Anas Abdulfatah v The Queen
[2019] VSCA 262
•15 November 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0228
| ANAS ABDULFATAH | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | FERGUSON CJ, WHELAN and PRIEST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 29 October 2019 |
| DATE OF JUDGMENT: | 15 November 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 262 |
| JUDGMENT APPEALED FROM: | [2018] VCC 1532 (Judge Lewitan) |
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CRIMINAL LAW – Leave to appeal sentence – Double punishment – Same injury alleged in respect of cause injury recklessly and aggravated carjacking charges – Respondent conceded no cumulation warranted – Leave refused – No reasonable prospect total effective sentence reduced despite error – Criminal Procedure Act 2009 sub-ss 280(1)(b), 280(2) applied.
CRIMINAL LAW – Leave to appeal sentence – Ground of manifest excess – Offending over 5 hour period against four victims, four separate incidents – Cause injury recklessly, common assault, aggravated carjacking, damage property, driving offences – Verdins factors given appropriate weight – Insight into likely effects of drug use on pre-existing mental illness – Totality considerations and presumption of cumulation appropriately balanced – Leave refused – R v Verdins (2007) 16 VR 269 considered – Wright v The Queen (2015) A Crim R 261, R v Martin (2007) 20 VR 14, DPP v Davis [2017] VSCA 341 referred to – Sentencing Act 1991 ss 10AD, 16(3C) considered – Criminal Procedure Act 2009 sub-ss 280(1)(b), 280(2) applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J O’Connor | James Dowsley & Associates |
| For the Respondent | Ms R L Harper | Mr J Cain, Solicitor for Public Prosecutions |
FERGUSON CJ
WHELAN JA
PRIEST JA:
The applicant is a man of Sudanese origin, now in his early 30s, who suffers from a serious mental illness, schizoaffective disorder. He has not been consistently compliant with his medication and he has used illegal drugs. This combination of circumstances has resulted in him consistently offending. He has been constantly before the courts since he was 17 years of age.
The offences which are the subject of this application were committed over approximately a five hour period commencing at 7.15 pm on 11 January 2017. The applicant assaulted a female acquaintance who believed that he had stolen money from her, and then went on what can only be described as a rampage, involving carjacking, dangerous driving, and unprovoked assaults on complete strangers.
On 16 August 2018 the applicant pleaded guilty in the County Court to six charges on an indictment. There were three charges of causing injury recklessly, a charge of aggravated carjacking, a charge of common law assault, and a charge of damaging property. In addition, he pleaded guilty to three summary charges, being committing an indictable offence whilst on bail, driving in a manner dangerous, and unlicensed driving.
Following a plea, the applicant was sentenced as follows:
Charge
Offence
Maximum
Sentence
Cumulation
1. Cause injury recklessly [s 18 of the Crimes Act 1958 (Vic)] 5 years
2 years 1 year 2. Cause injury recklessly [s 18 of the Crimes Act 1958 (Vic)] 5 years
2 years 1 year 3. Aggravated carjacking – offensive weapon [s 79A(1)(a) of the Crimes Act 1958 (Vic)] 25 years 4 years Base 4. Common law assault [s 320 of the Crimes Act 1958 (Vic)]
5 years 3 months 1 month 5. Cause injury recklessly [s 18 of the Crimes Act 1958 (Vic)] 5 years
6 months 2 months 6. Damaging property [s 197 of the Crimes Act 1958 (Vic)]
10 years 3 months 1 month Summary Charge 16 Commit an indictable offence whilst on bail [s 30B Bail Act 1977 (Vic)] 3 months 2 months 1 month 22 Drive in a manner dangerous [s 64 of the Road Safety Act 1986 (Vic)] 2 years 3 months
1 month
24 Unlicensed driving [s 18 of the Road Safety Act 1986 (Vic)] 3 months Total Effective Sentence: 6 years and 6 months imprisonment Non-Parole Period: 4 years imprisonment (1) of the Sentencing Act 1991Pre-Sentence detention declaration pursuant to s 18: 623 days 6AAA Statement 9 years and 6 months imprisonment, with a non-parole period of 6 years Other relevant orders: Cancellation of any driver’s licence or learner’s permit, and disqualification from obtaining a driver’s licence or learner’s permit for 12 months from the day of sentence. Forfeiture order in respect of pitchfork. Circumstances of the offending
The offending may be divided into four separate episodes. At the time of the offending the applicant was on bail for a charge of recklessly causing injury allegedly committed whilst in custody (commit an indictable offence on bail — summary charge 16).
