DPP v Kemp
[2015] VSCA 108
•19 May 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2015 0009 | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| JONATHAN KEMP | Respondent |
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JUDGES: | WHELAN, SANTAMARIA and BEACH JJA | |
WHERE HELD: | WANGARATTA | |
DATE OF HEARING: | 18 May 2015 | |
DATE OF JUDGMENT: | 19 May 2015 | |
MEDIUM NEUTRAL CITATION: | [2015] VSCA 108 | |
JUDGMENT APPEALED FROM: | [2014] VSC 631 (Lasry J) | |
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CRIME – Sentence – Manifest inadequacy – Intentionally causing serious injury – Offender stabbed unarmed victim 27 times in victim’s own home – Offending unexplained – Offender suffers post-traumatic stress disorder, major depressive disorder and an acquired brain injury – Not insignificant risk of re-offending – Offender sentenced to 2 years’ imprisonment with 15 month non-parole period and 18 month community correction order – Sentence low having regard to the nature of offence and the seriousness of this offending – R v Verdins (2007) 16 VR 269 applicable but mental abnormalities had countervailing effect due to offender’s treatment resistance and risk of re-offending – Offender re-sentenced to 6 years’ imprisonment with 3 years and 6 months non-parole period.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr B F Kissane QC | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
| For the Respondent | Mr P F Tehan QC with Mr C F Morgan | Kerry Clancy Solicitors |
WHELAN JA
SANTAMARIA JA
BEACH JA:
Introduction
On 6 August 2014, the respondent pleaded guilty to one charge of intentionally causing serious injury contrary to s 16 of the Crimes Act 1958. After a plea hearing on 8 September and 7 November 2014, he was sentenced on 12 December 2014 to a term of imprisonment of two years with a non-parole period of 15 months. Additionally, the sentencing judge imposed a community correction order (‘CCO’) for a further 18 months.
The CCO was imposed with the standard conditions set out in s 45(1) of the Sentencing Act 1991 together with conditions that: the respondent abstain from consuming alcohol; abstain from consuming any drug other than in accordance with the type and amount of drugs prescribed for him by a medical practitioner; undergo a mental health evaluation and receive treatment accordingly; undergo assessment and treatment for drug abuse and dependency accordingly; undergo assessment and treatment for alcohol abuse and dependency accordingly; continue with treatment then being offered by Austin Health; and be supervised, monitored and managed as directed by the Secretary of the Department of Justice.
The Director of Public Prosecutions has appealed against the respondent’s sentence on the grounds that the sentence imposed was manifestly inadequate. The appellant contends that in fixing the respondent’s sentence, the judge:
(a)failed to have sufficient regard to the nature and gravity of the offence, and in particular, failed to fix a sentence commensurate with the characterisation of the offending as ‘very serious’;
(b)failed to have sufficient regard to the maximum penalty prescribed for the offence;
(c)failed to have regard to current sentencing practices for the offence of causing serious injury intentionally contrary to s 16 of the Crimes Act 1958;
(d)failed to have sufficient regard to the impact of the offending upon the victim;
(e)failed to give sufficient weight to the principles of protection of the community, general and specific deterrence, punishment and denunciation; and
(f)gave excessive weight to factors in mitigation including the respondent’s guilty plea and his mental state.
Circumstances of the offending
On the evening of 26 August 2013, the respondent had been drinking with Trevor Grimshaw (the victim) at the home of John Evans. This was a social get-together. During the evening, there was no animosity displayed by the respondent towards Mr Grimshaw. Mr Grimshaw stayed at Mr Evans’ home for only a short time, as he had to start work early the next morning. Having drunk a large amount of beer, the respondent left Mr Evans’ home, in an intoxicated state, at around 12:30am.
At 6:00am on 27 August 2013, the respondent attended Mr Grimshaw’s home. At this time, Mr Grimshaw was already awake and dressed for work. He heard the respondent knock, knew it was the respondent and went to the front door to let the respondent in. Upon opening the front door, Mr Grimshaw observed the respondent had garbage bags tied to his feet and legs. He invited the respondent in and turned to walk back into the house. At this point, the respondent grabbed Mr Grimshaw from behind. The respondent said to him, ‘You’re dead you dog’, and repeatedly stabbed him in the back.
