SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2010 0082 | |
| PARRISH LACHLAN CHARLES | Applicant |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | REDLICH and HARPER JJA and ROBSON AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 29 July 2011 | |
DATE OF JUDGMENT: | 30 November 2011 | |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 399 | |
JUDGMENT APPEALED FROM: | [2009] VSC 667 (Curtain J) | |
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CRIMINAL LAW – Application for leave to appeal sentence – Whether sentence was manifestly excessive – Whether the sentencing judge erred by failing to properly take into account the applicant’s mental condition – Discussion of the principles in R v Tsiaris and R v Verdins – Whether the sentencing judge erred by failing to properly take into account the sentencing principle of totality – Whether the sentencing judge erred by doubly punishing the applicant – Application for leave to appeal against sentence refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C B Boyce | Ronald V Tait |
| For the Crown | Mr D A Trapnell | Mr C Hyland, Solicitor for Public Prosecutions |
REDLICH JA:
I agree for the reasons Robson AJA has given that leave to appeal should be refused.
HARPER JA:
I agree with Robson AJA.
ROBSON AJA:
The applicant, Mr Parrish Charles, pleaded guilty in the Supreme Court of Victoria to two counts. Count 1, that he intentionally caused serious injury. Count 2, theft. On 13 November 2009, he was sentenced as follows:
No.
Offence
Maximum
Sentence
Cumulation
1
Intentionally cause serious injury
20 years
[s 16 of the Crimes Act 1958]
9 years
Base
2
Theft
10 years [s 74(1) Crimes Act 1958]
1 year
6 months
Total Effective Sentence:
9 years 6 months
Non-Parole Period:
6 years 6 months
Pre-sentence detention declared:
277 days
Orders: Pursuant to s 28(1)(B) of the Road Safety Act 1986, the applicant’s driver’s licence be cancelled and the applicant disqualified from obtaining a licence for five years.
Section 6AAA: Total effective sentence of 11 years and 6 months; non-parole period of 8 years and 6 months.
On 25 November 2009, the applicant gave notice of application for leave to appeal against sentence on the sole ground that the sentence was manifestly
excessive. On 24 September 2010, Buchanan JA refused leave to appeal.[1] He held it had not been demonstrated that the ground of the application was reasonably arguable. On 25 October 2010, the applicant applied to the have the application for leave to appeal against sentence determined by three judges of the Court of Appeal.[2]
[1]Criminal Procedure Act 2009 s 315(1) gives a single judge of appeal power to give leave to appeal.
[2]Under s 315(2) of the Criminal Procedure Act 2009 if a Judge of Appeal refuses an application for leave to appeal in relation to any ground of appeal, the applicant is entitled to have the application determined by the Court of Appeal.
For the reasons given below, I am not persuaded that leave to appeal should be granted.
Circumstances of the offences
The description of the circumstances is taken from the reasons for sentence of the learned trial judge with some additional information from the Crown opening upon which the trial judge relied.
At about 2.40am on Tuesday 29 April 2008, the applicant hailed a taxi outside the Alfred Hospital in Commercial Road, Prahran. The applicant directed the driver, Jalvinder Singh, to an address in Wellington Street, Clifton Hill, where the applicant had previously lived. Once there, Mr Singh stopped the taxi and waited for the applicant to pay the fare. The applicant then removed a knife he was carrying from down the front of his pants with his left hand, reached over Mr Singh’s left shoulder and without warning, stabbed him in the stomach. He then grabbed Mr Singh around the neck with his right arm, holding Mr Singh to his seat and repeatedly stabbed him in the stomach and back. Mr Singh believed he was going to die and fought for his life to break free and get out of the taxi. Mr Singh undid his seatbelt and managed to escape from the applicant’s hold. Mr Singh got out of the taxi and tried to ring ‘000’, but then collapsed after walking a short distance.
The applicant got into the driver’s seat of the taxi and drove off east along Hodgkinson Street. The applicant attempted to turn into Gold Street and then drove off onto the footpath and collided with a brick fence. The applicant then ran from the taxi, dropping his jacket as he went and discarding the knife in the front yard of one house and his cap on the wheelie bin in the front yard of another. In the meantime, the taxi had rolled along the footpath in Gold Street and came to rest against a light pole.
At 5.40am, Mr Singh was found by the driver of a waste disposal truck who was driving down Hodgkinson Street. Mr Singh was laying face down, straddling the gutter. Mr Singh appeared to be drenched in blood and groaning. The driver called the police and ambulance, both of whom attended. The police found the taxi abandoned 35 metres east of Wellington Street.
Mr Singh was taken by ambulance to the Royal Melbourne Hospital. Mr Singh had suffered five stab wounds; one penetrating wound to the centre of Mr Singh’s chest, three penetrating wounds to the left side of Mr Singh’s upper back, and one penetrating wound to the right lower back.
The injuries were considered to be life-threatening, critical wounds which were severe and which required operative intervention to stabilise. Mr Singh also suffered a cardiac arrest and required a massive blood transfusion.
Mr Singh was placed in an induced coma and spent seven days in intensive care and a total of 13 days in hospital. It was reported by Dr Daniel Wong, the trauma and surgical registrar at the Royal Melbourne Hospital, that Mr Singh was gravely unwell and had made a ‘miraculous recovery.’
The applicant was arrested at 7.25pm that night. The applicant was subsequently interviewed by the police later in the night. The applicant told the police that he could recall very little of the previous evening, although the applicant acknowledged that his image appeared on the closed circuit footage from the taxi. The applicant identified the jacket, baseball cap and a hunting knife as belonging to him. The applicant also recalled being at the Alfred Hospital, but he did not recall driving the taxi or how he got home.
The applicant told the police that when he woke up on the morning of 29 April, he was concerned that something was seriously wrong and that he remembered waking up with cuts on his hands, but otherwise the applicant’s recollection of 28 April was patchy.
The applicant also told the police that he had been suffering blackouts and that there were patches of days which he could not remember. The applicant told the police that his medical condition had been going downhill for the last few months, that he had numerous blackouts over that period and that he had reported these events to the medical staff involved in the management of the applicant’s health care.
The applicant has maintained, since 29 April 2008, that he has extremely limited recall about the events the subject of the offences. The learned trial judge found there was no suggestion that the applicant’s amnesia was not genuine.
In 1985, the applicant was diagnosed as having HIV and the learned trial judge found that the offences of which he was convicted were to be placed in the context of the applicant’s ongoing dissatisfaction with the treatment that the applicant had received as a patient at the Alfred Hospital and the applicant’s conduct in the days and hours before the offences took place.
The applicant attended the Alfred Hospital three times in the week prior to the offences, twice by ambulance and once being driven there by the applicant’s partner. The applicant was disgruntled with the treatment he had received and, indeed, on Sunday 27 April, the applicant left the emergency department after a dispute with staff.
On the following day, Monday 28 April, the applicant wrote to and emailed the Alfred Hospital, copying in Government Ministers and media outlets, expressing the applicant’s dissatisfaction with the hospital and the hospital’s treatment of him.
Later that evening, at about 10 pm the applicant asked a visitor to the applicant’s home, a Mr Grant Pithie, to drop the applicant off in Richmond on Mr Pithie’s way home. When Mr Pithie and the applicant arrived at the intersection of Bendigo and Swan Street, the applicant asked Mr Pithie to drop him off. At about 12.30 am on Tuesday 29 April 2008, the applicant then hailed a taxi in Bridge Road and asked that taxi driver to take the applicant to the Thomastown Railway Station, as he was to meet a friend. The taxi driver Mr Avtar Singh took the applicant to Thomastown but when they arrived the applicant did not meet with any one or get out of the taxi. The applicant then asked to be taken home. The driver became uncomfortable regarding whether the applicant could pay his fare and so insisted that the applicant pay the fare to that point, which was $40.
The applicant was only able to give the driver $9 and told the driver that he would pay the rest of the fare when he got home. The driver was not happy with this arrangement and stopped to speak with a policeman on Bell Street, Preston. The applicant provided his name and address to the policeman and it was arranged that the taxi would take the applicant home and payment for the fare would be made then.
The taxi arrived at the applicant’s home at about 1.40 am. The applicant used his partner’s bank card to pay the fare to the taxi driver.
The applicant then went inside his house and got the car keys to his partner’s car, apparently intending to drive to the home of Mr Pithie in St Kilda. It appeared to the learned trial judge that the applicant considered that Mr Pithie was liable for the taxi fare. Instead, the applicant drove his partner’s car to the Alfred Hospital. The applicant parked near the hospital and then walked to the Emergency Department, but did not enter the hospital. From there the events the subject of the two offences unfolded.
Medical Reports
At the request of the police, the medical records held at the Alfred Hospital were reviewed by Dr Odell, forensic physician with the Victorian Institute of Forensic Medicine. Dr Odell reported that the applicant had a long and complex medical history at the Alfred Hospital, mostly related to chronic HIV infection, but also including many physical and psychiatric problems over the years. The applicant’s HIV infection had been well controlled on medication for many years. The applicant had had conflicts with the hospital over treatment arrangements.
Dr Odell summarised, in chronological order, the applicant’s attendances at the hospital in the months prior to the offences. It was noted that on 16 March 2007, the applicant presented with a self-diagnosed psychiatric condition. The diagnostic impression was borderline traits with general anxiety. There were no features of psychosis or mania.
On 16 May 2007, the applicant reported with a history of chronic anxiety, panic and agoraphobia. An assessment was made of a long history of anxiety, depression and suicidal ideation, complicated by past substance abuse and interpersonal conflict.
On 9 January 2008, the applicant reported the sudden onset of depressive episodes which occurred weekly. There were no psychotic or manic symptoms, and the diagnostic impression was that the mood swings were not due to a major depressive illness or bipolar disorder. The doctor on that occasion did not believe any psychotropic medication was required, although an in-patient psychological assessment was arranged, and it appears from the records that that took place on 28 February 2008 and was noted to be unremarkable.
