarks [26].
The applicant enjoyed the support of his siblings.
Relevant statutory provisions, evidence and procedural history
In the Magistrates’ Court and on appeal to the County Court,[6] the central issue was whether the mandatory minimum sentence of 6 months’ imprisonment prescribed by s 10AA(4) of the Sentencing Act in relation to charge 3 was displaced because, pursuant to s 10A of the Sentencing Act, ‘special reason’ existed.
[6]Section 259 of the Criminal Procedure Act 2009 provides that such an appeal is an appeal de novo.
Sections 10AA and 10A relevantly provide as follows:
10AAAssaulting, etc. emergency workers, custodial officers and youth justice custodial workers on duty
…
(4)In sentencing an offender (whether on appeal or otherwise) for an offence against section 18 of the Crimes Act 1958 committed against an emergency worker on duty … a court must impose a term of imprisonment of not less than 6 months unless the court finds under section 10A that a special reason exists.
…
(8) In this section—
…
emergency worker means—
(a)a police officer or protective services officer within the meaning of the Victoria Police Act 2013; …
…
(9)For the purposes of this section an emergency worker is on duty if—
(a)in the case of a police officer or protective services officer within the meaning of the Victoria Police Act 2013, the officer is performing any duty or exercising any power as such an officer; …
…
10A Special reasons relevant to imposing minimum non-parole periods
(1) In this section—
impaired mental functioning means—
(a)a mental illness within the meaning of the Mental Health Act 1986; or
…
(2)For the purposes of section … 10AA …, a court may make a finding that a special reason exists if—
…
(c) the offender proves on the balance of probabilities that—
(i)at the time of the commission of the offence, he or she had impaired mental functioning that is causally linked to the commission of the offence and substantially reduces the offender's culpability; or
…
(e)there are substantial and compelling circumstances that justify doing so.
…
(3)In determining whether there are substantial and compelling circumstances under subsection (2)(e), the court must have regard to—
…
(ab)the Parliament's intention that a sentence of imprisonment should ordinarily be imposed for an offence covered by section 10AA(4); and
…
(b)whether the cumulative impact of the circumstances of the case would justify a departure from that sentence …
The Mental Health Act 1986 referred to in s 10A(1)(a) of the Sentencing Act was repealed and replaced by the Mental Health Act 2014 with effect from 1 July 2014. Section 374(3) of the Mental Health Act 2014 relevantly provides that any reference to the Mental Health Act 1986 in any Act is to be construed as a reference to the Mental Health Act 2014.
Section 4 of the Mental Health Act 2014 provides as follows:
4 What is mental illness?
(1)Subject to subsection (2), mental illness is a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory.
(2)A person is not to be considered to have mental illness by reason only of any one or more of the following—
…
(l) that the person uses drugs or consumes alcohol;
…
(3)Subsection (2)(l) does not prevent the serious temporary or permanent physiological, biochemical or psychological effects of using drugs or consuming alcohol from being regarded as an indication that a person has mental illness.
It is readily apparent that s 10A(2)(c)(i) of the Sentencing Act contains three cumulative limbs which an offender must satisfy on the balance of probabilities before a sentencing court can make a finding that a special reason exists under that section.[7] The first limb, which may be described as the ‘impaired mental functioning limb’ is that, at the time of the offending, the offender suffered from a mental illness within the meaning of s 4 of the Mental Health Act 2014. The second limb, which may be described as the ‘causation limb’ is that the offender’s impaired mental functioning was causally linked to the commission of the offence. The third limb, which may be described as the ‘culpability limb’, is that the offender’s impaired mental functioning substantially reduced his or her culpability for the offence.
[7]For a discussion of the nature of the evidence that must be adduced to establish a ‘special reason’ under s 10A(2) of the Sentencing Act, see DPP v Hudgson [2016] VSCA 254 [111]–[116].
Section 10A(2)(e) provides a separate basis for a court to find that a special reason exists where the court is satisfied that ‘there are substantial and compelling circumstances that justify doing so’. We will refer to this as the ‘substantial and compelling circumstances test’.
Before the magistrate and subsequently before the judge, the applicant submitted that he was able to establish the three limbs of s 10A(2)(c)(i) on the basis of a report dated 21 November 2017 prepared by Dr Lester Walton, a consultant psychiatrist who assessed him on 16 November 2017.
In his report, Dr Walton stated that the applicant informed him that, around two hours prior to the altercation with police, he had smoked one point of ice and that he may have been given more ice subsequently in a spiked drink.
