Alexander v The Queen
[2021] VSCA 140
•21 May 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0263
| ROSIE ALEXANDER (A PSEUDONYM) | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGE: | NIALL JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 21 May 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 140 |
| JUDGMENT APPEALED FROM: | DPP v Alexander(a pseudonym) (Unreported, County Court of Victoria, Judge C J Ryan, 30 November 2020) |
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CRIMINAL LAW – Application for leave to appeal against sentence – One charge of criminal damage (3 months), one charge of aggravated burglary (intention to assault and possession of an offensive weapon) (2 years, 6 months) and one charge of intentionally causing injury (12 months) – Total effective sentence of 3 years with non-parole period of 18 months – Whether individual sentences on aggravated burglary and intentionally causing injury, total effective sentence, non-parole period and/or cumulation manifestly excessive – Whether aggravated burglary was a serious example of offence – Whether sufficient weight given to certain sentencing considerations including application of R v Verdins (2007) 16 VR 269 – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| No appearances. |
NIALL JA:
On 23 September 2020, the applicant pleaded guilty to three charges — criminal damage,[1] aggravated burglary (intention to assault and possession of an offensive weapon)[2] and intentionally causing injury[3] — arising from a single incident that took place on 21 February 2020.
[1]Crimes Act 1958 s 197(1).
[2]Ibid s 77(1).
[3]Ibid s 18.
The victim was the applicant’s former partner — they had been in a relationship for approximately 18 months which ended in November 2019.
On the evening of 21 February 2020 the applicant drove to the victim’s home in Rosebud. At approximately 9 pm the victim heard the applicant’s vehicle pull up. The applicant approached the victim’s front door and yelled: ‘come out’. The victim opened the front door and saw that the applicant was holding a nail gun in her right hand.
The applicant approached the front door and fired two to three nails in the direction of the victim. One of those nails hit a glass window, next to the victim’s door, which caused it to smash (charge 1, criminal damage). The victim tried to close the front door and retreated to the doorway of the front spare bedroom which was around the corner from the front door to try to protect himself. The applicant approached the front door and used the nail gun to smash the broken window further.
The applicant reached through the window into the house with both arms and continued firing the nail gun (charge 2, aggravated burglary). The nails hit doors, furniture and one embedded itself into an internal wall.
The victim believes that he was standing approximately 1.5 m away from the applicant when he was hit in the face by a nail which the applicant had fired. This caused injury to the victim’s left upper lip, gum and looseness in his top left tooth (charge 3, intentionally cause injury).
The victim’s keys were on a hanger next to the front door. During the offending, the applicant attempted to grab the keys through the broken window but was unsuccessful as the key hanger was knocked to the floor. The victim pulled the key hanger around the corner to where he was retreating. The victim grabbed the nail gun that the applicant was holding through the broken window and pulled it. The applicant’s arm was cut on the broken glass window as she pulled back.
The applicant left in her car and the victim reported the matter to police at approximately 9.37 pm that evening. The applicant was arrested approximately three hours later and transported to the Frankston Hospital Emergency Department in order to receive treatment to her arm.
Following a plea, on 30 November 2020, a judge of the County Court imposed a sentence that was structured as follows:
Charge Offence Maximum Sentence Cumulation 1 Criminal damage 10 years 3 months Nil 2 Aggravated burglary 25 years 2 years, 6 months Base 3 Intentionally cause injury 10 years 12 months 6 months Total effective sentence: 3 years’ imprisonment. Non-parole period: 18 months’ imprisonment. Pre-sentence detention: 19 days. Section 6AAA statement: 5 years’ imprisonment with a non-parole period of 3 years. Other relevant orders Forfeiture order; compensation order for $300. Proposed grounds of appeal
The applicant seeks leave to appeal the sentence on the following grounds:
1.The individual sentences imposed on counts (2) and (3), the total effective sentence, non-parole period and/or orders for cumulation are manifestly excessive in that they failed to take into account and/or give adequate weight to a number of mitigating factors put on behalf of the applicant.
(a)The sentence imposed is excessive in that the learned sentencing judge failed to take into account and/or give adequate weight to the relevant factors of mitigation in the applicant’s case, including the following:
Particulars
i. Early plea of guilty.
ii. Remorse.
iii.No prior criminal history and otherwise good character.
iv.Application of Verdins principles, in reducing moral culpability and causing a sentence of imprisonment to weigh more heavily on the applicant.
v. Good prospects of rehabilitation.
vi.Imprisonment more burdensome because of COVID-19 restrictions.