Also on 28 February 2008, the applicant was noted to be normal, with some anxiety and it was said that the applicant had decided to take a break from the applicant’s medication to see whether that was causing mood swings. A month later, the applicant was given an appointment for counselling, relaxation therapy and a small dose of Valium. The applicant attended on 26 April 2008, when he was brought to the emergency department by ambulance complaining of pain and headache, and appearing agitated and stressed. The applicant told the doctor that he had ceased his anti-HIV medications two weeks previously and described two episodes of confusion preceding blackouts lasting about an hour and occurring in the previous month, but no medical treatment had been sought on those occasions.
It appeared that a disagreement that the applicant had with a nurse on that occasion culminated in the applicant discharging himself from hospital, but there were no abnormal findings on physical examination and no investigations performed or ordered. There was no objective record of any recent physical medical admission which could have caused a blackout.
The learned trial judge found that there was nothing in the applicant’s medical records as reviewed by Dr Odell which suggested that the applicant was suffering from a psychosis or psychiatric condition in the days leading up to the offences, and nothing in the additional reports (discussed below) of Mr Newton, clinical forensic psychologist, or Dr Lester Walton, consultant psychiatrist, that suggested that to be the case, or in any way explained the applicant’s conduct.
The applicant’s antecedents and personal circumstances were described in the report of Dr Lester Walton.[3] Dr Walton saw the applicant on a regular basis in his role as treating psychiatrist at Port Phillip Prison, where the applicant was on remand. Dr Walton described the applicant as exhibiting clinically significant anxiety and depressed mood, which was occurring as a reaction to multiple medical and other difficulties, although, in Dr Walton’s opinion, the applicant was then benefiting from tranquilising medication.
[3]Exhibit ‘B’.
Dr Walton described the applicant as rather distrustful of medical authorities, but stated that the applicant did not exhibit clinically significant paranoia. In Dr Walton’s opinion, there was no other evidence of psychosis. Dr Walton was of the opinion that there was nothing to suggest that the applicant was in the grip of a major psychiatric disorder around the time of the applicant’s offending, despite the applicant’s amnesia.
The report of Mr Patrick Newton, clinical forensic psychologist, was tendered in evidence on behalf of the applicant.[4] The applicant gave Mr Newton a history of mental disturbance dating back ten years. At the time the applicant saw Mr Newton, the applicant was prescribed anti-depressant and anti-psychotic medication. The applicant reported to Mr Newton a history of depression, anxiety and psychosis, and of being under the care of a psychiatrist. Mr Newton reported that the applicant suffered anxiety as a result of the proceedings and arising from concerns about his physical wellbeing. The applicant reported to Mr Newton what Mr Newton described as ‘an attenuated version of typical emotional and behavioural symptoms of depression’, which Mr Newton said in his opinion represented the residual impact of chronic depressive mood disturbance which the applicant has suffered for ten years. The applicant was, in Mr Newton’s opinion, at the risk of more serious depressive episodes developing at times of personal crises and therefore the applicant would benefit from ongoing medical and/or psychological treatment. Mr Newton concluded, however, that while the applicant reported a history of psychosis, there was no evidence of active psychotic symptoms and that the applicant’s reality testing and moral reasoning were both intact. The applicant did, however, ruminate obsessively about his physical health and experienced pessimism and hopelessness about the future. Mr Newton also stated that the applicant had become quite isolated socially.
[4]Exhibit ‘1’.
Mr Newton opined that for those reasons, the applicant may find prison more onerous and would experience considerable distress over and above that experienced by the normal prison population.
The learned trial judge said that it was apparent from the reports of Dr Walton, Mr Newton and Dr Stephen Rowles, the applicant’s general practitioner, tendered in evidence,[5] that the applicant experienced such difficulties while on remand. The learned trial judge noted in this regard that Dr Walton described the applicant as a challenging candidate to assist medically in the prison environment and that, ideally, the applicant should be treated by specialist facilities.
[5]Exhibit ‘4’.
On 30 September 2009, when the applicant was to be sentenced in respect of the offences of which he was convicted, the applicant’s counsel sought and obtained a further adjournment to enable further medical reports to be placed before the Court.
Subsequently, on 30 October 2009, the reports of Dr Mark Jeanes, consultant psychiatrist at the Alfred Hospital;[6] Dr Vicki Shepherd, consultant psychiatrist at St Vincent’s Mental Health;[7] and the report of Mr John Singleton, counsellor with Positive Living,[8] were tendered in evidence.
[6]Exhibit ‘5’.
[7]Exhibit ‘6’.
[8]Exhibit ‘7’.
The learned trial judge found that those reports confirmed in detail the applicant’s history of depression and anxiety. The report of Dr Jeanes extensively reviewed the applicant’s clinical file held at the Alfred Hospital since October 2002. The report noted that in 2003, the applicant had reported blackouts that were not associated with substance use, and a neurological review established cognitive function within average range.
In November 2006, the applicant was diagnosed with generalised anxiety disorder. In Dr Jeanes’ opinion, as the presentation of the applicant’s mental state varied considerably between reviews, Dr Jeanes could not say how it would have impacted upon the applicant’s behaviour on the night of the offences. Dr Jeanes anticipated that the applicant would continue to experience difficulties with fluctuating mood and stress about his own health, and that the applicant would benefit from ongoing psychiatric review so that such fluctuations in the applicant’s mental state could be reviewed.
Dr Vicki Shepherd treated the applicant between March and September 2009 for depressive symptoms. She placed the applicant on anti-psychotic medication to ensure stability of the applicant’s mental state and functioning in the context of the applicant’s current stressors. In Dr Shepherd’s opinion it would now be reasonable to taper the applicant off psychotic medication, but to continue with anti-depressants, as this medication effectively addressed the applicant’s anxiety and depression.
Mr Singleton, in his report, stated that the applicant received supportive counselling pertaining to persistent problems with anxiety management in 14 sessions over a 13 month period, although Mr Singleton describes the applicant’s attendance as intermittent and inconsistent. Mr Singleton opined that the management and care of the applicant’s HIV and physical health has been an ongoing source of anxiety and agitation, and that when Mr Singleton last saw the applicant in January 2008, the applicant was highly agitated and anxious about the applicant’s frustrations with ongoing issues with the Ministry of Housing and the Alfred Hospital.
Additional personal circumstances of the applicant
The applicant was 45 years old when he committed the offences and he was 46 at the time of sentencing. The applicant had no prior convictions.
The applicant’s HIV status is well managed within the prison environment, and Mr Lavery, the applicant’s counsel had submitted that as the applicant was now being treated by St Vincent’s Hospital, and presumably would continue to be so while in custody, a source of the applicant’s angst at the time of the applicant’s offending had been eliminated.
The applicant was, at the time of offending, in receipt of a disability pension and was recently studying for a Bachelor of Social Work degree. The last significant employment of the applicant was with a software company, but that ended in 2004. The learned trial judge said that it was apparent from numerous testimonials tendered on the applicant’s behalf[9] that the applicant had spent considerable time and energy promoting and advocating issues and causes within the HIV/AIDS community. The learned trial judge said that the various testimonials tendered on the applicant’s behalf spoke of his enthusiasm, energy, personality and character.
[9]Exhibit ‘2’.
Ms Eleanor Brash gave evidence on the applicant’s behalf. Ms Brash had known the applicant for 30 years and had never known the applicant to be violent. Ms Brash spoke of a change in the applicant’s demeanour around 2003 when the applicant became more preoccupied with medical issues and became more depressed.
Ms Annie Bolton, a nurse with the Royal District Nursing Service, had known the applicant as a patient of that service since 2007. Ms Bolton had seen the applicant on the weekend preceding the offences and concluded that the applicant was physically unwell and, in her opinion, needed to go to hospital, which the applicant did. Ms Bolton also said that the applicant’s treatment was now managed by St Vincent’s Hospital and that the applicant appeared to be in a good therapeutic relationship with that hospital.
The nature and gravity of the offences committed
The learned judge made the following observations in sentencing.
Her Honour observed that intentionally causing serious injury carried a maximum penalty of 20 years’ imprisonment and the crime of theft carried a maximum penalty of 10 years’ imprisonment. She further observed that Parliament had thus regarded these both as serious offences, and that the applicant’s conduct in respect to the offence of intentionally causing serious injury was a serious example of that offence. The sentencing judge said that the applicant’s conduct was a very serious assault, random in the sense that the applicant’s victim was unknown to the applicant and, according to Mr Singh, the attack was totally unprovoked and unexpected.
The judge found that the presence of the knife concealed in the applicant’s trousers was indicative of a degree of premeditation and of the applicant’s intention to seriously injure someone.
Her Honour said that although the applicant stole the taxi, he did not take any money or any items of value from it, or from Mr Singh. In those circumstances, the judge found that she was satisfied that robbery was not the motive for the applicant’s attack upon Mr Singh, although she also found there was no explanation for the applicant’s conduct, and none was forthcoming.
The judge observed that the applicant’s counsel submitted that the applicant’s conduct on the night was irrational. She accepted that may well be so. Her Honour said that the applicant’s conduct was certainly erratic, and to a degree, in the hours leading up to the offence, purposeless. She also said that such conduct from a 45 year old man with no prior convictions, who was not suffering from any psychiatric or psychological impediment, may well be said to be inexplicable; but the learned trial judge did not consider the fact that the applicant could not recall the offences, or provide a reason for them, bespoke the irrationality of the applicant’s conduct.
Her Honour acknowledged that the applicant’s counsel had submitted that she should infer that there was a nexus between the applicant’s mental state and the applicant’s offending conduct. That is that she should infer that there was a link between the applicant’s physical and psychological condition and the commission of the offences, because the applicant was depressed, anxious and was seeking treatment in the days beforehand, and the applicant’s behaviour appeared to be irrational and inexplicable.
