Director of Public Prosecutions v Rancie
[2012] VSCA 258
•17 October 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2012 0133 | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Applicant |
| v | |
| ELLIOT JOHN RANCIE | Respondent |
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JUDGES: | MAXWELL P, NETTLE JA and FERGUSON AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 17 October 2012 | |
DATE OF JUDGMENT: | 17 October 2012 | |
MEDIUM NEUTRAL CITATION: | [2012] VSCA 258 | |
APPEAL APPEALED FROM: | DPP v Rancie (Unreported, County Court of Victoria, Judge Chettle, 11 May 2012) | |
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CRIMINAL LAW – Sentencing – Crown appeal – Multiple charges of armed robbery, attempted armed robbery and robbery – Whether total effective sentence of two years’ imprisonment wholly suspended for three years and three years Community Corrections Order manifestly inadequate – Whether nature and gravity of offending such as to mandate immediate custodial sentence – Mental state of respondent – Very significant psychiatric and psychological evidence as to depleted mental state of respondent at time of offences – All six Verdins principles applicable – Verdins v R (2007) 16 VR 269 – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C T Carr | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Respondent | Mr O P Holdenson QC with Mr T Kassimatis | Tony Hargreaves & Partners |
MAXWELL P:
I will invite Nettle JA to deliver the first judgment.
NETTLE JA:
This is a Crown appeal against a total effective sentence of two years’ imprisonment, wholly suspended for three years, and a Community Corrections Order of three years’ duration, imposed on the respondent on pleading guilty to six charges of armed robbery, one charge of attempted armed robbery, two charges of attempted robbery and seven charges of robbery.
The individual sentences, orders for cumulation and s 6AAA declaration were as follows:
Charge on Indictment
Offence
Maximum
Sentence
Cumulation
1
Armed Robbery [Crimes Act 1958 s 75A]
25 years
12 months
Base
2
Armed Robbery
25 years
12 months
None
3
Attempted Armed Robbery [Crimes Act 1958 s 321M]
20 years
9 months
None
4
Armed Robbery
25 years
12 months
3 months
5
Armed Robbery
25 years
12 months
None
6
Armed Robbery
25 years
12 months
6 months
7
Robbery [Crimes Act 1958 s 75]
15 years
3 year CCO
None
8
Robbery
15 years
3 year CCO
None
9
Robbery
15 years
3 year CCO
None
10
Attempted robbery
[Crimes Act 1958 s 321M]
10 years
3 year CCO
None
11
Robbery
15 years
3 year CCO
None
12
Robbery
15 years
3 year CCO
None
13
Robbery
15 years
3 year CCO
None
14
Attempted Robbery
10 years
3 year CCO
None
15
Armed Robbery
25 years
9 months
3 months
16
Robbery
15 years
3 year CCO
None
Total Effective Sentence:
(1) 2 years’ imprisonment, wholly suspended for 3 years.
(2) 3 year Community Corrections Order (Conditions as set out in Exhibit B; reside at 2 Lawson Street Balwyn North unless undergoing medical treatment; submit to mental health assistance; undergo treatment for gambling; undergo treatment in rehabilitation for alcohol abuse and dependency; 400 hours community work; undergo supervision).
Non-Parole Period:
N/A
Pre-sentence Detention Declared:
N/A
6AAA Statement:
Total effective sentence of 5 years’ imprisonment with a non parole period of 2 years and 6 months.
Initially, there were three grounds of appeal but, following the passage of the Road Safety and Sentencing Acts Amendment Act 2012, and thereby the retrospective validation of sentences, like the subject sentence, which combined a Community Corrections Order with a suspended term of imprisonment of more than three months,[1] Ground 1 was abandoned.
[1]Road Safety and Sentencing Acts Amendment Act 2012, s 13.
The remaining grounds of appeal are:
1) Ground 2: The judge erred by imposing individual sentences and orders for cumulation that offend the principle of totality and which do not reflect the gravity of the offending.
2) Ground 3: The sentence imposed was manifestly inadequate in all the circumstances.
As it appears to me, Ground 2 is really a particular of Ground 3 and, accordingly, I shall treat it in that fashion.
