Ashton v The Queen
[2010] VSCA 329
•7 December 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2009 0782 | |
| CAMPBELL PHILLIP ASHTON | Appellant |
| v | |
| THE QUEEN | Respondent |
---
JUDGES: | REDLICH and HANSEN JJA and VICKERY AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 17 November 2010 | |
DATE OF JUDGMENT: | 7 December 2010 | |
MEDIUM NEUTRAL CITATION: | [2010] VSCA 329 | |
JUDGMENT APPEALED FROM: | R v Ashton (Unreported, County Court of Victoria, Judge Campbell, 21 August 2009) | |
---
CRIMINAL LAW – Sentence – Armed robbery – Two counts of attempted armed robbery – Recklessly causing serious injury – Intentionally destroying property – Guilty plea - Young offender – Paranoid schizophrenia – Sentenced to four years and six months’ imprisonment with non-parole period of three years – Judge erred in sentencing on basis of disputed fact adverse to appellant without requiring Crown to call victims to substantiate facts and be cross-examined by appellant’s counsel – Judge erred by giving inadequate weight to appellant’s youth and reduced moral culpability by reason of serious psychiatric abnormality – Errors led to excessive sentences – Appeal allowed – Appellant re-sentenced to four years’ imprisonment with non-parole period of two years and two months.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms D I Piekusis | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Appellant | Mr T Kassimatis | Victoria Legal Aid |
REDLICH JA:
For the reasons given by Hansen JA I agree that the appeal should be allowed and the appellant re-sentenced in the manner proposed by his Honour.
HANSEN JA:
Campbell Phillip Ashton (‘the appellant’) pleaded guilty in the County Court to one count of armed robbery (count 1), two counts of attempted armed robbery (counts 2 and 3), one count of recklessly causing serious injury (count 4), and one count of intentionally destroying property (count 5). The maximum penalties for these offences were 25, 20, 15 and 10 years’ imprisonment respectively.
The appellant was aged 18 at the time of the offending and 19 at the time of sentence. The presentment alleged, and the appellant admitted, one prior appearance at the Children’s Court resulting in a good behaviour bond, following findings of guilt (without conviction) for damaging property, burglary and theft. Counsel on the plea also stated that the appellant had committed further offences dealt with in the Children’s Court, including driving offences, theft of a motor vehicle, being unlawfully on premises and recklessly causing injury. As to these latter offences, the judge noted that ‘there are more offences about which I know little. It probably does not matter at this point’. In any event, no complaint is made about the judge’s treatment of the appellant’s criminal history.
Following a plea in mitigation, on 21 August 2009 the judge sentenced the appellant as follows:
Count 1: 12 months’ imprisonment
Count 2: 24 months’ imprisonment
Count 3: 24 months’ imprisonment
Count 4: 36 months’ imprisonment
Count 5: three months’ imprisonment
The judge stated that even though the offence the subject of count 4 carried a lesser
maximum penalty than counts 1, 2 and 3, he took the sentence on count 4 to be the head sentence, because of the injuries inflicted on the victim. No complaint is made about that. The judge directed that 12 months of the sentences on counts 2 and 3, and six months of the sentence on count 1 be served cumulatively on the sentence imposed on count 4, thus producing a total effective sentence of four years and six months’ imprisonment. A non-parole period of three years was imposed. The judge declared that the appellant had served 266 days of pre-sentence detention. Finally, he stated that if the appellant had not pleaded guilty, he would have imposed a total effective sentence of six years with a non-parole period of four years and six months.
The appellant appeals against his sentence pursuant to leave granted under s 582 of the Crimes Act 1958. The grounds of appeal allege that:
1. The learned sentencing judge erred by:
(a)finding, and sentencing the appellant on the basis, that the offending the subject of counts 2 and 4 was committed on innocent strangers;
(b)arriving at his finding largely by reason of the appellant declining to give sworn evidence on the plea; and
(c)concluding that, in order to challenge the Crown’s position that the victims of counts 2 and 4 were strangers to the appellant, it was necessary that the appellant give sworn evidence.
