Becke v The King

[2025] VSCA 235

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2025 0067

EMILY BECKE	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST ACJ and BOYCE JA
WHERE HELD:	Melbourne
DATE OF HEARING:	18 September 2025
DATE OF JUDGMENT:	23 September 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 235
JUDGMENT APPEALED FROM:	DPP v Becke [2024] VCC 198 (Judge Trapnell)

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CRIMINAL LAW – Appeal – Sentence – Fresh or new evidence – Armed robbery and related offending – Applicant sentenced on the basis that she had borderline personality – Subsequent diagnosis of schizophrenia – Sentencing discretion reopened – Appeal allowed – Resentenced accordingly.

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Counsel
Applicant		Mr J Lavery with Ms EA Byrt
Respondent		Ms BJ Goding
Solicitors
Applicant	Hofman Carroll Criminal Law
Respondent	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST ACJ
BOYCE JA:

Introduction

1. Two indictments relevant to the present applications were filed against the applicant in the County Court.

2. The first, Indictment No K11826383, charged the applicant with attempted armed robbery[1] (charge 1) and being a prohibited person using an imitation firearm[2] (charge 2) (‘the first indictment’), and the second, Indictment No L12512853, charged the applicant with armed robbery[3] (charge 1) (‘the second indictment’).

   [1]Crimes Act 1958, ss 75A and 321M. The maximum penalty is 20 years’ imprisonment.

   [2]Control of Weapons Act 1990, s 5AB(2). The maximum penalty is 10 years’ imprisonment.

   [3]Crimes Act 1958, ss 75A and 321M. The maximum penalty is 25 years’ imprisonment.

3. On 27 July 2020, Judge Fox sentenced the applicant on the first indictment — and for three relevant summary offences[4] — to an aggregate sentence of 384 days’ imprisonment, with a conditioned community correction order (‘CCO’) of 30 months’ duration (‘the first CCO’).  A year later, on 23 July 2021, Judge Trapnell sentenced the applicant on the second indictment to 18 months’ imprisonment, with a conditioned CCO of three years’ duration, requiring her (among other things) to perform 600 hours of unpaid community work (‘the second CCO’).

   [4]A charge of making a false report to police, contrary to s 53(1) of the Summary Offences Act 1966; and two charges of stating a false name when requested, contrary to s 456AA(3)(b) of the Crimes Act 1958.

4. Subsequently, the applicant was dealt with for breach of one or other or both of the CCOs on three occasions and was resentenced.

5. On the first occasion, 21 September 2021, Judge Trapnell resentenced the applicant for breach of the first CCO.  He varied the first CCO to commence on completion of the sentence of imprisonment imposed by him on 23 July 2021, and fined the applicant $300 for the contravention.[5]

   [5]Sentencing Act 1991, s 83AD. The maximum penalty is three months’ imprisonment.

6. The second occasion upon which the applicant was resentenced was 17 November 2022, when Judge Trapnell dealt with the applicant for a further breach of the first CCO and for breaching the second.  He fined the applicant $250 for each contravention, and varied the recommencement dates of the two CCOs.  The first CCO was varied to a duration of 21 months, to commence 17 November 2022; and the second CCO was varied to a duration of 27 months from that date, with judicial monitoring and conditions for supervision, rehabilitation and treatment, together with a requirement that the applicant perform 250 hours of unpaid community work.

7. Once more, however, the applicant breached the two CCOs, so that, on 16 February 2024, Judge Trapnell sentenced the applicant to a total effective sentence of five years’ imprisonment, with a non-parole period of 1134 days (equivalent to the time that the applicant had been in custody) in accordance with the following table:

Charge			Offence		Sentence			Cumulation
Indictment No K11826383
1		Attempted armed robbery				2 years and 6 months	2 years
2		Prohibited person using an imitation firearm				1 month	Nil
Indictment No L12512853
1	Armed robbery					3 years			Base
Total effective sentence:				5 years’ imprisonment
Non-parole period:				1134 days
Pre-sentence detention:				1134 days
Section 6AAA declaration:				7 years’ imprisonment with a non-parole period of 5 years

1. The applicant — who requires an extension of time within which to do so[6] — seeks leave to appeal against the sentence imposed by Judge Trapnell on the following grounds:

   1The learned sentencing judge erred in proceeding to sentence with a pre-sentence psychiatric court report in which Forensicare failed to undertake an assessment of the applicant.