2.The learned sentencing judge erred in characterising the offending as a ‘serious example of offending of the kind.’
(a)The learned sentencing judge found that the aggravated burglary was a serious example of offending of this type.
Particulars
i.The assessment of the learned sentencing judge was erroneous and/or unreasonable as there were features of the offending that caused it to fall at the lower end of the scale of objective seriousness.
3.The learned sentencing judge failed to take into account and/or give sufficient weight to the applicant’s reduced moral culpability and any moderation to public denunciation and general deterrence as sentencing considerations.
(a)The learned sentencing judge accepted that the principals enunciated in R v Verdins had application in that the applicant’s moral culpability was reduced and general deterrence should be sensibly moderated.
Particulars
i.The learned sentencing judge failed to adequately or properly moderate general deterrence or denunciation to reflect the severity of the condition suffered by the applicant and its impact on her mental capacity at the time of the offending.
ii.The learned sentencing judge accepted that the applicant’s condition at the time eliminated specific deterrence as a sentencing consideration.
Reasons for sentence
After outlining the circumstances of the offending, the judge noted that the plea was adjourned part way through to enable a psychological/psychiatric report to be prepared about the applicant’s mental state at the time of the offending.[4] When the plea resumed, defence counsel tendered a number of documents, including a psychological report of Pamela Matthews dated 21 September 2020, a psychiatric report of Dr Patel dated 23 October 2020 and references from the applicant’s parents.[5]
[4]DPP v Alexander (a pseudonym) (Unreported, County Court of Victoria, Judge C J Ryan, 30 November 2020) [7] (‘Reasons’).
[5]Ibid [8].
The judge set out the applicant’s personal circumstances. The applicant was bullied at school because she was overweight and left part way through year eight and obtained a carpenter’s apprenticeship.[6] The applicant reported to Dr Patel that one of her three brothers has ‘schizophrenia-bipolar’ and sexually abused her when she was 14 years of age, causing her to run away from home.[7] She lived with the family of a friend and became an apprentice to her friend’s stepfather who reportedly sexually abused her.[8] At the age of 19, the applicant was diagnosed with Hodgkin’s Lymphoma and underwent nine months of chemotherapy.[9] The treatment was successful and the applicant returned to work for the man who had reportedly abused her. She worked with him until she moved to Bendigo with her then boyfriend where she lived for two years and obtained her second trade qualification as a tiler. When that relationship, ended the applicant returned to Melbourne and commenced a relationship with the victim, which lasted until November 2019.[10] The applicant said that her relationship with the victim was emotionally abusive.[11]
[6]Ibid [10].
[7]Ibid [11].
[8]Ibid [12].
[9]Ibid [13].
[10]Ibid [14].
[11]Ibid [9].
The judge noted the applicant’s history of substance abuse, as reported to Dr Patel.[12] The applicant began using alcohol, marijuana and speed at the age of 14 and has abused marijuana fairly consistently since that time. She said that she and the victim had used methamphetamine a few times while they lived together.[13] The applicant said that after her relationship with the victim broke down she began abusing methamphetamine on a daily basis, taking up to a gram per week, and drinking up to ten cans of pre-mixed bourbon per day.[14]
[12]Ibid [15].
[13]Ibid [9].
[14]Ibid [15].
The judge took into account the applicant’s psychological state leading up to, and at the time of, the offending. In this regard, the judge recorded that the applicant’s parents observed that ‘around October we noticed [the applicant] doing odd things and acting strange’ and that she ‘got a lot worse’ after she separated from the victim.[15] For example, in January 2020, the applicant drove her car into the ocean because she believed it had been bugged. After this incident, which involved the police, the applicant was introduced to the Crisis Assessment and Treatment Team at Frankston Hospital but her erratic behaviour continued. The applicant recalled that on the day of the offending she had used ice, been drinking and listened to music that provoked her to do something about her relationship with the victim. The applicant cannot recall the specifics of this or the offending.[16]
[15]Ibid [16].
[16]Ibid [17].
