DPP v Hodgson
[2019] VSCA 49
•13 March 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0121
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| SHANE HODGSON | Respondent |
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| JUDGES: | KAYE, NIALL and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 25, 28 February, 5 March 2019 |
| DATE OF JUDGMENT: | 13 March 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 49 |
| JUDGMENT APPEALED FROM: | DPP v Hodgson [2018] VCC 875 (Judge Condon) |
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CRIMINAL LAW – Appeal – DPP appeal – Sentence – Armed robbery – Committed in company armed with shotgun – Whether a sentence of five years and five months’ imprisonment manifestly inadequate – Residual discretion of the court not to intervene – Medical evidence on DPP appeal s 321 Criminal Procedure Act 2009 — Appeal allowed – Resentenced to seven years and six months’ imprisonment.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr C B Boyce SC | Mr J Cain, Solicitor for Public Prosecutions |
| For the Respondent | Mr D Hallowes SC with Ms E Clark | Stary Norton Halphen |
KAYE JA
NIALL JA
WEINBERG JA:
Introduction and summary
This appeal by the Director of Public Prosecutions (‘the Director’),[1] is brought against a sentence imposed on the respondent in the County Court on a single count of armed robbery. The respondent, who was 22 years of age at the time of the offending and is now 24,[2] was sentenced to a term of imprisonment of five years and five months with a non-parole period of three years and four months.
[1]Pursuant to s 287 of the Criminal Procedure Act 2009 (‘Criminal Procedure Act’).
[2]The respondent’s date of birth is 22 July 1994.
The appellant relies on two grounds of appeal. The first is that the sentence imposed was manifestly inadequate and the second, which was in substance no more than a particular of the first, alleges that the judge misapplied the principle of parity so as to reduce the sentence to a point of manifest inadequacy. There were two co-offenders in the armed robbery, Gretelianos and Brittain. Gretelianos received a sentence of four years’ imprisonment with a two year and four months non-parole period and Brittain a community corrections order of four years. In order to explain the parity ground it will be necessary, in due course, to set out the matters relevant to the sentences imposed on the co-offenders.
In summary, on the material before the sentencing judge, the sentence was manifestly inadequate. It did not properly reflect the gravity of the offence, the respondent’s appalling criminal record, including for similar offending and the need to protect the community through deterrence and incarceration. The young age of the respondent, his deprived upbringing, plea of guilty, parity and that this was to be his first sentence in adult prison all had legitimate claims to moderate the sentence. However, they could not justify the leniency extended by the judge.
Since the sentence was imposed, the respondent has become acutely unwell, suffering from psychotic episodes with a history of self-harming, requiring hospitalisation in Thomas Embling Hospital (‘Thomas Embling’) where he currently remains. The respondent obtained an order under s 317 of the Criminal Procedure Act2009 for the production of his medical records from Thomas Embling. A large number of medical records were produced on the morning of the commencement of the appeal necessitating that the appeal be adjourned. On the resumption, the Court heard argument on the appeal, which was then adjourned to enable further evidence from Thomas Embling to be obtained. On the resumed hearing, oral evidence was given by the respondent’s treating psychiatrist Dr Anna Lenardon.
The respondent relied on this evidence to seek an order dismissing the appeal in the exercise of this Court’s residual discretion or, alternatively, in mitigation of any resentence that this Court undertakes. The appellant pointed to the same material for a different end, namely to establish that the respondent remains a danger to the community and that his prospects of rehabilitation remain poor.
As these reasons explain, we will allow the appeal and resentence the respondent to a term of seven years and six months’ imprisonment with a non-parole period of five years and six months.
Circumstances of the offence
It is convenient to start with the circumstances of the offence which, on any view, were exceedingly grave.
Early in the morning of 18 August 2016, Gretelianos and Brittain met with the respondent at an oval in Chadstone. Gretelianos had earlier told Brittain that he owed money and wanted Brittain to drive him to a house in Ashwood. They met up with the respondent on the way.
The three of them then drove towards Ferntree Gully, with the respondent giving directions to the Ferntree Gully Bowling Club (‘Club’), arriving at around 7:20 am, almost two hours before opening. They left and returned later that morning at approximately 10:30 am. By that time, Gretelianos had affixed stolen number plates to the car.
To this point, Brittain claimed he did not know the other two were planning a robbery. As they neared the Club, Gretelianos put on a white mask with black features sometimes described as an ‘anonymous mask’. He took a machete from a black bag that the respondent had been carrying and the respondent held a sawn off, under and over, double barrelled shotgun. The respondent was wearing a black balaclava, a black hooded jumper, dark tracksuit pants, black shoes and gloves.
At a little after 10:30 am, the respondent and Gretelianos entered the Club. Brittain remained in the car.
The compliance manager employed at the Club, Ms North, was performing her normal duties and there were approximately 25 patrons at the Club. The respondent walked directly towards Ms North and told her to get the money. She initially refused and the respondent pointed the gun at her chest and pulled the trigger. This made a clicking sound, but the gun did not fire. The respondent repeated his demands for money and Ms North then took him to the office or strong room where the Club’s two safes were kept.
The respondent then made further demands to open the two safes within the strong room. Ms North told the respondent that at least one of the two safes was on a time delay and that he would have to wait 10 minutes. Once she was in the office, Ms North set the time delay to open the safe and the respondent opened the door of the other safe, demanding that she open a drawer inside of it. Ms North explained that there was nothing in the safe but he demanded she open it. She then opened the drawer as demanded, standing back to show the respondent that there was no money contained within it. The respondent took cash from a lock box on the wall, pointed the gun at the victim’s chest again and demanded that she open the safe. Ms North thought the offender was going to shoot her and was terrified.