Mr Grimshaw struggled with the respondent and managed to twist the knife out of the respondent’s hand. He then threw it out onto the lawn.
Next, the respondent attempted to strangle Mr Grimshaw with a heater cord. After being disarmed, the respondent entered the kitchen, picked up a paring knife, and resumed his assault on Mr Grimshaw. The evidence showed that, in total, the respondent stabbed Mr Grimshaw 27 times.
Having been seriously injured by this stage, Mr Grimshaw fell to the ground. The respondent then reached into Mr Grimshaw’s front shirt pocket and took his tobacco pouch. The respondent demanded to know the location of Mr Grimshaw’s beer, and he was told that it was in the fridge. The respondent took a dozen Victoria Bitter cans from the fridge, before leaving Mr Grimshaw’s home.
After the respondent had left, Mr Grimshaw managed to crawl into his lounge room and call 000. An ambulance attended. Treatment was provided. Mr Grimshaw suffered a cardiac arrest at the scene. He was taken to the Royal Melbourne Hospital where he was operated on and remained there as an in-patient until 9 September 2013.
Police attended the respondent’s home on the morning of 27 August 2013. The respondent’s clothing was bloodstained. The respondent admitted that he had gone to Mr Grimshaw’s house at 6:00am to get more beer. The respondent claimed that while he was there, he argued with Mr Grimshaw and Mr Grimshaw attacked him with a knife. The respondent claimed to have disarmed Mr Grimshaw twice, but during the second struggle, Mr Grimshaw was ‘somehow stabbed’. The respondent said that he did not remember stabbing Mr Grimshaw and that everything he had done had been done in self-defence.
Later, the respondent abandoned this version of events. At the time of the plea hearing, the respondent’s position was that he was unable to recall the circumstances of the assault in any detail. The respondent had told doctors who had examined him that he has no animosity towards Mr Grimshaw and no reason to want to harm him. The little the respondent appears to recall suggests that he did have some irrational feeling of being threatened, although he now accepts that there was no genuine basis for such a feeling.
The judge’s reasons
The judge commenced his reasons with a description of the respondent’s offending. He then turned to the impact the respondent’s offending had on Mr Grimshaw and his family. The judge said:
In his statement, Mr Grimshaw described you as his mate. He was clearly traumatised and confused as to why you had attacked him. Mr Grimshaw believed, with good reason, that he was about to die. Since returning home from hospital, Mr Grimshaw suffers from anxiety about his circumstances. He continues to feel pain. He describes feeling that he can no longer live where he had been. That is due, in part, to him having lost his house in a subsequent fire, but his change is also due to the impact of your attack on him.
In her statement Julie Grimshaw, Mr Grimshaw’s wife, describes the effect on her and her husband of the attack, and the anxiety it has caused their family. Hayley Grimshaw, Mr Grimshaw’s daughter, is also affected by the stress and refers to the stress and the fear she now feels when visiting her grandfather in Whitfield and her fear of running into you.
These statements are a clear reminder of the effect of violent crime on the victims of such crime and their families and I have taken these victim impact statements into account in determining the sentence I should impose on you.[1]
[1]R v Kemp [2014] VSC 631 (‘Reasons’) [10]–[12].
Next, the judge dealt with the seriousness of the respondent’s offending. The judge said:
Inflicting 27 stab wounds such as to place Mr Grimshaw in a critical condition represents very serious offending. You committed the offence in the early morning in Mr Grimshaw’s own home. When you knocked on his window he allowed your entry no doubt having no sense that he was at risk from you. You had apparently prepared for the attack in a way that you thought might conceal your identity as the attacker. Clearly, you had thought about it. This cannot be regarded as an entirely spontaneous attack, despite the fact that it was without any reason. Mr Grimshaw was seriously injured and the attack you launched on him was sustained.
You and the community must understand that such conduct results in significant punishment. In addition, for the reasons I will refer to again, there is a particular need to protect the community from attacks such as this.[2]
[2]Ibid [13]–[14].