The judge recorded Dr Patel’s opinion that between November 2019 and the time of the offending, the applicant suffered from ‘a severe methamphetamine-induced psychotic disorder’,[17] and was in a ‘floridly disorganised psychotic state’.[18] The judge noted that Dr Patel considered this would have impacted the applicant’s insight in two ways — first, an inability to appreciate that the use of methamphetamine was contributing to her psychotic state; and second, the applicant’s psychotic state was so disorganised that she would not have appreciated that what she was experiencing was not normal. Dr Patel also noted the possibility of the applicant suffering from a ‘schizophreniform disorder’ but said that a diagnosis would require continual assessment in a state of abstinence.[19] At the time of assessment in October 2020, Dr Patel considered that the applicant met the criteria for ‘a moderate cannabis induced psychotic disorder’.[20]
[17]Ibid [18].
[18]Ibid [21].
[19]Ibid [18].
[20]Ibid.
The judge accepted that the principles in R vVerdins[21] applied with the result that the applicant’s moral culpability was reduced and the weight placed on general deterrence in the sentencing synthesis was ‘sensibly moderated’.[22] The judge was also satisfied that a sentence of imprisonment would weigh more heavily on the applicant than it would on a person in normal health.[23]
[21](2007) 16 VR 269; [2007] VSCA 102 (‘Verdins’).
[22]Reasons [21].
[23]Ibid.
In mitigation, the applicant relied on her lack of prior convictions, early guilty plea, remorse and good prospects for rehabilitation, which were said to be demonstrated by her resilience and strong character, evidenced by the fact that she had obtained two trades notwithstanding her personality disorder and the sexual abuse and cancer which she had endured.[24]
[24]Ibid [22].
The judge accepted the prosecution’s submission that although the victim’s injuries were relatively minor, this was ‘a serious example of offending of this kind’.[25]
[25]Ibid [23].
The judge accepted that the applicant was remorseful and had good prospects of rehabilitation provided that she could abstain from drug use.[26] The judge also took into account her early plea of guilty with its utilitarian value,[27] and noted that this would be the applicant’s first time in custody and, whilst incarcerated, she would be subject to additional restrictions due to COVID-19.[28]
[26]Ibid [24].
[27]Ibid.
[28]Ibid.
Despite defence counsel’s submission that a Community Correction Order with conditions was the appropriate sentence in all of the circumstances,[29] the judge imposed a term of imprisonment as the prosecution had urged him to do.[30]
[29]Ibid [22].
[30]Ibid [23].
Applicant’s submissions
Under cover of proposed ground 1, the applicant accepts that the judge took into account the various factors relied on by her in mitigation but submits that the sentence imposed fails to accord sufficient weigh to these matters or their cumulative effect.
In relation to proposed ground 2, the applicant submits that the judge erred in his assessment of the gravity of charge 2 when he described it as ‘a serious example of offending of the kind’. The applicant submits that she made no attempt to conceal or disguise herself, the entry into the house occurred when she put both arms through the broken window but she did not otherwise enter the premises; she was seriously injured in the incident; it occurred over a short period of time; there was no evidence of any history of family violence between the applicant and the victim; and the injury sustained by the victim was relatively minor.
Further, although the applicant went to the house with intent to use the nail gun, it was accepted that she was in a floridly disorganised psychotic state at the time which reduced her moral culpability.
The applicant submits under proposed ground 3 that the judge failed to moderate public denunciation and general deterrence by reason of the applicant’s reduced moral culpability arising from her mental state. The applicant accepts that the judge concluded that specific deterrence was eliminated as a sentencing consideration, however, failed to give effect to the same principle in respect of the denunciation and general deterrence.
Consideration
Ground 1
As the summary of the judge’s reasons set out above shows the judge gave very careful consideration to the objective gravity of the offending and the individual circumstances of the applicant. The reasons reveal a careful weighing of the individual matters that both aggravated and moderated the sentence.
There were, a number of aspects of the aggravated burglary that were significant and adverse to the applicant. The applicant attended the premises of a former partner armed with a nail gun with intent to enter and assault the victim using the nail gun as a weapon. The forced entry through the window which enabled the applicant to indiscriminately fire the nail gun into the house must have been a terrifying incident for the victim.
The choice of weapon was significant because of the potential to cause very serious injury and because it was an obviously confronting weapon that would have instilled fear.