2.The learned sentencing judge erred by attaching insufficient weight to, or failing to reflect in the sentences imposed, the appellant’s:
(a)youth; and
(b)impaired psychiatric functioning.
The relevant facts were as follows.
The armed robbery the subject of count 1 occurred at about 8.25 pm on 3 October 2008. The victim, Peter Clarke, was walking in Southbank and talking on his mobile phone. The appellant came up behind Clarke and grabbed the phone. Clarke held onto the phone, and when he turned around to see who had grabbed him, the appellant hit him on the forehead with a beer bottle. A struggle ensued, and Clarke ultimately ended up on the ground while the appellant escaped with the phone. Clarke suffered some minor injuries to his left hand and a lump on the forehead. The phone was valued at $200 and was not recovered. The judge made a compensation order for $200.
The appellant was arrested three weeks later and interviewed by police. He claimed to have no recall of the incident, due to consuming large amounts of Xanax and alcohol in the preceding week, but said that he was sorry for the victim, that he didn’t mean to do it, and that he wouldn’t be surprised if he was 100 percent guilty. After the interview, the appellant was released on bail.
One month later, on 27 November 2008, while still on bail, the appellant committed the offences the subject of counts 2 to 5, which the judge described as follows:
… a Ms Philopoulos accompanied by her boyfriend Mr Newbond was driving her car to a friend’s place in Gardenvale. She drove down North Road towards a street called Magnolia Street. She and her companion saw [the appellant] with another male person waving as if to get their attention. Thinking there may be something wrong, Philopoulos pulled over. It is said that [the appellant] walked to the passenger side of the car and asked, ‘Can you give us directions?’
[The appellant] then entered the rear passenger seat and held a knife to Newbond’s throat demanding money. [The appellant’s] co-offender then entered the back seat of the car too. He was armed with an adjustable spanner or shifter, and grabbed Philopoulos around the neck. She screamed and beeped the horn and yelled for help but was subdued by [the appellant’s] threatening to kill her too. All the time demands were being made of both of them for money. Newbond tried to get the knife away from his throat but [the appellant] attempted then to slash him with the knife. In the ensuing struggle [the appellant] drove the knife into the right side of Newbond’s chest. [The appellant] also slashed him on the right arm and hand. The struggle continued. Newbond somehow managed to get possession of the shifter.
[The appellant] and [his] co-offender exited the car and ran off with Newbond giving chase. Newbond threw the spanner at [the offenders] but desisted when he was almost hit by a passing vehicle. The co-offender, so far as I know, has not been identified. Occupants of nearby houses came to the assistance of [the] victims.
Newbond was ultimately taken to hospital for treatment, where he was found to have a penetrating chest injury to the right anterior chest wall and lacerations to the right arm, right forearm and left hand, the latter of which required surgery to close those wounds. Newbond spent five days in hospital, contracting pneumonia whilst he was there. He has, of course, permanent scarring. Philopoulos received bruising to her left eye.[1] Victim Impact Statements have been made by Philopoulos and Newbond which testify to the ongoing physical effects as well as the psychological effects that [the] attack has had upon them, together with the consequences of their injuries.
[The appellant] was arrested near the scene of these offences and handcuffed. The police walked [him] back to the police car where [he] hit the back window with [his] forehead, causing the glass to break. That is count 5.
[1]I note that the Crown conceded on the plea that it was unclear whether this injury was caused by the appellant’s or Newbond’s elbow. In any event, the appellant makes no complaint about this matter.
The appellant was interviewed by police and initially answered ‘no-comment’ to most questions. Later in the interview, however, he said that he was innocent. He said that he was very drunk, and in the general area of the offending at the relevant time, but ‘did not do this’.
I turn now to the grounds of appeal.