Her Honour said that at its highest, the applicant’s medical state at the time might be said to be one of chronic depression and anxiety, but none of the medical evidence suggested to her that there was any link between that condition and the applicant’s offending.
The judge noted that Dr Odell recorded that the applicant specifically mentioned blackouts only once at the Alfred Hospital, and that was during the applicant’s attendance at the emergency department on 26 April. On that occasion, there was no abnormal finding on examination and no investigation was performed or ordered. Prior to that, Dr Odell noted that it had been mentioned that the applicant suffered from chronic anxiety and panic attacks on many occasions, and these may have corresponded to blackouts that the applicant had previously mentioned.
The sentencing judge said there was, on Dr Odell’s reading of the applicant’s history, no objective evidence of any physical medical condition which could have caused a blackout, and as she had stated previously, neither Mr Newton nor Dr Walton said the applicant was suffering from any psychosis or any psychological impediment then, or at the time of sentencing, other than that the applicant had suffered from chronic depression and anxiety, as it appears the applicant had been for the last ten years.
Her Honour referred to the fact that Dr Walton recommended in his report that despite the applicant’s amnesia, some evidence of such psychiatric disturbance ought to have been discernable prior to or after the event, and that there was no such evidence in this case. Her Honour noted that Dr Walton said that in his experience persons in highly aroused states of agitation and anger, that commonly accompanied fairly extreme violence, often suffer memory loss.
Her Honour was not prepared to infer that the applicant’s mental condition related to the applicant’s offending conduct. She noted that the evidence of the psychiatrists, Dr Mark Jeanes, Dr Vicki Shepherd and Dr Walton, the evidence of the psychologist, Mr Patrick Newton, and the evidence of Dr Odell, did not suggest that there was any physical, psychiatric or psychological connection beyond the applicant’s chronic depression or anxiety to the applicant’s offending conduct.
Her Honour said that the fact that the applicant had little or no recollection and that his conduct might be said to be erratic, did not of itself mean that the applicant was acting irrationally, nor did it necessarily mean that the applicant’s conduct was inexplicable, although presently by reason of the applicant’s amnesia of these events, the applicant’s conduct was unexplained.
Her Honour found that in those circumstances where there was no evidence that there was a relevant causal link between the applicant’s mental state, which was one of chronic depression and anxiety, and the applicant’s offending conduct, so as to reduce his moral culpability, she did not propose to apply the principles of Verdins[10] and Tsiaras[11] so as to moderate considerations of general and specific deterrence.
[11]R v Tsiaras [1996] 1 VR 398.
The judge did, however, take into account, and give due weight, to the fact that the applicant did suffer from chronic depression and anxiety, and that the applicant’s physical health was compromised by reason of the applicant’s diagnosis of HIV.
In sentencing, her Honour took into account, and gave the applicant a discount for the applicant’s pleas of guilty. She took into account that by reason of the applicant’s pleas, the applicant had saved the community the cost of a trial, and, in particular, Mr Singh the ordeal of one.
Her Honour also took into account that in the applicant’s record of interview, the applicant acknowledged his responsibility for the offences, and expressed his remorse for his conduct and empathy for the victim, although the applicant tended to blame the Alfred Hospital for the applicant’s predicament, and consequently that of Mr Singh.
The judge took into account that the applicant was a person of good character, that he had no prior convictions, and that at the age of 46, he would be serving a sentence of imprisonment for the first time and that it would be a substantial one.
Her Honour took into account that the applicant had been diagnosed as suffering chronic depression and anxiety, the genesis of which is in part the applicant’s HIV status. She also took into account that the applicant had been diagnosed with HIV and that, combined with his depression and anxiety, may render the prison environment more onerous for the applicant than would otherwise be the case.
The judge took into account the applicant’s prospects for rehabilitation, and that the applicant had been supportive of his partner of five years’ standing. She also took into account that the applicant was assessed by Dr Walton to be of normal intelligence. Her Honour noted that the applicant was articulate, was able to advocate on his own behalf and on behalf of others, and had the capacity to pursue tertiary studies.
Her Honour found that in those circumstances, where the applicant had not come before the courts previously and had no matters outstanding, the applicant’s offending could be said to be out of character and his prospects for rehabilitation good.
The judge said that against these matters, however, stood the nature and gravity of the offences committed and the applicant’s role in them. She said that any sentence imposed must serve to punish the applicant and act in denunciation of the applicant’s conduct. She noted that the applicant’s victim was a young man working as a taxi driver in the early hours of the morning. She said that the taxi driver was in a particularly vulnerable position in that a taxi driver, he or she, working alone in a confined space, was exposed to the risk that passengers unknown to him or her may pose. Her Honour said that the applicant’s attack upon Mr Singh was random, unprovoked and frenzied. She said that the applicant stabbed Mr Singh five times with a knife from behind when he was restrained initially by the seatbelt. The judge said Mr Singh escaped the applicant’s hold and then the applicant stole Mr Singh’s taxi, which removed from Mr Singh one of the opportunities Mr Singh would have had to have raised the alarm or to have alerted others to Mr Singh’s whereabouts and injured state.
The judge canvassed the victim impact statement of Mr Singh and had regard to general and specific deterrence, the applicant’s remorse, his previous good character and his prospects of rehabilitation.
Grounds of Appeal
The applicant relies on the following grounds of appeal against sentence.
Ground 1: The total effective sentence, individual sentences and non-parole period are manifestly excessive.
Ground 2: The sentencing judge erred by failing properly to take into [account] the applicant’s mental condition.
Ground 3: The sentencing judge erred by failing properly to take into account the sentencing principle of totality.
Ground 4: The sentencing judge erred by doubly punishing the applicant.
Ground 5: The sentencing judge erred in cancelling the applicant’s driver’s licence and disqualifying him from driving or, in the alternative, the judge erred in disqualifying the applicant from driving for the period that was ordered.
Ground 6: The sentencing judge erred by failing properly to take into account the applicant’s medical history.
Ground 1:
The applicant conceded that if he failed on ground 2, then he probably could not succeed on ground 1. In other words, absent the mitigating factor of the applicant’s mental condition and its link to his knife attack on the victim, the applicant probably could not establish that the sentence was wholly outside the range of sentencing options available to the sentencing judge.[12]
[12]DPP v Karazisis [2010] VSCA 350, [129].
At the conclusion of Mr Boyce’s oral submissions on behalf of the applicant, he was asked if he wished to press ground 1. Ultimately, Mr Boyce did not formally abandon that ground of appeal although he did not advance any arguments over and above those covered in ground 2 in support of the ground.
For my part, after considering the matters canvassed under ground 2, I am not satisfied that the sentences imposed by the learned trial judge were wholly outside those reasonably available to her in the circumstances of this case.[13]
[13]Hudson v The Queen [2010] VSCA 389; R v Boaza [1999] VSCA 126, [42] (Winneke P).
I would reject this ground of appeal.
Ground 2:
The applicant contends that the learned sentencing judge erred by failing to properly take into account the applicant’s mental condition in accordance with the principles in R v Verdins.[14] The applicant limited this objection to the aspect of the principles relating to establishing a link between a mental affliction or condition and the commission of the offence such that it might lead to some moderation of general deterrence, specific deterrence and have an effect on moral culpability.[15]
[14](2007) 16 VR 269.
[15]Appeal transcript 2-3.
The applicant’s submissions
The applicant concedes that none of the medical experts said that any mental condition suffered by the applicant was connected with the offending. Nevertheless, the applicant says that the learned trial judge should have inferred that there was a link between a mental affliction suffered by the applicant and the commission of the offence. The applicant relies on the fact that the applicant was suffering from chronic depression and anxiety, the sheer irrationality of the applicant’s behaviour around the time of the offence and the fact that there had been a memory blackout on the applicant’s part. The applicant also relies on the fact that he was a man of middle age, 45 or thereabouts, with no prior convictions who had otherwise been a man of good character and an upstanding and responsible member of the community.
The applicant relies on statements he made in the record of interview held between the police and the applicant on the evening of 29 April 2008 some two hours after the applicant was arrested. The record of interview is not listed as an exhibit at the plea hearing. It is, however, extensively referred to in the Crown opening that was tendered in evidence and was referred to by the learned trial judge in her reasons. I have assumed, therefore, that it did form part of the evidence before the learned trial judge.
Mr Boyce took the court to several passages in the record of interview. The applicant remembered a friend coming over to his house and his friend wanting the applicant to help him move some ‘stuff’ at his house. The applicant told the police that:
Its all hazy after that. I wasn’t feeling well when I left home….I was covered in sweat. The applicant said [his friend] Peter said ‘You’re covered in sweat. Are you okay?’ and I said, ‘I think I’m okay, but last night’s patchy.’ I remember the Alfred Hospital… I remember driving to Coburg and going, ‘What the hell are you doing in Coburg?’ I don’t remember anything much about last night at all. I woke up today concerned that something was seriously wrong and I advised my partner that something’s wrong and my partner contacted my GP RDNS who come in every week to check on me and also the CAT team.[16]
[16]Record of interview 3.
The applicant was then asked what is it that he says was seriously wrong. The applicant said that:
I’ve been having problems for months now. Like periods of blacking out, problems with mood, problems with… it’s got so bad I’ve had to drop out of university. There’s patches of days I can’t remember. There’s patches of days where my moods just take over, so I can’t actually leave the house… And I’ve gone from that to not being able to do anything and not being able to cope to get through the day. I should be in hospital... I was taken to hospital Friday night… and Saturday night… The Director of Infectious Diseases at the Alfred has been saying there’s something not right, I need an admission… I was desperate because there’s just something that’s not right here and it’s only going downhill.[17]
[17]Ibid 3 and 4.