The respondent left the office and then took cash from the cashier’s drawer, putting it into his backpack. He then returned to the office and told Ms North to give him the rest of the money.
Meanwhile, Gretelianos remained with the patrons where he banged the machete on the counter and said ‘Stay where you are and you won’t get hurt’ and ‘Don’t call the cops and you won’t get hurt’.
CCTV footage of the offence
Much of the robbery was filmed by CCTV. We have watched the footage, and it is confronting viewing. It must have been terrifying for the victims, particularly Ms North who bore the direct brunt of the respondent’s threats. The footage is taken from behind the bar and in the office in which the safes were located.
The footage in the office lasts for about three minutes. It shows Ms North being taken into the office, the respondent close behind with the shotgun pointed directly at her. The office is relatively small, the respondent substantially larger than his victim and the two of them nearly filled the room. They both remained in very close proximity to each other. The office contained a desk and two safes and a wall. The respondent, standing very close to Ms North, directed her to open the safes.
Visibly frustrated by the delay, the respondent pointed the shotgun at Ms North, thrusting the barrel close to her chest and face. He repeated the act of pointing the gun and placing it directly in the face of Ms North on three occasions. On at least one of them he can be seen moving his thumb in a cocking motion. Having taken some things from the safe, the respondent then left the office only to return a few seconds later to further terrorise his victim and search for money. During this time, Ms North had her hands in the air and her fear is palpable.
Gretelianos and Brittain were arrested on the same day as the armed robbery. Brittain made admissions in relation to his involvement in the offence, as well as that of his co-offenders. Gretelianos indicated his intention to plead guilty at a committal case conference in November 2016.
The respondent was subsequently arrested and made no comment during his record of interview. He was remanded in custody. When the case came on for trial, there were two days of a voir dire and legal argument. On the third day he offered to plead guilty to a single charge of armed robbery. A charge of being a prohibited person in possession of a weapon was withdrawn.
Respondent’s convictions
As it featured prominently on the appeal, it is convenient to refer to the respondent’s criminal history before setting out the salient features of the reasons for sentence.
The respondent first appeared in the Children’s Court in May 2011. From that date, he had a number of appearances in the Children’s Court for offences including theft, possession of prohibited weapons, robbery and armed robbery. He was given a series of dispositions designed to aid rehabilitation including probation, a Youth Supervision Order and a Youth Attendance Order.
Most relevantly, he was sentenced by Judge M Bourke on two occasions in the County Court. On 18 December 2014, he was sentenced to three years’ detention in a Youth Justice Centre for charges including two armed robberies, aggravated burglary, aggravated burglary with a firearm, possession of an unregistered handgun, recklessly causing injury, intentionally causing injury, theft, being a prohibited person in possession of a firearm and common law assault.
It is not necessary to rehearse the facts of each of those charges. It is sufficient to note that Judge Bourke sentenced the respondent on two indictments. The first concerned a number of charges committed in May 2013 and the second between late January and early March 2014.
The May 2013 offences included the respondent going, in company of another offender, to a home where he produced a loaded semiautomatic handgun. The respondent then unloaded the gun, momentarily pointing it at one of the occupants, and proceeded to punch and kick the victim to the face and head.
In relation to the 2014 offending, there were four principal incidents involving the respondent, a number of which were similar in nature. On one of the occasions the respondent drove to the home of the victim with two co-offenders, forced entry and brandished a shotgun demanding cash and drugs. On another occasion the respondent went in the company of two co-offenders to the home of a victim in Kilsyth. The respondent and his co-offenders were armed with shotguns, forced entry and struck the occupant to the floor. Again there were demands for cash and drugs and the victim had a shotgun held to his face. The respondent stole $5400 in cash and a package, that was thought to be drugs.
On yet another occasion the respondent, again in company, went to a house armed with shotguns, a baton and a knife, demanding drugs and money and striking the victim to the head and body with the baton.
The respondent was 18 and 19 years old when he offended and was 20 when he was sentenced by Judge Bourke. There was no doubt that the offending deserved a custodial sentence and the critical issue on the plea was whether the respondent would be imprisoned in adult prison or would serve a sentence in youth justice detention. At that point the respondent had been remanded in adult prison. Judge Bourke received evidence from Dr Warden, who had extensive clinical involvement with the respondent extending over some two years and involving around 70 consultations. Dr Warden gave the respondent a diagnosis of post-traumatic stress disorder (‘PTSD’) arising from extreme trauma in his early life. Dr Warden identified the respondent as vulnerable to negative influence in adult prison.
It is clear from his reasons for sentence that the judge was persuaded, after anxious consideration, to impose a term of imprisonment in a Youth Justice Centre. His Honour was heavily influenced by the respondent’s youth and his relatively positive engagement with Dr Warden. Judge Bourke, a very experienced judge, recorded that he found the sentence exceedingly difficult and was concerned to balance the youth and the desirability of the respondent’s rehabilitation with the proper recognition of the seriousness of the offending. The judge made it clear that it was the respondent’s last chance.
On 28 April 2015 the respondent was again sentenced by Judge Bourke on a charge of armed robbery and a charge of being a prohibited person possessing a firearm. The circumstances of that offending were very similar to the current offence. On 2 March 2014 the respondent and the co-accused attended the Box Hill Golf Club which has a bar and TAB gaming facility. Both the respondent and the co-accused were carrying shotguns and were disguised. The offenders stole a substantial amount of cash. The respondent was sentenced to three years’ detention in a Youth Justice Centre. That sentence was to be served concurrently with the sentence imposed in December 2014.
