Dennerley v The King
[2024] VSCA 155
•2 July 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2024 0070 |
| ADAM DENNERLEY | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | PRIEST and KAYE JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 27 June 2024 |
| DATE OF JUDGMENT: | 2 July 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 155 |
| JUDGMENT APPEALED FROM: | [2023] VCC 2375 (Judge Cannon) |
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CRIMINAL LAW – Sentence – Application for extension of time within which to seek leave to appeal against sentence – Applicant pleaded guilty to one charge each of recklessly cause injury, armed robbery, false imprisonment, reckless conduct endangering persons, criminal damage, and possession of a drug of dependence – Total effective sentence of 4 years’ imprisonment with non-parole period of 2 years and 8 months – Impairment of mental functioning – Applicant diagnosed paranoid schizophrenic – Whether sentence manifestly excessive – Application of extension of time refused – Madafferi v The Queen [2017] VSCA 302, considered.
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| Counsel | |||
| Applicant: | Mr David Brown | ||
| Respondent: | Ms J Warren with Ms N Deltondo | ||
Solicitors | |||
| Applicant: | Ms Nicole Valos of Valos Black & Associates | ||
Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
PRIEST JA
KAYE JA:
The applicant pleaded guilty in the County Court to six charges, namely, one charge each of recklessly cause injury, armed robbery, false imprisonment, reckless conduct endangering persons, criminal damage and possession of a drug of dependence.
Following a plea made on his behalf on 3 November, 23 November and 1 December 2023, he was sentenced, on 14 December 2023, to a total effective sentence of 4 years’ imprisonment with a non-parole period of 2 years and 8 months. That sentence was constituted as follows:
Charge Offence Maximum Sentence Cumulation 1 Recklessly cause injury[1] 5 years 2 years 6 months 2 Armed robbery[2] 25 years 2 years 6 months Base 3 False imprisonment[3] 10 years 1 year 6 months 6 months 4 Reckless conduct endanger persons[4] 5 years 12 months – 5 Damage property[5] 10 years 1 year 8 months 6 months 6 Possess drug of dependence[6] 12 months 2 months – Total Effective Sentence: 4 years’ imprisonment Non-Parole Period: 2 years and 8 months’ imprisonment Pre-sentence Detention 788 days Section 6AAA Statement: 6 years’ imprisonment with a non-parole period of 4 years’ imprisonment Other relevant orders: Licence cancelled and disqualified for a period of 18-months. Disposal and forfeiture orders. [1]Contrary to s 18 of the Crimes Act 1958.
[2]Contrary to s 75A of the Crimes Act 1958.
[3]Contrary to common law.
[4]Contrary to s 23 of the Crimes Act 1958.
[5]Contrary to 197(1) of the Crimes Act 1958.
[6]Contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981.
The applicant seeks leave to appeal on one ground, namely:
1.The individual sentences, total effective sentence and non-parole period are each manifestly excessive.
Particulars
The sentences were manifestly too long in light of:
(a)The Applicant’s substantially reduced moral culpability;
(b)The reduced weight of general and specific deterrence;
(c)The extent to which prison would weigh more heavily on the Applicant than a person of normal mental health, and the risk adversely confinement impacting his mental health; and
(d)The Applicant’s guilty plea, prospects of rehabilitation should he be appropriately treated for his mental illness.
The application for leave to appeal was filed on 15 April 2024, which was some three months after the expiration of the period fixed by s 279(1) of the Criminal Procedure Act 2009. Accordingly, the applicant has applied, under s 313 of the Criminal Procedure Act 2009, for an extension of time within which to file the notice of application for leave to appeal against sentence. That application is supported by an affidavit deposed by the applicant’s solicitor, which sets out the steps taken on behalf of the applicant during the period between sentence and the application for leave to appeal.
The considerations that are relevant to an application for an extension of time are summarised in Madafferi v The Queen.[7] In essence, the Court has a broad discretion whether to grant an extension of time, which is informed by what the interests of justice require in the particular circumstances of the case. The relevant considerations include the length of the delay, the reasons for the delay, and the merits of the proposed appeal.
[7][2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA).
In the present case, for the reasons below, we have concluded that if an extension of time were granted, the application for leave to appeal against sentence must fail. Accordingly, the application for an extension of time is refused.
Circumstances of offending
The offending, that was the subject of the charges, occurred in October 2021. The applicant, at that time, was 36 years of age. There were two victims of the offending. The first victim was Tyson Farrell. The applicant and Mr Farrell had known each other for about four years before the offending. The second victim was Acting Sergeant Darren Baird. The applicant and Acting Sergeant Baird were not known to each other at the time of the offending.
The first three charges concerned offending, committed by the applicant, in respect of Mr Farrell. The offending occurred on 16 October 2021 in the course of an incident involving the applicant and Mr Farrell. Charge 1 and charge 2 were each rolled up charges.