   2The total effective term of imprisonment imposed on [the first indictment and the second indictment] is manifestly excessive in all of the circumstances.

   3Fresh evidence has come to light since sentencing in respect of the applicant’s mental health.

   [6]Section 279(1) of the Criminal Procedure Act 2009 requires a notice of application for leave to appeal against sentence to be filed ‘within 28 days after the day on which the person is sentenced or any extension of that period granted under section 313’.  Judge Trapnell imposed the impugned sentence on the applicant on 16 February 2024, but the notice of application for leave to appeal was not filed until 14 August 2025, some 18 months outside the prescribed period.

2. For the reasons that follow, we are of the view that ground 3 should succeed.  That makes it unnecessary to consider grounds 1 and 2.  We would grant the extension of time; grant leave to appeal against sentence; allow the appeal; and resentence the applicant in the manner set out below.

The application for extension of time

1. Filed on 10 April 2025, the application for extension of time contains the following:

   The reasons I failed to file and serve a notice within the prescribed time and the grounds upon which I make this application are:

   During the 28-day filing period, I was unable to provide instructions to my solicitor due to mental health.

   Following the contravention hearing in November 2023, I did not have any contact with my solicitor or counsel and was unable to provide instructions.  I was assessed on 3 April 2024 by Dr Simon Hoang (Psychiatry Registrar) and Dr Mark Ryan (Consultant Forensic Psychiatrist) at Dame Phyllis Frost Centre.  A psychiatric Court Report, dated 1 May 2024, found me unfit to stand trial for my outstanding matter.

   On 20 May 2024, his Honour Judge Moglia found me unfit to stand trial under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.  I was transferred to Thomas Embling Hospital.

   A further psychiatric Court Report, dated 22 October 2024, found me unfit to stand trial for my outstanding matter.

   A third psychiatric Court Report, dated 6 March 2025, found me fit to stand trial for my outstanding matter.

   On 13 March 2025, his Honour Judge Moglia found me fit to stand trial under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.  I was transferred back to Dame Phyllis Frost Centre.

   Upon becoming fit and being able to provide instructions to my solicitor, I advised that I wished to appeal my sentence.

2. The application for an extension of time is supported by an affidavit affirmed by the applicant’s solicitor, Madeleine Carroll, on 10 April 2025, in which she deposes as follows:

   3. On 16 February 2024 the applicant was re-sentenced by His Honour Judge Trapnell in relation to [the first and second indictment] to a total effective sentence of 5 years imprisonment with a non-parole period of 1134 days.

   4. Accordingly leave to appeal against the sentence was due on 15 March 2024.

   5. In the lead up to the sentence date, in the context of declining mental health, the appellant had refused to engage in over 10 video conferences between myself and Counsel. I asked the prison authorities to ask the applicant if she would be willing to see me in person and she indicated yes, however when I attended at the prison on 9 January 2024 she again refused to see me.

   6. Following the sentence on 16 February 2024, I had a video conference with the applicant.  During the conference the applicant was preoccupied with delusions about her ex-partner of many years ago, said she was possessed by a demon and that people were vanishing from jail.  I was not able to get instructions from the applicant as to an appeal of the sentence.  Following this conference the applicant again refused a string of conferences and court dates, including attempted conferences within the appeal period.

   7. On 19 February 2024 the applicant attended a videolink to the County Court for an unrelated matter wherein she continually yelled at the judicial registrar and ranted about unrelated matters.