The first episode — recklessly cause injury to Linley Curtis (charge 1)
The applicant had known the first victim, Linley Curtis, for about 2 years. She believed that the applicant had stolen money from her. She contacted the applicant’s brother attempting to reach the applicant.
At about 7.15 pm on 11 January 2017 the applicant came to Ms Curtis’ residence. He approached Ms Curtis, who was outside her door, and asked her why she had called his brother. She replied that she had nothing to say to the applicant until he paid her back. As Ms Curtis turned to open her door, the applicant struck her hard from behind. Her head hit the door. The impact caused her to be in a disoriented and semi-conscious state.
The applicant then entered Ms Curtis’ home and punched her again, causing her to stumble to the ground. He dragged Ms Curtis further inside and forced her onto the kitchen table where he held her down. The applicant left her on the table and looked throughout her unit, before leaving. As he left he smashed the front window. Outside, he confronted the second victim.
The second episode — recklessly cause injury to Mojtaba Neysi (charge 2) and aggravated carjacking (charge 3)
On that night Mojtaba Neysi was working as a delivery driver. He arrived at Ms Curtis’ residence at 7.30 pm to deliver food to her. He had no personal association with Ms Curtis or the applicant. The applicant approached Mr Neysi with a pitchfork in his hand. He held the pitchfork to the left side of Mr Neysi’s neck saying ‘I will kill you’, before demanding the keys to his car. Mr Neysi ran towards his car. The applicant chased him and told Mr Neysi to get in the car. Mr Neysi got into the driver’s seat. The applicant got into the front passenger seat, still holding the pitchfork. The applicant told Mr Neysi, amongst other things, that he was going to bash him until he died.
Terrified of what the applicant would do, Mr Neysi then got out of the car. The applicant also got out of the car and ran to the driver’s side. He punched Mr Neysi with one hand before throwing the pitchfork to the ground. He then punched Mr Neysi with both fists to the head and face. He continued hitting Mr Neysi until he doubled over. He then kneed him in the chest before sticking a finger in his mouth and pulling hard to the side.
Mr Neysi took his car keys from his pocket and threw them at the applicant. Mr Neysi ran. The applicant got in and drove the car, following Mr Neysi as he ran down the street. The applicant continued to follow Mr Neysi, coming close to him a few times before police arrived in the area and the applicant drove away. Ms Curtis had rung 000.
Third episode — drive in a dangerous manner (summary charge 22) and unlicensed driving (summary charge 24)
At approximately 8.45 pm, the applicant was driving the stolen car in St Kilda. He was not licensed to drive. He approached a car driven by Mr Jamie Robinson. Ms Abbey Sproule was a passenger in that car. The applicant started flashing the headlights and tooting at the vehicle Mr Robinson and Ms Sproule were travelling in for an unknown reason. The applicant drove on the wrong side of the road, pulling in front of Mr Robinson’s vehicle and then abruptly applying the brakes. He drove on the wrong side of the road again, and turned right against a red arrow. A short time later, the applicant rammed Mr Robinson’s vehicle from behind, causing it to lurch forward three metres ending just short of a pedestrian crossing on which there were pedestrians.
As Mr Robinson was getting out of his car in a car park area, the applicant stopped the stolen vehicle on the passenger side of Mr Robinson’s car. Ms Sproule started to record on her mobile phone. The applicant saw Ms Sproule recording. He yelled, ‘why the fuck are you filming?’ before ducking and reversing the stolen vehicle. As the applicant reversed the car it struck Mr Robinson in the knee and briefly wedged him between the vehicles. The applicant continued reversing, colliding with the rear passenger side of Mr Robinson’s vehicle before driving away.