The facts of the offending
Charge I – Armed Robbery – Caltex Service Station, Burwood
On 18 February 2011, at approximately 12.45am, the respondent entered a Caltex Service Station in Burwood. Farhan Azam was the sole duty attendant. The respondent approached the counter and demanded all the money in the till and threatened to kill Azam if he did not comply with the request. Azam saw the respondent lift up the left side of his jacket and reveal a black-handled knife in his pocket. Azam also noticed that the respondent had put his right hand under the left side of his jacket and it looked like there could be a gun, although no gun was sighted. Azam opened the register and gave the respondent approximately $300. The respondent then fled on foot.
Charge 2 – Armed Robbery – Bulleen Fuel, Bulleen
On 18 February 2011, at approximately 2.l5am, the respondent entered the Bulleen Fuel service station. Asher Junaid was the sole duty attendant. The respondent approached the counter and the produced a black-handled knife, saying: ‘give me the money if you want to live’. Junaid opened the register and gave the respondent approximately $1,000. The respondent left the store, apologising to Junaid as he exited.
Charge 3 – Attempted Armed Robbery – United Service Station, Preston
In the early hours on 18 February 2011, the respondent entered the United Service Station on Bell Street, Preston and approached the service counter. Sayeed Bakir was the sole duty attendant. He was speaking on the telephone. The respondent told Bakir to hang up the telephone, which Bakir did. The respondent then told Bakir he had a firearm and a knife. Bakir noticed a black- handled knife tucked in the respondent’s pants. The respondent demanded the contents of the register and threatened to stab Bakir if he did not comply. Bakis took a step backwards, pressed the emergency button, ran into the back room, locked the door and called triple zero. The respondent left the service station without any money.
Charge 4 – Armed Robbery – Caltex Service Station, Fitzroy North
On 18 February 2011, at approximately 4.30am, the respondent entered the Caltex Service Station on St Georges Road, Fitzroy North. Praveen Daggumalli was the sole duty attendant. The respondent walked directly to the service counter, picked up a Mars bar from the shelf and threw it down on the counter. He then pulled a knife out of his pocket and demanded the money from the till. Daggumalli took between $300 and $400 from the till and handed it to the respondent. The respondent walked out of the store.
Charge 5 – Armed Robbery – Safeway Caltex Service Station, Carnegie
On 23 February 2011, at approximately 1.30am, the respondent entered the Safeway Caltex Service Station on Koornang Road, Carnegie. Dhanunjay Middela was the sole duty attendant. The respondent walked to the counter and said ‘I’ve got a gun and a knife, open the till and give me the cash otherwise I’m going to shoot you’. The respondent then lifted his top to reveal a knife tucked into the waistband of his pants. Middela opened the register and handed the respondent approximately $500.
Charge 6 – Armed Robbery – 7-Eleven, McKinnon
On 23 February, at approximately 1.48am, the respondent entered the 7-Eleven on Tucker Street, McKinnon. Sachin Khurana was the sole duty attendant. The respondent, armed with a black-handled knife, approached the service counter and shouted demands at Khurana, and he threatened to shoot him if he did not comply. Khurana opened the till and the respondent removed approximately $400 before exiting the store.
Charge 7 – Robbery – Shell Coles Express Service Station, Kew East
On 27 February 2011, at approximately 11.30pm the respondent entered the Shell Coles Express Service Station on Burke Road, Kew East. Dudhat Dharmesh was the sole duty attendant. The respondent approached the service counter and told Dharmesh ‘I have a weapon in my pocket, give me all the money’, Dharmesh thought that the respondent had something in his left pocket. Dharmesh opened the till and the respondent took approximately $140. The respondent demanded cash from the other registers in the store but there was no cash in the other registers. The respondent then ran from the store.
Charge 8 – Robbery – Coles Express Service Station, Malvern
On 17 March 2011, at approximately 11.10am, the respondent entered the Coles Express Service Station on Dandenong Road, Malvern. Merlin Ferber was the sole duty attendant. The respondent approached the service counter with his left hand in his pocket. Ferber could not see what was in the respondent’s pocket but he thought it looked like something pointy or possibly in the shape of a pistol. The respondent told Ferber he had a gun and demanded all the money. Ferber complied with the request and handed the respondent approximately $305. The respondent walked out of the store.
Charge 9 – Robbery – 7-Eleven, Clayton
On 17 March 2011, at approximately 12.50am, the respondent entered the 7-Eleven on Clayton Road, Clayton. Mehedi Biplab was the sole duty attendant. The respondent approached the service counter with both hands in his pockets, and told Biplab that he had a gun in one pocket and a big knife in the other pocket. The respondent threatened to shoot Biplab and demanded the till. Biplab could see something pointy, but did not see a gun or knife. The respondent took approximately $400 from the till, and some chocolates, before walking out of the store.