On Friday, 15 October 2021, Mr Farrell agreed by telephone to drive the applicant from his Seaholme address to a unit in Ridley Street, Albion, which the applicant was renovating. Pursuant to that arrangement, on the following morning, Mr Farrell drove the applicant to the Ridley Street address. Subsequently, during the morning, Mr Farrell drove the applicant back to his Seaholme bungalow. They both went inside and smoked some methylamphetamine. The applicant asked Mr Farrell if he could borrow Mr Farrell’s motor car for a week. Mr Farrell declined that request, because he needed his vehicle, and, instead, he offered to drive the applicant around if necessary.
About one hour later, as Mr Farrell was about to leave, the applicant asked him for another lift. Mr Farrell said that he was unable to assist, because he had other commitments. He agreed to drop the applicant off and come back later and pick him up. Mr Farrell then proceeded to pick up his shoulder bag to leave. The applicant said something, which Mr Farrell did not hear properly. Mr Farrell turned around and asked, ‘Sorry, what did you say?’. The applicant responded by picking up a cordless Makita power drill from the kitchen table and striking Mr Farrell to the left side of his face, causing Mr Farrell to stumble from the impact. That assault constituted part of the offence that was the subject of charge 1 (recklessly causing injury). The applicant then accused Mr Farrell of stealing something from him. He locked the front door to the bungalow to prevent Mr Farrell from leaving. That conduct constituted part of the offence of false imprisonment that was the subject of charge 3.
The applicant continued to assault Mr Farrell for about 20 to 30 minutes. At one point, Mr Farrell raised his hands to protect his head, and, as a result, his hands were ‘crunched’ by the drill. The applicant then struck Mr Farrell another four or five blows to the head with the drill. Mr Farrell could see blood rolling down his face as a consequence. Those assaults constituted the second aspect of the offence that comprised charge 1 (recklessly causing injury).
The applicant told Mr Farrell that he was going to take his telephone, his motor vehicle, and his money. Mr Farrell attempted to run out the door of the premises. In response, the applicant grabbed a bladed machete, that was approximately 70 centimetres long, and threatened to ‘chop’ Mr Farrell with it. He raised the machete towards Mr Farrell and took possession of Mr Farrell’s shoulder bag, which, at that point, was on the couch. That conduct by the applicant constituted the first part of the offence of armed robbery that was the subject of charge 2. The bag contained a photograph of Mr Farrell’s daughter, two mobile telephones, Mr Farrell’s wallet (which contained $30 cash and a bank card), and Mr Farrell’s car keys.
The applicant then directed Mr Farrell to log into his Bendigo Bank account on his mobile telephone. When he did so, it showed a bank balance of $200. The applicant told Mr Farrell that Mr Farrell was going to withdraw it for him. The applicant unlocked the bungalow door. Mr Farrell, who felt compelled out of fear to comply with the applicant, walked with the applicant to his vehicle. The applicant and Mr Farrell entered the vehicle, and the applicant drove it to the IGA supermarket in Sunshine West. At that time, the applicant was armed with a golf club. The two men walked to the automatic teller machine inside the IGA. Mr Farrell withdrew $190 in cash and handed it to the applicant. That conduct constituted the second part of the offence of armed robbery that was the subject of charge 2.
Mr Farrell tried to leave the store, but the applicant, who was still armed with the golf club, instructed him to return and to purchase a four-pack of Red Bull energy drinks (valued at $9.50). Mr Farrell complied with that demand out of fear. That aspect of the incident comprised the third part of the offence of armed robbery (charge 2).
The two men left the store and returned to Mr Farrell’s vehicle. The applicant alighted from the vehicle and walked away with an unknown male. He did not return Mr Farrell’s motor vehicle keys. That marked the end of the offence of false imprisonment that was the subject of charge 3.
After the applicant had departed, Mr Farrell attended the local police station, where police took a statement from him and photographed his injuries. The photographs were contained in the summary of prosecution opening on the plea. They vividly depict injuries to Mr Farrell’s face, forehead and hands. Mr Farrell attended Sunshine Hospital Emergency Department for treatment for his injuries. He had suffered lacerations to his face. He also suffered soft tissue swelling to the right hand, representing a ‘crush type injury’, and a fractured right little finger. He was discharged from the Emergency Department after several hours.
The second incident, which gave rise to charges 4 to 7, occurred on the following day, 17 October 2021.
At about 7:10 am on that day, Acting Sergeant Baird had finished night shift duties at the St Kilda Police Station and was driving home from work in his Corolla motor vehicle. While he was stationary at a red light at the intersection of Fitzroy Street and Canterbury Road St Kilda, the applicant, driving Mr Farrell’s motor vehicle, approached from Grey Street and slammed on his brakes at the red lights.
