Balcke v The Queen

[2013] VSCA 198

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0073
ROBERT JAMES BALCKE	Applicant
v
THE QUEEN	Respondent

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JUDGES	NETTLE and COGHLAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	30 July 2013
DATE OF JUDGMENT	30 July 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 198
JUDGMENT APPEALED FROM	DPP v Balcke (Unreported, County Court of Victoria, Judge Leckie, 12 December 2012)

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CRIMINAL LAW – Sentencing – Armed robbery – Fresh evidence – Post-sentence medical report of applicant’s mental condition extant but not known at time of sentencing – Whether mental condition engages first principle of Verdins – Whether reduced moral culpability deserving of reduction in total effective sentence – Appeal allowed – Non-parole period reduced – R v Imadonmwonyi [2008] VSCA 135, Verdins v R (2007) 16 VR 269, R v Nguyen [2006] VSCA 184, Veen v The Queen (No 2) (1988) 164 CLR 465 referred to.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr J E McLoughlin	Victoria Legal Aid
For the Crown	Mr P Kidd SC	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

1. This is an application for leave to appeal against a sentence of four years’ imprisonment with a non-parole period of two years and eight months imposed on the applicant on pleading guilty to one charge of armed robbery.  The sole proposed ground of appeal is that there is fresh evidence that the applicant had and has a full scale intelligence quota of only 62 (which is at the extremely low end of the range and indicative of mild intellectual disability; a consequent significantly impaired capacity to process abstract material; and a moderate level of executive dysfunction marked by rigid problem solving and compromised behavioural regulation marked by violent behaviour).  It is contended that the applicant’s depleted intellectual condition engages the first of the six principles considered in Verdins v R[1] and thus necessitates a reduction in the sentence.

   [1](2007) 16 VR 269, 276 [32].

1. The Crown concedes that the evidence is admissible as fresh evidence in accordance with the principles essayed in R v Nguyen,[2] and that it establishes that the applicant suffered and continues to suffer from a cognitive deficiency within the Verdins conception of mental impairment.  The Crown contends, however, that it ought not result in a particularly substantial, if any, reduction in sentence because it does not provide clear and cogent evidence of how and if the applicant’s mental condition relevantly compromised his mental functioning at the time of the offending.[3]

   [2][2006] VSCA 184, [36].

   [3]Romero v R (2011) 32 VR 486, 490 [13] and 491 [18].

The facts of the offending

1. The facts of the offending are not in dispute.  As found by the sentencing judge, they were that:

1)   At about 1.45 pm on 31 January 2012 the applicant rode his motorbike to a pizza shop in Percy Street, Portland.  It had no rear tyre and the rim of the wheel was bare.  The applicant then entered the pizza shop wearing a motorbike helmet and goggles.  He approached the proprietor, Lachlan Holden, produced a knife, held it up towards Mr Holden and said ‘Give me all your money or I'll kill you.’  Mr Holden asked ‘Are you serious?’ and the applicant responded ‘Yes, I'm fucking serious’. 

2)   Mr Holden removed cash from the till and handed it over to the applicant.  The applicant then said ‘I know you've got a safe behind the bench.  I want all that money too’.  Mr Holden got some money from the safe and handed it across.  The total amount was $400.  The applicant put it in his pants while still holding his knife, and threatened Mr Holden, ‘If you follow me outside I'll slit your throat’.  As he left, however, he dropped some of the money and so the amount he got away with was only $175.

3)   The incident was captured by CCTV cameras inside the shop and also on a camera outside a nearby bank.  A number of witnesses observed the applicant’s escape on his motorbike.  The marks made on the road by the rim of the wheel without a tyre created a clearly visible track.  The police followed it to an address where they found the knife and items of clothing the applicant had worn during the offence.

4)   The occupants of the house told the police that the applicant had been there earlier that day and told them that he was going to commit the robbery, and that they observed him riding away on the bike.  They then followed and observed him go into the shop and come out and ride away.  They also saw him discard the items that he used during the robbery. 