   8. On 3 April 2024 the applicant was assessed by Dr Simon Hoang and Dr Mark Ryan at Dame Phyllis Frost Centre.  In his report dated 1 May 2024, Ms Becke was ultimately assessed to be unfit by Dr Hoang.  She was subsequently found unfit by His Honour Judge Moglia of the County Court on 20 May 2024.

   9. Following that hearing the applicant was remanded at Thomas Embling Hospital until she was ultimately found fit to stand trial on 13 March 2025.

   10. In line with the applicant’s mental health improving and the formal finding of fitness, we have now been able to obtain instructions that are no longer disordered or impaired due to remitted symptoms of schizophrenia and are able to lodge this appeal.

   11. With consideration to the details listed above, the applicant has instructed me that she wishes to file an application for leave to appeal against sentence.  The delay is through no fault of the applicant and it is respectfully submitted that leave be given for an extension of time.

Further affidavit material

1. More recently, on 12 August 2025, the applicant’s solicitor, Ms Carroll, affirmed a further affidavit, relevant to ground 3, the ‘fresh evidence’ ground.

2. Ms Carroll deposes that, at the time of sentence on 16 February 2024, the applicant was remanded in custody for further offending, for which she was directly indicted (having failed to attend six court appearances on 8 December 2023, 17 January 2024, 14 and 20 February 2024, and 5 and 15 March 2024). 

3. We pause to note that the charges included stalking, aggravated burglary, damaging property, make threat to kill, burglary, and attempting to breach an intervention order, on various dates between 28 August and 7 November 2023.  In very brief summary, the victim of the applicant’s offending was an ex-partner’s mother.  The applicant went to the victim’s residence on a number of occasions, leaving miscellaneous disturbing items on the doorstep.  On another occasion she attended the residence wearing a clown mask and holding a vacuum cleaner and a black bag.  Another time, the applicant confronted the victim at home, was yelling and screaming at the front door stating that she wanted to talk about her ex-partner.  She smashed the windows of the residence and picked up a knife, then entered the home through the broken window and used a shovel to smash the television.  The applicant smeared her blood over the couch, kitchen bench and refrigerator, and upturned computer.  She submerged an iPad in the kitchen sink, smashed a microwave on the kitchen floor, threw food items from the refrigerator and cupboards over the kitchen floor, smashed several pots and emptied the contents of laundry and bathroom cupboards onto the floor.

4. Returning to Ms Carroll’s affidavit, she deposes that the applicant was assessed by psychiatry registrar, Dr Simon Hoang, and consultant forensic psychiatrist, Dr Mark Ryan, in prison on 3 April 2024.  They assessed her as unfit to be tried, and provided a joint report to that effect dated 1 May 2024.

5. Subsequently, on 20 May 2024, pursuant to the provisions of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘CMI Act’), Judge Moglia found the applicant unfit to be tried. Under s 14F(2)(b) of the CMI Act, Judge Moglia remanded the applicant in custody to ‘an appropriate place’, Thomas Embling Hospital (‘TEH’).

6. Ms Carroll deposes that, on 6 November 2024, Judge Moglia found the applicant still unfit to stand trial under the CMI Act, and again remanded the applicant in custody to an appropriate place, TEH. A further psychiatric report by Dr Hoang and Dr Ryan, dated 22 October 2024, confirmed that the applicant remained unfit to be tried, the formal diagnosis being schizophrenia.

7. Dr Hoang and Dr Ryan provided a third report, dated 6 March 2025.  They expressed the opinion that the applicant had become fit to stand trial.  In accordance with that report, Judge Moglia found the applicant fit to stand trial on 13 March 2025.  The applicant was then transferred back to prison, the Dame Phyllis Frost Centre, having spent 298 days at TEH.