Dr Walton considered whether the applicant was ‘merely intoxicated’ with ice at the time of the offending, which may have rendered him ‘hyperactive and aggressive’, or whether his use of ice ‘had induced another bout of drug-induced psychosis’. Dr Walton’s opinion was that, based on the applicant’s unprovoked aggression, bizarre and deluded utterances and his being barely responsive to commands and markedly energised, he ‘very likely was in the grips of a further bout of drug-induced psychosis at the material time and that has made a direct contribution to his offending’. Dr Walton stated that a ‘[d]rug-induced psychosis certainly would be a recognised mental illness generally and under the Victorian Mental Health Act’. Dr Walton concluded that the applicant required ‘an effective drug rehabilitation program which would carry the promise of eliminating further psychotic episodes and any reoffending associated with such mental disturbance’.
Reports dated 9 and 17 October 2017 prepared by Tim Watson-Munro, a consultant forensic psychologist, were also before the magistrate and the judge. Mr Watson-Munro interviewed the applicant on 15 September 2017 and assessed him as having an IQ in the low average category. He diagnosed the applicant as suffering from a major depressive disorder and cognitive intrusion arising from anxiety. He described the applicant as ‘clearly psychologically troubled’ with a ‘complex and tragic developmental history’, but expressed no opinion on whether the applicant’s mental state was causally linked to his offending.
The applicant’s inpatient discharge summary from NorthWestern Mental Health (‘NWMH discharge summary’) was also before the magistrate and the judge. This document provided details of the applicant’s admittance under the Mental Health Act 2014 on 11 August 2014. It stated that he was hospitalised after being brought in by police suffering from drug-induced psychosis. His neighbours had reported him to police as he was stacking wood and other items of rubbish in the middle of the road to ‘build a fence’ so that he could not be monitored by people driving past his house. Upon his admission, the applicant stayed overnight in the emergency department and required sedation. He was mechanically restrained as a consequence of his agitation and aggressive behaviour. He was later admitted to the intensive care area and commenced regular medication before being transferred to the ‘low dependency unit’. While an inpatient, he was prescribed anti-psychotic medication and referred to a general practitioner before being discharged on 18 August 2014.
As we have already said, the magistrate found that the applicant had discharged his onus of establishing the existence of a special reason under s 10A(2)(c)(i) of the Sentencing Act and, accordingly, the mandatory minimum sentence of 6 months’ imprisonment was displaced. He sentenced the applicant to a 2-year CCO that included conditions that the applicant perform 200 hours of unpaid community work, not consume illicit drugs, be subject to supervision for 2 years and during that time undergo assessment and treatment (including testing) for drug abuse or dependency, mental health assessment and treatment and offending behaviour programs, as directed. It was also a condition of the CCO that the applicant be subject to judicial monitoring.
When the Director appealed against the magistrate’s sentence to the County Court, he was not aware of Dr Walton’s report. This was despite that fact that the report was provided to the prosecutor at the hearing before the magistrate.
The appeal from the Magistrates’ Court to the County Court was heard on 24 January 2018, 16 February 2018 and 19 March 2018.
The reports of Dr Walton and Mr Watson-Munro and the NWMH discharge summary were tendered on the appeal. Judicial monitoring reports dated 16 January 2018 and 20 February 2018 prepared by the Department of Justice and Regulation were also tendered. Those reports stated that the applicant had thus far generally complied with the conditions of the CCO.
Also tendered was footage of an interview of the applicant by a Channel 9 News reporter outside the County Court building on 24 January 2018. The applicant said that he would love to give Senior Constable Phillips flowers and a hug and tell her he was very sorry because he did not mean to injure her. He also said that the police had attacked him first and that he had acted in self-defence. In response to a statement by the reporter that the applicant had punched Senior Constable Phillips a few times, he said that the police were trying to exaggerate the incident.
At the hearing of the appeal in the County Court, the applicant submitted that, on the basis of Dr Walton’s report, the judge should find that he had established that special reason existed under s 10A(2)(c)(i) of the Sentencing Act in relation to the offence the subject of charge 3. The focus of the applicant’s submissions was to establish the impaired mental functioning limb and the causation limb. While the applicant asserted that the culpability limb was satisfied, he did not address this limb in any detail and did not expressly refer to the evidence upon which his assertion was based.
The applicant also submitted that, by virtue of the following circumstances, he satisfied the substantial and compelling circumstances test in s 10A(2)(e):
(a)Dr Walton’s opinion that the applicant ‘needs to be included in an effective drug rehabilitation program which would carry the promise of eliminating further psychotic episodes and any reoffending associated with such mental disturbance’;
(b)his lack of criminal history or subsequent offending;
(c)his early plea of guilty;
(d)the death of his parents while he was young;
(e)his low average IQ; and
(f)his compliance with the CCO.