When the lights turned green, Acting Sergeant Baird drove through the intersection and commented through his window to the applicant, ‘Good driving, mate’. In response, the applicant made a U-turn, and pursued Acting Sergeant Baird down Grey Street at a fast speed. The applicant overtook Acting Sergeant Baird and cut him off by forcefully applying his brakes, forcing Acting Sergeant Baird to brake heavily to avoid a collision. The applicant then started to open his door. In response, Acting Sergeant Baird drove up a side street. As he did so, the applicant got out of his vehicle (Mr Farrell’s vehicle), and, using a hammer, struck Acting Sergeant Baird’s passenger side window a couple of times, causing it to smash. That conduct constituted part of the offence of criminal damage, that was the subject of charge 5.
The applicant then got back into Mr Farrell’s vehicle and drove in front of Acting Sergeant Baird to cut him off again. Acting Sergeant Baird made a U-turn and drove back towards Barkly Street. The applicant followed him in close pursuit along Inkerman Street, St Kilda Road and then Duke Street. Acting Sergeant Baird turned into Duke Street, because he knew the police station was at the end of that road. He applied his horn to gain attention of police members. The applicant continued to pursue him, and in doing so he collided with Acting Sergeant Baird’s vehicle numerous times, causing damage to both vehicles. That conduct constituted both the offence of reckless conduct endangering persons (charge 4), and part of the offence of criminal damage (charge 5).
A police vehicle then approached, and the applicant immediately drove away. He had with him one of Mr Farrell’s telephones. As a result, police were able to track the location of the telephone to a Bunnings carpark in Hawthorn, where they located the applicant in Mr Farrell’s vehicle. The applicant was arrested and transported to Footscray Police Station.
Police searched the applicant’s wallet and located $160 cash, a ziplock bag containing methylamphetamine weighing 0.02 grams (which was the subject of charge 6, possession of a drug of dependence), and the bank card that belonged to Mr Farrell. The applicant also had in his possession one of the mobile telephones that belonged to Mr Farrell.
The applicant was assessed by a forensic medical officer via the telephone. He was deemed not fit to be interviewed, and was remanded in custody.
Applicant’s previous convictions
The applicant has a long and significant history of previous offending over a period of some 21 years. It has resulted in at least 15 separate appearances before the courts during that period. The previous convictions involved a number of offences of violence, including intentionally causing injury, recklessly causing injury, assault with a weapon, and making a threat to kill. They have also involved offences of dishonesty, including theft, attempted robbery, receiving stolen property and dealing with property suspected to be the proceeds of crime.
The applicant’s criminal history commenced with an appearance before the Sunshine Magistrates’ Court on 16 April 2003 on charges of burglary and theft. He was fined without conviction. Four months later, the applicant was before the Melbourne County Court on charges of attempted robbery and intentionally causing injury. He was convicted and fined, and placed on a community based order for one year. On 27 September 2012, the applicant was sentenced, by the Geelong Magistrates’ Court, on charges of theft, criminal damage, and possession of cannabis. He was convicted and placed on a further community corrections order for 12 months. Ten months later, on 9 July 2013, he came before the Sunshine Magistrates’ Court on a charge of contravening the community corrections order. He was sentenced to an aggregate term of imprisonment of 3 months, which was wholly suspended for 12 months.
On 6 July 2015, the applicant was dealt with by the Geelong Magistrates’ Court on multiple charges, which included: criminal damage (four charges); burglary (three charges), obtaining property by deception (seven charges), theft (five charges); dangerous driving; committing an indictable offence while on bail; recklessly causing injury; making a threat to inflict serious injury (two charges); and false imprisonment (two charges). He was sentenced to an aggregate sentence of 173 days’ imprisonment (which was equivalent to time served), and placed on a community corrections order for 18 months, which required him to attend and undergo assessment and treatment for drug addiction, and mental health.
Three months later, on 27 October 2015, the applicant was before the Melbourne Magistrates’ Court, on one charge of recklessly causing injury. He was sentenced to a community correction order for 12 months, which contained similar provisions to those contained in the community correction order that was made by the Geelong Magistrates’ Court on 6 July 2015.
On 21 August 2017, the applicant came before the Sunshine Magistrates’ Court on charges that included: contravening the community corrections orders of 6 July 2015 and 27 October 2015; recklessly causing injury (two charges); threatening to inflict serious injury (two charges); false imprisonment (two charges); criminal damage (four charges); obtaining property by deception (six charges); theft (five charges); burglary (three charges); driving a vehicle in a manner dangerous; and committing an indictable offence while on bail. The applicant was convicted and placed on a community corrections order for a further period of 12 months, with similar conditions to the previous orders, namely, that he undergo assessment and treatment in respect of drugs and mental health.