At the time of the current offence, he was on youth parole in respect of the sentence imposed by Judge Bourke.
It follows that the respondent had a relevant, and appalling, criminal record and his offending with firearms had shown no signs of abating.
Reasons for sentence in the County Court
We turn now to the reasons for sentence. Before doing so, we observe that the task for the judge was a very difficult one. The appellant did not contend that the judge failed to take into account relevant matters or relied on any extraneous considerations. The carefully expressed and thorough reasons demonstrate that the judge gave detailed consideration to the relevant material.
After recounting the circumstances of the offending, the judge observed that Ms North had been subjected to an utterly terrifying experience. Ms North had provided victim impact statements and the judge referred to various passages to the effect that the armed robbery had caused her fear, physical shaking, hot and cold sweats, nervousness, nightmares, sleeplessness and the terror of uncontrollably reliving the event.[3] In a further victim impact statement filed 18 months after the robbery, the victim noted that she was still feeling the effects and it had caused her much distress.[4]
[3]DPP v Shane Hodgson [2018] VCC 875 [10] (‘Reasons’).
[4]Ibid [12].
The judge rightly remarked that the offence was a particularly serious example of the offence of armed robbery and that the respondent had a high degree of moral culpability for the offending. Her Honour noted the degree of preparation, which included attending the club earlier on the day and the use of masks and balaclava as disguises. In relation to the use of firearms, the judge said that ‘[t]he nature of the weapons used is not insignificant nor is the fact that [the respondent] pointed the gun at Ms North’s chest and pulled the trigger.’[5]
[5]Ibid [14].
The judge then noted the sentences that had been imposed on the two co-offenders by a different judge of the court.[6] Gretelianos had been sentenced to four years’ imprisonment with a non-parole period of two years and four months.[7] The other co-offender, Brittain, was given a community correction order for a period of four years.[8] Her Honour noted that, significantly, Brittain had played a lesser role in the execution of the robbery, had made admissions and had agreed to give evidence against his co-offenders.
[6]Gretelianos was sentenced on 10 March 2017 in the County Court by her Honour Judge Pullen and Britten was sentenced on 7 April 2017 by the same judge.
[7]Reasons [16].
[8]Ibid.
At the time of the commission of the present offence, the respondent was on youth parole in respect of the sentence imposed by Judge Bourke on 18 December 2014.
The judge noted that there were significant similarities between the present offence and one of the robberies for which the respondent was sentenced in December 2014, most relevantly because both involved a firearm.[9] In fact, the respondent had used a firearm on at least three previous occasions.
[9]Ibid [22].
In addition to those offences for which the respondent had been sentenced in December 2014, the judge referred to the respondent’s criminal history, which we have already described.
To a considerable extent, that offending was the product of an extremely disadvantaged upbringing.
A report filed on behalf of the respondent from a forensic psychologist, Dr Cunningham, recorded a history of very significant deprivation and disadvantage. The respondent was an only child and he was the victim, as was his mother, of domestic violence at the hand of his father.[10] That relationship dissolved and from the age of six the respondent had been living in foster care and residential units.[11] His placement in foster care included living with a couple at whose hands he suffered chronic physical and emotional abuse.[12]
[10]Ibid [35].
[11]Ibid.
[12]Ibid.
The respondent’s mother died when he was 10 or 11 years of age and this compounded his sense of abandonment.[13] At the age of 15, the respondent ran away from his foster placement after which was put into other residential placements until the age of 18.[14] The judge recounted an upbringing devoid of stability and comfort.[15] In addition, the respondent’s educational opportunities were extremely limited and he has only completed schooling to year seven level.[16]
[13]Ibid [36].
[14]Ibid.
[15]Ibid [37].
[16]Ibid.
The respondent’s disadvantage has been compounded by extended drug and alcohol abuse. From an early age, he used alcohol, cannabis, amphetamine and ecstasy.[17] The respondent reported to Dr Cunningham that the present offending was drug related in that it was undertaken to pay off a drug related debt.[18] Dr Cunningham diagnosed the respondent as having post traumatic stress disorder (‘PTSD’) stemming from abandonment, neglect and abuse in his childhood. Dr Cunningham regarded the respondent’s PTSD as being severe, incorporating symptoms of disassociation.[19]
[17]Ibid [38].
[18]Ibid.
[19]Ibid [33], [39].
Dr Cunningham viewed the respondent as being at ongoing risk of re-offending for so long as his trauma remained untreated.[20] The judge, faced with this evidence and the respondent’s lamentable criminal record, assessed his prospects of rehabilitation as being guarded.[21] In that context the judge did, to the respondent’s credit, conclude that he possessed some level of insight and understanding in relation to the offending and had acknowledged the wrongfulness of it and the need for treatment.[22]
[20]Ibid.
[21]Ibid [40].
[22]Ibid [44].
The respondent disavowed any reliance on the principles established in R v Verdins (‘Verdins’).[23]
[23](2007) 16 VR 269.
We interpolate to note that, notwithstanding the respondent’s deprived and dysfunctional background recounted in the report of Dr Cunningham, his counsel, who did not appear before us, eschewed reliance on the principles explained by the High Court in Bugmy v The Queen (‘Bugmy’).[24] Apart from drawing attention to the respondent’s hardship, his counsel did not advance a separate submission that the respondent’s moral culpability was diminished by reason of his background. This is a matter to which we shall return.