The judge then dealt with the respondent’s personal circumstances. The respondent was 49 years of age at the time of sentencing. He had left school in Year 10 after being expelled for hitting a teacher. The judge detailed the respondent’s work history leading up to the granting, in 2001, of a TPI pension.[3] It would appear that since 2001, the respondent has only had ‘a few odd jobs such as being a chef and mowing lawns’.[4]
[3]Totally and Permanently Incapacitated pension.
[4]Reasons [17].
The judge then set out matters of medical history, before stating:
You have a well-documented history of post-traumatic stress disorder and have suffered from depression for 20 years. You have suicidal thoughts. Your first treatment for your mental state was in 1995. You have been hospitalised for various reasons associated with your conditions from 2003 to the present. In 2013 and 2014 you were admitted for treatment on several occasions. At the beginning of 2013 you spent almost two months as an inpatient being treated for post-traumatic stress disorder, depression as well as drug and alcohol issues and self-harm. After these matters occurred and you had been charged, you were again admitted to the veterans unit in October 2013 and for 6 weeks in November 2013 to January 2014. That was repeated in April 2014.[5]
[5]Ibid [21].
The judge then dealt with the respondent’s prior convictions. The judge said:
You have a prior criminal history commencing in 1986 with theft of a car and driving offences. In 2010, you were convicted of making a threat to inflict serious injury. In 2012, you were convicted of making a threat to kill and possessing a controlled weapon as well as refusing a preliminary breath test. You were placed on a community corrections order for those offences. This offence of course represents a significant step beyond threats, to actually carrying out an attack on someone. Your previous history is obviously relevant and of some significance. Those considerations in themselves remove a non-custodial sentence from the list of appropriate sentences in this matter.[6]
[6]Ibid [23].
Next, the judge dealt in some detail with the medical evidence concerning the respondent’s mental state.[7] Having described this evidence, the judge said:
Thus, there can be little doubt that at the time of the commission of this offence you were suffering from a mental disorder, abnormality or an impairment of your mental function. The question then is whether those impairments had a ‘realistic connection’ with the offending. In my opinion, it is entirely artificial to separate your consumption of prescription drugs and alcohol from your complex psychiatric state and therefore leave that state out of consideration. The two things are clearly linked and the complete set of circumstances is realistically connected to your offending. As I said during the submissions of counsel, you have been dealing with this mental state for a long time. Your unfortunate method of self-medication has involved drugs and alcohol, but that has only been necessary in your mind because of the struggle you have had. It would be quite absurd to equate you to a person who makes a choice to drink too much or take drugs and then violently offend in circumstances where there was no pre-existing mental illness. The circumstances of your case and the causes of your behaviour are far more complex than that and, in my opinion, they make you a less appropriate example for the community in the context of the principle of general deterrence. In addition, they indicate that despite your serious offending some mercy should be shown to you.
The principles lead to the result that if I am satisfied that there is a realistic connection between your mental state and your offending then a sensible moderation of the application of the principle of general deterrence is appropriate. I have no doubt that it is.
However, these matters also have an aspect that affects my consideration of the need to protect the community. As I have already said, Dr Cidoni is not particularly optimistic about your prospects of rehabilitation and that is a matter of concern for me. For whatever irrational reason you did what you did to Mr Grimshaw, it must not be repeated. If it is, you can expect to spend a very long period of time in custody.
Finally, I am, of course, satisfied that given your long-standing mental state your time in custody will be more onerous and I have also taken that into account in the sentence I will impose.[8]
[7]Ibid [24]–[36].
[8]Ibid [37]–[40] (citations omitted).
The sentencing judge’s analysis was an application of the principles concerning mental illness in R v Verdins.[9]
[9](2007) 16 VR 269 (‘Verdins’).
In sentencing the respondent, the judge concluded:
As I noted at the beginning, you pleaded guilty. Your plea of guilty is a sign of your remorse and I accept that you are remorseful. In my opinion, you do have an insight into what you have done. Your plea also avoided the need for a trial and there is a significant benefit in that for Mr Grimshaw and his family as well as the Court and the community. In addition, after your arrest you were kept in custody for a period of 36 days and then admitted to bail in the Magistrates’ Court. At that stage I understand you had not been charged with attempted murder. However, during your time on bail no question has arisen of any non-compliance with bail conditions, or the commission of any further offences. You have remained on bail until today. I thus consider that with continuing treatment and your willingness to comply, your future prospects of a life without further offending are moderately good.