Fourth episode — common assault of Louise Randle (charge 4), recklessly cause injury to Sibusiso Chitombo (charge 5) and damaging property of Sibusiso Chitombo (charge 6)
At about 12.05 am on 12 January 2017, the applicant returned to the area where the first episode had taken place. Louise Randle drove into a nearby carpark, with her partner, Sibusiso Chitombo, and a friend. They were all complete strangers to the applicant.
As Ms Randle got out of her car, the applicant approached her with a pitchfork in his hand and said ‘what are you doing here?’. She replied that she was visiting a friend. The applicant said ‘you have to pay to do that, give me all your money.’ After Ms Randle said she did not know what he was talking about, the applicant lifted the pitchfork, threateningly pushed it across Ms Randle’s chest and forced her back against some bins. She screamed for help and Mr Chitombo came out of the car and tackled the applicant, causing him to drop the pitchfork.
The applicant assaulted Mr Chitombo with his fists while Ms Randle hid the pitchfork under a nearby vehicle and got back into the car. She saw the applicant and Mr Chitombo wrestling and rolling around. Ms Randle began flashing the car headlights and tooting the horn to get people’s attention. People started to come out of the units in the area, and they forcibly dragged the applicant away from Mr Chitombo. The applicant ran at the car and smashed the window with his forearm. Mr Chitombo was able to get back in the car, and Ms Randle drove away.
Injuries sustained
As a result of the assault upon her, Ms Curtis temporarily lost consciousness and suffered bruising and abrasions over her body including her face, breast and inner thigh. She had pain in her left jaw and widespread bruising under her left eye, upper lip, forehead, back and chest. She had a swollen right middle finger.
As a result of the assault upon him, Mr Neysi suffered bruises and abrasions as well as cuts to his lip and mouth.
Mr Robinson suffered a minor injury to his knee.
Mr Chitombo suffered a laceration to his head/scalp area and bruising to his face and body.
Personal circumstances and prior criminal history
The applicant is now 32 years old. He was 29 at the time of the offending and 31 at the time of sentence. He was born in Sudan, one of six siblings. He spent much of his early childhood in a refugee camp in Egypt. He came to Australia with his family when he was eight years old. His father, who is unwell, was at the time of sentence receiving medical treatment in Ethiopia, supported by two of his sisters. The rest of his family is still in Australia.
The applicant has reported suffering some bullying at school. As a result of problems he was experiencing in Australia, he was sent by his family to school in Ethiopia for a year. He returned to Australia and began Year 11, but he left school during that year.
The applicant suffers from a schizoaffective disorder. He was first hospitalised because of his mental illness when he was approximately 17 years old. He has been repeatedly hospitalised since then. He has had at least seven periods as an inpatient in a psychiatric institution.
The applicant began using methylamphetamine and cannabis in 2004.
The applicant has many prior convictions. Prior to the sentence which is the subject of this application, he had appeared in court on eighteen occasions since 2004. He has committed numerous violent assaults, as well as many thefts and a burglary, robberies, a firearms offence, and other dishonesty and property offences. He has been placed upon a community based order or a community correction order on three occasions, and on three occasions he has received suspended sentences. He breached two of those three orders, and offended whilst on one of the suspended sentences. He has been sentenced to terms of imprisonment on a number of occasions, usually for short periods and often for a period equal to the time he had served on remand.
On 17 August 2015 he was sentenced in the Melbourne Magistrates’ Court on one charge of recklessly causing injury, three charges of unlawful assault, a charge of behaving in a riotous manner in a public place, a charge of hindering police, and a charge of failing to answer bail. He was sentenced to an aggregate term of imprisonment of 1 year 6 months with a non-parole period of 12 months. At the time of sentence he had been held on remand for 354 days.
For the purpose of the hearing in August 2015 a report had been prepared (on the instructions of his solicitors) by the consultant forensic and general adult psychiatrist, Dr Ahmed Mashhood.
In his report, dated 4 July 2015, Dr Mashhood referred to the applicant’s long history of contact with mental health services and to an incident in February 2004 when he had been hit on the head with an iron rod. He referred to the applicant’s abuse of illegal substances, in particular cannabis since the age of 13 or 14 and ‘speed, ice or cocaine’ which the applicant maintained he had not used for a ‘very long time’. Dr Mashhood had discussed the applicant’s condition with his case manager at the Broadmeadows North West Area Mental Health team. He had been told that the applicant’s presentations at times were ‘complicated by drug use’ and that he was ‘predisposed to developing psychosis and mania due to the contributory effects of cannabis and speed’.
