El-Hage v The Queen
[2012] VSCA 309
•14 December 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0107
| JACQUES EL-HAGE |
| v |
| THE QUEEN |
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| JUDGES | MAXWELL P, NETTLE and REDLICH JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 10 September 2012 |
| DATE OF ORDERS | 10 September 2012 |
| DATE OF JUDGMENT | 14 December 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 309 |
| JUDGMENT APPEALED FROM | R v El-Hage [2011] VSC 452 |
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CRIMINAL LAW – Appeal – Sentence – Trafficking commercial quantity of methylamphetamine – 4 years’ imprisonment, non‑parole period 2 years – Delay – Family hardship – Severe mental illness of wife – Risk of suicide – Child with disability – Children effectively without parental care – One child attempted suicide – Fresh evidence on appeal – Exceptional circumstances established – Sentence reduced to 3 years’ imprisonment, non‑parole period 1 year – R v Nguyen [2006] VSCA 184; Markovic v The Queen (2010) 200 A Crim R 510 applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D A Dann | Cameron Marshall & Associates |
| For the Crown | Mr P B Kidd SC | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P
NETTLE JA
REDLICH JA:
Introduction
Although imprisonment inevitably causes hardship for a prisoner’s family, it is only in exceptional circumstances that such family hardship can operate to reduce the sentence which would otherwise be imposed. As the Court explained in Markovic v The Queen,[1] the stringency of the test reflects not only the inevitability of adverse impact on family but also the fact that any discounting of sentence on the ground of third party hardship creates difficulties of unequal treatment of offenders.
[1](2010) 30 VR 589.
The present case is one of those rare cases where the high hurdle of ‘exceptional circumstances’ was surmounted. As will appear, the argument failed before the sentencing judge but, on the basis of additional evidence received on the hearing of the application for leave to appeal, we were persuaded that the case for mercy — in the interests of the applicant’s family members — was made out. This followed a Crown concession to that effect.
The applicant had been sentenced to four years’ imprisonment, with a non‑parole period of two years, on one count of trafficking in a commercial quantity of methylamphetamine. As at the date of the hearing of his application for leave to appeal, the applicant had served 356 days. We concluded that the non‑parole period should be reduced to one year, the effect of which was to render the applicant eligible for parole almost immediately. We made orders to that effect. These are our reasons for making those orders.
Background circumstances
In September 2002, two active and experienced methylamphetamine manufacturers set up a clandestine laboratory for the purpose of manufacturing methylamphetamine. The applicant arranged for the supply to the manufacturers of necessary chemicals, which were provided by others, and he then arranged to deliver the finished product to the same people. He received payment for his involvement in the form of a portion of the finished product.
The methylamphetamine which the applicant received as payment was not for personal use. The judge was satisfied that all of the applicant’s activities were ‘fully commercial’ and were undertaken ‘as part of a commercial drug trafficking enterprise’.[2]
[2]R v El-Hage [2011] VSC 452, [7] (‘Reasons’).
The applicant had a number of prior convictions, including: unlawful assault (August 1983); causing damage to property intentionally (August 1983 and July 1992); conspiracy to defraud (October 1990); and being in possession of a drug of dependence (December 1990). Apart from family hardship, the chief mitigating factor relied on on the plea was the delay between the applicant’s arrest in April 2003, the laying of charges in July 2008, and the sentencing in September 2011. The judge noted that the applicant had not offended in the intervening years and concluded that the delay was a ‘powerful’ mitigating factor.[3] The judge also considered that the applicant had reasonable prospects of rehabilitation.[4]
[3]Reasons, [46], citing R v Merrett, Piggott and Ferrari (2007) 14 VR 392.
[4]Reasons, [50].
Family hardship
The applicant is married and has two sons. At the date of sentence, the sons were aged 14 and 16 years respectively.
The applicant’s wife has had longstanding problems with depression, which appear to have started at age 25 with an episode of postnatal depression. She has been under the care of Associate Professor Amgad Tanaghow, a consultant psychiatrist, since July 2008. The sentencing judge had only a brief report from Dr Tanaghow, which stated that Mrs El‑Hage had been hospitalised on seven occasions between December 2008 and May 2011. After assessing her in hospital, Dr Tanaghow diagnosed Mrs El‑Hage as suffering from ‘bipolar II disorder which required treatment by a mood stabilizer, antipsychotic medication as well as an antidepressant’. He said that psychiatric treatment in the form of medication and psychotherapy would need to continue.
The younger son (Zach) had been diagnosed in 2000 with an autism spectrum disorder. In 2008 he was assessed as having general cognitive functioning in the borderline range. At the time of the plea, he was in Year 7 at secondary school. Although he had had a full‑time integration aide at primary school (when his IQ was assessed at 71), in 2008 his IQ was reassessed at 74 and, as a result, he no longer had a full‑time aide.
Also tendered on the plea was a report by Dr Anthony Cidoni, a consultant psychiatrist. Dr Cidoni’s opinion was in these terms:
1.Mrs El-Hage suffered from a Bipolar II disorder with significant secondary anxiety.
2.Mrs El-Hage has significant enduring symptoms and functional impairment despite treatment.
3.Mrs El-Hage’s primary support is her husband. I believe that she would not be able to cope if he were to be imprisoned and that her depression and anxiety would undoubtedly worsen to the level of requiring hospitalisation.
4.There is also, in my opinion, a significant suicide risk were her main support removed from her.
5.I also believe that Mrs El-Hage’s deterioration in her mental state would have a significant impact on her husband’s mental state, causing him significant distress and make it more difficult for him to cope with imprisonment.