The offence of aggravated burglary is inherently serious as reflected in the maximum penalty of 25 years’ imprisonment. The offence often involves, as it did in this case, a significant invasion into the home of the victim, a place where the occupier is entitled to feel safe. Since Hogarth v The Queen,[31] this Court has consistently emphasised the need for sentences for aggravated burglary offences of this kind to reflect both their objective seriousness and the need for general deterrence.[32] In this case, general deterrence was moderated by the judge but the observations as to the objective seriousness of this type of offending remains pertinent.
[31] (2012) 37 VR 658; [2012] VSCA 302.
[32]Hill v The Queen [2020] VSCA 220, [47] (Maxwell P and Niall JA).
When regard is had to the sentence of 2 years and 6 months imprisonment on charge 2 and the reasons for sentence it is clear that the judge gave great weight to the significant mitigating factors to which he referred. The mitigating factors were substantial: the applicant had no relevant prior offending, a troubled upbringing and an unstable mental state. The fact that she was able to obtain two trades (carpentry and tiling) and her history of employment was to her credit and, as the judge noted, informed his positive assessment of rehabilitation. The judge noted that the prospects of rehabilitation are good if the applicant abstains from drug taking. These factors are properly reflected in the sentence imposed.
It is not arguable that the sentence or any of its components are manifestly excessive. As the respondent submits, there is nothing to indicate there is something plainly wrong in the sentences imposed or the orders of accumulation or that they were totally outside the range of sentencing options available.
Ground 2
For similar reasons ground 2 must fail. The judge accepted the prosecution’s submission that the aggravated burglary was a serious example of offending of this kind. In saying that, it is clear that the judge was addressing the objective features of the offending which include the forced entry and the use of a nail gun as a weapon. Again, when regard is had to the sentence imposed, it is clear that the judge accepted the factors in mitigation meant that although there were a number of features which rendered it a serious example of aggravated burglary, a moderate sentence should be imposed.
In considering what the judge meant when he described it as a serious example of the offending it is necessary to take into account not only that characterisation but also the sentence imposed. Given that he imposed a sentence of 2 years and 6 months for an offence that carries a maximum of 25 years imprisonment, the judge’s characterisation did not lead him into error. The sentence was relatively moderate and shows that the judge did not confine his consideration to the objective features of the offending without close attention being given to the individual circumstances of the applicant.
Ground 3
The judge accepted that at the time of the offending the applicant suffered from a severe methamphetamine induced psychotic disorder. The medical evidence of Dr Patel also supported a finding that as at October 2020 the applicant met the criteria for a moderate cannabis induced psychotic disorder.
The judge considered the extent to which a drug induced psychosis can mitigate sentence. Although a psychosis induced by drugs may mean that the applicant has impaired judgment or a loss of control it is treated differently from other forms of psychosis because it arises from the voluntary consumption of drugs. The judge noted that an offender may rely on drug induced psychosis in certain circumstances referring to the observation of Redlich JA in Director of Public Prosecutions v Arvanitidis[33] that:
If the respondent was aware that by taking the drug, his judgment would be so affected that he would behave irrationally or that it would effect his ability to exercise control, his self-induced mental state would not constitute a mitigating circumstance. It was for the respondent to establish on the balance of probabilities that he did not know that the drug would have such effects.[34]
[33][2008] VSCA 189.
[34]Ibid [34] (citations omitted).
The judge accepted that the applicant had no insight into her psychotic state nor that the abuse of methamphetamine could cause her to behave irrationally or defect self-control. In those circumstances the judge accepted that the psychosis engaged the principles in Verdins concluding that the applicant’s moral culpability was reduced and the general deterrence should be sensibly moderated. He also concluded that by reason of her mental health a sentence of imprisonment would weigh more heavily upon her.
The applicant’s complaint is that the judge did not bring those matters to account when he imposed sentenced. This ground must be rejected.
I agree with the respondent’s submission that the findings of the judge in relation to the drug induced psychosis were relatively generous given the applicant’s ongoing abuse of illicit drugs and a past history of psychosis which involved the intervention of the police and being seen by the Crisis Assessment and Treatment team. Nevertheless, the judge accepted that Verdins applied.
The extent to which the applicant’s moral culpability was reduced and the impact on sentence is not capable of precise quantification. It was a matter for the judge to weigh in arriving at the appropriate sentence. The judge said that he would moderate general deterrence and there is no reason to think, having regard to the reasons as a whole and the sentence imposed, that the judge failed to take these matters into account or undervalued them.
I would reject this ground.
Conclusion
The application for leave to appeal is refused.
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