The offending which was the subject of the charges dealt with in August 2015, and which Dr Mashhood was addressing, had occurred in 2014 and 2012. On 29 August 2014 the applicant ‘glassed’ a person at a nightclub and, together with a co-accused, kicked the same victim numerous times whilst he was on the ground. On 16 November 2012 the applicant assaulted and terrorised passengers and a Yarra Line Officer on a suburban tram and had a confrontation with police afterwards.
Dr Mashhood addressed the applicant’s insight at that time in the following terms:
In regards to insight, Mr Abdulfatah stated that he had a diagnosis of schizoaffective disorder and was able to explain the symptoms of depression, mania, and psychosis that he had suffered in the past. He understood that medications were [an] essential part of recovery. He eventually accepted that cannabis use was likely to have adverse effects in destabilising his mental illness.
Dr Mashhood expressed the opinion that the applicant suffered from a major mental illness ‘namely Schizoaffective Disorder, Bipolar Type, Multiple episodes’. He expressed the opinion that there was a link between the illness and the offending which was ‘plausibly exacerbated by cannabis use and alcohol use’. He said that the applicant’s recovery was likely to be ‘centrally and positively’ influenced by his compliance with prescribed anti-psychotic and mood stabilisation medications and abstinence from alcohol and drugs.
Psychiatric material relied upon in the plea
For the purpose of the plea in relation to the offences which are the subject of this application the applicant was seen by a consultant forensic psychiatrist at Forensicare, Dr Kate Roberts. She prepared a report dated 12 August 2018 which was tendered on the plea, and she gave oral evidence.
In her report Dr Roberts referred to the applicant’s personal history and to the ‘extensive contact’ which he had had with psychiatric services since his teenage years. In relation to his attitude towards compliance with medication Dr Roberts reported:
In the future, he reported that he planned to comply with medication ‘to a degree’ but ‘not in such high doses’. He reported that he was not ‘stuck on’ medication and would prefer to focus on diet and exercise, which he felt was working at the moment.
In relation to the use of alcohol and drugs, Dr Roberts reported the applicant as telling her that he planned to ‘steer clear’ of ice but to ‘continue using cannabis’.
In relation to the period immediately prior to the offending, Dr Roberts reported that he described to her feelings of loneliness and anger. She went on:
He also reported that he was only partially compliant and was using cannabis and ice which became heavy just prior to the offences.
Dr Roberts referred to the report by Dr Mashhood, and to a Forensicare report dated 26 May 2017 by Murray Bruce, a mental health nurse practitioner, concerning the applicant’s treatment in custody.
Amongst Dr Roberts’ conclusions were the following:
He has a clear diagnosis of Schizoaffective disorder, Bipolar type which appears to have been severe and relapsing in nature. His illness is typified by prominent mood symptoms and delusions which appear to be largely ideas of reference. Substance use may well have compounded his vulnerability for a psychotic disorder and likely exacerbates relapses.
His symptoms do seem to have responded to treatment in the form of antipsychotic medication and currently he appears to be stable on treatment. …
He remains currently motivated to comply with treatment but given his history of poor compliance and the fact he remains convinced that cannabis does not prove detrimental to his mental state he will require ongoing monitoring and possibly assertive management in the community in the future.
From the material available to me, Mr Abdulfatah appears to have clearly decompensated in the lead up to the alleged offences and was most likely symptomatic when offending given he admitted to being only partially compliant and using ice, which is known to exacerbate psychotic symptoms.
In Dr Roberts’ oral evidence she said that the applicant had shown that he does respond to medication, which she considered to be a positive matter, adding:
but it becomes clear when he is non-compliant with medication and as well, when this is further complicated by illicit substance use, he becomes unwell.
She agreed with an observation by Mr Bruce in his report that the applicant’s relapse prior to the offending seemed to be precipitated by a period of medication non-adherence and cannabis use.