Whilst your attack was a very serious unprovoked attack, I accept that it was not the product of any rational decision to behave violently. It was a bizarre incident. You are, I think, a very troubled man. I hope that for the relatively short time you must spend in custody, and afterwards, you can receive the assistance you need to stabilise your condition and have some degree of peace
in your life. I strongly urge the Corrections authorities to ensure that you receive the treatment and medication that is appropriate for your condition.[10]
[10]Reasons [44]–[45].
The appellant’s submissions
The appellant submitted that the sentence imposed was manifestly inadequate. In support of this submission, the appellant pointed to the following facts:
(a) the maximum penalty applicable for intentionally causing serious injury is 20 years’ imprisonment;
(b) the respondent stabbed the victim 27 times with a knife;
(c) the respondent stabbed the victim without cause;
(d) the respondent stabbed the victim in the victim’s own home; and
(e) the respondent left the victim in a critical condition.
The appellant submitted that the stabbing of someone 27 times with a knife, without cause, in the victim’s own home, and then leaving the victim in a critical condition, are factors which combine to make the respondent’s criminal activity, offending that may properly be described as very serious offending. While the judge described the respondent’s offending as very serious,[11] the appellant submitted that the sentence imposed was ‘self-evidently inadequate’.
[11]Ibid [13].
In further support of the proposition that the sentence imposed was manifestly inadequate, the appellant pointed to the psychiatric evidence, and submitted that that evidence ‘pointed to a likely repetition of the offending upon release from gaol elevating protection of the community to the forefront of sentencing purposes’.[12]
[12]Appellant’s written case [14.4].
The appellant submitted that the sentence imposed bore no relationship to comparator cases.[13]
[13]Reference was made to DPP v Anderson (2013) 228 A Crim R 128 (‘Anderson’), a case involving an offender who was 17 years old at the time of offending, who pleaded guilty to three offences and received a six year sentence for the charge of intentionally causing serious injury (ICSI); Nash v The Queen (2013) 40 VR 134, a case where the sentence on the ICSI charge was seven years; and Tasevski v The Queen [2014] VSCA 135 (‘Tasevski’), a case where the sentence on the ICSI charge was seven years and six months.
It was submitted that the respondent’s history included offences of making a threat to kill and a threat to inflict serious injury. It was then contended that prior forms of non-custodial punishment for those offences had not been effective to prevent the present offending, ‘and there is no reason to expect the imposition of a community corrections order in this case will achieve any of the purposes set out in s 5(1) of the Sentencing Act 1991.’[14]
[14]Appellant’s written case [14.7].
Respondent’s submissions
The respondent submitted that the appellant has not established any error on the part of the sentencing judge. Next, the respondent submitted that even if a sentencing error could be demonstrated, the appellant has not shown that a different sentence should be imposed. Finally, the respondent contended that even if there has been a sentencing error, and a different sentence should be imposed, the Court should exercise its residual discretion to refuse to intervene in the present case.
In support of these submissions, the respondent disputed each of the particulars provided by the appellant in support of the appellant’s grounds of appeal. Further, relying upon what this Court said in Boulton v The Queen,[15] the respondent observed that a CCO is intrinsically punitive in nature and operates punitively for every day it is in force.[16] It was submitted that the recently introduced statutory regime for CCOs as explained by this Court in Boulton represented a development of such significance as to require a complete re-evaluation of prior sentences and prior sentencing practices.
[15]Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen [2014] VSCA 342 (‘Boulton’).
[16]Ibid [138].
Additionally, in support of his submissions, the respondent sought to distinguish two of the three cases relied upon by the appellant,[17] and then sought to rely upon other cases said to be supportive of the respondent’s contentions,[18] including the recent decision in DPP v Maxfield.[19]
[17]Anderson (2013) 228 A Crim R 128; Tasevski [2014] VSCA 135.
[18]Picone v The Queen [2015] VSCA 5 (‘Picone’), a case where the sentence was five years with a non-parole period of three years; Xiberras v The Queen [2014] VSCA 170 (‘Xiberras’), a case where the sentence on the ICSI charge was four years and six months; R v Umar [2014] VSC 645 (‘Umar’), a case where the sentence was six years with a non-parole period of four years; and Kavanagh v The Queen [2011] VSCA 234 (‘Kavanagh’), a case where the sentence was four years with a non-parole period of two years.