He was asked what he remembered about the Emergency Department on the previous evening [shortly before the offending conduct]. The applicant, however, answered about his attendance on Saturday and Sunday. The applicant said:
The reason I remember going to hospital the first time by ambulance was because I felt like I was going to black out at home again… I was more concerned about why these are happening and it just felt – the head pain that I had was just so… sore and I started getting really bad head pain all the time. My doctor said yesterday I might have just picked up a virus like meningitis or something.
The applicant was asked about the taxi trip with the injured driver. The applicant did not remember the trip with the driver or stabbing the driver. The applicant said:
You said before when you were talking to the lawyer it was a taxi driver, I think. I remember last night – I remember not feeling good and thinking, ‘Stop at the Alfred’. And I remember… looking at the windows of the A and E department last night I remember it was cold too. And that’s about all I remember of last night other than I was getting the sweats, I was getting pains in my head again and I know that when I get the sweats and the pains in my head, that’s when everything starts to get wobbly. That’s it.[18]
[18]Ibid 9.
It was put to the applicant that he got in a taxi in Commercial Road outside the Alfred. The applicant said:
… I can’t remember much about being with my friend last night either. I know… something for a fact. I know I started to get sweaty before I left the home last night and as soon as I start to get sweaty, this is when things start to go wrong, but I’ve had night sweats and day sweats persistently since I stopped my HIV medication.[19]
[19]Ibid 11–12.
After being shown photographs of him in the cab, the applicant told the police he did not remember the cab. The applicant was told what he had done. He responded:[20]
I just don’t know what I can tell you. I’m telling you everything that… I’ve been honest. I’ve told you everything that I have been able to tell you. I need you to understand that my condition has been going downhill and that’s why I spent… all day yesterday fighting to try and get a hospital bed. That’s why I’ve been to the hospital twice in the last few days…
[20]Ibid 20.
The applicant was asked about his problems with the Alfred. The applicant said:
Generally, I’m trying to get someone to help me… it’s a – it’s been going on for two years. The Health Minister knows about it, the Health Services Commissioner knows about it… I’ve never – yesterday I pushed hard and the day before I pushed hard to try and get a – to try and get someone to listen that something wasn’t right. When – when I went there on Friday night with the pain I told the treating doctor that it wasn’t just that. That I had blacked out like twice in the last few weeks before that and she said ‘You’re here for the chest pain’ and I said ‘No, no, no, no, you’ve got to listen. There’s just more than what the chest pain is… … …’ and she said ‘We’ll work our way around the chest pain issues first.’ She wasn’t a specialist, especially in regards to HIV. She didn’t know, so she said, ‘It would be best left up to your specialist,’ but I am frustrated.
I talk with the Alfred, I try and get care, I go one step forward and I seem to go back 10,000 steps. Peter said today, ‘Are you honest with everything that you’re telling the doctor?’ My GP, he doesn’t know about the blackouts. RDNS knows about the blackouts. Peter knows about the blackouts and they know –
I thought at the time the most significant one was the one that I told you about before when I was feeling sick at uni, grabbed the train to Prahran, walked down, got on the bus, told the bus driver I needed to get off at the Alfred and I was covered in sweat and then being woken up a couple of hours later with a terrified look on his face, kicking me off the bus in Deer Park. I asked him to call the police, I asked him to call the CAT team and all he would do is throw me off the bus and I said ‘This isn’t right. You need to – I’m really worried. Can you call the police or the CAT team?’ Nothing. Nothing.
I’ve gone from being someone who is very capable and was studying at university to this and I can’t explain this to you.
The applicant contends that R v Verdins held that it is not necessary for the offender to be diagnosed as suffering from a serious psychiatric illness or even necessary to identify that the offender is suffering from a specific medical condition. Rather, the applicant contends, that the Verdins principle is enlivened if the evidence shows that the offender suffered from a mental impairment at the time of the offending or in the lead up to it or such an impairment is likely to afflict him/her in the future.
The applicant says that R v Verdins is thereby enlivened where the evidence establishes that the offender was suffering under a mental impairment at the time of the offence. The applicant further contends that the expert evidence did not foreclose a finding that the applicant was mentally impaired at the time of the offending. The applicant contends that in this case, his mental functioning meant that he had a mental black out such that he could not recall acing as he did and that he acted totally contrary to his normal moral compass.
The expert evidence
I will deal with the tendered reports in date order. The learned trial judge reviewed each of the reports in her reasons. Accordingly, it is unnecessary for me to repeat much of what the learned trial judge has already said.
Dr Morris Odell (report 2 July 2008)
At the time of his report, Dr Odell was a full-time forensic physician at the Clinical Division of the Victorian Institute of Forensic Medicine.
Detective Senior Constable Brendan Smith requested that Dr Odell review the medical history of the applicant in light of the applicant’s claims of blackouts and memory loss referred to in the record of interview. Dr Odell was provided with a copy of the prosecution brief, including the record of interview and the medical records from the Alfred Hospital, which comprised three folders covering the interval from April 1999 to 29 April 2008. Dr Odell did not personally examine the applicant for the report nor has he ever done so.
Dr Odell was not asked to express an opinion on whether or not the applicant was suffering from any mental disorder or abnormality at the time of the offence and if so whether it contributed to the applicant’s offending conduct.
Dr Odell refers to medical records for the occasion on 26 April 2008 when the applicant was brought to the emergency department of the Alfred Hospital by ambulance. The applicant was complaining of sharp left-sided chest pain and headache. The medical records record that the applicant described a brief period of blurred vision, dizziness and nausea prior to the presentation and a similar episode the previous week. The applicant also described two episodes of confusion preceding ‘blackouts’ lasting about one hour in the past month. The applicant had a disagreement with a nurse over not being allowed access to a telephone, which culminated in the applicant discharging himself against medical advice. Dr Odell notes that this was the applicant’s last attendance at the Alfred before the incident.
Dr Odell describes in detail the medication that the applicant was being treated with. Dr Odell mentions possible side effects of these drugs. Dr Odell noted that blackouts and confusional states are not mentioned as known side effects of these drugs. Dr Odell says ‘Since they are not specifically psychoactive substances, there are unlikely to be any psychological or cognitive withdrawal symptoms when they are stopped’.
Under the heading of ‘Discussion’, Dr Odell says that the applicant seems to have specifically mentioned blackouts only once at the Alfred, and that was during the emergency department attendance on 26 April, three days before the incident. He says there were no abnormal findings on physical examination and no investigations were performed or ordered.
Dr Odell records that prior to that, the applicant had been mentioned as suffering from chronic anxiety and panic attacks on many occasions. Dr Odell says ‘These included acute attacks of depression or anxiety which may have corresponded to the blackouts mentioned above’.
Under the heading of ‘Opinion’, Dr Odell says that there is no objective record of any recent physical medical condition which could have caused a blackout. Dr Odell says that there is also no information available regarding any drug consumption prior to the incident which may have affected the applicant’s mental state.
Dr Odell says:
There are a great many causes of blackouts and other disturbances of consciousness including memory loss, and these could be the subject of relevant medical and psychiatric investigations. Unfortunately Mr Charles does not appear to have been seen by a doctor, nurse or paramedic immediately after the incident or before his interview. Medical observations made at that time could have been helpful in giving a more detailed opinion regarding the involvement or otherwise of drugs or a medical condition.
Dr Odell does not expressly address whether or not the applicant was suffering from any mental disorder or abnormality at the time of the offence and if so whether or not that ailment contributed to his offending conduct.
Dr Lester Walton (report 12 November 2008)
Dr Lester Walton originally examined the applicant on 18 June 2008 and 2 July 2008 for medico-legal purposes. This was well after the incident, which occurred in April 2008. Subsequently, he saw him on a regular basis in his role as a treating psychiatrist at Port Phillip Prison. Dr Walton prepared the report of 12 November 2008 for the purposes of a bail application by the applicant. This report states it was requested by Ronald V Tait. Mr Tait was the applicant’s solicitor. Dr Walton, in his opinion, states as follows:
Mr Charles is afflicted by HIV, although I understand that his treatment regime is considered to be effective. There have been difficulties in relation to Mr Charles complying with the treatment when he was at large, but he agreed to have the treatment reinstated once incarcerated. Psychiatrically, Mr Charles can be described as exhibiting clinically significant anxiety and depressed mood, which is occurring as a reaction to his multiple medical and other difficulties at present. Again it does seem that the major tranquilising medication he is prescribed at present is conferring benefit and hopefully that may be enhanced by the additional antidepressant.
Dr Walton concluded in his report of 12 November 2008:
There is nothing to suggest that Mr Charles was in the grips of a major psychiatric disorder around the time of his alleged offending. Despite his amnesia, some evidence of such psychiatric disturbance ought to have been discernable prior to and after the event, and there is no such evidence.
Precisely what the significance of Mr Charles’ amnesia for the incident may be remains to be determined. It may have no significance whatsoever as persons in highly aroused states of agitation and anger, as commonly accompanies fairly extreme violence, often suffer from memory loss. Hopefully, the results from the neuropsychologist may shed further light on the question of any cognitive impairment.
Dr Walton does express a view about whether or not the applicant was in the grips of ‘a major psychiatric disorder’ around the time of the alleged offending. On the other hand, Dr Walton does not address whether or not the applicant was suffering from any mental disorder or abnormality at the time of the offence and if so whether or not that mental condition may have contributed to the applicant’s offending conduct. Dr Walton does suggest that the results from the neuropsychologist may throw light on the matter. There is no evidence of any tests by a neuropsychologist being done.
Dr Stephen Rowles (report of 30 July 2009)
Dr Rowles MBBS first saw the applicant on 21 May 1998 at the Centre Clinic, Victorian AIDS Council and Gay Men’s Health Centre. Since that time, he had seen the applicant approximately twice a month. Dr Rowles mentions the large number of psychiatrists that the applicant had seen in the past and the drugs that the applicant had been on for psychiatric problems.