8. Ms Carroll deposes that the applicant was assessed by consultant forensic psychiatrist, Dr Remy Glowinski, on 13 May 2025. In a report dated 15 May 2025, Dr Glowinski expressed the opinion that the applicant had a defence of mental impairment within the meaning of the CMI Act. The same view was expressed by Dr Hoang and Dr Ryan in a fourth report, dated 2 July 2025.

9. On 22 July 2025, the applicant was arraigned on Indictment No P11972051.1, and pleaded not guilty to each charge by reason of mental impairment. Judge Moglia was satisfied that the evidence of Dr Hoang established the defence of mental impairment. As a result, he found the applicant not guilty of each charge because of mental impairment and directed that verdicts of not guilty because of mental impairment be recorded. Judge Moglia declared the applicant liable to supervision under Part 5 of the CMI Act and he said that

   section 41 of the Act requires Ms Becke to be further assessed by a suitable expert and the Secretary to file a relevant report.

   I direct that such a report be filed by 30 September 2025 along with a certificate of available services under section 47.

10. We pause once more to note that the contemplated report is yet to be provided.

The offending

1. The attempted armed robbery and firearm offence charged in the first indictment occurred at about 3.40 pm on 13 July 2019.  Wearing a motorcycle helmet, face covering and overalls, the applicant went into a convenience store in Albert Park, pointed an imitation handgun at the attendant and demanded money.  A customer who had entered the store tackled the applicant, took the imitation firearm from her and restrained her.  Police arrested her soon after.  She gave them a false name.  A little later the applicant was assessed by a forensic medical officer and found to be unfit for interview.  On the previous day, 12 July 2019, the applicant, using a false name, had made a false report of an armed robbery on a convenience store.

2. With respect to the armed robbery charged in the second indictment, at 12.45 am on 19 October 2020, the applicant, wearing a motorcycle helmet, entered a service station, pointed an imitation handgun at the attendant and robbed him of $800 in cash.  When arrested on 23 October 2020, the applicant made full admissions.  She told police that she did not commit the robbery for money.  Her reason for doing so was that she was homeless and wanted to go to prison.

Discussion

1. When sentencing the applicant on 16 February 2024, Judge Trapnell said that he had ‘taken into account the contents of the exhibits tendered at this plea hearing’, and that he had ‘also had regard to the excellent written and oral submissions of [the applicant’s] counsel and the prosecutor’.  He also said that on an earlier occasion he had accepted the submissions of the applicant’s counsel that ‘there was cogent evidence of mental impairment and a causal connection between the impairment and [the applicant’s] offending conduct, such that [her] moral culpability is reduced, thereby reducing the weight [he] would have otherwise given to the principle of denunciation’.

2. Among the exhibits that the judge took into account was a report by Dr Katherine McIntire, a psychiatric registrar at TEH, who provided a pre-sentence report dated 18 June 2020.  She considered the applicant ‘has a diagnosis of borderline personality disorder with antisocial and paranoid personality traits’, and also observed:

   Ms Becke has a long history of mental illness, having been in contact with services since the age of 18 years.  Her childhood history is significant for alleged physical, sexual and emotional trauma.  This background has likely informed her current presentation.  In periods of stress, she displays emotional dysregulation and impulsive judgement.  On extreme occasions she appears to have had dissociative and paranoid symptoms, which are consistent with borderline personality disorder.  This has likely precipitated her offending behaviour.  In my opinion, Ms Becke has a reduced capacity to respond reasonably to stressors as a direct consequence of her mental condition.

3. Judge Trapnell also had before him a report of Dr Lester Walton, consultant psychiatrist, dated 7 October 2019, who considered the ‘most appropriate’ diagnosis of the applicant to be ‘borderline personality disorder’; and a report by psychologist, Gina Cidoni, dated 10 April 2021, who considered the applicant to be ‘very unwell’, presenting with ‘significant mental illness’, the symptoms of which were consistent with borderline personality disorder, together with ‘evidence of PTSD, gender dysphoria, periods of dissociation and delusional beliefs’.  Further, in written submissions, counsel for the applicant invoked Verdins[7] considerations, given that the applicant ‘meets the diagnostic criteria for borderline personality disorder, PTSD, gender dysphoria, periods of dissociation and delusional beliefs’.