Three months later, on 27 November 2017, the applicant came before the Sunshine Magistrates’ Court on charges that included: unlawful assault (five charges); making a threat to kill; threatening to inflict serious injury; failing to answer bail (four charges); committing an indictable offence while on bail (two charges); theft from shops; dishonestly receiving stolen goods; intentionally destroying property; knowingly dealing with the proceeds of crime; and a number of traffic offences. On those charges, the applicant was sentenced to an aggregate 105 days’ imprisonment, which was equivalent to time already served. It was noted as ‘custody management issues’ that the applicant may be at risk due to psychiatric illness, and it was recommended that all reasonable assessment and supervision be undertaken to ensure his safe custody.
On 12 March 2019, the applicant was convicted by the Melbourne Magistrates’ Court on two charges of intentionally damaging property, two charges of unlawful assault, and charges of recklessly causing injury, dealing with property suspected to be the proceeds of crime, and committing an indictable offence while on bail. He was sentenced to an aggregate sentence of 6 months’ imprisonment, with time served reckoned to be 47 days. The sentencing remarks noted:
Custody management issues. Schizophrenic and should be seen by forensic medical officer. Recommend all reasonable assessment and supervision to ensure safe custody.
On 18 December 2019, the applicant was convicted by the Sunshine Magistrates’ Court on charges that included recklessly cause injury, threat to inflict serious injury, making a threat to kill, being a prohibited person in possession of a firearm, committing an indictable offence while on bail (two charges), and possession of cartridge ammunition without a licence or permit. The applicant was sentenced to an aggregate term of 12 months’ imprisonment (with time served being 50 days). The sentencing remarks included:
Custody management issues. The accused may be at risk due to the following: withdrawal from drug addiction, psychiatric illness. Other: withdrawing from methamphetamine and suffers schizophrenia. Recommend all reasonable assessment and supervision.
Three weeks later, the applicant was convicted by the Melbourne Magistrates’ Court on 8 January 2020 on charges of assault with a weapon, and discharging a missile to cause injury or danger. He was sentenced to an aggregate term of 2 months’ imprisonment. Again, the same custody management issues were noted in the sentence.
A further seven weeks later, on 25 February 2020, the applicant was convicted by the Sunshine Magistrates’ Court on charges of intentionally causing injury, making a threat to inflict serious injury, unlawful assault, criminal damage, and theft. He was sentenced to an aggregate term of 6 months’ imprisonment, 3 months of which were to be served concurrently with the sentence that he was already undergoing.
Finally, on 15 September 2021 — 31 days before the offending in the present case — the applicant was convicted by the Melbourne Magistrates’ Court on charges that included: theft of a motor vehicle; retention of stolen goods; going equipped to steal; criminal damage; theft; failing to have proper control of a motor vehicle; possession of a drug of dependence; and two charges of committing an indictable offence while on bail. He was sentenced to an aggregate term of 18 days’ imprisonment (equivalent to time already served), and placed on a community corrections order for 12 months, which contained conditions that required the applicant to attend for assessment and treatment of drug abuse and mental health issues.
Background history of applicant
At the time of the offending that is the subject of the present case, the applicant had a longstanding history of mental illness, combined with entrenched drug abuse, primarily involving the consumption of cannabis, methamphetamine and anxiolytic medication. The applicant’s mental health issues had become more acute at about the same time that the gravity and frequency of his offending escalated in about 2015.
The applicant was born in April 1985 and, at the time of sentencing, he was 36 years of age. He had difficulties in his education, and he attended two different primary schools and three different high schools. The applicant left school in the middle of Year 9, and commenced a rendering and plastering apprenticeship with his father. He successfully completed the apprenticeship, as well as a Certificate IV in Building and Construction. After his father retired, he mainly worked for himself. The applicant had ceased working some time before the offending in the present case.
The applicant commenced smoking cannabis at the age of 13 years, and he had continued to use that substance in the years that followed. He commenced using methamphetamine when he was 18 years of age. At the time of his arrest, he was consuming that substance twice weekly. In addition, he used benzodiazepine medications to assist with sleep difficulties.
Applicant’s psychiatric history
The applicant has a history of a number of psychotic episodes, which have resulted in approximately five involuntary inpatient admissions, commencing when he was in his early 20s. He has experienced multiple psychotic episodes that have led to a diagnosis of schizophrenia.
For the purposes of the plea, the applicant was assessed by Dr Adam Deacon, a consultant psychiatrist, in October 2022 and February 2023.
In his report, Dr Deacon noted the applicant’s longstanding abuse of cannabis, methamphetamine and benzodiazepine medications. He also noted that the applicant had a history of psychotic episodes, which included an admission to the Acute Assessment Unit in the Melbourne Assessment Prison in 2017. The applicant told Dr Deacon that he had a belief, which he described as ‘Remote Neural Monitoring’ (‘RNM’), in which he had experienced indications that people could read his mind. The applicant had been reviewed by a prison psychiatrist while on remand, and was prescribed Olanzapine medication. However, he had not complied with that medication.