The applicant ‘completely and unequivocally’ retracted his statement in the Channel 9 News interview that the police had attacked him and that he had acted in self-defence.
The Director submitted that the reports of Dr Walton and Mr Watson-Munro and the NWMH discharge summary were insufficient to discharge the applicant’s onus of establishing the three limbs of s 10A(2)(c)(i) in order to demonstrate the existence of special reason under that section. The Director also contended that the applicant had not satisfied the substantial and compelling circumstances test.
As at the date on which he was sentenced, the applicant had completed about 30 hours of unpaid community work in accordance with the CCO.
Sentencing remarks
It is clear from the following statement that the judge erroneously concluded that the applicant had been admitted to a psychiatric unit in 2017, after his arrest for the current offending:
Following [the applicant’s] arrest, [he was] admitted to the Broadmeadows Hospital psychiatric unit, where [he] remained for some seven days. [He was] there diagnosed as having a drug-induced psychosis and [was] treated with anti-psychotic medication. [He] admitted that [he] had smoked one point of methamphetamine earlier on that day.[8]
[8]Sentencing remarks [10].
As the judge also referred to the applicant’s treatment in 2014 by NorthWestern Mental Health, it appears that he erroneously assumed that there were separate admissions to two psychiatric units at different facilities. It was at all times common ground between the parties that the sole occasion upon which the applicant had become a psychiatric inpatient was in August 2014. One possible explanation for the judge’s error— upon which it is not necessary for us to make a finding — is that NorthWestern Mental Health is a health service that conducts the psychiatric unit at Broadmeadows Hospital.
After referring to the reports of Dr Walton and Mr Watson-Munro and the NWMH discharge summary, the judge concluded that the applicant had not discharged the onus of proof in s 10A(2)(c)(i) for the following reasons:
There was:
•No evidence from [the applicant’s] general practitioner, either current or historical;
•No evidence from whoever it was who had been prescribing [the applicant] anti-depressant medication for some time, as reported by Mr Watson-Munro;
• No evidence from any treating psychiatrist or psychologist; and
•In particular, no evidence from practitioners who treated [the applicant] during [his] week-long admission to the Broadmeadows Hospital psychiatric unit immediately following the offending conduct.
Such evidence would, or was likely to have had, high probative value with regard to any impairment of [the applicant’s] mental functioning and whether it was linked to the commission of the offence.
On the material before me, I am not satisfied that [the applicant has] discharged the onus upon [him] of proving on the balance of probabilities that at the time of the commission of the offence … [he] had impaired mental functioning that was causally linked to the commission of the offence and which substantially reduced [his] culpability. On the evidence before me, I consider it just as likely that at the time of [the applicant’s] offending [he was] intoxicated with methamphetamine, causing [him] to behave in the manner that [he] did.
Further, I am not satisfied that [the applicant’s] depression disorder was a cause of [his] offending.[9]
[9]Sentencing remarks [16]–[19].
Although the judge stated that he was not satisfied that the applicant had discharged the onus of establishing any of the limbs of s 10A(2)(c)(i), he did not give any reasons as to why the culpability limb was not satisfied.
The judge found that the circumstances set out at [44] above upon which the applicant had relied were insufficient to satisfy the substantial and compelling circumstances test.
Accordingly, the judge concluded that he was bound by s 10AA(4) to impose the minimum mandatory sentence of 6 months’ imprisonment for charge 3.
The judge set aside the sentence imposed in the Magistrates’ Court and determined that it was not necessary to impose a term of imprisonment greater than the statutory minimum. In imposing that sentence, the judge had regard to the applicant’s violent conduct and the harm he caused to Senior Constable Phillips. He also took into account that the applicant had initially shown very little, if any, remorse for his conduct, as demonstrated by his Channel 9 News interview, but observed that the judicial monitoring reports ‘tend to indicate that [the applicant is] now showing some remorse’.[10]
[10]Sentencing remarks [25].
Grounds of appeal
The applicant’s grounds of appeal were as follows:
1The sentencing discretion miscarried as a result of the sentencing judge mistaking the facts, in that his Honour determined the applicant’s appeal on the mistaken belief that the applicant had been admitted to a psychiatric unit after he was arrested.