At one point the judge addressed particular questions to Dr Roberts:
Her Honour: So he would have known from all these services that he’s taken advantage of in the past of the importance of taking medication? – – – Yes, that would certainly have been averted.
And he would known what — that he was suffering from some sort of mental disability? – – – Yes.
And he would known that the taking of illicit substances would have affected his mental condition? – – – He would have been aware of that, yes.
Thank you? – – – I think it’s important just to mention though that compliance or non-compliance is something that’s very frequent and regular because there are side effects to medication. You also have to remember to take it at least once a day, some medications are more frequent than that. And often we see our patients self-medicating with substances.
With illicit substances? – – – Yes.
Dr Roberts agreed that the applicant had recognised that methamphetamine impacted on his mental state and on his offending, but she then went on to say that it could not be assumed that he would necessarily have had the capacity to make an assessment that if he used the drug on a particular occasion it would have a direct impact on his mental state.
Dr Roberts agreed with the proposition put to her that his recognition of the effect of methamphetamine was a recognition of ‘getting into trouble with the police’ and not necessarily of overt violence.
Reasons for sentence
The sentencing judge gave comprehensive reasons for the sentence she imposed.[1] She set out the circumstances of the offending in detail.[2] She referred to the mitigating effect of the applicant’s guilty plea, both for its utilitarian value and because it indicated remorse.[3]
[1][2018] VCC 1532 (‘Reasons’).
[2]Ibid [5]–[36].
[3]Ibid [39].
The judge set out the applicant’s personal history and the evidence before her concerning his psychiatric condition.[4] She referred to other health problems from which the applicant suffers.[5]
[4]Ibid [40]–[53].
[5]Ibid [55].
The judge briefly referred to the applicant’s extensive criminal history, the fact that he retained the support of his family, and to the applicable sentencing principles,[6] before turning in detail to the principal matter relied upon in the plea, being the mitigating effect of the applicant’s impaired mental functioning in accordance with the principles set out by this Court in R v Verdins.[7]
[6]Ibid [56]–[58].
[7](2007) 16 VR 269 (‘Verdins’).
This Court in Verdins said that impaired mental functioning could be relevant to sentencing in at least six ways. In very brief summary, they are:
(1)The condition may reduce moral culpability.
(2)The condition may have a bearing on the kind of sentence to be imposed.
(3)General deterrence may be moderated or eliminated.
(4)Specific deterrence may be moderated or eliminated.
(5)The condition may mean a sentence may weigh more heavily on the offender than on a normal person.
(6)Imprisonment may have an adverse effect on the offender’s mental health.
After reviewing the evidence before her, and referring to this Court’s decision in DPP v O’Neill,[8] the sentencing judge concluded that the applicant’s mental condition did mean that his moral culpability was ‘reduced to some extent’. The sentencing judge’s conclusion in that respect was influenced by the fact that the evidence before her indicated that he understood the importance of taking his medication and that he would have known that taking illicit substances would affect his mental condition.[9] The sentencing judge also concluded, for the same reasons, that general and specific deterrence ‘should be sensibly moderated’. The sentencing judge accepted that the fifth and sixth considerations in Verdins were also applicable.[10]
[8](2015) 17 VR 395.
[9]Reasons [64]–[66].
[10]Ibid [67]–[69].
Under s 10AD of the Sentencing Act 1991, a minimum non-parole period of three years must be imposed upon an offender who commits an aggravated carjacking, unless a ‘special reason exists’. The special reason said to apply in this case was the applicant’s impaired mental functioning. The judge assessed the evidence and concluded that a ‘special reason’ had not been established.[11] That conclusion is not contested in the application for leave to appeal.
[11]Ibid [70]–[82].
The submission made on behalf of the applicant before the sentencing judge was that an appropriate penalty would be to place the applicant on a lengthy non-custodial order requiring mental health treatment and treatment for drug and alcohol abuse. The sentencing judge concluded that such a disposition was not appropriate in the circumstances of the case.[12]
[12]Ibid [85].
Because the offences were committed whilst the applicant was on bail a presumption of cumulation applied under s 16(3C) of the Sentencing Act, which the judge recognised.[13] The sentencing judge was still required to have regard to the principles of totality, which she also explicitly recognised.[14]
[13]Reasons [90].