As to ground 1, it is necessary to describe in some detail how the issue arose. At the outset of the plea in mitigation, and before the Crown opening was read and tendered, defence counsel[2] told the judge that while her client would be pleading guilty, he took issue with the assertion in the Crown’s opening that the victims of the second incident were strangers to the appellant (‘the disputed fact’).[3] Discussion ensued, in the course of which counsel submitted that the disputed fact, if accepted, was an aggravating feature of the offence, hence it was for the Crown to establish the disputed fact beyond reasonable doubt. She submitted to the judge that he ought not be satisfied of the disputed fact beyond reasonable doubt. In this regard, she referred to the appellant’s instructions that he had met the victims for the purpose of purchasing drugs. She referred to the depositions of several witnesses resident in the street where the attack occurred which, she submitted, indicated that the victims were reluctant to have an ambulance or the police called, and indeed drove off before emergency services arrived, despite the serious nature of Newbond’s injury. She referred also to the victims’ depositions. She submitted that the material left open the hypothesis that the victims were not truthful because they had ‘something to hide on that issue’. She stated that she had put the Crown on notice about the issue and asked that they have the victims available for cross-examination on that one issue. The victims had declined the invitation to attend court, and she believed they had not been subpoenaed.
[2]Who did not appear on the appeal.
[3]Counsel properly conceded that the Crown opening was consistent with the victims’ depositions.
In the course of the discussion, the judge stated to defence counsel that ‘… if you want to assert something that is to the benefit of your client apparently and is inconsistent with the Crown case you are going to have to call evidence on it’. And, later in the discussion, the judge asked counsel if the appellant was going to give evidence. Counsel stated that the appellant was not going to give sworn evidence. She said that she did not seek a finding that there was a drug deal. She also conceded that there was no evidence that there was a drug deal. She merely sought to persuade the judge that, in circumstances where the Crown had been alerted to the issue but the victims had not attended for cross-examination, and in light of the hypothesis she was floating, the judge ought not be satisfied beyond reasonable doubt of the disputed fact. That is, the disputed fact ‘ought be either vacated by the Crown or [the victims] ought be subpoenaed to give evidence’. She submitted that it would be improper to proceed on a factual basis that was neither admitted nor properly made out.
The judge stated that he was not going to act on mere suspicion or hypothesis, and that if the appellant wanted to give sworn evidence and be cross-examined on it:
… then it might be a case of whether I would conduct an enquiry in accordance with the authorities, require two witnesses to give evidence in accordance with, what, Storey’s case, is it? Short of that, subject to what the prosecutor says, it would seem to me that this is a belated hypothesis for which some support is sought to be obtained from one of the victims declining to have an ambulance called. As it transpires, he was going to a friend’s place where he knew that his friend’s mother had some nursing experience. Have you some authority you wish to refer me to in this regard?
Counsel did not refer to any authority. She reiterated that she was not seeking a finding that there was a drug deal. She conceded that there was no evidence as to that. She merely sought to absent the aggravating feature of ‘strangers hailed down to give assistance’. The judge reiterated that ‘if you want to do that, it seems to me that evidence would have to be called’. Counsel then stated that she had no further submissions on the matter.
The prosecutor then confirmed that the Crown proposed to proceed on the basis of the materials presented, in which the victims had provided explanations as to why they acted as they did, and submitted that if the appellant wished to put anything different he ought give evidence.
The judge then stated that in the absence of the accused calling evidence ‘rather than go on a fishing expedition with the two victims’, he did not propose to require the Crown or anyone else to do anything.
On appeal, counsel submitted in essence that the judge erred by elevating the Crown’s opening to the status of an established fact, which placed upon the appellant an onus to give evidence if he wished to contest the fact.
I accept that submission.
The judge sentenced on the basis that the victims were strangers to the appellant rather than participants in a pre-arranged drug deal, and relied on that fact as a matter bearing on the seriousness of the offences. That is apparent from the judge’s statement that the offences were ‘extremely serious as they involve violent, unprovoked and unwarranted attacks upon innocent strangers’. Of course, on any view the offences were serious, whether the victims were innocent strangers or knew the appellant and were seeing him in connection with a drug deal.[4] For the purposes of this appeal it is not necessary to consider whether, as a matter of principle, the fact that victims are ‘innocent strangers’ is properly to be seen as an aggravating feature of the offence of armed robbery. The critical issue is that the judge accepted the disputed fact as established, and relied on the fact as a matter adverse to the appellant. The difficulty is that, as counsel made plain from the outset, the fact was disputed. In those circumstances, if the Crown wished to persist with that allegation of fact, it was for the Crown to call evidence sufficient to satisfy the sentencing judge of the fact beyond reasonable doubt.[5]
[4]There was never any dispute as to what occurred inside the car.