5)   Shortly after that, the police arrested the applicant and interviewed him at the Portland Police Station.  He denied their allegations and suggested that his friends were setting him up. 

The applicant’s contentions

1. The applicant was born on 22 May 1980 and was 32 years of age at the time of offending.  During the plea in mitigation of penalty, counsel who then appeared for the applicant tendered a Pre-Sentence Report prepared by Corrections Victoria dated 4 December 2009 in which it was stated inter alia that the applicant had an intellectual disability; saw his father die in a fire when he was nine years old; committed his first criminal offence at the age of 10; was made a ward of the State at the age of 11; started smoking cannabis at the age of 12; was first diagnosed with schizophrenia at the age of 13; started drinking alcohol at the age of 15; had a history of psychosis; had attempted to hang himself in his mid-20’s; and had a history of heroin use.  The judge referred to a number of those details in his sentencing remarks but noted that there were no remedial medical reports in support of the details.  Counsel told the judge that it was not submitted that the sentence should be mitigated because of any impairment to the applicant’s cognitive functioning.  Presumably, the judge proceeded on that basis.

1. The fresh evidence on which the applicant relies is a neuropsychological report dated 24 April 2013, prepared by Jane Lofthouse, Clinical Neuropsychologist.  Ms Lofthouse’s stated conclusion is that the applicant’s mental disability is productive of poor judgment and a tendency to impulsive and violent responses which result in behaviour typically noted in the presence of intellectual impairment; more specifically, executive dysfunction, intellectual impairment and psychiatric factors which contribute to his criminal offending in general and in particular contributed to his offence of armed robbery on 31 January 2012.  Ms Lofthouse also notes that, in her opinion, the applicant is in need of a high level of specialist training, support and ongoing therapy to assist him to comprehend the inappropriateness of his behaviour and develop new and more appropriate behavioural responses.

1. Counsel for the applicant contended that, because the applicant was sentenced in ignorance of those considerations, there has been a miscarriage of justice and, therefore, that the sentencing discretion is reopened.  It was submitted that the applicant should be re-sentenced to a lesser penalty which makes allowance for his reduced moral culpability, and a consequently reduced need for general deterrence, and which is calculated to facilitate the applicant’s diagnosed need for a high level of specialist training, support and ongoing therapy.   

The Crowns’ contentions

1. As I have noted, the Crown accepts that Ms Lofthouse’s report meets the test of fresh evidence, and is admissible as such, and that it establishes that the applicant suffered and continues to suffer from a cognitive deficiency which satisfies the Verdins conception of mental impairment.  The Crown argues, however, that it is not apparent from the report whether the applicant’s condition relevantly contributed to his offending, or at least that it is not apparent that the report provides clear and cogent evidence as to how the applicant’s mental condition affected his mental functioning at the time of the offending.  Taken at the highest, it is said, the report is indicative of no more than a general propensity for poor decision making and violent impulsivity and that does not plainly explain the offending in this case.  

1. Further, in the Crown’s submission, although the offending was undoubtedly amateurish if not comical in its execution, the offence was underpinned by a rational motive – to acquire cash to purchase a motor cycle tyre – a fact which was confirmed by the applicant’s friends’ evidence that, before the robbery the applicant attended their house and discussed where to go to get ‘easy money’; there was pre-planning to the extent that the applicant chose a soft-target pizza shop as the object of his crime; and the crime was executed with a real sense of purpose in that it involved the applicant arming himself with a large and terrifying knife, riding to the pizza shop, parking next door and then entering the premises in helmet and goggles.  The rationally calculated nature of the offence was also evident in the way that the applicant knew of the safe in which Mr Holden kept his money, and demanded that he get it; apparent from the fact that the applicant threatened Mr Holden that, if he followed him outside, he would slit his throat; and made clear by the fact that, following the offence, the applicant had the insight to change his clothes and absent himself for more than a week and then falsely deny that he had anything to do with the offence.