[24](2013) 249 CLR 571.
The judge stated that the personal circumstances of the respondent, which are undoubtedly tragic, could not override the seriousness of the offending.[25] Her Honour also recorded that the weight to be given to the relative youth of the respondent was reduced by reference to the gravity of the offence of armed robbery.[26] Her Honour then noted the purposes for which the sentence may be imposed, observing the need to balance the interests of the community in denouncing criminal conduct with the interests of the community in ensuring that offenders are rehabilitated and reintegrated into society.[27] In mitigation, the judge took into account the relative youth of the respondent, the plea of guilty, his disadvantaged upbringing and the fact that he had some insight into his offending behaviour.[28]
[25]Reasons [41].
[26]Ibid.
[27]Ibid [43].
[28]Ibid [44].
The appellant’s submissions
Ground 1
The appellant submitted that, having regard to the objective gravity of the offence and allowing for the respondent’s relative youth and an early plea of guilty, the sentence was wholly outside the range of sentences reasonably open to be imposed. That was so because the respondent had a history of violent offending and was on conditional liberty at the time of the present offending for criminality of a very similar kind to that for which he was to be sentenced.
It was submitted that the sentence was disproportionately low because this was a high order armed robbery in circumstances of the late plea, no remorse and where the immediate of the protection of the community loomed large. In particular, it was submitted that the seriousness of the offence of armed robbery is reflected in the applicable maximum sentence of 25 years’ imprisonment set by the legislature. Each of those elements was expanded on in argument.
In relation to the objective gravity of the offending, it was submitted that this was an example of a planned or premeditated armed robbery with disguises and the use of weapons, being a modified shotgun and machete. Accordingly, it was submitted that the present offence was, objectively, very grave. The robbery was obviously terrifying for the employees of the Club and members of the public present and the pointing of the firearm at Ms North, and pulling the trigger making a clicking sound, was a powerfully aggravating feature.
In relation to the circumstances personal to the respondent, the appellant highlighted the respondent’s significant criminal history, comprising offences of violence including robbery and armed robbery. The appellant referred to the fact that, despite the seriousness of the respondent’s prior offending, he has been accorded leniency by receiving community corrections orders and a suspended sentence.
The appellant drew attention to the respondent’s two recent appearances for armed robbery for which he was sentenced to three years in a Youth Justice Centre. In light of this, the judge noted that, at the time of the present offending, the respondent was on parole for similar offending and considered that this was a significant aggravating feature.
Although the respondent has had a wretched upbringing, the appellant referred to the fact that the respondent’s counsel did not press in the court below that the respondent’s case fell within the category of case referred to in Bugmy.[29]
[29](2013) 249 CLR 571.
On the question of parity, the appellant noted that there were significant differences between the three offenders. Of note, Gretelianos had one prior appearance in the Magistrates’ Court for criminal damage and possession of graffiti implements. It was submitted that the differences between the particular circumstances of the offenders meant that parity could have only had a slight influence on the formulation of the respondent’s sentence.
The appellant referred to the broad range of sentences imposed for armed robberies involving firearms, including reference to a sentence of three years’ imprisonment,[30] a sentence of seven years’ imprisonment[31] and sentences of upwards of 14 years’ imprisonment. The appellant submitted that a comparable case is difficult to find, although the offending in Lord v The Queen (‘Lord’),[32] where a sentence of six years’ imprisonment was imposed, had many similarities to the present offending.
[30]Younan v The Queen [2017] VSCA 207.
[31]R v Solovastru; R v Evans [2005] VSCA 254.
[32][2018] VSCA 52.
Ultimately, the appellant submitted that an increase of the respondent’s sentence would enable this Court to set proper sentencing standards for the offence of armed robbery.
Ground 2
The appellant submitted that the respondent and Gretelianos were in two very different situations, which could not justify the modest difference in sentence that was imposed. In making this submission, the appellant pointed both to the differing role of each offender in the offending conduct as well as the difference in each offender’s background. In this regard, the appellant referred to the fact that Gretelianos had a very limited prior criminal history, whereas this cannot be said of the respondent. Further, there was a difference in timing of plea.
The respondent’s submissions
Ground 1
Senior counsel for the respondent submitted that in the case of Director’s appeals, a stringent test must be applied where manifest inadequacy is alleged. The respondent referred to the principles relating to Director’s appeals as re-examined in Director of Public Prosecutions v Zhuang.[33]
[33][2015] VSCA 96 [39]–[49].
By reference to the matters raised in mitigation (comprising the respondent’s youth, plea of guilty, disadvantaged background, the risk of institutionalisation and his engagement with Youth Justice whilst on parole), as balanced against the respondent’s poor criminal history and the nature of the offending, the respondent submitted that the sentence imposed was within the relevant range.
The respondent referred to the fact that it was conceded on the plea that the offending was serious and the judge had noted that the respondent’s moral culpability was high. Despite this, there was no factual basis to find that the firearm was loaded or operable at the time of the offending and the respondent submitted that this necessarily affects the finding of the objective seriousness of the offence.
The respondent submitted that the judge properly took into account, amongst other things, the plea, the sentences that had been imposed on both co-offenders, the fact that the respondent was on youth parole at the time of the offending and the respondent’s background (including the significant disadvantage and violence to which the respondent was exposed from a young age). Accordingly, the respondent submitted that there was nothing within the judge’s reasons that suggested she erred in any way or failed to have regard to all relevant matters.