Dr Rowles says that in the lead up to 28 April 2008, the applicant began acting rather erratically. Dr Rowles says that the applicant became quite agitated and was convinced that abacavir medication was the source of his troubles. Dr Rowles says that the applicant was a frequent visitor to the Alfred Hospital and it commonly led to some friction between the applicant and the staff. Dr Rowles says that on or about 14 April 2009, the applicant stopped abacavir on the applicant’s own advice.
Dr Rowles says that on 28 April 2009, the applicant presented to the clinic saying that he had one week of headache, pain in the chest and left arm, and fever with apparently normal initial investigations (including ECG) at the Alfred. Dr Rowles says that he suggested to the applicant he needed ‘a CT scan of his brain and some bloods’ (sic), but the applicant elected to do those at the Alfred Hospital.
Dr Rowles does not address whether or not the applicant was suffering from any mental disorder or abnormality at the time of the offence and if so whether or not that mental condition contributed to the offending.
Mr Patrick Newton (report 13 September 2009)
Mr Patrick Newton is a clinical forensic psychologist. He was asked by the solicitors for the applicant to prepare a psychological assessment of the applicant in connection with the plea to the charges that he was ultimately convicted of.
Mr Newton initially assessed the applicant on 2 May 2008, shortly after the offences, when he was on remand at the Melbourne Assessment Prison.
In the history taken by Mr Newton, Mr Newton was told by the applicant that the applicant had been under the care of a number of psychiatrists. Mr Newton was also told that the applicant had sought psychological counselling, together with self-help and community advocacy services. Mr Newton said that the applicant had been prescribed a number of antidepressants, anti-anxiety and antipsychotic medication. Mr Newton says at the time of assessment the applicant was consulting Dr Vicki Shepherd, psychiatrist, who had prescribed an antidepressant and an antipsychotic, which the applicant was then taking as directed.
Under the heading of ‘Background to the Current Offences’, Mr Newton recorded that the applicant had told him that he had no recollection of the offending with which he was charged. The applicant told Mr Newton that he had experienced a number of memory blackouts and that the applicant believed that his inability to recall the offending was most likely due to one of these blackouts.
Mr Newton recorded that the applicant told him he was upset by the events that had occurred and upset at the injuries that the victim had suffered.
In his ‘Opinion’, Mr Newton recorded that on the basis of a comprehensive evaluation of the applicant’s current mental status, a review of the applicant’s personal history and confirmatory psychological testing, he reached the following conclusions:
(1) Mr Charles is suffering prominent symptoms of anxiety. He is understandably anxious about his ongoing legal proceedings. While these symptoms cause him some increased stress, the impact of this anxiety is relatively small in comparison to the impacts of his concerns about his HIV and its implications.
(2) Mr Charles is intensely worried about his physical health. He ruminates on his health obsessively and perceives himself (perhaps not unrealistically) as being in the grip of a severe illness that impacts on almost every area of his life. Mr Charles is continuing to find it difficult to establish a balanced attitude towards his illness and to integrate it into a positive view of himself. He has become quite isolated socially and he is experiencing significant pessimism and hopelessness about the future.
(3) Mr Charles is suffering significant residual symptoms of depression. He has suffered depressive symptoms for the last ten years. He is assessed as being at some risk of more serious mood disturbance and there is a clear need for ongoing clinical attention.
(4) Mr Charles was lucid and orientated throughout both interviews. He could demonstrate a normal capacity for logical reasoning. While he reported a history of psychosis, there was no evidence of active psychotic symptoms on either consultation with me. Mr Charles’ reality testing and moral reasoning are both intact and have been each time I assessed him.
Mr Newton does not expressly address whether or not the applicant was suffering from any mental disorder or abnormality at the time of the offence and if so whether or not that mental condition contributed to the applicant’s offending conduct. On the other hand, Mr Newton assessed the applicant within a few days of the offending, and if Mr Newton had formed the view that Mr Charles was suffering from a mental disability other than symptoms of anxiety and residual symptoms of depression, one would have expected him to mention them.
Dr Vicki Shepherd (report of 16 October 2009)
At the time of her report, Dr Shepherd was employed as a consultant psychiatrist at St Vincent’s Mental Health. She first saw the applicant when he was referred to the Clarendon Clinic on 3 March 2009, well after the offences occurred. Her report lists the medication that she has prescribed for him to treat his depression.
She says that she treated the applicant for depressive symptoms which were in evidence from her first review. She records that the applicant told her that he had reported the presence of psychotic symptoms (persecutory thoughts) to psychiatrists who assessed him while he was in prison, which was why he had initially been prescribed antipsychotic medication.
Dr Vicki Shepherd was not asked nor does she address whether or not the applicant was suffering from any mental disorder or abnormality at the time of the offence and if so whether or not that mental condition contributed to the offending conduct.
Dr Mark Jeanes (report of 27 October 2009)
At the time of his report, Dr Jeanes was a consultant psychiatrist working at the Alfred Hospital. He was asked to prepare his report by the solicitors for the applicant. Dr Jeanes was a consulting psychiatrist at the Alfred Hospital during the period the applicant was being treated at the Alfred for psychological problems. Importantly, Dr Jeanes had treated the applicant before the offences occurred.
Dr Jeanes canvasses in detail the applicant’s medical history going back to when he was referred to the HIV psychiatry service at the Alfred Hospital in October 2002 with symptoms of depressive episodes over several years. Dr Jeanes first saw the applicant on 22 June 2006.
Dr Jeanes gives a very long and detailed summary of the attendances by the applicant at the Alfred Hospital and the psychiatric services provided to him by the hospital.
In summary, Dr Jeanes says:
Mr Charles has been seen by several members of psychiatric services at the Alfred Hospital since his presentation in 2002. He has been seen in both inpatient and outpatient settings. He has raised the possibility that he may have a sustained mood disorder or a psychotic disorder, but his symptoms have fluctuated markedly between reviews. His initial presentations to our psychiatric service did include psychotic symptoms in the context of amphetamine abuse but these settled quickly and have not been a feature of his more recent contacts. He reported that he had been able to give up the use of illicit substances and had been studying with a plan to try to assist others in a similar difficulty to his own.
In addition to my personal reviews of Mr Charles I have also been involved in offering consultation to the Infectious Diseases Unit who have found Mr Charles’ behaviour to be difficult to manage. There have been many instances where he has been affronted by a perceived lack of care and in these situations he has become hostile and often threatened to withdraw from treatment despite the risks to his own health. The Infectious Diseases Unit has attempted to provide a clear and consistent management plan in order to reduce these events from occurring. Mostly, with negotiation and feedback about appropriate behaviour, a plan that was acceptable to all parties was able to be established. When Mr Charles was not satisfied with the initial outcomes of any discussion he sought advocacy from external sources in an appropriate manner, such as contacting the hospital advocate, the local press, support agencies or his local representative. There were times when staff found his demeanour intimidating and belittling but he had not, prior to the incident for which he is being sentenced, been physically violent. There were also many times when Mr Charles engaged well with staff and they were able to provide treatment without conflict.
Mr Charles’ pattern of behaviour, I suspect, has its origins in the pattern of interpersonal attachments Mr Charles experienced as a result of growing up in a hospital environment during his mother’s illness and his father’s inability to provide support. This pattern reflects an ambivalence regarding Mr Charles’ perception of his need for care. This is evidenced by his pattern of seeking care and treatment but then becoming hostile and rejecting. It also appears Mr Charles is very sensitive to changes in staffing as it is difficult for him to develop new trusting relationships. He can become overwhelmed with feelings of rage and sadness and has acted out this in the past by making threats towards his own life.
With respect to your query regarding Mr Charles’ mental state at the time of his offending on 28 April 2008, I find it difficult to comment on how Mr Charles’ mental state may have affected his behaviour as my observations at his presentation varied considerably between reviews and I had not seen him for one month prior to [the] time this incident occurred.
With respect to considering Mr Charles’ likely mental health issues in the future I would anticipate that Mr Charles would continue to experience difficulties with fluctuating mood and become stressed about his own health. He may experience levels of distress in which he could become suicidal being particularly vulnerable when he is separated from his usual support network. I would suggest ongoing psychiatric review to assist Mr Charles to develop a trusting relationship with his health care provider so fluctuations in his mental state can be assessed and appropriate treatment instigated at the time.
Dr Jeanes was asked about the applicant’s mental state at the time of his offending but, as mentioned above, found it difficult to comment as his observations at the applicant’s presentations varied considerably between reviews and he had not seen the applicant for one month prior to the time of the incident.
Mr John Singleton (report of 21 October 2009)
Mr Singleton is a counsellor at Positive Counselling. Mr Singleton says that the applicant became a client of Positive Consulting on 10 January 2003 when he was referred to the service by the Centre Clinic at St Kilda.
Mr Singleton refers to several attendances by the applicant with Positive Consulting through to when he commenced counselling with the applicant in November 2006.
Mr Singleton says that in November 2006 he was told by the applicant that the applicant had commenced anxiolytic, an antidepressant medication, prescribed by Dr Patrick Daniels, psychiatric registrar, at the Alfred Hospital. The applicant told Mr Singleton that the applicant was feeling vastly improved and the best he had felt in ten years.
At their third meeting in March 2007, the applicant told Mr Singleton that the applicant felt ‘anxious, paranoid, obsessive, manic and needing to take on projects.’ The applicant told Mr Singleton he was very worried about a decline in his mental state and changes to his sleeping pattern. The applicant reported that he had begun to reduce his psychiatric medication under the supervision of his general practitioner, Dr Stephen Rowles.
The applicant told Mr Singleton that at this time he was attempting to organise a psychiatric review and assessment at the Alfred Hospital. The applicant stated to Mr Singleton that he was frustrated, anxious and angry about what he perceived to be difficulties in implementing and coordinating a ‘mental health care [plan]’ which he believed was integral to his ongoing care.
In April 2007, the applicant reported to Mr Singleton that he had ceased all psychiatric medication under the supervision of Dr Rowles and that he had also experienced visual hallucinations.