In respect of the offending in the present case, the applicant explained to Dr Deacon that he had come to the belief that his friend, Mr Farrell, was stealing his tools, telephone and tablets, and that he needed to defend himself from Mr Farrell. He thought that his actions, in assaulting Mr Farrell, would deter him from stealing his property. The applicant told Dr Deacon that he thought that his actions were justified.
In conclusion, Dr Deacon confirmed that the applicant has a diagnosis of schizophrenia, with a history of an enduring polysubstance use disorder. The applicant’s formal psychiatric history dated to 2015. Since then, the applicant had experienced multiple psychotic episodes that had led to a diagnosis of schizophrenia, for which he required treatment, including multiple inpatient psychiatric admissions. Dr Deacon noted that the applicant had consistently lacked insight into his psychiatric illness, and instead had attributed previous psychotic episodes to the impact of past traumas, which primarily consisted of a motor vehicle accident in which he sustained injuries in 2005. Dr Deacon also considered that the applicant’s lack of insight had led to extended periods when he had not received antipsychotic medication. In addition, while in custody, he had mostly elected to not comply with prescribed medication.
Dr Deacon further noted that before the offending in the present case, the applicant had been released from custody on 15 September 2021. While he was in custody, he had been assessed to warrant antipsychotic medication, but he was not referred to a community mental health service for follow-up following his release. As a consequence, he was untreated for the entire period in which he was in the community between 15 September and his arrest on 16 October 2021, during which time he had resumed consuming cannabis and methamphetamine.
In respect of the offending, Dr Deacon considered that the applicant had been experiencing active psychotic symptoms in the form of bizarre delusions and passivity phenomena, by which he thought that his mind could be read. His capacity to think rationally, appraise his situation in a considered manner, and exercise reasonable judgment had been significantly compromised, due to his psychosis. The applicant’s use of methamphetamine was likely to have aggravated his underlying psychotic condition. The applicant lacked insight into the possible psychotogenic effects of methamphetamine. Dr Deacon considered that the applicant will require indefinite psychiatric treatment. On his release from prison, he might require an inpatient admission to stabilise his psychotic condition, and he will probably require depot injectable antipsychotic medication to ensure consistent and reliable treatment of his condition.
The applicant was also assessed by Mr Luke Armstrong, a consultant psychologist, in May 2022.
Mr Armstrong concluded that the applicant has a primary diagnosis of paranoid schizophrenia. In addition, he has a long-term and chronic polysubstance abuse problem, consisting of a cannabis use disorder, a stimulant use disorder, and an emergent anxiolytic use disorder. Mr Armstrong considered that the applicant’s chronic and intractable experience of persecutory delusions, and delusions of control (MRN), were present before and during the offending in the present case. Mr Armstrong considered that the applicant would not have engaged in the offending in the absence of his psychotic beliefs. The applicant’s offending was exacerbated by intoxication from the use of methamphetamine, cannabis and anxiolytic medication. Mr Armstrong considered that the applicant required intensive case management with Forensicare services, which would include psychiatric treatment combined with drug and alcohol services.
In support of the plea, counsel for the applicant also relied on three assessments undertaken by Forensicare psychiatrists that the applicant had an established diagnosis of schizophrenia. Each assessment stated that the compulsory assessment criteria, specified in s 142 of the Mental Health and Wellbeing Act 2022, applied to the applicant. Counsel for the applicant also tendered and relied on two letters by Ms Lidia Williams, a Senior Clinician at Forensicare, which stated that if the applicant received a non-custodial disposition, he would be conveyed, by ambulance, to Werribee Mercy Hospital Emergency Department, where a consultant psychiatrist would determine whether he met the criteria for compulsory admission to the hospital’s Acute Mental Health Inpatient Unit.
The plea
The plea made on behalf of the applicant focussed substantially on his mental health, and on its role in mediating the applicant’s conduct that constituted the offending before the Court. Counsel for the applicant submitted that the applicant should either be sentenced to time already served (788 days), or, alternatively, that he should be released on bail, in order that he be conveyed, by ambulance, directly to Werribee Mercy Hospital Emergency Department, to be reviewed and assessed by a consultant psychiatrist.
Reasons for sentence
In comprehensive reasons for sentence[8], the judge summarised, in some detail, the applicant’s offending, and his previous convictions.
[8]DPP v Dennerley [2023] VCC 2375 (‘Reasons’).
Based on the reports of Dr Deacon and Mr Armstrong, the judge accepted that, at the time of offending, the applicant was experiencing active psychotic symptoms, which significantly compromised his capacity to think rationally and to appraise the situation, which he was in, in a considered manner, and to exercise reasonable judgment. However, her Honour considered that the applicant’s thoughts were not so disordered that he was not able to take valuables from Mr Farrell and to keep him under guard in order to secure his cash from the automatic teller machine in the IGA supermarket, without drawing too much attention to himself while doing so. Similarly, the judge noted that, in respect of the offending against Mr Baird, the applicant’s thoughts were not so disordered that he continued to pursue him when he saw a police car, but instead, the applicant was able to desist from offending at that point by driving away.[9]
[9]Ibid [82]–[84].