[19][2015] VSCA 95 (‘Maxfield’).
Maxfield was a case where the respondent had been sentenced to a 12 month CCO following a plea of guilty to one count of intentionally causing serious injury. In brief, the respondent stabbed her partner four times, twice in the shoulder, once in the lower back and once in the chest. The Director appealed against the sentence imposed as being manifestly inadequate. This Court allowed the appeal and resentenced Ms Maxfield to a three year CCO. It was submitted by the respondent that, notwithstanding an element of provocation that was present in Maxfield but not present in the current case, Maxfield was a comparable case for sentencing purposes.
The respondent took particular issue with the submission made on the appellant’s behalf as to the risk of re-offending. The respondent submitted that that submission had no basis in the psychiatric evidence.
Before turning to the applicable principles and an analysis of the submissions it is necessary to address the issue of what the psychiatric evidence was in this respect.
Relevant psychiatric evidence
The psychiatric evidence came from two reports from Austin Health, from whom the respondent has obtained treatment since 2000, a report obtained by the respondent’s solicitors from Dr Anthony Cidoni for the purposes of the plea, and a report from Dr Kevin Ong at Forensicare which was requested by the sentencing judge. Dr Cidoni also gave oral evidence.
The psychiatric evidence revealed a well-established diagnosis of post-traumatic stress disorder, a secondary major depressive disorder, and an acquired brain injury, together with problems of a polysubstance abuse, mainly alcohol, benzodiazepine and cannabis, generated by those disorders. These conditions are treatment resistant and are unlikely to improve.
In his oral evidence Dr Cidoni was asked directly about the risk of re-offending of the kind which had occurred here. The first matter he raised was that the strongest factor in assessing future risk is previous behaviour. This is, he said, ‘a robust risk factor.’ The second matter he referred to was substance abuse. This was, he said, a ‘very significant risk factor’. He then said the mental illnesses were also risk factors. Weighed against that was, he said, the fact that this offence seemed to be one incident in a very long history of mental illness and substance abuse and was an incident associated with what he described as an ‘overdose’ of diazepam. When challenged on the ‘one incident’ observation by reference to the previous convictions for threat to cause serious injury in 2010 and threat to kill in 2012, Dr Cidoni emphasised that he was not addressing the risk of any kind of re-offending but rather the risk of the violent offending which had occurred in the particular case, and that in that connection he saw threats of violence and violent offending as completely different types of criminal behaviour.
It may overstate the position to assert, as the appellant’s submission did, that the psychiatric evidence ‘pointed to a likely repetition of the offending’. However, the evidence did reveal that there is a not insignificant risk of re-offending of this kind. The sentencing judge was no doubt referring to that when he observed that Dr Cidoni was not particularly optimistic about rehabilitation and that that was a matter of concern to him.
Principles
The principles concerning Director’s appeals have recently been restated by this Court in DPP v Zhuang.[20] The Director of Public Prosecutions may appeal against a sentence if he considers that there is an error in the sentence imposed and that a different sentence should be imposed, and he is satisfied that an appeal should be brought in the public interest. The Court must allow the appeal if satisfied that there is ‘an error in the sentence first imposed’, and that ‘a different sentence should be imposed’.[21]
[20][2015] VSCA 96 (‘Zhuang’).
[21]Sections 287 and 289(1) of the Criminal Procedure Act 2009. See also ibid [39].
Where the error complained of by the Crown is one of manifest inadequacy, an appeal will not succeed unless the appeal possesses an additional quality that warrants intervention on a Crown appeal.[22] Intervention may be warranted where the manifest inadequacy of a sentence is such as to constitute or demonstrate the existence of error in principle.[23]
[22]Hudson v The Queen (2010) 30 VR 610, 627 [65]; Zhuang [2015] VSCA 96 [44].
[23]Zhuang [2015] VSCA 96 [44].