Under the heading of ‘Clinical Compilation’, Mr Singleton says as follows:
Mr Charles reported that he was worried about recurrent levels of heightened anxiety and paranoia, and he was engaged in attempts to have these symptoms assessed and treated.
He reported that he experienced heightened levels of anxiety and agitation whenever he perceived that his attempts to access general and mental health services were thwarted. He also stated that control and order were important to him to maintain a sense of safety and containment in relation to his agitation and anxiety.
It is my opinion that when Mr Charles experienced problems in accessing services, or perceived that there were problems, his agitation and distress escalated. These feelings intensified when he felt he was in conflict with his health care providers. This was a consistent pattern for Mr Charles who reported order, certainty, and control were necessary for him to feel safe and secure.
Under the heading of ‘Treatment Focus’, Mr Singleton says that he saw the applicant in some 14 sessions up to 16 January 2008. He said underpinning his treatment plan were three main objectives:
(1) To continue with anxiety and stress management strategies;
(2) To provide an opportunity for Mr Charles to express and work through his frustrations in order to bring better clarity and containment to his level of anxiety and agitation; and
(3) To assist Mr Charles develop and maintaining more adaptive health seeking behaviours.
Mr Singleton says that his last session with the applicant was in January 2008. He says that the applicant presented as highly anxious and agitated and reported that these feelings related to his frustration about ongoing issues with the Ministry of Housing and the Alfred Hospital. Mr Singleton says that the applicant cancelled his scheduled appointment in March and that he, Mr Singleton, cancelled the scheduled appointment set for 18 April 2008. Mr Singleton says that the impact that cancelling this appointment may have had on the applicant is unclear. Mr Singleton says that in a letter dated 19 April 2008 and addressed to Professor Sharon Lewin, Director of Infectious Diseases at the Alfred Hospital, and forwarded to Positive Consulting, the applicant stated that he was very distressed and agitated at that time. Mr Singleton says that this is consistent with the pattern the applicant identified, and he observed, that the applicant experienced increased levels of agitation when he was unable to access, and/or was in perceived or actual conflict with service providers.
Mr Singleton was not asked nor did he express an opinion on whether or not the applicant was suffering from any mental disorder or abnormality at the time of the offences and if so whether or not his mental condition contributed to the applicant’s offending conduct.
Conclusions of trial judge on mental condition
The applicant’s counsel at the plea submitted that the applicant’s conduct on the night in question was irrational. The judge accepted that may well be so. She said that ‘[I]t was certainly erratic, and to a degree in the hours leading up to the offences, purposeless. Such conduct in a 45 year old man with no prior convictions, who is not suffering from any psychiatric or psychological impediment, may well be said to be inexplicable, but I do not consider the fact that you cannot recall the offences, or provide a reason for them, bespeaks the irrationality of your conduct.’
The applicant’s counsel submitted at the plea that the trial judge should infer there was a nexus between the applicant’s mental state and his offending.
Her Honour said that ‘[a]t its highest, your mental state at the time may be said to be one of chronic depression and anxiety, but none of the medical evidence suggests that there is any link between that condition and your offending.’
Her Honour referred to the reports of Dr Odell, Dr Walton and Mr Newton. She then concluded:
[50] I am not prepared to infer that your mental condition related to your offending conduct. The evidence of the psychiatrist Dr Mark Jeanes, Dr Vicki Shepherd and Dr Walton, and the evidence of the psychologist, Mr Patrick Newton, and the evidence of Dr Odell, does not suggest that there is any physical, psychiatric or psychological connection beyond your chronic depression or anxiety to your offending conduct. The fact that you have little or no recollection and that your conduct may be said to be erratic, does not of itself mean that you were acting irrationally, nor does it necessarily mean that your conduct is inexplicable, although presently by reason of your amnesia of these events, it is unexplained.
[51] In these circumstances where there is no evidence that there is a relevant causal link between your mental state, which was one of chronic depression and anxiety, and your offending conduct, so as to reduce your moral culpability, I do not propose to apply the principles of Verdins and Tsiaras so as to moderate considerations of general and specific deterrence
In my opinion, the trial judge was correct to conclude that the expert opinions had not established any link between the applicant’s mental state and the applicant’s offending conduct. As indicated above, none of the experts proffered any express opinion on that issue. The closest opinion was that of Dr Walton who suggested that a neuropsychologist may shed further light on the question. No such evidence was obtained. Dr Walton offered the view that the applicant was not suffering from ‘a major psychiatric disorder’ at the time of the offending. Dr Walton saw the applicant a few days after the offending but did not say in his report that the applicant was suffering from any mental abnormality other than anxiety and residual symptoms of depression. He did not express an opinion on whether or not those mental conditions could have been linked to his offending conduct.
The applicant contends that none of the medical opinions foreclose the finding that the applicant in fact suffered mental impairment which was linked to the offending conduct. The above analysis establishes this is correct.
Counsel for the applicant at the plea contended that the judge could infer that there was some link between the applicant’s physical and psychological condition and the commission of the offence. Counsel for the applicant relied on the bizarre if not irrational behaviour, particularly in a 45 year old man with no prior convictions. Counsel also made reference to the applicant’s attendance at the Alfred Hospital. Counsel referred to the applicant’s unexplained behaviour, such as the taxi trip out to Thomastown to the railway station where the applicant did not even get out of the taxi.
There are several points to note about her Honour’s findings. First, the factual error that she is alleged to have made is one of an inference of fact. That is, she was asked to infer from the evidence that the applicant was suffering from a mental disorder at the time of the offence and that there was a causal link between the applicant’s mental state and the applicant’s offending conduct. To characterise the judge’s failure to so infer those facts as an error of fact, the applicant must establish that it was not reasonably open to the trial judge not to infer the applicant was suffering from a mental disorder at the time of the offence and that there was a causal link between the applicant’s mental state and the applicant’s offending conduct.
Secondly, the applicant does not suggest that her Honour misconstrued or misunderstood the expert evidence and opinions that she referred to.
Thirdly, the trial judge does accept that the applicant has little or no recollection of his offending conduct. She also accepted that the applicant’s conduct before the offending was irrational. In other words, her Honour did not reject the very matters that her counsel urged upon us on the appeal.
The principles of R v Tsiaris[21] and R v Verdins[22]
[21][1996] 1 VR 398.
[22](2007) 16 VR 269.
In R v Tsiaris, this Court recognised that an offender’s mental illness may be a relevant consideration in the sentencing discretion. The Court, comprising Charles and Callaway JJA and Vincent AJA, identified five ways in which serious psychiatric illness, not amounting to insanity, was relevant to sentence:[23]
Serious psychiatric illness not amounting to insanity is relevant to sentencing in at least five ways. First, it may reduce the moral culpability of the offence, as distinct from the prisoner's legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. Second, the prisoner's illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time. Fourth, specific deterrence may be more difficult to achieve and is often not worth pursuing as such. Finally, psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health.
[23][1996] 1 VR 398, 400.
The Court held that the offender’s mental condition both at the time of the offence and at time of sentencing may be relevant sentencing considerations. Further, the Court held that the offender’s mental state at the time of the offence may be a relevant sentencing consideration on the issue of general deterrence, whether or not the illness ‘played a part in the commission of the offence.’
In R v Verdins this Court, comprising Maxwell P, Buchanan and Vincent JJA, held that the principles espoused in R v Tsiaras were not limited to an offender who was suffering a ‘serious psychiatric illness’ but extended to an offender who had a ‘mental disorder or abnormality.’[24] The court accepted that the phrase was apt to cover a wide variety of conditions. The court approved various descriptions encompassed by ‘mental disorder or abnormality’ such as ‘an offender’s psychiatric abnormality’; ‘the presence of psychiatric or psychological factors’; ‘psychiatric condition’; ‘mental incapacity’; and ‘psychological state’.[25]
[24](2007) 16 VR 269, 271.
[25]Ibid 271–272.
The Court cited with approval Maxwell P in R v Sebalj[26] where the President said:[27]
What matters in any given case is not the label to be applied to the psychiatric condition but whether and to what extent the condition can be shown to have affected the offender’s mental capacity at the time of the offence and/or at the time of the sentence.
[26][2006] VSCA 106.
[27]Ibid [21].
The Court concluded its analysis of the court’s task in assessing the offender’s mental condition at the time of the offence and at the time of sentencing as follows:[28]
[13] Where a diagnostic label is applied to an offender, as usually occurs in reports from psychiatrists and psychologists, this should be treated as the beginning, not the end, of the enquiry. As we have sought to emphasise, the sentencing court needs to direct its attention to how the particular condition (is likely to have) affected the mental functioning of the particular offender in the particular circumstances – that is, at the time of the offending or in the lead-up to it – or is likely to affect him/her in the future.
[28](2007) 16 VR 269, [13].
The Court restated the R v Tsiaras[29] principles as follows:[30]
[29][1996] 1 VR 398.
[30](2007) 16 VR 269, [31]–[32].
[31] In the light of the preceding discussion, the R v Tsiaras principles can now be reformulated, as follows:
[32] Impaired mental functioning, whether temporary or permanent (‘the condition’), is relevant to sentencing in at least the following six ways:
1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.
General deterrence as a sentencing consideration
In R v Verdins,[31] this Court examined proposition three in R v Tsiaras[32] that:[33]
A prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time.
The Court said that it was originally thought that this proposition excluded general deterrence altogether as a sentencing consideration. The Court confirmed that no such absolute rule was intended. The Court said the correct approach was explained by Batt JA in R v Yaldiz[34] where he said:[35]
… general deterrence is not eliminated but still operates, sensibly moderated, in the case of an offender suffering from a mental disorder or severe intellectual handicap.
[34](1998) 2 VR 376.
[35]Ibid 381.