1. It is also apparent from those facts, it is said, that the applicant was well aware of the nature and gravity of the offence at the time of its commission and that conclusion is borne out by the fact that the applicant acknowledged to Ms Lofthouse during the course of interview that his behaviour had been wrong and that he was sorry for the harm which he had inflicted on the victim.  Hence, any reduction in moral culpability and need for general deterrence is small if not de minimis.[4]

   [4]Cf R v Wise [2007] VSCA 266,[16]; R v Vuadreu [2009] VSCA 262,[37].

1. Finally, the Crown contends that, even if it be accepted that the applicant’s mental disability rendered him to some extent less able than a man of normal mental health to make a calm and reasoned decision whether to engage in criminal offending, the mitigating effect of that consideration must still be weighed in the balance against the need for community protection in view of the applicant’s significant history of relevant prior criminal offending.[5]  As the judge observed in his sentencing remarks, the applicant admitted to 102 such convictions arising from 18 court appearances between 1997 and 2010, including convictions for threat to kill, robbery, burglary, carrying a prohibited weapon and assault with intent to rob.  For those he had received many different sentencing dispositions including adjournments, Community Corrections Orders (many of which he had breached) and periods of imprisonment.  As the judge put it, that was overall a dismal and deplorable record for a man of 32 with the consequence that his chances of rehabilitation could at best be regarded as fair.

   [5]R v Imadonmwonyi [2008] VSCA 135, [26]; DPP v Moore [2009] VSCA 264, [64].

Analysis

1. Given the Crown's concession that Ms Lofthouse' report may be received as fresh evidence and demonstrates a degree of mental disability within the meaning of Verdins, I proceed on that basis.  If follows, as I conceive of it, that the sentencing discretion is reopened and that the applicant falls to be sentenced afresh.

1. I allow that the extent of his mental disability is significant and, on the basis of Ms Lofthouse' report, I accept that it did play some part in his offending.  I also allow that his moral culpability was to that extent reduced and that a reduction of that kind is a relevant consideration in the assessment of the punishment necessary to satisfy the requirements of denunciation and general deterrence. 

1. In my view, however, there is some force in the Crown's contention that, despite the applicant's condition, he well understood the nature and gravity of his crime at the time of its commission.  It was not the product of irrational impulsivity of the kind of which his condition is said to be productive and, in view of his criminal record, it cannot be regarded as an uncharacteristic aberration.  Rather, it is to be seen largely as a manifestation of a continuing attitude of disobedience towards the law and thus, as such, requiring a degree of punishment to deter him and others like him from committing similar offences.

1. Balancing the relevant considerations as best one can, I do not consider that a lesser head sentence than was imposed by the judge would be sufficient to meet the requirements of denunciation, general and specific deterrence and community protection.  Bearing in mind, however, the effects of the applicant’s condition and thus his reduced moral culpability, and the possibility that, if he were released on parole, he might qualify for therapy of kind to which Ms Lofthouse referred, I am persuaded that a lesser non‑parole period of two years should be set. 

Conclusion

1. In the result I would confirm the head sentence of four years' imprisonment but reduce the non‑parole period to two years.

COGHLAN JA:

1. I agree that leave to appeal should be granted for the reasons stated by the learned presiding judge and I agree with the orders proposed by him.

1. (Discussion re pre‑sentence detention.)

NETTLE JA:

1. The orders of the Court are as follows: 

1.     The application for leave to appeal is allowed.

2.The appeal is treated as instituted and heard instanter and is allowed.

3.The sentence of four years’ imprisonment passed below is confirmed.

4.The non‑parole period set below is varied from two years and eight months to two years.

5.It is declared the number of days already served under the sentence is 515 days (not including this day) and it is directed the fact of the declaration and its details be entered into the records of the Court.

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