Notwithstanding the abolition of double jeopardy by s 289(2) of the Criminal Procedure Act 2009, the Court retains a residual discretion to dismiss a Director’s appeal. So much was made plain by this Court’s decision in DPP v Karazisis.[24] Further, as to the burden of persuasion with respect to the exercise of the residual discretion, the onus rests upon the appellant to persuade the Court that the discretion should not be exercised so as to lead to the dismissal of the appeal.[25]
[24]DPP v Karazisis; DPP v Bogtstra; DPP v Kontoklotsis (2010) 31 VR 634, 661 [119]. See further, Zhuang [2015] VSCA 96 [45].
[25]Zhuang [2015] VSCA 96 [47].
Gravity of the offence and current sentencing practices
The maximum penalty for the offence of intentionally causing serious injury is 20 years’ imprisonment.
In Nash v The Queen Priest JA said:
Experience shows that the circumstances of the commission of the offence of intentionally causing serious injury are almost infinitely variable, and thus the sentences commonly imposed widely vary. There are cases which involve protracted savagery, while others are constituted by one punch. Some involve the use of a variety of weapons. Moreover, the injuries caused widely vary, from gross and permanently disabling injuries to others that barely cross the threshold of ‘serious’. Accordingly, sentences widely vary, from suspended sentences of imprisonment at the low end of the spectrum, to head sentences of imprisonment in double figures at the high end.[26]
[26](2013) 40 VR 134, 145–6 [55] (‘Nash’) (citations omitted).
In the same case, Maxwell P observed:
A review of the cases summarised in the table reveals that the following matters are routinely taken into account by sentencing judges in assessing the gravity of particular instances of ICSI:
• the offender’s proven intent: was it to cause serious injury, or really serious injury, or the maximum possible injury?;
• the seriousness of the injury actually caused (both the immediate and the long-term consequences for the victim);
• how vulnerable the victim was;
• whether a weapon was used;
• how long the attack on the victim lasted; and
• whether the offender acted alone or in company.[27]
[27]Ibid 137 [10] (citations omitted).
The cases relied upon by the appellant and the respondent, as showing current sentencing practices, can only provide a guide as to the appropriate range in the present case.[28] We have considered those cases, a number of others in addition to
those cited,[29] and the sentencing statistics for this offence.[30]
[28]Cf Hudson v The Queen (2010) 30 VR 610, 616–617 [27]–[29]; and Zhuang [2015] VSCA 96 [29]–[37].
[29]R v Marshall [2012] VSC 587; DPP v Kao [2009] VSCA 273; R v Zander [2009] VSCA 10; DPP v Weidlich [2008] VSCA 203; R v Tresize [2008] VSCA 8; R v Sita [2006] VSC 323; R v Showell [2005] VSC 407; R v Peters [2005] VSC 373; R v Bendix [2004] VSC 133; R v Danaher [2003] VSCA 119.
[30]Sentencing Advisory Council, Sentencing Snapshot No 156: Causing Serious Injury Intentionally (June 2014).
By reference to the factors referred to in Nash, this offence must be seen as possessing the characteristics of offences at the more serious or ‘high end’ of the spectrum. The attack was a savage one. Weapons were used, two knives. There was an element of preparation, as the sentencing judge found. The victim was vulnerable and in his own home, having invited the offender in believing him to be a friend. The injuries inflicted were severe and life-threatening. After attacking the victim the offender stole from him and left him in an obviously seriously injured condition.
When one reviews the sentences imposed in the cases cited by both parties, the additional sentences we have considered, and the sentencing statistics (mindful of the limitations in the assistance that can be gained from sentences in other cases and statistics), with the possible exception of Maxfield, the sentence imposed here is very low given the nature of this offence (20 years maximum) and the very serious character of this instance of that offence.
As to Maxfield, while a superficial analysis might suggest that it is a relevant comparator to the present case, upon a more detailed analysis, Maxfield is of little assistance. Maxfield was a case involving domestic partners, where it was contended that Ms Maxfield had been the subject of relevant abuse prior to her offending. The present case is not of such a kind.