Winneke P who agreed with Batt JA added:[36]
Whether in the particular case a psychiatric condition should reduce or eliminate general deterrence as an appropriate purpose of punishment will depend upon the nature and severity of its symptoms and its effect upon the mental capacity of the accused.
[36]Ibid 383.
The court in R v Verdins went on to explain that the reason less weight might be given to general deterrence in a case where an offender suffers from a mental disorder or abnormality, lies in the inappropriateness to the purpose of general deterrence. The Court cited with approval the explanation given in R v Mathews[37] in the New South Wales Court of Criminal Appeal by Wood CJ, Sperling and Hislop JJ:[38]
... the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing. Moreover, such a condition is inherent and its presence does not depend upon any element of choice.
[37](2004) 145 A Crim R 445.
[38]Ibid 450 [22].
The Court also cited with approval Sir George Lush in R v Mooney,[39] where the mental condition of the offender lessened the needs of the community to establish general deterrence. Sir George said:
The concept of the deterrence of others by the punishment of an offender is that an understanding that an offence is followed by substantial adverse consequences will prevent others from committing the offence. Regard to this consideration must, I think, be relevant to the use of the law as an instrument of social administration. Its significance in a particular case will, however, at least usually be related to the kindred concept of retribution or punishment in which is involved an element of instinctive appreciation of the appropriateness of the sentence to the case. A sentence imposed with deterrence in view will not be acceptable if its retributive effect on the offender is felt to be inappropriate to his situation and to the needs of the community. (Emphasis added in R v Verdins.)
[39]Unreported, Supreme Court of Victoria, Full Court, 21 June 1978. The judgment was cited with approval in R v Anderson (1981) VR 155, 160.
Reducing moral culpability
In R v Verdins[40] this court examined the proposition that serious psychiatric illness might reduce the moral culpability of the offender, as distinct from the offender’s legal responsibility for the offence. The Court referred to a variety of judicial approaches to the issue. They referred to one view, that it was sufficient to reduce moral culpability that the mental disorder ‘affected the offender’s ability to exercise appropriate judgment.’ On the other hand the Court referred to the view that moral culpability would only be lessened where there is a causal connection between the psychiatric illness and the commission of the offence. They accepted views on that matter would differ and listed ways in which ‘impaired mental functioning’ has been held, correctly in their view, to be capable of reducing moral culpability:[41]
[40](2007) 16 VR 269, 274–275.
[41]Ibid 275 [26].
[26] Impaired mental functioning at the time of the offending may reduce the offender’s moral culpability if it had the effect of –
(a)impairing the offender’s ability to exercise appropriate judgment;
(b)impairing the offender’s ability to make calm and rational choices, or to think clearly;
(c) making the offender disinhibited;
(d)impairing the offender’s ability to appreciate the wrongfulness of the conduct;
(e) obscuring the intent to commit the offence; or
(f) contributing (causally) to the commission of the offence.
As we have said, this is not to be taken as an exhaustive list.
In R v Wise[42] this Court considered an appeal against sentence where the appellant contended that the learned trial judge gave insufficient weight to the appellant’s intellectual disability when fixing the effective sentence. Ashley JA, with whom Redlich JA and Curtain AJA agreed, said that to attract the Verdins principles it was necessary to identify the connection between the mental abnormality and the commission of the offence. Ashley JA said:[43]
[31] … I consider that too often the reports of psychologists and psychiatrists either do not state or ill-state any connection between a discerned psychological or psychiatric abnormality and the commission of the offences in respect of which sentence is to be passed; and too often the inadequacies of reports remain untested by cross-examination and are not even the subject of critical analysis by way of submission.
The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong('); 'when... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'.
See also Ruby, Sentencing, 3rd ed (1987) pp 38-41. Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.
The totality principle has been recognized in Australia. In Reg. v. Knight the Full Court of the Supreme Court of South Australia (Walters, Zelling and Williams JJ.) said, in a joint judgment:
it seems to us that when regard is had to the totality of the sentences which the applicant is required to undergo, it cannot be said that in all the circumstances of the case, the imposition of a cumulative sentence was incommensurate with the gravity of the whole of his proven criminal conduct or with his due deserts. To use the language of Lord Parker LC.J. in Reg. v. Faulkner …., 'at the end of the day, as one always must, one looks at the totality and asks whether it was too much'. (citations omitted)
I accept that in sentencing the applicant, the learned trial judge was required to take into account the principle of totality. The submissions of counsel below on the plea amply establish that the principle of totality was addressed, as is apparent from the transcript:
MR LAVERY: Your Honour, the ultimate submissions in this case – these are obviously conceded that the first count is a serious matter and it is not submitted that anything other than a sentence of imprisonment is an appropriate sentence. It is also the situation, Your Honour, that intentionally causing serious injury is one of those offences for which a suspended sentence cannot be imposed unless – a wholly suspended sentence cannot be imposed unless there are exceptional circumstances. It is not submitted to Your Honour that there are exceptional circumstances that arise in this case.
HER HONOUR: Thank you.
MR LAVERY: But it is the situation Your Honour that Mr Charles has already served I think it’s 233 days of pre-sentence detention. It is submitted that the offences obviously – what is submitted obviously Your Honour is that the intentionally cause serious injury is the more serious of these two offences. That the circumstances of the second offence is such that if there is a sentence of imprisonment imposed on Count 2, it need not be a lengthy sentence of imprisonment on Count 2 and that there is the scope for a significant degree of concurrency if not total concurrency depending on Your Honour’s sentencing approach if I could put it that way.
HER HONOUR: I wouldn’t think total concurrency Mr Lavery because the act of intentionally causing serious injury was completed. He drove off in the car. It’s a discrete offence.
In my opinion, the cumulation of 6 months of the theft count on the head count does not satisfy me that the learned trial judge failed to take the totality principle into account.
I would dismiss this ground of appeal.
Ground 4
The applicant contends that the learned sentencing judge erred by doubly punishing the applicant.
The applicant submits that in order to reach a 12 month term of imprisonment on the offence of theft for a man who pleaded guilty and who had no prior convictions, the learned sentencing judge must have factored in, at least to some degree, the circumstances of the violence. The applicants says that this matter can be tested by removing from consideration in totality the fact of the intentionally causing serious injury offence. The applicant contends that if one imagines that offence removed, it is inconceivable that a sentence of 12 month’s imprisonment would be imposed on the applicant in circumstances where he pleaded guilty, had no prior convictions (by middle age), drove the taxi for a matter of seconds and was not charged with the causation of any damage to that car.
The applicant submits that he was thus punished twice for the one act. The applicant refers to Pearce v The Queen.[81]
[81](1998) 194 CLR 610.
The Crown responds by referring to their submissions on ground 3. The Crown submits that there is nothing to indicate that Her Honour ‘factored in the circumstances of violence’ to the sentence on this count. This offence was separate and distinct and one for which it was appropriate to sentence the applicant to a separate term of imprisonment.
In Pearce v The Queen[82] the High Court of Australia held that to the extent to which two offences of which a person is convicted contain common elements it would be wrong to punish the offender twice for the commission of elements that are common. The majority, McHugh, Hayne and Callinan JJ, held as follows:[83]
To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.
[82](1998) 194 CLR 610.
[83]Ibid [40].
Kirby J also addressed the issue:
Finally, the appellant complained that the sentence imposed involved punishing him twice for what was essentially the same conduct, namely, the grievous bodily harm inflicted on his victim. Despite the order that the sentences for the offences in counts 9 and 10 be served concurrently, the failure to differentiate between them and to address the conduct common to each left it open to an inference that no differentiation had occurred in sentencing and that double punishment had been imposed. The Crown, whilst conceding that it would have been preferable for the judge, on sentencing, to have made it plain that he was avoiding duplication of punishment for the same acts and circumstances, argued that no miscarriage of justice had occurred. By making the sentences concurrent, the judge had effectively removed the risk of double punishment in this case.
The argument put by the applicant on this appeal approaches the matter not on the basis of there being common elements in the two counts. Rather, the applicant submits that in determining the sentence for theft, the trial judge has factored in, at least to some degree, the circumstances of the violence.
There is no evidence that she did factor in the circumstances of violence. The learned trial judge said that ‘[a]lthough the offences occurred as part of the one episode, they nonetheless are two discrete offences…’
The applicant has not satisfied me that the learned trial judge erred in imposing the sentences that she did on this ground.
Ground 5
The applicant contends that the learned sentencing judge erred in cancelling the applicant’s driver’s licence and disqualifying him from driving or, in the alternative, the judge erred in disqualifying the applicant from driving for the period that was ordered.
The applicant submits that if the non-parole period stands in this case, the applicant will become eligible to apply for a new licence at a point in time when he is still in custody. The applicant objects to both the fact of the cancellation and disqualification and the time of disqualification.
The learned trial judge ordered that the applicant’s driver’s licence be cancelled and the applicant disqualified from obtaining a licence for five years.
The applicant submits that the circumstances that ought be considered when cancelling a person’s licence and disqualifying him or her from driving are considered in R v Lefebure[84] and R v Novakovic.[85] The applicant says that it is important to understand also that the discretionary power that permits the cancellation and disqualification of driving licences arises in respect of guilt of an offence committed against the Road Safety Act 1986 and guilt ‘of any other offence in connection with the driving of a motor vehicle’.
[84](2000) 112 A Crim R 41, [7]–[8].
[85](2007) 17 VR 21, 32 [16].
The applicant says that the only offence the guilt of which might have justified cancelling the applicant’s licence and disqualifying him from driving was the offence of theft of a motor vehicle.
The applicant contends that the learned sentencing judge did not expressly have regard to the matters described in Lefebure and Novakovic. The applicant says that if those matters were paid proper regard and if one takes into account that it could only be the circumstances of the theft of the motor vehicle and not the offence of intentionally cause serious injury that can justify cancellation and disqualification, it must be concluded that it was not open to cancel the applicant’s licence or, in the alternative, to disqualify him for the period ordered.