In oral submissions, senior counsel for the respondent submitted that, although undoubtedly a very serious offence, the judge had balanced all of the relevant factors and that, when regard was had to the plea of guilty, the respondent’s youth and his deprived background, the sentence was within the range properly open to the sentencing judge.
Ground 2
The respondent submitted that the appellant’s contentions regarding the different roles of the respondent and Gretelianos in the offending conduct, are inconsistent with the principle of complicity. Namely, co-offenders are liable for the actions of each other. In this regard, the respondent referred to the fact that the two men entered into an agreement to commit an armed robbery and, in particular, the respondent submitted that it is apparent that Gretelianos was aware that the respondent had with him a firearm. Accordingly, the respondent submitted that Gretelianos was complicit with any actions undertaken by the respondent with the firearm. This complicity was further emphasised by reference to CCTV footage of Gretelianos waving the machete around in a menacing and threatening fashion.
The conduct of Gretelianos also had an impact on the victim. In particular, the respondent referred to the victim impact statement in which Ms North stated that she was terrorised by both a shotgun and a machete.
Finally, the respondent submitted that, in respect of each ground, there are circumstances which justify the exercise of the Court’s residual discretion not to intervene.
Analysis
It is necessary to record two general points that must attend any consideration of a ground of manifest inadequacy of sentence. First, it does not require the establishment of specific error. Second, the appellant must establish that the impugned sentence was wholly outside the permissible range. Such a conclusion must be patent. 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 the offender.[34]
[34]DPP v Karazisis (2010) 31 VR 634, 662-3 [127] (Ashley, Redlich and Weinberg JJA).
The offence was a very serious example of armed robbery. It was undertaken in company, was planned and involved the use of disguises, a firearm and bladed weapon. It was executed in a manner calculated to instil terror in the victims, particularly the Club’s compliance manager, Ms North. Levelling the firearm at Ms North and pulling the trigger was a particularly egregious feature, not commonly encountered. In addition, the act of isolating her by taking her to the strong room and thrusting the shotgun in her face while demanding she hand over money were each highly aggravating features. They involved significant cruelty and callousness plainly aimed at instilling terror in the victim.
The respondent’s prior convictions were also highly relevant and adverse. They included multiple armed robberies and aggravated burglary with a firearm. That he had been convicted for similar offending and was still on conditional release for those offences at the time he committed the present armed robbery necessarily meant that protection of the community and both general and specific deterrence were pre-eminently important factors in arriving at an appropriate sentence. These factors had to find appropriate reflection in the sentence.
On the material before the judge, there were a number of matters that served to moderate the sentence. They were the plea of guilty, the applicant’s age, the fact that this would be his first sentence in adult prison, his troubled upbringing and parity with the sentence imposed on his co-offenders.
For the reasons that follow, those factors were important. However, giving them appropriate, or even generous, weight does not support the sentence for an offence of this seriousness committed by a person with the respondent’s record. That sentence was, in all the circumstances, manifestly outside the range of sentences open to the judge. Given the gravity of the offending, a substantially longer term of imprisonment was required.
The plea had utilitarian value and, importantly, saved the victims the trauma of giving evidence. However, the lateness of the plea, coming after two days of preliminary argument on the trial, is inconsistent with any degree of remorse for the offending.
The respondent is still a young man. His youth was relevant because the law generally recognises that young persons are more prone to rash behaviour lacking the self-control that comes with maturity, rehabilitation of young offenders is of central importance and incarceration in an adult prison is likely to impair rather than assist in rehabilitation.[35] Relatedly, this will be the respondent’s first term in an adult prison under sentence. He had been on remand in adult prison since 2016, nevertheless, it remains the first time he has been incarcerated in an adult prison under sentence. This is a matter that needed to be weighed.
[35]Azzopardi v The Queen (2011) 35 VR 43, 53–5 [34]-[37] (Redlich JA).
Although, before the judge, the respondent’s counsel eschewed any reliance on the principles in Bugmy, we accept that his moral culpability was decreased to some degree by reason of his deprived upbringing. He has been a victim of violence and abuse and has lacked a stable family life that might have provided the means to resist or address the temptation towards offending and an understanding or insight into the seriousness of his conduct. His criminal record plainly attests to a current inability to avoid offending.
However, the respondent has a very poor criminal history and he had the benefit of a sentence from Judge Bourke that was designed to keep him in youth justice with a key focus on rehabilitation. That appears to have failed. Further, given the very high gravity of the offending and the importance of deterrence and the protection of the community, this is a case where the weight given to the age of the respondent must be substantially reduced.
This does not entail a conclusion that there is no realistic prospect of rehabilitation or that the mitagatory impact of the applicant’s age has been reduced to nothing, but it does reflect the weight of the countervailing factors. To give any significant weight to the age of the respondent, and thus diminish the gravity of the offending, the importance of general deterrence and the protection of the community, carries the risk of producing an entirely inadequate sentence.[36]
[36]Ibid 57 [44] (Redlich JA).
Further, as explained in Bugmy, an offender's childhood exposure to extreme violence and substance abuse may explain the offender's recourse to violence when frustrated, such that the offender's moral culpability for the inability to control that impulse may be substantially reduced.[37] However, on the other hand, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.
[37](2013) 249 CLR 571, 594–5 [43]–[45] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
It follows that the respondent’s age and the desperate hardship of his upbringing lose a deal of their potency as a mitagatory factor when placed alongside the gravity of the offending, the failure to use those opportunities that have been afforded to him to rehabilitate and the importance of protection of the community through deterrence and incarceration. Although it was not possible to abandon the prospect of rehabilitation on the material before the judge, the prospects were particularly poor.