Charge 10 – Attempted Robbery – United Service Station, Clayton
On 18 March 2011, at approximately 1.05am, the respondent entered the United Service Station on Princess Highway, Clayton. Harish Garudapally was the sole duty attendant. The respondent approached the service counter and demanded money. He threatened to shoot Garudapally with a rifle. The respondent had his right hand in his pocket and Garudapally could see a bulge in the pocket but did not see a gun. Garudapally told the respondent to leave, threatened to call the police, pressed the hold up alarm and ran into the storeroom and locked the door. The respondent left the store.
Charge 11 – Robbery – Mobil Quix Service Station, Hawthorn East
On 19 March 2011, at approximately 4.30am, the respondent entered the Mobil Quix Service Station on Toorak Road, Hawthorn East. Yung Tran was the sole duty attendant. The respondent approached the service counter and demanded cash from the register and the safe. Tran noticed something hidden underneath the respondent’s top, but did not sight a weapon. Tran did not have access to the safe but handed the respondent approximately $60 from the register. As the respondent left the store, he took a four-pack of energy drinks.
Charge 12 – Robbery – Shell Coles Express Service Station, Malvern
On 19 March 2011, at approximately 4.30am, although presumably some time later that 4.30am, the respondent entered the Shell Coles Express Service Station on Glenferrie Road, Malvern. Prasun Mistry was the sole duty attendant. As the respondent entered the store, Mistry thought the respondent looked suspicious and he attempted to press the security alarm. At that moment, the respondent told Mistry not to touch the alarm or he would shoot. Mistry complied. The respondent demanded money from the till and the safe. Mistry was unable to open the safe. The respondent took approximately $200 and some chocolates before leaving the store. The respondent’s left hand had remained in his pocket throughout the robbery. Mistry did not sight a gun, but it appeared as though something was pointing at him.
Charge 13 – Robbery – BP Service Station, East Kew
On 19 March 2011, at approximately 3.50am, the respondent entered the BP Service Station on Burke Road, East Kew. Abdul Mohammed was the sole duty attendant. The respondent approached the counter with his head down and looked suspicious. After waiting for a customer to be served, the respondent mumbled and then shouted demands for money. Mohammed noticed that there appeared to be something under the respondent’s top, although he did not sight a weapon. The respondent left the store with approximately $300 and a packet of cigarettes.
Charge 14 – Attempted Robbery – United Service Station, Balwyn
On 22 March 2011, between 11. l5pm and 11.30pm the respondent entered the United Service Station on Balwyn Road, Balwyn. Febin Varghese was the sole duty attendant. The respondent approached the service counter and demanded money. Varghese replied that he only had coins. The respondent then made further demands and said that he had a gun in his ‘hoodie’. Varghese noticed that the respondent had his left hand in his pocket and there appeared to be something pointing at him. Varghese put the coins on the service counter, pressed the alarm button and locked himself in the office until the respondent left the store.
Charge 15 – Armed Robbery – United Service Station, Murrumbeena
On 24 March 2011, at approximately 11.48pm, the respondent entered the United Service Station on North Road, Murrumbeena. Kamal Singh was the sole duty attendant. The respondent approached the counter, said he had a gun and demanded money numerous times. Singh did not sight a gun but observed that the respondent had his hand under his jumper. Singh pushed the duress alarm and swung a stick at the respondent five to six tunes, causing the respondent to leave the store. Singh followed the respondent out of the store and threw the stick at him. The respondent picked up the stick and followed Singh back into the store. The respondent then made further demands for cash whilst armed with the stick. Singh, however, refused to give the respondent any money and the respondent then left the store, taking an energy drink as he left.
Charge 16 – Robbery – Mobil Quix Service Station, Glen Iris
On 22 May at approximately 6.25am the respondent entered the Mobil Quix Service Station on Toorak Road, Glen Iris. Jagandeep Bajwa was the sole duty attendant. The respondent approached the service counter with his left hand behind his back. He told Bajwa that he had a knife, demanded money and threatened to stab Bajwa if he did not comply. Bajwa did not sight a knife. The respondent walked out of the store with approximately $109. Bajwa called triple zero and provided a description of the respondent to police. The respondent was observed by police a short time later not far from the service station. Upon sighting police, the respondent fled and was pursued by the police on foot. He was arrested a short time later. He was not in possession of a knife at the time of his arrest.