   [7]R v Verdins (2007) 16 VR 269 (‘Verdins’).

4. It is clear that although Judge Trapnell had been provided with material that revealed that the applicant had displayed symptoms of the serious psychiatric disorder subsequently diagnosed, the burden of the psychiatric and psychological opinion then before him was that the applicant suffered from a borderline personality disorder.

5. What has become apparent since Judge Trapnell last dealt with the applicant, however, is that, rather than suffering from a borderline personality disorder, the applicant is afflicted by schizophrenia.  The position is best summarised in the report of Dr Hoang (supervised by Dr Ryan), dated 1 May 2024:[8]

   71. For many years, the prevailing diagnostic opinion for Ms Becke appeared to be that of borderline personality disorder on the background of trauma.  An array of other diagnoses has also previously been considered.  Though it is difficult to account for each of Ms Becke’s presentations, it is acknowledged that individuals with severe personality disorders and trauma can present diagnostically as challenging.  They can experience significant cognitive fluctuations, severely compromised reality testing, intense affective instability, and a fragmented sense of self and others.  Furthermore, individuals with personality disorders may also experience psychotic symptoms that are usually brief.

   72. With time, it has become evident that Ms Becke holds psychotic beliefs that were not short-lived.  This included longstanding persecutory delusional ideas which formed the basis of her pathological fixation on [the victim].  She believed he continued to control her life in a destructive manner for many years after their brief relationship ended in her teenage years.  The delusional framework extended to encompass [her ex-partner’s] parents.  These beliefs arose and remained present without substance use.

   73. With antipsychotic treatment, these beliefs reduced in intensity and were no longer preoccupying for Ms Becke.  Furthermore, when treated, Ms Becke no longer exhibited delusions of reference, a tendency to misidentify individuals, nor disorganised thoughts or erratic behaviours.

   74. Therefore, it is in my opinion and in concurrence with the assessment of Dr Glowinski that Ms Becke has a diagnosis of schizophrenia.  Surrounding the alleged offence, there is ample evidence from multiple sources of information that indicate that Ms Becke was mentally unwell.  At the time of the offending, she would have been considered to have suffered active symptoms of schizophrenia, which would be considered a mental impairment and would satisfy the concept of disease of the mind, within the meaning of the [CMI Act].

   …

   76. Ms Becke’s delusions compelled her actions at the time of the alleged offending.  She said she did not believe she was in control of herself.  She believed that she was continually being stalked and tormented by [the victim].  This was approximately two decades after their brief relationship ended around the age of 19.  Ms Becke described feeling the constant demonic presence of [the victim] and her desperate need to end this.  She also believed she needed to intervene against the [victim’s] family as she thought they were operating a pornography and child trafficking ring.

   77. As such, I hold the opinion that Ms Becke was experiencing persecutory delusions at the time of the alleged offending.  Her convoluted account of the alleged offending reflects the degree of disorganisation of her thoughts when she was psychotic.  Therefore, it is likely that she was unable to reason with a moderate degree of sense and composure, as perceived by reasonable people, that her conduct, which constituted the alleged offending, was wrong.

   [8]Emphasis in original.

1. Whether categorised as ‘fresh’ or ‘new’ evidence,[9] we consider the diagnosis of schizophrenia to be evidence that throws significant new light on the pre-existing facts.  The sentencing discretion is thus reopened, and this Court must determine the appropriate sentence on the basis of all of the material now before it, including the diagnosis of schizophrenia.[10]

   [9]See Packard (a pseudonym) v The Queen [2022] VSCA 128, [3]–[14] (Priest JA).