2The sentencing discretion miscarried because the sentencing judge denied the applicant procedural fairness by, without having raised it with him during the proceedings, determining that the applicant had not discharged the onus upon him (of proving on the balance of probabilities that at the time of the commission of the offence that he had impaired mental functioning that was causally linked to the offence and substantially reduced his culpability) by having regard to the absence of:
(a)Evidence from his general practitioner, either current or historical;
(b)Evidence from whoever it was who had been prescribing him anti-depressant medication for some time;
(c)Evidence from any treating psychiatrist or psychologist; and in particular
(d)Evidence from practitioners who treated the applicant during his week-long admission to the Broadmeadows psychiatric unit immediately following the offending conduct (which, as referred to in Ground 1, did not in fact occur).
3The sentencing judge erred by concluding that the applicant had not established, on the balance of probabilities, that at the time of the commission of the offence he had impaired mental functioning that was causally linked to the offence and substantially reduced his culpability.
Parties’ submissions on the grounds of appeal and disposition of the appeal
In its written case, the Crown made the following concessions:
(a)Dr Walton’s opinion that the applicant’s drug-induced psychosis at the time of the offending the subject of charge 3 ‘would be a recognised mental illness generally and under the Victorian Mental Health Act’ was uncontradicted by any other evidence. In the context of how the appeal to the County Court was conducted, there was no legitimate basis for the judge to reject that opinion. Accordingly, on the basis of Dr Walton’s opinion, there was evidence to establish on the balance of probabilities that the applicant was suffering from impaired mental functioning at the time of the offending.
(b)In order to properly challenge the opinion of Dr Walton that the applicant ‘very likely was in the grips of a further bout of drug-induced psychosis at the material time and that has made a direct contribution to his offending’, the prosecutor should have sought to cross-examine him. As the prosecutor did not adopt that course, there was no legitimate basis for the judge to reject Dr Walton’s opinion. Accordingly, the evidence before the County Court was sufficient to establish, on the balance of probabilities, that the applicant’s impaired mental functioning was causally linked to his offending.
The Crown did not concede that the applicant had discharged his onus of proof in relation to the culpability limb of s 10A(2)(c)(i). The Crown submitted that, having regard to the applicant’s drug-induced psychosis in 2014, his culpability for the offending the subject of charge 3 was not substantially reduced. However, the Crown accepted that the judge erred in failing to substantively consider the culpability limb.
In the light of the above concessions, the Crown accepted that grounds 1 and 2 were made out. Accordingly, it conceded that the application for leave to appeal should be granted, the appeal should be allowed and the sentence imposed by the County Court should be set aside pursuant to s 286(1) of the Criminal Procedure Act 2009.[11] The Crown submitted that, as there were outstanding evidentiary issues to be addressed, the most appropriate course for this Court was to remit the matter to the County Court so that the appeal could be reheard in its entirety by a different judge. According to the Crown, as its concessions regarding the impaired mental functioning and causation limbs of s 10A(2)(c)(i) were made solely for the purposes of the appeal to this Court, the rehearing should not be confined to the culpability limb of that section.
[11]Section 286 of the Criminal Procedure Act is set out at [67] below.
In relation to the substantial and compelling circumstances test under s 10A(2)(e) the Crown submitted that, as that issue was not the subject of a ground of appeal, it could not be a basis for allowing the appeal. However, the Crown accepted that if the sentencing discretion were reopened on the extant grounds, any evidence which is relevant to that test could be adduced.
The applicant agreed with the Crown’s submission that this Court should remit the matter to the County Court rather than exercise the sentencing discretion itself. However, he contended that it would be unfair for the remitter to be unlimited. He argued this would provide the prosecution with the opportunity to reopen the impaired mental functioning and causation limbs of s 10A(2)(c)(i) in circumstances where the Crown has conceded that he has already discharged his onus of proof in relation to those limbs. The most appropriate course, so it was said, was to limit the issue to be decided under that section to whether the culpability limb was established on the balance of probabilities.
The applicant accepted that, in the light of the scope of his grounds of appeal, it was not open to him to submit that the judge had erred in finding that the substantial and compelling circumstances test had not been satisfied. However, he submitted that, once the sentencing discretion was reopened, either before this Court, or the County Court on remitter, it would be open to him to adduce new evidence and make submissions with a view to establishing that the substantial and compelling circumstances test was satisfied.
According to the applicant, evidence informing the question of the existence of substantial and compelling circumstances could include the prejudice he has suffered by virtue of the Director instituting the appeal to the County Court on a materially incomplete factual basis and the serious errors made by the judge. In addition, so it was said, he could call in aid the facts that: he was initially placed on a CCO; he was substantially in compliance with the conditions of the CCO while it was operative; he was imprisoned on an erroneous basis; and he now faces the uncertainty of whether he will be sentenced again to a term of imprisonment.