The judge noted that the applicant had spent significant periods of time in custody in protection units, and that he had not been receiving adequate mental health treatment while in custody. The judge also noted a letter from the Senior Clinician of Forensicare Mental Health Advice and Response Services (‘MHARS’), which recommended that the applicant required compulsory mental health assessment and treatment under the Mental Health and Wellbeing Act 2022. If the applicant were released from custody, he would be conveyed by ambulance to Werribee Mercy Hospital Emergency Department, where he would be assessed by a consultant psychiatrist, who would determine whether the applicant met the criteria for compulsory admission to the hospital’s Acute Mental Health Inpatient Unit. The judge noted that if the consultant psychiatrist did not agree with the compulsory order, it would be revoked, and the applicant might be offered a voluntary inpatient unit admission, or the applicant might be discharged.[10]
[10]Ibid [91].
The judge concluded was that the principles, outlined by this Court in R v Verdins,[11] applied in that the applicant was suffering an impairment of his mental function at the time that he offended, so that his moral culpability for his offending was thus reduced. The judge noted that the applicant’s mental state was further disinhibited by his consumption of methamphetamine, although his decision to use that substance needed to be considered in the context of his mental health issues. Accordingly, her Honour considered that the weight, which would otherwise be attached to the sentencing purposes of general deterrence and specific deterrence, would be reduced, but that protection of the community remained an important consideration in the applicant’s case. The judge was guarded in her assessment of the applicant’s prospects for rehabilitation. Her Honour accepted that imprisonment had weighed, and would continue to weigh more heavily on the applicant than for someone who had a normal mental health.[12]
[11](2007) 16 VR 269, 284 [72] (Maxwell P, Buchanan and Vincent JJA) (‘Verdins’); [2007] VSCA 102.
[12]Reasons, [100]–[103].
The judge also took into account that the applicant’s time in custody had been, and might continue to be, more onerous due to the COVID-19 restrictions. In addition, the judge took into account that there had been some delay in finalisation of the matter, which had a consequential effect on the applicant’s anxiety.[13]
[13]Ibid [104]–[105].
Her Honour further considered that the applicant should be entitled to a ‘fairly substantial’ discount in his sentence as a consequence of having pleaded guilty, which had a particularly utilitarian effect in respect of the witnesses who would have otherwise been required to give evidence in the case.[14]
[14]Ibid [105]–[107].
In view of the applicant’s longstanding history of drug abuse, the judge assessed the applicant’s prospects of rehabilitation to be ‘rather poor’. Her Honour had grave concerns about the applicant’s ability to successfully deal with mental health issues or drug abuse due to his lack of insight.[15]
[15]Ibid [109].
In respect of the reports provided by Forensicare, the judge considered that she could not speculate as to the assessment, which might be undertaken by a psychiatrist, if the applicant were released from custody. The judge also noted the submission on behalf of the applicant that sentencing should be deferred, and the applicant released on bail, to enable the applicant to undergo the necessary assessment pursuant to s 144 of the Mental Health and Wellbeing Act 2022. However, her Honour did not accept that it would be appropriate to defer sentence, and she concluded that the only appropriate sentence was one of a term of imprisonment.[16]
[16]Ibid [121]–[123].
Submissions
Counsel for the applicant focused his submissions on the applicant’s mental condition, and its relevance to the sentencing considerations as determined by the judge.
Counsel noted that the applicant had an established diagnosis of paranoid schizophrenia. The evidence, consisting of the reports of the experts, concluded that, at the time of the offending, the applicant was experiencing active psychotic symptoms which significantly compromised his capacity to think rationally and exercise reasonable judgment. Counsel submitted that the offending by the applicant was spontaneous and unplanned, and did not possess any of the typical aggravating factors, such as offending in company, and use of knives, guns and disguises. In those circumstances, as the sentencing judge accepted, it was submitted that the applicant’s impaired mental functioning substantially reduced his moral culpability for the offending.
In addition, counsel noted that the applicant’s mental condition had persisted after he had been remanded in custody. The applicant’s thought processes, which were dominated by his attachment to ‘remote neural monitoring’, had caused him considerable anguish and distress in custody, and, as a consequence, the applicant had spent a significant part of his time on remand in protective units. Counsel noted that the sentencing judge acknowledged that the applicant had been actively psychotic while in prison.
In that respect, counsel noted that the judge accepted that reduced weight should be given to general and specific deterrence, and that the sentence should be ameliorated, as prison would weigh more heavily on the applicant than on a person in a state of normal mental health.
Counsel accepted that the judge was entitled to be concerned about the protection of the community, in view of the nature of the offending and the applicant’s previous convictions. However, counsel submitted, the nature of the applicant’s mental condition meant that protection of the community could only be properly achieved, beyond an immediate term of incarceration, through appropriate treatment, which was available by means of compulsory assessment on the applicant’s release from prison pursuant to s 144 of the Mental Health and Wellbeing Act 2022.