The learned trial judge made the order for cancellation and disqualification under s 28(1)(b) of the Road Safety Act 1986. It was conceded by the applicant and the Crown that the learned trial judge was misinformed on the application of this provision and that the applicable provision was under s 89(4) of the Sentencing Act 1991. Section 89(4) provides for a mandatory cancellation of an offender’s licence upon conviction.
Subsection (4) provides:
If a court finds a person guilty, or convicts a person, of stealing or
attempting to steal a motor vehicle, the court may (in the case of a finding
of guilt) and must (in the case of a conviction)-
(a) if the offender holds a driver licence-
(i) cancel that licence and, if the court thinks fit, also disqualify him or her from obtaining one for such time as it thinks fit; or
(ii) suspend that licence for such time as it thinks fit; or
(b) if the offender does not hold a driver licence, disqualify him or her
from obtaining one for such time as it thinks fit.
The Crown submits that the authorities indicate that certain matters are to be taken into consideration on the imposition of the period of disqualification. The Crown says that they incorporate factors that bear on matters of punishment and
mitigation.[86] The Crown says that there were no submissions made on behalf of the applicant in relation to the duration of any period of disqualification.
[86] R v Lefeubre [2000] VSCA 79; R v Tran (2002) 4 VR 457, [38]–[40].
The Crown says that although it was open to the judge to impute a punitive element in the context of the total punishment imposed, this was not done in this case. The Crown contends that the custodial sentence imposed was an effective sentence of 9½ years imprisonment with a minimum term of six and a half years. The Crown says that the applicant’s licence was cancelled and he was disqualified from obtaining a licence for 5 years from the date of sentence.[87] There was therefore no punitive element to this aspect of the applicant’s sentence.
[87][2009] VSC 667 at [70].
The applicant says that there has been an error on the part of the learned trial judge as she made the order under the Road Safety Act 1986 rather than the Sentencing Act 1991. The applicant accepts that in this case there is no punitive element in this aspect of the applicant’s sentence as the extent of the cancellation comes under the non-parole period. The applicant contends that to cancel his licence as distinct from suspending, in the circumstances, is punitive in itself. The punitive element being having to go through the ‘whole rigmarole’ again of getting his licence and being on L plates for twelve months. Mr Boyce, the applicant’s counsel, submitted that given the nature of the violent offence, the community might not want the applicant catching more cabs whilst he is going through the process of obtaining a licence.
In The Queen v Lefebure[88] this Court considered the relevant matters that should be taken into account in deciding whether a convicted person should be disqualified for any period of time from obtaining a driving licence. Tadgell JA, with whom Chernov JA agreed, said:[89]
[7] In the forefront of his argument, counsel for the appellants submitted that the learned sentencing judge had not been directed to, and did not himself take account of, the relevant matters to be taken into account in deciding whether a convicted person should be disqualified for any period of time from obtaining a driving licence. We were referred to five cases in which the matter has been canvassed to a greater or lesser extent. They were R. v. Tantrum - #, R. v. George, R v Boeyen, R. v. Bazley and R. v. Bell. From these decisions I think it may be said that the following considerations are to be taken into account on the imposition of a period of disqualification.
First, since the disqualification falling to be imposed contains a punitive element, it is necessary to evaluate the extent to which disqualification is required in the total punishment in order to mark the dissatisfaction of the community with the offence. In making that evaluation, aggravating or mitigating factors are to be considered, and also is to be weighed the length of the disqualification compared with any period of custody which is ordered. It is not necessary that the two should be equated in length. Sometimes it is desirable, balancing all the facts, that a period of disqualification will exceed the length of the period of any custody. Sometimes, of course, as in the case here of Richard Lefebure, there was no actual period of custody at all, notwithstanding that a penal sentence was imposed upon him. In the case of Bell it was thought necessary that, although nine months' imprisonment had been ordered and two years' disqualification ordered at first instance, and although the period of disqualification was reduced on appeal to 12 months, it was still desirable that it should exceed the period of nine months' imprisonment which had been imposed.
[8] Next, it is usually appropriate that, in assessing the necessary length of any disqualification period, the convicted person's dependency on a driving licence should be taken into account. To do so it is usually necessary to ensure that the prospects of rehabilitation of the convicted person will not be unduly hampered. Such considerations as the necessity or convenience of a motor vehicle when looking for, obtaining and maintaining employment are to be considered. If a person such as these two men before us needs transport in order to obtain medical treatment – both, we were told, are still on methadone programmes – that is the kind of thing which ought not to be disregarded in fixing the length of any period of disqualification.
(citations omitted)
[88][2000] VSCA 79.
[89]Ibid [7]–[8].
In R v Tran[90] this Court, comprising Callaway, Buchanan and Vincent JJA, again considered relevant facts to be taken into account in cancelling a driver’s licence and disqualifying the offender from obtaining a licence. Callaway JA , with whom Buchanan and Vincent JJA agreed, said:
[90](2002) 4 VR 457.
[38] It will be recalled that the appellant's licences held under the Road Safety Act were cancelled and she was disqualified from obtaining a licence for 15 years. The judge said that he had given the question of disqualification careful consideration and that it was arguable that an even longer term of disqualification could have been imposed. The period he had chosen was, his Honour acknowledged, a substantial period but it was one which he considered to be just and in accordance with current sentencing practice. In
my respectful opinion, that is the only element of the disposition that was at fault.[39] The topic is dealt with thus in the Victorian Sentencing Manual (2nd edition) at [41.603]:
In determining the actual period of disqualification a sentencer should have regard to the factors specified by Crockett J in George... the Court should have regard to two separate considerations. They are first the need for the period of cancellation itself to serve its part as a punitive element in the context of the total punishment imposed, and secondly, the need to provide protection to the public from the dangers of possible future lawless motor vehicle driving by the offender. Those two considerations have each to be given such weight as the Court considers is appropriate bearing in mind it is their combined effect which will determine the ultimate length of the disqualification. The period of disqualification should bear some relationship to the period of imprisonment imposed.
In the same case, Crockett J continued:... the length of the period of disqualification necessarily had to bear a relationship to the period in custody required to be served by the offender. It was said that obviously the longer the period of custody the less would be the effective deprivation for a given period of the benefit of a driver's licence by that offender, and conversely, of course, the shorter the period of custody to be served the longer would be the degree of deprivation.
Considerations of personal hardship are also relevant to the period of disqualification imposed. In George, Crockett J further adverted to:... the need to examine the degree of dependency, particularly economic dependency, of the offender on the possession of a driver's licence. The Court of Criminal Appeal quoted these passages with approval in Boeyen. In fixing the period of disqualification the sentencer should have regard to its effect on the offender's rehabilitation and whether the period fixed would be counter-productive. In Tantrum, Gatehouse J said:… Normally the disqualification should not inhibit too much the rehabilitation of the offender. Very long disqualifications tend to do just that and to cause further crimes to be committed.
Reference is then made to the judgment of Batt, J.A. in R. v. Bazley.
[40] In applying those principles I would emphasize, in this case, the importance of facilitating the appellant's rehabilitation. It will be a decision for the Parole Board whether she is released prior to the completion of the head sentence but, if the appellant is released on parole, she should be enabled to apply for the licence that she will undoubtedly need if she is to find employment and be reintegrated into the community. I would make a finding, pursuant to s 89(1) of the Sentencing Act, that the offences the subject of counts 1 to 6 were committed while the appellant was under the influence of a drug which contributed to the offences. That finding will attract the provisions of s 89(3A)-(3E), including the requirement that she obtain an assessment report about her use of drugs from an accredited agency at least 12 months before applying to the Magistrates' Court. Taking that matter and the length of the head sentence and the non-parole period into account, for the period of disqualification fixed by the judge I would substitute the period beginning on 10th May 2001 and ending 18 months after the appellant is first released from custody, whether on parole or on the expiration of her sentence.
Even if the learned trial judge did err on this aspect of the sentence, I do not consider a different sentence should be imposed.[91] There is every reason why the applicant should be required to apply for a driver’s licence after at least six years not driving. I would think the protection of the community would be best served if the licence was cancelled rather than suspended. I reject this ground of appeal.
[91]s 281 of the Criminal Procedure Act 2009.
Ground 6
The applicant contends that the learned sentencing judge erred by failing properly to take into account the applicant’s medical history.
The applicant says that this ground is argued as an adjunct to or particular of ground 2.
I have taken this matter into account in my decision on ground 2. I am not satisfied that there is an error in the sentence on this ground. I dismiss this ground of appeal.
Conclusion
I would refuse the applicant’s application for leave to appeal against sentence.
- - -
Impaired mental functioning at the time of the offending may reduce the offender’s moral culpability if it had the effect of –
(a) impairing the offender’s ability to exercise appropriate judgment;
(b) impairing the offender’s ability to make calm and rational choices, or to think clearly;
(c) making the offender disinhibited;
(d) impairing the offender’s ability to appreciate the wrongfulness of the conduct;
(e) obscuring the intent to commit the offence; or
(f) contributing (causally) to the commission of the offence.As we have said, this is not to be taken as an exhaustive list. (citations omitted)
- AGLC
- Charles v The Queen [2011] VSCA 399
- Case
- [2011] VSCA 399
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining whether the sentence imposed was manifestly excessive, whether the sentencing judge failed to adequately consider the applicant's mental condition, and whether the sentencing judge erred by not properly applying the principle of totality. Additionally, the court needed to assess if the sentencing judge erred by effectively punishing the applicant twice.
The court found that the sentence imposed was not manifestly excessive and that the sentencing judge had appropriately considered the applicant's mental condition. The court also found that the sentencing judge had correctly applied the principle of totality and had not doubly punished the applicant. As a result, the application for leave to appeal against the sentence was refused. The court held that the sentence was within the range of appropriate penalties for the offence committed and that there were no grounds for an appeal on the basis of the arguments presented by the applicant.
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