[5]R v Storey [1998] 1 VR 359, 371.
In essence, the judge took the view that the exercise in factual determination required by R v Storey only arose once the appellant had given evidence to get his case off the ground, so to speak. That is clear from the judge’s remark that ‘if you want to do that [assert that the ‘innocent strangers’ fact is not proved], it seems to me that evidence would have to be called’.
In my view, the judge erred by approaching the matter in that way. The starting point is that, as conventionally occurs, the Crown opening constitutes an agreed factual basis upon which a judge passes sentence.[6] However, in this case a fact in the opening being disputed, it was for the Crown to call the victims to give evidence in substantiation of the fact, which effectively meant providing the appellant’s counsel with the opportunity to cross-examine them. By taking the course that he did, the judge denied the appellant that opportunity, and acted upon facts that were not before him.
[6]R v LFJ [2009] VSCA 134, [3].
It was not open to the judge to find the disputed fact established and sentence on that basis. The error was material because the judge sentenced the appellant on the basis that the seriousness of the offending was greater because the victims were ‘innocent strangers’. In my view, the overall sentences imposed reflected this adverse view of the facts. It follows that ground 1 is made out.
As to ground 2, the essence of the complaint is that the judge gave insufficient weight to the appellant’s youth and impaired psychiatric functioning - as required by R v Mills[7] and R v Verdins[8] respectively - or failed to reflect those matters in the sentences imposed.
[7][1998] 4 VR 235.
[8](2007) 16 VR 269.
The judge was presented with a difficult sentencing exercise. On the plea on 17 June 2009 counsel conceded that an immediate custodial sentence was warranted, but submitted that, having regard to a range of matters – including the appellant’s youth, psychiatric abnormalities, the fact that he had never previously been imprisoned, and the community interest in his rehabilitation – he ought be detained in a youth justice centre, where his rehabilitative needs could be met, rather than in an adult prison. The judge adjourned the plea hearing and ordered the preparation of a Forensicare report, in order to explore that possibility. A report prepared by Dr Kate Roberts, dated 10 August 2009, was provided to the parties and judge and, on 21 August 2009, the plea hearing resumed.
At the outset of the resumed hearing, the judge indicated that he considered that the nature of the offending required a sentence of more than three years, hence a youth justice centre order was not available. He expressed particular concern about the fact that the appellant was suffering from chronic paranoid schizophrenia, as found by Dr Roberts.
Counsel sought to persuade the judge that a sentence of three years or less, and hence a youth justice centre order, was appropriate. She submitted that the appellant’s mental state engaged the principles in Verdins such that the appellant’s moral culpability was reduced and that specific and general deterrence ought be moderated. She submitted further, by reference to Mills, that the appellant’s youth meant that rehabilitation was an important sentencing consideration.
In his sentencing remarks, the judge referred to the considerable amount of material on the plea, including personal reference letters, numerous earlier reports of psychologists, and the Forensicare report. Without setting out the detail of all these items, the judge referred to a range of matters personal to the appellant including his unhappy childhood involving violence from his father, behavioural problems at school, drug and alcohol abuse since about the age of 14, and an unfinished apprenticeship followed by limited employment.
As to the appellant’s mental health, the judge said:
It also seems from the psychiatric report which I have received that you have been troubled from a relatively early age with psychotic episodes, particularly in the context of drug and alcohol abuse. Although it seems difficult to discern from the fairly jumbled history that you have given it seems that your mother has attempted to help you with psychiatric assistance from an early age. That assistance has been largely negated, it would seem, certainly in later years, by descent into alcohol and substance abuse.