[14]Ibid.
Proposed grounds of appeal
The application for leave to appeal against sentence contained a single ground of appeal being: the individual sentences imposed on charges 1, 2, 3, 6 and 16, the total effective sentence and the non-parole period are manifestly excessive.
In the course of submissions an application was made to add a new proposed ground, and leave was granted to add that proposed ground. The additional proposed ground was as follows:
The sentencing judge erred by doubly punishing the Applicant by ordering that 12 months of the sentence on charge 2 be served cumulatively upon the base sentence.
Submissions
The submissions advanced on behalf of the applicant addressed two issues, the application of the principles in Verdins, and totality.
In relation to Verdins it was submitted that the judge had correctly concluded that considerations 1, 3, 4, 5 and 6 in Verdins were applicable. It was submitted that it was not clear on the evidence that the applicant’s recognition of the effect of the use of illicit drugs on him was a recognition which he had before the offending, or rather a recognition existing only after the offending. It was submitted that the applicant’s position was to be distinguished from that dealt with in cases such as Wright v The Queen,[15] where an offender who suffered from a mental illness had offended during a psychotic episode which was a direct result of a deliberate decision on the offender’s part to cease taking prescribed medication and to take methamphetamine. It was submitted that that was a case where the evidence showed the offender had ‘full knowledge’ of the adverse effect of the drug on him,[16] in contrast to the evidence concerning the applicant here. It was submitted that the applicant’s case was also to be distinguished from cases such as R v Martin,[17] which concerned drug induced psychosis, and DPP v Davis[18] where offending by a cognitively impaired person was found to have been ‘in good part’[19] a consequence of excessive alcohol consumption.
[15](2015) 257 A Crim R 261.
[16]Ibid 272–3 [44].
[17](2007) 20 VR 14.
[18][2017] VSCA 341.
[19]Ibid [65].
In relation to the weight to be given to the Verdins considerations counsel for the applicant submitted that foreknowledge of the impact of illicit drugs was a very relevant consideration, but the existence of that foreknowledge was unclear in this case. Here, it was submitted, the Verdins considerations, while recognised, had not been given the weight they ought to have been given, and that had resulted in excessive individual sentences and an excessive total effective sentence and non-parole period.
Counsel for the applicant accepted that non-compliance with medication was an operative factor in the offending but submitted that the applicant’s condition was one which was very difficult to manage and that such conditions are characterised by a lack of insight and a failure to comply.
Counsel for the applicant conceded that the circumstances which had been addressed by Dr Mashhood in 2015 were very similar to the circumstances which had been before the sentencing judge. He accepted that specific deterrence was important, but submitted that the sentence was still too severe.
In relation to totality, counsel for the applicant submitted that all of the offending had taken place in a confined period. It was submitted that the cumulation, an additional two and a half years’ imprisonment upon the base aggravated carjacking sentence, was simply too much. It was submitted that none of the offences other than the assault upon Ms Curtis and the aggravated carjacking warranted significant terms of imprisonment.
In relation to charge 2, the assault upon Mr Neysi, it was submitted on behalf of the applicant that that offence was ‘part and parcel’ of the aggravated carjacking, as was made clear on the indictment. On the indictment, charge 3 (the aggravated carjacking) relevantly read that the applicant robbed Mr Neysi of a vehicle ‘and at the time had with him an offensive weapon namely a pitchfork and in the course of the carjacking caused injury to [Mr Neysi]’. It was discussion around this submission that prompted the application to add the additional ground. It was submitted that charge 2 (cause injury to Mr Neysi) was ‘wholly subsumed’ within the offence on charge 3 (aggravated carjacking).
Counsel for the applicant accepted that because the offences were committed on bail there was a presumption of cumulation, but submitted that, as the sentencing judge had recognised, that did not displace considerations of totality.
The respondent accepted that the Verdins considerations (other than consideration 2) applied. It was submitted that the psychiatric evidence revealed that the various causative factors which resulted in the offending were ‘intertwined’ and that the sentencing judge had given due consideration to all of them.