The parties agreed that the effect of an order of this Court allowing the appeal, setting aside the sentence imposed by the County Court and remitting the matter would be that the applicant would have to be released from custody, without the necessity of bail, pending resentencing by the County Court. This was said to follow from the following circumstances:
(a) the Magistrates’ Court sentenced the applicant to a CCO;
(b)the effect of the Director’s appeal to the County Court was that the CCO was ‘held in abeyance’;
(c)the applicant was not on bail pending the hearing and determination of the appeal to the County Court; and
(d)the setting aside of the sentence imposed by the County Court would mean that there would be no legal basis for the applicant to be held in custody or to require bail.
Conclusion
The Crown was right to concede that grounds 1 and 2 had been made out and that the sentencing discretion had miscarried. It is undoubtedly the case that the judge erred in finding that the applicant had been admitted to a psychiatric unit after he was arrested in 2017 and in relying on the absence of medical evidence regarding that putative admission to conclude that the applicant had not established the existence of a special reason under s 10A(2)(c)(i). In these circumstances, we concluded that leave must be granted, the appeal allowed and the sentence imposed by the judge set aside.
We accepted the common position adopted by the parties that this Court should remit the matter to the County Court, rather than itself exercising the sentencing discretion.[12] This is because the manner in which the appeal in the County Court was conducted by the parties did not fully expose the evidentiary and legal issues that informed the question of whether special reason existed under s 10A(2).
[12]See R v Roberts [2000] VSCA 46 [18].
The main issue that required resolution by us was whether the remitter to the County Court should be unlimited, as submitted by the Crown, or confined to the culpability limb in s 10A(2)(c)(i) and the substantial and compelling circumstances test in s 10A(2)(e), as submitted by the applicant.
Section 286 of the Criminal Procedure Act relevantly provides:
286Orders etc. on successful appeal
(1)If the Court of Appeal allows an appeal under section 283, it must set aside the sentence imposed by the Court and either—
(a)impose the sentence, whether more or less severe, that it considers appropriate; or
(b)remit the matter to the County Court or the Trial Division of the Supreme Court, as the case requires.
(2)If the Court of Appeal remits a matter under subsection (1)(b)—
(a)it may give directions concerning the manner and scope of the further hearing by the court, including a direction as to whether the hearing is to be conducted by the same judge or a different judge; and
(b)the court, whether constituted by the same judge or a different judge, must hear and determine the matter in accordance with the directions, if any.
We concluded that the remitter should be limited for the following three reasons.
First, Dr Walton’s report, which was the basis upon which the applicant sought to establish the impaired mental functioning and causation limbs of s 10A(2)(c)(i), was in the Crown’s possession at both the plea hearing before the magistrate and the hearing of the appeal before the judge. On neither occasion did the Crown seek to cross-examine Dr Walton or to adduce any other medical evidence to contradict his opinion. It would be unfair for the Crown to be given a third opportunity to argue that the abovementioned limbs were not satisfied.
Secondly, the Crown has conceded that, on the evidence before the judge, the applicant had discharged his onus under s 10A(2)(c)(i) in relation to the impaired mental functioning and causation limbs. Although those concessions were made only for the purpose of the application for leave to appeal before this Court, the concessions were partly based on previous forensic decisions made by the Crown. In these circumstances, it would be inappropriate for the applicant to be required to establish the abovementioned limbs a third time.
Thirdly, the procedural history of this matter has caused some general unfairness for the applicant. The appeal to the County Court may not have been commenced if the Director had been aware of Dr Walton’s report. Further, an appeal to this Court may not have been necessary if the judge had not erred in the manner we have already discussed. In these circumstances, it would add to the unfairness that the applicant has already experienced if any evidentiary advantage he has accrued were extinguished and he was required to prove afresh all the limbs of s 10A(2)(c)(i).
Accordingly, we concluded that it should not be open to the County Court judge who conducts the further hearing to find that the applicant has not discharged his onus of establishing the impaired mental functioning limb and the causation limb.
The final issue that required resolution by us was whether the fact that the applicant’s grounds of appeal did not seek to challenge the judge’s finding that the substantial and compelling circumstances test was not met should preclude him from seeking to satisfy that test at the further hearing before the County Court.
Obviously, the grounds of appeal did not permit this Court to allow the appeal on the basis that the abovementioned finding was wrong. However, we agreed with the common position of the parties that, once the sentencing discretion was reopened on the basis of one of the extant grounds, the applicant would be at liberty to adduce evidence and make submissions on any matter that was relevant to the exercise of that discretion. Accordingly, at the further hearing before the County Court, it will be open to the applicant to seek to persuade that Court that the substantial and compelling circumstances test is satisfied.
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