The judge set out further passages from the Forensicare report, to the effect that the appellant has suffered from psychotic symptoms from his early teens, which have been exacerbated by drugs and alcohol. And further that his account of auditory hallucinations (predating his drug use), and a family history of schizophrenia suggest that he likely suffers from chronic paranoid schizophrenia, exacerbated by drug use. The judge referred to Dr Roberts’ recommendations including that the appellant abstain from drugs and alcohol, and that counselling to that end be available both in the custodial setting and in the community, and that he continue receiving antipsychotic therapy, including an increased dose of Olanzapine as advised by the treating psychiatrist at Melbourne Remand Centre.
Ultimately, the judge did not accept counsel’s submission that a youth justice centre order was appropriate. He considered that the seriousness of the offending - bearing in mind the maximum penalties and the ‘fact’ that these were violent, unprovoked attacks upon innocent strangers – warranted a sentence of more than three years. He noted that both specific and general deterrence were relevant, although they had to be sensibly moderated by reason of the appellant’s mental state. As to that, the judge accepted that it was probable that the appellant was in a psychotic state when he committed the offences, and was certainly fuelled by alcohol and drugs. The judge noted the guilty plea, the fact that the appellant was young and that ‘rehabilitation hopefully is not out of the question’. He observed that the appellant had not been idle on remand, having undertaken numerous courses which, I interpolate, included certificates relating to communication skills, workplace safety, asset maintenance, conflict management, and drug and alcohol awareness.
On appeal, counsel submitted that whilst the judge referred to counsel’s submission that the appellant’s moral culpability was reduced on account of the principles in Verdins, he made no finding as to the impact of the appellant’s age and psychiatric illness on his moral culpability for the offending. Rather, the judge’s treatment of Verdins was confined to a finding that specific and general deterrence ought be sensibly moderated. Counsel for the Crown submitted that although there was no specific finding, it could be inferred that the judge accepted the argument as to the appellant’s reduced moral culpability.
I do not accept the Crown’s submission. In essence, the judge viewed the Forensicare report as confirming that the appellant was a dangerous person who needed to be locked up for a lengthy period in an adult prison. Whilst the diagnosis in the report was clearly a concern and was of particular relevance to one sentencing objective, namely the need to protect the community, the other side of the coin was that the appellant was only 19 years old and had a serious psychiatric abnormality which significantly reduced his moral culpability. In my view, the judge erred by giving inadequate weight to this latter aspect. It follows that ground 2 is made out.
As a consequence of these errors, the sentences imposed were excessive in all the circumstances. It follows that the appeal should be allowed and the appellant re-sentenced.
Turning to the re-sentencing process, I note that the appellant has already spent almost two years in prison. Counsel submitted that if this Court were inclined to reduce the sentence to such a degree that the appellant be eligible for release on
parole in the near future, the Court ought not consider the possibility of a youth justice centre order. If, however, the Court were inclined to impose a sentence which required the appellant to serve a substantial period of imprisonment in addition to that already served, counsel submitted that the Court ought consider the possibility of a youth justice centre order.
In my view, having regard to all the circumstances referred to above, including the seriousness of the offending and the impact on the victims, but making due allowance for the appellant’s youth, relatively limited criminal history, psychiatric illness, and the community interest in his rehabilitation, it would be appropriate to re-sentence the appellant as follows:
Count 1: 12 months’ imprisonment
Count 2: 18 months’ imprisonment
Count 3: 18 months’ imprisonment
Count 4: 30 months’ imprisonment
Count 5: three months’ imprisonment
I would direct that six months of the sentences on each of counts 2 and 3, and six months of the sentence on count 1, be served cumulatively on the sentence imposed on count 4, thus producing a total effective sentence of four years’ imprisonment. I would fix a non-parole period of two years and two months. There will be a declaration as to pre-sentence detention. I would confirm all other ancillary orders made below. Finally, I note that if the appellant had not pleaded guilty, I would have imposed a total effective sentence of five years’ imprisonment with a non-parole period of three years.
VICKERY AJA:
I agree with Hansen JA.
- - -
8