Manifest inadequacy
The thrust of the Crown’s argument is that, because of the nature and gravity of the offending, the maximum penalties prescribed by Parliament for the subject offences and the importance of general deterrence in sentencing offenders for armed robbery and kindred offences committed on soft targets such as the service stations, nothing less than an immediate custodial sentence was adequate punishment.
As against that, however, it was urged on behalf of the respondent that the sentence imposed was and is appropriate to the special circumstances of this case. Although conceding the serious nature and gravity of the offending and, as a general rule, the importance of general deterrence in sentencing for the kind of offending in question, counsel argued in the respondent’s written case that, because of the respondent’s precarious psychiatric state at the time of the offending, and the psychiatric damage which would likely be done to him if he were returned to prison, the judge was right to impose the sentence which he did.
Evidently, the psychiatric evidence tendered on the plea was very significant and as such extended far beyond the range of psychological opinion evidence which has become commonplace in sentencing appeals. The judge referred to it at length in his sentencing remarks and, because of its importance, it is appropriate to repeat what his Honour said about it. That was as follows:[2]
[2]Sentencing remarks, [12]-[24].
This is one of those rare cases where the court has psychiatric material demonstrating the existence of a psychiatric problem prior to your commission of the offences for which I am to sentence you. You were the subject of several psychiatric assessments carried out as part of a TAC claim brought by you as a consequence of your brother's death. You developed a severe psychiatric reaction as a result of your brother's death and the TAC paid you $200,000 in compensation. That figure demonstrates the extent of your problem as do the reports generated as part of that claim; [refer to Exhibit 9].
Dr Chang refers to your bipolar disorder. He saw you between 2008 and 2010 when he described you as ‘depressed, having significant suicidal thoughts and obsessions about moral matters’. You claimed to be ‘desperate for intervention and outside help’. Dr Lloyd described you, in November 2011, as experiencing feelings of despair, hopelessness and uselessness and having panic attacks. The observations are consistent with the reports of Dr Sherry, Dr Stocky and Dr Ingram, all part of Exhibit 9.
After your arrest on 22 May 2011, you remained in custody until you were bailed on 15 August 2011, a period of 85 days. Your psychiatric condition deteriorated whilst you were in custody. You were granted bail on condition that you underwent residential psychiatric treatment at Victoria Clinic with Dr Greenbaum. Dr Greenbaum provided three reports, Exhibits 1, 2 and 3, and gave evidence upon your plea before me.
Dr Greenbaum reported in Exhibit 3 that in the period of your offending, you had become increasingly unstable in that:
(a) you were not taking your medication;
(b) had ceased contact with your psychiatrist;
(c) your depression was escalating; and
(d)you had received a major insurance payout for the psychological impact of your brother's death and in a very short period of time had lost the bulk of this to online gambling.
He says:
The combination of factors served to unsettle him further and he sought relief initially in the highs that gambling gave him and other risk-taking behaviour. Thus he found the gambling and bouts of drinking gave him transient relief and transient elevation. He was drawn to seeking these highs through the ideas of the hold-ups as he was increasingly beset by the presence and spirits that addressed him and spoke to him, some persuading him to these activities, others discouraging him and berating him after the events. His decision to carry out these hold-ups was thus always beset by marked ambivalence in that he was aware that they were wrong and against the tenets of his faith and his previous morality but there was pressure from many of the spirits and presences that encouraged him to carry out these things. He found that the actual hold ups gave him a temporary high but then on return to his home base, he was beset by guilt and shame. He was beset by a series of bizarre rationalisations which were an amalgam of his previous religious and philosophic readings and bordering on thought disorder. The intensity of these bouts of disturbed thinking, ideation, judgment and decision making, continued until he was actually apprehended. In summary during the course of the period of the hold-up, he was suffering a psychotic disorder which heavily influenced his behaviour. I believe that the mood disturbance, the perceptual disorganisation, the distorted thinking processes and the experience while the offences were carried out materially impacted on his judgment and his decision making. Thus although he was intermittently aware of the wrongfulness of his actions, he was clearly impaired in his ability to contemplate the significance of his actions, take appropriate decisions and act accordingly. He had a series of bizarre rationalisations of his behaviour that drew on an amalgam of his religious thinking, his previous philosophical readings and disturbed thinking.