Further, although the sentences imposed by a different judge on the co-accused are relevant, there were substantial differences in their circumstances when compared with the respondent. The sentence imposed on Brittain can immediately be put to one side. In relation to Gretelianos, he pleaded guilty at an early stage and relevantly had no prior convictions.[38] While complicit in the use by the respondent of a firearm, he engaged in a significantly lower level of threatening violence than did the respondent. Those factors alone diminished the import of the sentence.
[38]Gretelianos had one prior appearance in the Magistrates’ Court for criminal damage and possession of graffiti implements, however he received a bond without conviction for that offence.
Ultimately, we are comfortably satisfied that the sentence was wholly outside of the range open to the judge and the appellant has succeed in establishing error. We do not need to say anything more about ground 2.
Post sentence material
In the event that the Court was satisfied that there was error on the part of the judge, the respondent relied on a report of a psychologist, Mr Gault, and material produced from Thomas Embling. In addition, evidence was given by Dr Anna Lenardon, a consultant psychiatrist who has treated the respondent during his admission at Thomas Embling.
In short, the submission put by the respondent was that, based on that evidence, the appeal should be dismissed in exercise of the residual discretion or that, on resentence, the material justified a lower sentence than would otherwise be the case. In response, the appellant submitted that the material from Mr Gault and from Thomas Embling demonstrated that the respondent represented a significant risk of reoffending.
After the hearing, the appellant, with the concurrence of the respondent, drew the Court’s attention to s 321 of the Criminal Procedure Act which relevantly provides that, subject to irrelevant exceptions, on an appeal under pt 6.3, including an appeal by the Director, this Court must not increase a sentence by reason of any evidence that was not given at the sentencing hearing. We shall return to the significance of this provision in due course.
It will also be necessary to refer to a subsequent conviction.
Report of Stephen Gault dated 20 September 2018
For the purposes of preparing his report Mr Gault had interviewed the respondent on a single occasion at Port Phillip prison on 10 September 2018.
Mr Gault expressed the opinion that the respondent met the criteria for a diagnosis of schizoaffective disorder (on the basis of a presence of symptoms of delusions and auditory hallucinations) concurrent with symptoms of major depressive disorder. Mr Gault stated that a diagnosis of schizoaffective disorder requires that mood symptoms be present for a majority of the total duration of the illness. If the mood symptoms are present for only a relatively brief period, the diagnosis is schizophrenia. Mr Gault also was of the opinion that there are associated alcohol and other substance related disorders.
The respondent also met the criteria for a diagnosis of antisocial personality disorder on the basis of his antisocial behaviour prior to the age of 15, his criminal record as an adult, his history of aggressive and reckless behaviour and the absence of a significant work history.
At the time of the interview, Mr Gault assessed the respondent as being acutely unwell and noted that he had recently commenced a new antipsychotic medication. In addressing whether the prison sentence would weigh more heavily on the respondent than it would on a person in normal health, Mr Gault observed that the fact that the respondent had been prescribed antipsychotic medication indicated a deterioration in his mental health during his incarceration. He noted that the respondent was then currently incapable of constructive engagement with any rehabilitative measures and he doubted that the respondent was capable of forming any supportive relationships whilst in prison due to his persecutory delusions and generally depressed state.
On the on the risk of reoffending, Mr Gault recorded that he had administered HCR–20, a standard psychometric instrument used to assess risk of reoffending. He concluded that the factors of primary significance were as follows:
(a) his extensive prior criminal history;
(b) his substance abuse;
(c) his lack of compliance with and previous absence of treatment for substance abuse;
(d) his reluctance and current incapacity to engage with treatment programs for substance abuse in prison;
(e) the fact that he has not demonstrated the capacity to remain abstinent of substances for a significant period when not incarcerated;
(f) his positive attitude towards the use of illicit substances;
(g) his history of association with other substance users and poor work history;
(h) his non-compliance with court orders; and
(i) his previous non-compliance with vocational training and the destabilising influence of mental illness.
The above listed factors all meant that the respondent presented with a high risk of reoffending.
Thomas Embling
The respondent has had two admissions to Thomas Embling pursuant to secure treatment orders made pursuant to s 276 of the Mental Health Act2014. The first admission was from 25 October 2018 to 28 December 2018. The respondent then returned to Ravenhall Correctional Centre (‘Ravenhall’) where he remained until 9 January 2019 when he was again admitted to Thomas Embling, where he currently remains.
The respondent entered prison on 26 September 2016. It appears that his incarceration was relevantly unremarkable. However, on 5 March 2018, in the context of refusing to eat or drink, the respondent assaulted a female staff member. He had psychiatric reviews first by a psychiatric nurse and on 20 March 2018 by a psychiatric registrar. During follow up on 20 April 2018, the respondent presented as increasingly anxious and was suffering from conspiratorial delusions which were becoming increasingly elaborate.
By early August 2018, the respondent had threatened a hunger strike and expressed concerns around food tampering, that there had been interference with his thoughts and that the antipsychotic medication had been brainwashing him. By 21 August 2018, he was reporting auditory hallucinations that were commanding him to kill himself and subsequently he was admitted to the Forensic Mental Health Unit at Ravenhall on 13 September 2018.