6.I also believe that Mr El-Hage’s imprisonment would have a significant detrimental impact on his sons’ ability to cope, both directly due to the reduction in their mother’s ability to cope, but also the direct stress it would cause to them.
Dr Cidoni gave oral evidence on the plea, in which he repeated his opinion that a significant deterioration in Mrs El-Hage’s condition was likely and that Zach would have difficulty coping. As the sentencing judge noted, Dr Cidoni expressed the opinion that Mrs El-Hage’s mental illness was such that she would have trouble drawing upon support which would be available from the applicant’s sisters and other family members.[5]
[5]Ibid [36].
The judge was not satisfied that exceptional circumstances had been established. He gave the following reasons:
1.Your wife’s mental illness is a long‑standing one, probably going back to 1995, and whilst she suffers severely, mental problems of the kind from which she suffers are not uncommon.
2.Your younger son also has problems but he is only mildly disabled. He attends a normal high school.
3.Support is available from your extended family.
4.Both your wife and your younger son also have professional psychiatric support.
5.There is no evidence from any of the treating psychiatric or psychological professionals as to the likely impact of your incarceration on your wife and sons. I do not ignore Dr Cidoni’s evidence, but it is limited by the fact that he has seen your wife only once and that was in the context of the impending plea hearing, and he has never seen your sons.[6]
[6]Ibid [48].
Fresh evidence
On the application for leave to appeal, reliance was placed on a supplementary report from Dr Tanaghow and a report from Dr Samuel Jolayemi, a consultant child and adolescent psychiatrist. It was common ground that this material could be relied on as demonstrating the true significance of facts in existence at the time of sentence.[7]
[7]R v Nguyen [2006] VSCA 184, [36].
In his supplementary report, Dr Tanaghow expressed the opinion that Mrs El‑Hage’s mental health had ‘deteriorated significantly since her husband was incarcerated. Her symptoms of depression and anxiety have worsened very significantly’. Dr Tanaghow wrote:
She could not cope on her own. The matter was complicated by the deterioration of the health and behaviour of her two children. I understand both of them have been receiving psychiatric treatment. In December 2011 her mental health deteriorated to the extent that she expressed suicide thoughts and became unable to cope and unable to care for her children. Thus she was admitted to The Melbourne Clinic on the 14 December 2011. She was severely depressed, she was crying everyday. However, whilst she was in hospital she was constantly under stress worrying about her children’s care. She decided to discharge herself on the 18 January 2012 as her children’s care became of grave concern to her as they have difficulties with her husband’s family therefore she had to go home prematurely to look after them. Since then [Mrs El-Hage] has been struggling in the community trying to organise assistance for her children and at the same time struggling to function with her level of anxiety and depression. In several occasions she came to my rooms feeling severely depressed with low mood, reported being withdrawn not interested in going out or meeting anyone. On the 5 July 2012 she presented severely depressed accordingly I suggested admission to hospital however, she refused the idea of admission merely as she was concerned about who was going [to] look after her children.
Dr Jolayemi’s report stated:
The two boys became distressed with the incarceration of their father, as can be expected. But things got really bad after they were physically assaulted by an uncle who was supposed to be looking after them when their mother was hospitalised. Zach became suicidal and tried to kill himself. He also had to be admitted into the Adolescent Psych Unit here, for several days. Jacob also became anxious, angry and uncooperative. They are now both on medications.
Their mother has not been coping well with looking after them since their father’s imprisonment as she has significant mental health problems of her own and has been frequently in and out of hospital in the past. I now wonder how these children would cope if their mother needs to go to hospital again while their dad is still in jail.
Both boys have life long biological mental health disorders, but their short term prognosis will depend on the stability of their home and psychosocial environment. I will continue to do my best to support them and their mother. But what is apparent from the above is that this may not just be enough.
Reliance was also placed on a letter from the principal of the secondary college which Zach had been attending. The principal said:
Zach has incredible self‑awareness of his behaviour and at times is able to articulate what he has done inappropriately. If he instantly takes a dislike to some staff, he is continually rude, threatening and is intimidating towards them and non‑compliant when given direct instruction. He is becoming more physical with other students. He becomes aggressive and frustrated and he will not follow basic instructions. These behaviours, in particular the physical actions, have led to Zac[h]’s removal from class and an increase in suspensions over recent months.
[Mrs El-Hage] has been required to come to the College more frequently for meetings to discuss strategies to support Zach. These meetings are stressful for [Mrs El-Hage] who is struggling with Zach at home. She also appears to be struggling with his older brother Jacob who left the College to undertake a VCAL program at the end of last year.
The College has engaged Department of Education and Early Childhood Development staff including psychologists and social workers to assist Student Support Group Meetings. Recently Zach has had extremes in behaviour from depressive like symptoms which include suicidal thoughts to extremely volatile behaviours. Last week we had to get the Police to go to the home when we could not raise [Mrs El-Hage] on the phone and Zach had posted messages saying goodbye to all of his friends on Facebook. Police were called and Zach located. We have requested for greater medical intervention and support from family services to support [Mrs El-Hage].
Conclusion
Plainly enough, this was a unique combination of circumstances. Not only did Mrs El‑Hage’s severe mental illness mean that the two boys were effectively without any parental care, but she herself had become suicidal and the younger boy had actually attempted suicide. On the uncontested expert evidence, these extremely grave consequences were the direct result of the applicant’s imprisonment. The fresh evidence demonstrated that, far from mitigating the position, the resort to family support had been seriously counter‑productive.
In the light of these matters, we were satisfied that the test of exceptional circumstances had been met. Senior counsel for the Crown was right to concede that this was so.
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