Counsel also submitted that, notwithstanding the applicant’s significant previous convictions, nevertheless, he had a good work history and family support. The applicant pleaded guilty at an early stage, taking into account the need for his lawyers to obtain a full appreciation of the applicant’s precarious mental health.
Based on those considerations, it was submitted that the sentence of 4 years’ imprisonment, with a non-parole period of 2 years and 8 months, was manifestly excessive.
In particular, counsel submitted that the sentences imposed by the judge on charges 1, 2 and 3, the orders of cumulation, and the resultant total effective sentence of 3 years and 6 months’ imprisonment, in respect of those three charges, were manifestly excessive taking into account the applicant’s mitigating circumstances. Counsel submitted that the sentence of 2 years’ imprisonment on the first charge, recklessly causing injury, for which the prescribed maximum sentence is five years, was manifestly excessive in view of the mitigating factors available to the applicant. Further, counsel submitted that the orders for cumulation in respect of the sentences imposed on charges 1 and 3 were excessive, considering the considerable overlap in the conduct of the applicant that constituted the offending that was the subject of those charges.
In response, counsel for the respondent submitted that the sentences imposed on the applicant could not be considered to be wholly outside the range of available sentences in the circumstances of the case.
In particular, counsel submitted, the offending was serious, and each of the two incidents, that constituted the offending, took place over a relatively protracted time. The offending involved the use of weapons, and, in relation to the second incident, the endangerment of other road users. In view of the applicant’s lengthy and relevant criminal history, it was submitted that the judge was correct to take into account the strong need for the protection of the community.
Counsel for the respondent noted that the judge accepted that the applicant’s mental health was a relevant mitigating factor in accordance with each of the six principles referred to by this Court in Verdins. In particular, it was submitted, it is apparent from the reasons for sentence, and the sentence itself, that the judge gave appropriate weight to the reduced moral culpability of the applicant, and to the effect of the applicant’s mental health in diminishing the weight given to the sentencing purposes of general deterrence and specific deterrence. On the other hand, it was submitted, the sentencing judge was justifiably concerned about the need to protect the community, in view of the unpredictable nature of the offending, the applicant’s previous criminal history, his lack of insight into his mental health, and his failure to utilise previous opportunities to engage in mental health treatment that was made available to him.
Counsel for the respondent submitted that the offending by the applicant was objectively serious. The offence of armed robbery involved the use of different weapons, including a drill, a machete and a golf club. The victim, Mr Farrell, was vulnerable in view of the injuries that he sustained in the course of the armed robbery. The offence of false imprisonment had a number of aggravating features. The applicant had threatened to chop the victim with a machete, and, throughout the period of the offence, the victim was understandably in fear for his life. While the offences were spontaneous, nevertheless, they took place over a protracted period of time. Counsel noted that the photographs that were tendered to the judge demonstrated that the victim, Mr Farrell was of a small stature compared to the applicant, which added to the level of fear generated by the applicant’s conduct.
Counsel further submitted that the offending in relation to the second victim — Acting Sergeant Baird — was a serious instance of such conduct. The applicant put Acting Sergeant Baird and other road users at risk. The offending involved the use of another weapon, a hammer, as well as use of the vehicle to collide with the victim’s vehicle numerous times.
In those circumstances, it was submitted that the applicant had not demonstrated that the sentences were wholly outside the range of sentencing options available to the judge.
Analysis and conclusion
In order to establish the proposed ground of appeal, that the individual sentences, the total effective sentence and the non-parole period are each manifestly excessive, the applicant must demonstrate that the sentences were wholly outside the range of sentencing options available to the judge. Such a test is, of its nature, a stringent requirement. It is not sufficient for the applicant to establish that the individual sentences, the orders for cumulation, or the total effective sentence were longer than this Court might have imposed in the circumstances of the case. Rather, the applicant must demonstrate that the sentences were so excessive as to bespeak error by the judge in the exercise of the sentencing discretion.[17]
[17]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157; DPP v McArthur [2019] VSCA 71, [58] (Ferguson CJ, Kaye and Weinberg JJA).
In considering the application of those principles, the starting point is that, as correctly concluded by the judge, the offending by the applicant in the present case was objectively serious.[18]
[18]Reasons, [45].
The first incident — which was the subject of charges 1, 2 and 3 — involved a gratuitous and prolonged course of violent conduct by the applicant. The victim, Mr Farrell, was considerably smaller in stature than the applicant. The incident commenced with an unprovoked attack by the applicant on Mr Farrell. As a result of the blows inflicted by the applicant, Mr Farrell was battered, vulnerable and defenceless. The first incident involved the prolonged infliction of violence by the applicant on Mr Farrell, in circumstances which must have been particularly frightening for him.