There are additional distinguishing features between the present case and Maxfield. First, in Maxfield there was a degree of provocation (albeit that the judge in Maxfield said that ‘there was no provocation that could possibly justify [Maxfield’s] conduct on [the] particular night’). Secondly, in Maxfield, unlike the present case, there was no suggestion of any relevant prior criminal history. Thirdly, in Maxfield, there were four stab wounds, whereas in the present case there were 27. Fourthly, while the respondent has a history of post-traumatic stress disorder, operative depression and an acquired brain injury, Ms Maxfield suffered from a relevant intellectual disability, ongoing psychological distress, post-trauma related symptoms and high social vulnerability. Fifthly, the respondent’s conduct after his attack on his victim in the present case was significantly aggravating.
Analysis of the appeal
In substance, the respondent sought to meet the apparent inadequacy of the sentence, given the gravity of the offence, by reference to the mitigating effect of Verdins and the significance of the new regime for CCOs as explained in Boulton.
There is no doubt that the considerations addressed in Verdins were applicable here for the reasons the sentencing judge gave.
But the evidence to which we have referred also indicated that the respondent’s mental illness and substance abuse represents a real risk to community safety which is unlikely to abate. Accordingly, whilst Verdins was applicable, this is one of those cases where the mental abnormalities have countervailing effects, one which tends towards a longer custodial sentence and the other towards a shorter.[31] Moral culpability is reduced but the danger to society is increased by the mental abnormalities.
[31]Veen v The Queen [No 2] (1988) 164 CLR 465, 476–7, recently quoted and adopted in Boulton [2014] VSCA 342 [71].
Boulton
explains the wide potential application of CCOs, and the guidelines annexed to the judgment indicate that in every case the court should consider: whether the crime in question is so serious that nothing short of a sentence wholly comprised of an immediate term of imprisonment will suffice to satisfy the requirements of just punishment; and whether a CCO, either alone or in conjunction
with a sentence of imprisonment (which cannot exceed two years), would satisfy the requirements of just punishment. The Court emphasised that CCOs are punitive, although obviously not as punitive as imprisonment, and observed that the new legislative regime would require courts to re-examine the types of offending that attract imprisonment.
In our view, this appeal must be allowed. While the judge’s reasons disclose that his Honour gave careful consideration to each of the matters relevant to the sentence he imposed, the sentence was, with respect, outside the permissible range in this case.
The offending in this case was, as the judge said, very serious offending. It involved the use of two different knives, one brought to the house by the offender and the other taken by him from the house when the victim disarmed him. The victim was stabbed 27 times and then left in a critical condition. A sentence of two years’ imprisonment, even coupled with the punitive operation of a CCO for 18 months is, in our respectful view, so inadequate as to demonstrate error in point of principle.
Given the seriousness of the offending in this case, it is our conclusion that nothing short of a sentence wholly comprised of an immediate term of imprisonment will suffice to satisfy the requirements of just punishment. A CCO in combination with the maximum sentence of imprisonment permitted if a CCO is to be ordered (two years) does not satisfy the requirements of just punishment in this case.
While, as we have said, referring to other sentences for intentionally causing serious injury is of limited assistance in the present case, an examination of the cases relied upon by the appellant and the respondent and the other cases to which we have referred, suggests that for an offence as brutal as this one was, in circumstances where the respondent has relevant prior convictions, and relevantly mitigated by Verdins considerations, there should have been a term of imprisonment longer than the combination of the term of imprisonment and CCO imposed by the judge. Thus, we are satisfied not only of error, but also that a different sentence should now be passed.
Notwithstanding this conclusion, the appellant bears the burden of persuading the Court that the residual discretion should not be exercised so as to lead to the dismissal of the appeal.[32] Giving full effect to the mitigatory factors in this case to which we have already referred, we are persuaded that the appellant’s contention that there is no reason why we should exercise the residual discretion, so as to decline to intervene, must be accepted.
[32]Zhuang [2015] VSCA 96 [47].
Conclusion
The appeal must be allowed, and the sentence imposed set aside. In lieu of the sentence first imposed, we would resentence the respondent to a term of imprisonment of six years, with a non-parole period of three-and-a-half years. This is still a lenient sentence for an offence of this kind, but it is warranted in this case by the operation of the principles relevant to the offender’s mental illnesses. Insofar as it is necessary to do so, we declare that but for the plea of guilty we would have sentenced the respondent to a term of imprisonment of nine years with a non-parole period of six-and-a-half years.
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