The respondent had begun to refuse oral intake on 17 October 2018 and required ongoing monitoring for signs of dehydration, as well as an admission to St Vincent’s Hospital for further assessment. The report notes that he appeared to be suffering delusions, which included his suspicions of staff poisoning his food. Further, the respondent was only intermittently compliant with the antipsychotic medications.
Following the above presentation, the respondent was admitted to Thomas Embling on 25 October 2018. At Thomas Embling, he continued to outline conspirational persecutory ideas. During this admission, he intermittently engaged in self-harming behaviours, primarily in the form of head banging and picking apart existing self-harm wounds. On 28 December 2018, the respondent was returned to Ravenhall.
On 4 January 2019, Dr Senadipathy a psychiatrist at the Victorian Institute of Forensic Mental Health formed the opinion that the respondent should be transferred from prison to a designated mental health service for treatment. By that stage the respondent consistently refused to eat and drink, alleging that his food, drink and medication were poisoned. In consequence of that opinion, a secure treatment order was made and, on 9 January 2019, the respondent was transferred to Thomas Embling.
In a written report dated 30 January 2019 prepared by Dr Khodaeifar, and subsequently confirmed by Dr Lenardon, for the purposes of the secure treatment order made in respect of the respondent under the Mental Health Act 2014, the respondent’s then diagnosis was recorded as follows:
Psychotic disorder NOS.
Various diagnoses have been considered including primary psychotic disorders (e.g. schizophrenia), and/or psychotic symptoms driven by personality disorder or sequelae of trauma (schizoid/schizotypal personality, borderline personality and “complex PTSD” have all previously been mentioned).
The report noted that, during his first admission to Thomas Embling, the respondent had expressed conspiratorial persecutory ideas and that he had been punished by the ‘Creators’ for not carrying out their plan to act violently and destructively and that the only way to escape was to end his life, and thereby exit through a ‘portal’.
The report went on to say that the respondent remained, at that point, in the early phase of his recovery journey and that he had recently engaged in head banging.
Dr Lenardon
Dr Lenardon is a consultant psychiatrist employed at Thomas Embling. She is currently the respondent’s treating psychiatrist. She gave evidence before us.
In her oral evidence, Dr Lenardon said that the report had been prepared on 30 January 2019 and that, since that time, she had the opportunity of another month of close observation and consultation. It was her opinion that the respondent did not suffer from a mental illness such as schizophrenia or other psychotic illness and that her preferred diagnosis was a personality disorder.
Dr Lenardon said that the respondent’s self-harm and mood dysregulation were consistent with a dysfunctional personality and that it was not uncommon for persons with personality disorder to demonstrate some psychotic themes.
In reaching her conclusion, Dr Lenardon was influenced by the fact that the psychotic symptoms were inconsistently expressed and, although the respondent expressed having hallucinations, his interactions with visitors and other patients did not reveal psychotic behaviour. She noted that the antipsychotic medication had not made a significant difference to the respondent’s presentation and this supported her diagnosis that he was not suffering from a psychotic mental illness. Dr Lenardon noted that, relevant to the respondent, the role of treatment at Thomas Embling was not primarily concerned with diagnosis but with stabilising acute mental illness. In that respect, she noted that the respondent’s position had been stabilised and he does not require medical treatment in Thomas Embling and, as such, he is due to be discharged back to prison. He is likely to be sent to Ravenhall and, to her understanding, psychological treatment will be available at that prison.
Although Dr Lenardon understood that treatment would be available for the respondent at Ravenhall, she noted that, at present, the respondent had refused to actively or constructively engage with treatment and that unless and until that occurred psychological interventions were unlikely to be effective.
Dr Lenardon was asked whether incarceration would be more burdensome on the respondent, by reason of his mental state, than when compared to a person without such a condition. She indicated that was difficult to say, but that, speaking generally, persons with personality disorder are vulnerable and that prison is more difficult for vulnerable persons. Although, she acknowledged that at least some persons with personality disorder benefit from the structured environment that is maintained within the prison system.
Dr Lenardon declined to express an opinion on the risk of offending on the basis that this was a very complex task and that she had not administered appropriate tests which might inform such an opinion and was therefore not in a position to express an opinion. More generally, she accepted that a person who had an extensive prior criminal history, with history of substance abuse and an incapacity or reluctance to engage with treatment would represent a risk of reoffending.
Clearly there was a difference in the opinions and diagnoses expressed by Mr Gault and Dr Lenardon. Unlike Mr Gault, Dr Lenardon did not express an opinion on the risk of reoffending.
Although, as it will appear, those differences are not material to the result, we would prefer the opinion of Dr Lenardon for the reason that she had a substantially greater opportunity to observe and interact with the respondent and we found her reasoning as to why she rejected a diagnosis of schizophrenia or psychotic mental illness to be persuasive.
Subsequent conviction
The Court was informed that the respondent had been found guilty by a jury in the County Court of multiple charges including aggravated burglary, intentionally cause injury, common assault, false imprisonment and arson. The aggravated burglary occurred on 9 September 2016 (about three weeks after the current robbery) and consisted of entering a house in the small hours of the morning in company with another offender armed with a double-barrelled shotgun. Sentencing on those charges is yet to occur, with the judge awaiting the outcome of the Director’s appeal.
Disposition
Having found a vitiating error in the sentence imposed, this Court must either resentence the respondent or, in an appropriate case, it may exercise its residual discretion to refuse the appeal.