The first two charges — recklessly causing injury and armed robbery — were each rolled up charges. The criminality involved in each of the charges comprised the totality of the separate acts, which each themselves constituted the offending charge.[19] Thus, the offending, that was the subject of the first charge, comprised each of the four or five blows, which the applicant inflicted to the victim by the use of the weapons.
[19]R v Jones [2004] VSCA 68, [13]–[14] (Charles JA), [23]–[24] (Phillips JA).
The seriousness of the offending, that was the subject of charge 2, was not measured solely by the value of the money and items that were the subject of the armed robbery.[20] The charge consisted of two separate incidents. They took place over a prolonged period of time in which the applicant intentionally instilled considerable fear in his victim, Mr Farrell, threatening him with the consecutive use of weapons, namely, a drill, a machete and a golf club.
[20]DPP v Crow [2003] VSCA 104, [13] (Winneke P).
The offending by the applicant, that was the subject of charges 4 and 5, was also of a serious nature. As the judge noted, the applicant endangered other persons and damaged property in circumstances in which he completely overreacted to a mild (but imprudent) remark by Acting Sergeant Baird by behaving in a ‘most outrageous fashion’.[21] In doing so, the applicant put Acting Sergeant Baird and other road users at substantial risk. Charge 5 (damaging property) was a rolled up charge, and comprised the totality of the actions of the applicant in striking Acting Sergeant Baird’s vehicle with a hammer, as well as using his own vehicle to collide with Acting Sergeant Baird’s vehicle on a number of occasions.
[21]Reasons, [48].
In mitigation, the judge accepted that the applicant had a long-standing diagnosis of paranoid schizophrenia, and that, at the time of the offending, he was experiencing active psychiatric symptoms, which significantly compromised his ability to think rationally and to appraise the situation in a considered and reasonable manner.[22] Accordingly, her Honour accepted that the applicant’s moral culpability for the offending was substantially reduced, with the consequence that the sentencing purposes of general deterrence and specific deterrence were given considerably less weight than would otherwise be the case.
[22]Reasons, [83].
While the judge recognised that the applicant’s psychiatric condition was exacerbated by his consumption of methamphetamine, her Honour accepted that the applicant’s decision to use that substance must be understood in the context of his mental health issues.[23] Accordingly, the judge correctly concluded that the applicant’s use of methamphetamine, at the time of the offending, did not preclude the application of the principles considered by this Court in Verdins.[24]
[23]Reasons, [100].
[24]Compare Redenbach v The Queen (1991) 52 A Crim R 95, 99 (Young CJ, Brooking and Marks JJ); R v Martin [2007] VSCA 291, [20]–[22], [30] (Maxwell P, Nettle and Redlich JJA); Johnston v The Queen [2013] VSCA 362, [15] (Redlich JA).
The judge also took into account a number of other mitigating factors, including that the applicant’s time in custody would be more difficult, due both to the COVID-19 restrictions that were then in place and also the applicant’s disturbed mental state, the delay in disposition of the case, and the applicant’s plea of guilty.
The sentencing task confronting the judge in this case was by no means simple. The applicant’s prospects of rehabilitation were, at best, limited. In those circumstances, it was relevant and correct for the judge to take into account the need to give appropriate weight to the purpose of protection of the community, while at the same time desisting from imposing a sentence that did no more than ‘warehouse’ the applicant.
Notwithstanding the mitigating factors found by the judge, it could not be gainsaid that the offending by the applicant was serious. It occurred in circumstances in which the applicant had previously come before the courts, on a number of occasions, for offences of violence and dishonesty. As noted, the offending occurred some four weeks after the applicant had been released from custody on a community corrections order.
In the absence of the mitigating factors to which we have referred, it might fairly be concluded that the individual sentences, and the total effective sentence, were each particularly modest. It is quite apparent, from the individual sentences imposed by the judge, the orders for cumulation, and the total effective sentence, that her Honour did give substantial weight to those mitigating factors in reducing the sentences that might otherwise have been imposed on the applicant. The amount of weight accorded to the factors, and the extent to which they affected the important sentencing purposes, was essentially a matter for the exercise of the sentencing discretion. In view of the matters that we have discussed, it could not be concluded that the sentences, including the total effective sentence, were wholly outside the range of sentencing options available to her Honour.
Accordingly, it could not be concluded that the sentences imposed on the applicant for each of the charges, the orders made by her Honour for cumulation, the total effective sentence, and the non-parole period, were manifestly excessive. Rather, the sentences imposed by her Honour necessarily involved appropriate weight being accorded to the mitigating factors, which we have outlined, but taking into account the gravity of the applicant’s offending and his substantial history of previous convictions.
For those reasons, the applicant has not succeeded in establishing that the individual sentences, the total effective sentence or the non-parole period were manifestly excessive.
It follows that the application for an extension of time must be refused.
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