You engaged in irrational and dangerous behaviours around the time of your offending. Dr Greenbaum reports, in Exhibit 4, that:
In your record of interview with police, he does not acknowledge voices as such but describes only partial memory of events and being 'made to do it'. He discussed his confused moods and mentation. He describes the rush it gave him and the runs in the middle of the night. He describes the way his identity merged with the 'robber' and the fluctuating levels of self awareness. Mr Rancie described to me a more complex progression of his state of mind. He described that these presences and voices engaged and encouraged him to a range of other dangerous and bizarre activities. He would run across freeways in the middle of the night courting disasters with cars which might be coming around the bend. He would engage in dangerous activities seeking out building sites and jumping between different levels from high places. In the morning he would wake with aching and bruised limbs. At time he would find himself hitting himself in the face. On one occasion he slashed his wrists. On another occasion he overdosed with his medication. He explained the spirits to himself as coming from a parallel universe that Descartes described. He saw them as having independent powers.
You used $70,000 of the funds you obtained from the TAC to purchase an apartment. You gambled away obsessively the balance of $130,000. Dr Greenbaum added, in Exhibit 4 at p.9:
I believe that these hold-ups occurred in the context of him developing a severe attack of pathological gambling. He had already been drawn into gambling early in 2010 but ran out of money and fell into depression. With access to a major compensation payment of $200,000, he found himself drawn to gambling in a major way for a number of reasons: it relieved him from his anguish and obsessive ruminations about his brother's death; it took him out of his brooding sense of failure in his life; it provided him with a high which was intoxicating. His drivenness to gambling overwhelmed him though he struggled with a period of relative awareness of the destructiveness of what he was doing but at the same time sought and found a range of rationalisations to justify it. He became increasingly disturbed and he began experiencing a range of external presences and spirits which communicated with him, spoke to him either driving him and encouraging him in these activities or chastising him and remonstrating with him. The turn towards the hold-ups appears to have developed in the context of him running short of money to gamble. The hold-ups served as a means to try and access money, although he only made small amounts from it, and particularly gave him the rush which temporarily settled his mind until the re-awareness would come back and he would be beset with guilt, remorse, shame and regret. The engagement in these activities was facilitated by:
(a) significantly high irregular alcohol intake than he was used to;
(b)the high euphoria that he experienced during the time of those activities; and
(c) the presence and spirits that accosted him and drove him and encouraged him to do these things.
Dr Greenbaum concluded that:
Mr Rancie suffered a number of major psychiatric conditions:
(a) longstanding depression;
(b) longstanding obsessive compulsive disorder;
(c) a period of compulsive gambling which overwhelmed him; and
(d) a psychotic illness of uncertain aetiology given the complex antecedence of complex personality disorder, obsessional disorder, depressive illness, confrontation and his gambling and now the immediate stresses of gaol and his trial.
The two most likely considerations are psychosis mediated by stress and an early schizophrenic disorder. Certainly the combination of the syndromes impaired his ability to think rationally, consider the consequences of his actions and behave appropriately. It led him to make false judgments and led him into increasingly dangerous behaviour. This was fed by the rush that it gave him and the range of bizarre rationalisations that he was thinking as he carried out his behaviours. I believe that this combination of psychiatric illnesses with psychological disturbance, impaired the patient's mental capacity to function normally.
Dr Danny Sullivan provided two reports, Exhibits 5 and 6. Those reports were prepared in the context of an examination as to the availability of a mental impairment defence by you. He concludes in Paragraph 34 of Exhibit 6:
The phenomenology of Mr Rancie's belief systems and hallucinatory experiences is complex. I consider that he described hallucinations and the meaning imbued to them are at the overlap between obsessive compulsive disorder and psychosis. It seems that Mr Rancie is so tormented by internal dialogue that at times he cannot determine whether his thoughts are his own or the manifestation of an external agency and in the light of his religious beliefs they have a spiritual flavour in common with obsessive compulsive disorder it seems that these experiences increase with stress and maybe perceived as urging him to act in ways he finds contrary to his morality which may be resisted with varying degrees of success. I would therefore describe these beliefs and experiences as a psychotic disorder, not otherwise specified, noting that the symptoms arise from compulsive obsessive disorder. The intent of the offences was obscured due to Mr Rancie's described hallucinatory and ruminatory experiences and the impression that an element of excitement or stimulation seeking was involved in the offences rather than financial gain alone.