In relation to totality, the respondent submitted that there were four discrete victims and four ‘violent incidents’. The victims were unrelated. The judge was required to give effect to a presumption of cumulation.
In relation to the cumulation on charge 2, it was initially submitted that the conduct which constituted charge 2 was not wholly subsumed within the carjacking offence and that there had to be some separate cumulation.
The respondent was given leave to file and serve a further written submission on the additional proposed ground, as no notice of that additional ground had been given to the respondent previously. In relation to the additional ground, the respondent filed a revised written case which, in relation to the additional ground read:
Upon reflection, the respondent concedes that the injury caused to the complainant in charge 2 is the same injury alleged in relation to the carjacking charge, charge 3. As such, no period of cumulation is warranted on charge 2.
The revised written case maintained the submission that leave to appeal should be refused because the applicant had failed to demonstrate that the total effective sentence and the non-parole period were outside the range available to the sentencing judge.
Analysis
Given the very serious and longstanding nature of the applicant’s mental illness, and the evidence tendered and heard on the plea, this was not a case where a conclusion could be drawn that the applicant had had ‘full knowledge’ of the effect which taking illicit drugs and ceasing his medication would have upon his mental condition. However, it was clear on the evidence before the sentencing judge that he did have some insight into the likely effects.
The sentencing judge applied all of the considerations in Verdins with the exception of consideration 2, although she moderated their application. In our opinion, her approach on this issue was entirely correct. The applicant has a serious mental illness. The Verdins principles do apply. But he has some insight, and he has offended in a similar way as a consequence of similar non-compliance with medication and use of illegal drugs in the recent past. The application of the Verdins principles had to be sensibly moderated, as the judge did.
We do not accept that the sentencing judge failed to give appropriate weight to the Verdins considerations.
Notwithstanding the applicant’s mental illness, given his history, particularly the similar matters in 2015, protection of the community and specific deterrence were important considerations in the applicant’s sentence.
In relation to totality, the presumption of cumulation, as the applicant was on bail, was also important.
The offending which was the subject of charge 2 (cause injury to Mr Neysi) and the offending the subject of charge 3 (aggravated carjacking) very substantially overlapped. So much is now accepted.
The component of the total effective sentence represented by the order for cumulation on charge 2 is significant.[20] Totality was an important consideration in the sentencing process, as the judge recognised. In the circumstances of this case, allowing an appeal on the proposed additional ground, and setting aside the order for cumulation on charge 2, would re-open the sentencing discretion in relation to all of the offences.[21]
[20]The one year’s cumulation is approximately 15 per cent of the total effective sentence.
[21]This is not a case where the effect of altering one sentence is inconsequential: See Smith v The Queen [2012] VSCA 5 [1] per Ashley JA and [47]–[48] per Weinberg JA with whom Tate JA agreed, and, more recently, Kettyle v The Queen [2019] VSCA 220 [66]–[67].
In our opinion, assessing the offending as a whole, the total effective sentence of 6 years 6 months’ imprisonment was the appropriate one, and any lesser total effective sentence would have been inadequate. This is also so in relation to the non-parole period. In our opinion, a non-parole period of less than four years would be less than the minimum time which justice requires be served having regard to all the circumstances of the offending.[22]
[22]Power v The Queen (1974) 131 CLR 623, 628.
Section 280 of the Criminal Procedure Act contains specific provision for a circumstance where there is a reasonably arguable ground of appeal but the Court of Appeal is of the view that the total effective sentence could not be reduced despite there being an error in the sentence first imposed. The relevant provisions are in sub-ss 280(1)(b) and (2).
If the cumulation order made in relation to charge 2 were to be set aside, thereby re-opening the sentencing discretion on all the offences, in our opinion, upon that reconsideration, there is no prospect that this Court would reduce the total effective sentence despite there being an error in relation to the cumulation on charge 2. In particular, accepting that there should be no cumulation in relation to charge 2, we would increase the sentence on charge 3. On that charge alone a sentence greater than 4 years’ imprisonment would be fully justifiable, and a non-parole period in relation to that charge alone of at least three years is mandated by the Sentencing Act.
Accordingly, leave to appeal will be refused.
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