   [10]See, e.g., R v Nguyen [2006] VSCA 184, [36]–[37] (Redlich JA, Maxwell P and Neave JA agreeing); Arnold (a pseudonym) v The Queen [2013] VSCA 298, [11] (Coghlan JA, Warren CJ agreeing at [1], Priest JA agreeing at [28]); Rout v The Queen [2016] VSCA 126, [49] (Whelan, Priest and Beach JJA); Ale v The King [2025] VSCA 92, [119] (Niall CJ and Kenny JA); Rivero v The King [2025] VSCA 144, [19] (Niall CJ and Kidd JA); Manella v The King [2025] VSCA 195, [39]–[41] (Niall CJ and Priest JA).

2. In resentencing, this Court must presume that the applicant had the capacity freely to enter the pleas of guilty to the charges in the first and second indictments, and to admit the contraventions of the CCOs in the proceedings before Judge Trapnell resulting in the sentence imposed on 16 February 2024.

3. Acknowledging the seriousness of the offending embraced by both indictments, it is now plain that the applicant was — and is — suffering from a very severe psychiatric disorder which significantly impaired her mental functioning, such that her moral culpability for the offending is markedly reduced.  In our view, the importance of general and specific deterrence as factors in sentencing should be viewed as very significantly reduced, as should just punishment and denunciation.[11] 

   [11]Verdins, 276 [32].

4. We also take into account a range of other factors, including the applicant’s limited criminal history.  Importantly, the applicant’s childhood was marred by family violence, dysfunction, neglect, transience, and the suicide of both her parents.  Her parents were both drug users and separated when she was young.  She was physically assaulted by her father and sexually abused by her mother.  The applicant’s parents re-parented and she witnessed family violence.  As a result, Bugmy[12] principles are attracted.   

   [12]Bugmy v The Queen (2013) 249 CLR 571 (‘Bugmy’).  See also DPP v Herrmann (2021) 290 A Crim R 110.

5. The applicant first came into contact with Orygen Youth Health at age 18 because of depressive symptoms.  She was admitted as an inpatient in 2009 for a month and released onto a Community Treatment Order.  The following year, she was admitted to a psychiatric unit and received a diagnosis of borderline personality disorder in 2011.  She was admitted to a mental health unit on two occasions, had further inpatient admissions in the community, and was admitted to TEH.  Her serious mental health condition attracts Verdins principles.

6. We also take into account that the applicant pleaded guilty to the charges in the two indictments early, and that the pleas — entered at a time when the courts were facing backlogs as a result of the COVID-19 pandemic[13] — had significant utilitarian value.  The pleas also indicate some remorse.  Finally, although her compliance with the CCOs was sporadic, we take into account the limited extent to which she complied with those orders.

   [13]See Worboyes v The Queen (2021) 96 MVR 344.

7. The applicant’s counsel submitted that all of the applicable sentencing purposes — including general deterrence and denunciation — could be achieved by a shorter term of imprisonment than was imposed by Judge Trapnell.  We agree.

8. Synthesising all relevant factors bearing on the imposition of sentence, on the first indictment we would sentence the applicant on charge 1, attempted armed robbery, to 12 months’ imprisonment, and on charge 2, being a prohibited person using an imitation firearm, to one week’s imprisonment.  On the charge of armed robbery on the second indictment, we would sentence the applicant to 18 months’ imprisonment, that being the base sentence.  We would order that six months’ of the sentence for attempted armed robbery of the first indictment be served cumulatively upon the base sentence.  The total effective sentence is thus two years’ imprisonment.  Given the applicant’s history, including the period already she has already spent in custody, we would not fix a non-parole period.[14]

   [14]See Sentencing Act 1991, s 11(1)(b).

9. All other orders made by the County Court — including the sentences for the relevant summary offences — should be confirmed, and we will make an appropriate declaration of pre-sentence detention.

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