In evidence before me, Dr Greenbaum confirmed that your hallucinatory experiences and delusional ideas have settled since you have been released from custody and been treated. You are less agitated and confused although your anxiety in court and the ticks associated with your obsessive compulsive disorder were clearly evident to me in court. You are now medicated, compliant and undertaking treatment.
Your father, Kenneth Rancie, described your normal childhood, the development of your obsessive compulsive order and the tragedy of your brother's death. He outlined your family's support, your support for your younger brother and the changes that you have exhibited after your brother Richard's death. He saw your psychiatric deterioration, your developing gambling habit and your physical self abuse. He said that you can reside with your family indefinitely in the future.
There is no need to set out your full personal background. It is set out in the reports tendered. I have had regard to all the reports in sentencing you.
Your prospects for future rehabilitation are excellent. You have the support of a loving family, you have not re-offended, you have medical and pharmacological support and your health has improved dramatically.
I accept the evidence of the highly qualified and experienced psychiatrists that any time you would serve in prison would damage your fragile mental health and imperil your rehabilitation.
As counsel for the respondent submitted in their written case, the respondent also had in his favour that he pleaded guilty at an early stage and was found by the judge to be genuinely remorseful; that he had no prior convictions and he has no subsequent convictions; and that he was and is relatively young, being 23 or 24 at the time of the offending, with excellent prospects of rehabilitation with the appropriate medical and pharmacological support.
Given the psychiatric evidence, the judge’s finding (as to which there is no dispute) that all six Verdins[3] considerations applied; and that any further time in gaol would be likely to damage the respondent’s fragile metal health and imperil his rehabilitation, I am not persuaded that the needs of general deterrence were or are such as to require that he be subjected to an immediate term of imprisonment. In my view, it was open to the judge to conclude that this is one of those rare and exceptional cases in which, notwithstanding the grave nature of the offending, the offender’s mentality was and is so damaged as to warrant another solution. And, with respect, it seems to me that the sentence imposed by his Honour was for that reason an appropriate disposition.
[3]R v Verdins (2007) 16 VR 269, 278[31].
Even if that were not so, however, I would not be inclined to intervene. Inasmuch as the respondent has now been at large since he was bailed in August 2011, and bearing in mind the dire effects which re-incarceration would likely have on his mental state, it would be unusually harsh to require him to return to prison at this stage.
Conclusion
In the result, I would dismiss the appeal.
MAXWELL P:
I too would dismiss the appeal, for the reasons which his Honour has given.
As the Court had occasion to say in Karazisis, the ground of manifest inadequacy, like the ground of manifest excess, is a very difficult ground to make good:[4]
In Victoria, the contention that a sentence was manifestly inadequate is invariably expressed as a submission that the sentence was outside the range reasonably open to the sentencing judge in the circumstances. As with the ground of manifest excess, the ground of manifest inadequacy is a stringent one, difficult to make good. Error of this kind will not be established unless the appellate court is persuaded that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge. Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to all the relevant circumstances of the offending and of the offender.
[4]DPP v Karazisis (2010) 206 A Crim R 14, 44 [127] (Ashley, Redlich and Weinberg JJA with whom Warren CJ and Maxwell P agreed) (footnotes omitted).
The submissions, carefully and cogently advanced on behalf of the Director, as to the gravity of the offending served only to highlight, in my view, the intrinsic difficulty of a sentencing task like this. On the one hand, this was very serious offending. On the other hand — and crucially — the offender was, according to the unchallenged expert evidence, suffering severe psychiatric disturbance at the time.
The cases to which counsel for the Director referred[5] illustrate the powerful mitigating effect of psychotic illness. They also show that the judgment which a judge arrives at in such a case, after weighing up those countervailing considerations, will not be lightly interfered with by this Court. Those judgments are intended by our legal system to be made by sentencing judges and we will only interfere where something has been shown to have gone clearly or obviously wrong.
[5]R v Broadbent [2009] VSCA 320; Gray v The Queen [2010] VSCA 312.
FERGUSON AJA:
I too would dismiss the appeal for the reasons given by Nettle JA and by the President.
MAXWELL P:
The order of the Court is:
1. Appeal dismissed.
2.The Court grants to the respondent an indemnity certificate pursuant to s 15 of the Appeal Costs Act 1998.
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