The Court retains a residual discretion to dismiss a Director’s appeal, notwithstanding it is satisfied that there is error in the sentence and that a different sentence is warranted.[39] It was contemplated in R v Clarke that a Crown appeal may be brought ‘where a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle’.[40] In Director of Public Prosecutions v Bright, Vincent JA emphasised that:
manifest inadequacy alone will not be sufficient to warrant appellate intervention … [t]he inadequacy of the sentence must be ‘clear and egregious’, the sentence being so disproportionate to the seriousness of the crime as to shock the public conscience and ‘undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes’.[41]
This means that an appellate court may only interfere with a sentence if there is manifest inadequacy or it is shown that the sentencing judge fell into material error of law or fact.[42]
[39]DPP v Karazisis (2010) 31 VR 634, 653 [78] (Ashley, Redlich and Weinberg JJA).
[40][1996] 2 VR 520, 522, citing Everett v The Queen (1994) 181 CLR 295, 300; DPP v Bright (2006) 163 A Crim R 538, 542 [10].
[41](2006) 163 A Crim R 538, 524 [10] (citations omitted).
[42]R v Clarke [1996] 2 VR 520, 522, citing R v Allpass (1993) 72 A. Crim. R. 561, 562–3.
The respondent submitted that his medical condition, when combined with the mitigatory factors relied on by the judge, meant that no different sentence should be imposed. The respondent submitted that the medical evidence established that the respondent’s 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 and that imprisonment will have a significant adverse effect on his mental health.[43]
[43]Verdins (2007) 16 VR 269, 276 [32].
The appellant submitted that the current medical condition of the respondent operated in relation to the exercise of the residual discretion in two opposing ways. First, given his current mental illness, it is likely that a sentence will weigh more heavily on the respondent than it would a person in normal health. Further, there is a serious risk of imprisonment having a significant adverse effect on his mental health. Both of these factors tended to mitigate the sentence.[44]
[44]Ibid.
On the other hand, it was said the prognosis of the respondent means that there is a reduced prospect of active rehabilitation and there remains an enhanced risk of further offending. This makes relevant the importance of protection of the community in setting an appropriate sentence. Protection of the community is an important feature, but does not justify a sentence that is disproportionate to the offending.
In our view, this is not a case where the residual discretion could be exercised in favour of the respondent. Our conclusion that the sentence was manifestly inadequate goes some way to vindicating the appeal and correcting the error for other cases. Nevertheless, in view of the gravity of the offending, it would not be an appropriate exercise of the discretion to leave the sentence as it is.
In our view, general deterrence, punishment and denunciation are of central importance. Questions of specific deterrence also loom large although, on the state of the medical evidence, there must be some doubt as to the capacity of the respondent modify his behaviour. Certainly as things presently stand, his capacity in that respect is diminished.
Protection of the community remains an important factor in sentencing. Community protection, through deterrence and incapacitation, is an important and legitimate factor in sentencing. However, it does not authorise a disproportionate sentence that serves the function of preventative detention.[45]
[45]Veen v The Queen (No 1) (1979) 149 CLR 458, 467 (Stephen J), 468 (Mason J), 478, 482–3 (Jacobs J, 494–5 (Murphy J); Veen v The Queen (No 2) (1988) 164 CLR 465, 477–8 (Mason CJ, Brennan and Toohey JJ); DPP (Cth) v Besim [2017] VSCA 180 [37]; R v O’Brien and Gloster [1997] 2 VR 714, 718.
We also accept that the respondent’s past history of self-harming when in prison and his acute periods of psychosis and mood disturbance mean that incarceration is likely to be more burdensome that it would on a person in normal health. During his incarceration the respondent has engaged in serious self-harm by cutting and has repeatedly expressed plans to hurt himself or take his own life. In addition to cutting himself, he has also struck his head against walls and other fixed objects. He has had ongoing delusions that he is being poisoned and auditory hallucinations.
Ultimately, it is for this Court to make an assessment as to the prospects of rehabilitation and the risk of reoffending. Senior counsel for the respondent accepted that, having regard to his prior convictions, to the subsequent conviction and to the respondent’s mental state, there remains a high risk of reoffending. In our view, that conclusion is inevitable and makes it unnecessary for this Court to resolve any differences in the medical evidence.
Further, s 321 of the Criminal Procedure Act precludes us from relying on the medical evidence filed in the appeal as a reason for increasing the sentence imposed on the respondent. As it happens, our own assessment of the risk of reoffending does not depend nor rely on the opinion of Mr Gault or Dr Lenardon. Simply based on his history of re-offending, our own assessment of the material that was before the primary judge and the concession (correctly made) on behalf of the respondent as to risk, we are well satisfied that he presents a high risk of reoffending.
The subsequent offending for which the respondent has now been convicted, provides an additional basis for concluding that the prospects of rehabilitation are poor but in the circumstances of this case it is only a very minor factor in our overall assessment of the appropriate sentence.
In our view, punishment, deterrence and protection provide a significant counterweight to the age of the respondent, and the other moderating factors to which we have referred. The sentence we propose allows for a degree of moderation that might not otherwise be accorded for offending of this kind but, we consider, gives due recognition to the seriousness of the offending and the specific features of the respondent.
In the present case we would resentence the respondent to a term of seven years and six months’ imprisonment with a non-parole period of five years and six months.
As already noted, we have taken the plea of guilty into account for its utilitarian value. Pursuant to s 6AAA of the Sentencing Act 1991 the Court declares that but for the plea of guilty we would have imposed a sentence of nine years’ imprisonment with a non-parole period of seven years.
| S. 289(2) amended by No. 68/2009 s. 28. |
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