Giudice v The King
[2023] VSCA 105
•8 May 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2022 0060 |
| GRAHAM GIUDICE | Applicant |
| v | |
| THE KING | Respondent |
---
| JUDGES: | FERGUSON CJ, EMERTON P and OSBORN JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 5 April 2023 |
| DATE OF JUDGMENT: | 8 May 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 105 |
| JUDGMENT APPEALED FROM: | [2023] VCC 500 (Judge Dean) |
---
CRIMINAL LAW – Leave to appeal – Sentence – Intentionally causing serious injury – Contravening family violence intervention order – Damaging property – Serious violent offender – Borderline personality disorder – Whether sentencing judge failed to give appropriate weight to adverse effect of imprisonment on applicant’s mental health – Leave to appeal refused.
Brown v The Queen (2020) 62 VR 491; R v Verdins (2007) 16 VR 269, discussed.
---
| Counsel | |||
| Applicant: | M Turner | ||
| Respondent: | K E Judd KC with R L Harper | ||
Solicitors | |||
| Applicant: | Rolfe Criminal Law | ||
| Respondent: | A Hogan, Solicitor for Public Prosecutions | ||
TABLE OF CONTENTS
Introduction
The judge’s reasons
Borderline personality disorder
The effects of imprisonment
Conclusion
FERGUSON CJ
EMERTON P
OSBORN JA:
Introduction
For a period of approximately 15 months up until April 2020, the applicant was in an intimate relationship with a young woman (Ms A). On 26 May 2020, a family violence intervention order was issued by Magistrate Aumair in the Bendigo Magistrates’ Court in order to protect Ms A from the applicant.
On the evening of 23 January 2021, after consuming alcohol, Ms A requested the applicant to drive her together with a friend home to Ms A’s house. In the early hours of the morning of 24 January 2021, and after Ms A had gone to bed, the applicant became enraged as a result of reading text messages he found on Ms A’s phone.
The applicant then slammed through Ms A’s bedroom door. This is the basis of charge 1 (damaging property). He then accused her of having lied to him and assaulted her brutally. The assault forms the bases of charge 2 (intentionally cause serious injury) and charge 4 (contravention of family violence intervention order intending to cause harm or fear for safety).
The details of the applicant’s conduct founding charges 2 and 4 were as follows. The applicant first got on top of Ms A and told her he had read the names of other men in text messages she had sent. He then punched her multiple times in the face and called her a liar. He twisted her wrist with significant force, punched her repeatedly and pushed her off the bed onto the floor. He then again got on top of Ms A, strangled her to the point she could not breathe and again repeatedly punched her to the face, stomach and head.
As a result of the attack, Ms A suffered multiple injuries including fractures to the orbits of the right and left eye sockets and to the nose. The fracture to the right eye socket comprised a large comminuted fracture to the floor of the eye socket with depressed fracture fragments, commonly referred to as a blowout fracture. This required surgical repair. Ms A also suffered a broken rib.
The bruising and abrasions to the victim’s face and neck depicted in photographic evidence were horrific.
The consequences of these injuries are eloquently described in Ms A’s victim impact statement, which included the following:
The injuries I sustained in the assault were severe and life changing. My injuries included an orbital bed fracture to both of my eyes. My right eye socket was completely shattered which required surgery under a general anaesthetic as well as another hospital admission. I had blurred vision in both eyes for approximately 2 months after the assault, as well as double vision when looking up, which has not resolved. This continues to be monitored by a specialist with no improvement. My right eye remains out of alignment despite having surgery. This continues to impact my day to day life, it initially caused dizziness for months and still gives me double vision which impacts me every day, especially at work as I am always looking up. As a result of the right orbital fracture I have numbness to the right side of my cheek, nose and lip due to nerve damage. I lost all taste and smell for approximately 8 months after the assault. I then had to have further specialist treatment over the next 4 months in order to gain some of this back, my sense of smell and taste has never returned to normal.
I sustained multiple lacerations to my face and all through my mouth, a deep laceration to my left eyebrow which required surgery under a general anaesthetic recently as the scarring was significant and visible and was a daily reminder of the assault.
I also sustained a fractured nose and a fractured rib which continued to cause me intense pain for many months. My left wrist was injured to the point of not being able to lift anything for months with that hand. This was excruciating and each time I tried to use my hand the injury was aggravated.
Because of these injuries I required 2 surgeries under general anaesthetic, 2 hospital admissions with the longest being 6 days post the assault. The pain I suffered initially was so debilitating I was unable to walk unassisted. I was taking strong pain relief for 4 weeks and other medications for another 6 weeks for the pain. The swelling and bruising covered my face to the point where I was unrecognisable and took weeks to heal. I could not eat solid food for 2 weeks due to the damage in my mouth and it was another week or two before I could eat normal foods again. I suffered from dizziness, headaches and inability to stay focused on tasks for around 3 months.
I was unable to work for 2 months due to my injuries and then once I returned to work I was on reduced hours for another month.
…
I lost my sense of safety and going out in public by myself remains challenging to me. I did not see any of my friends for around 2 months or longer, the thought of them asking me about what happened was overwhelming, I didn’t want to have to talk about it. Prior to this attack I was a very social person, I would have friends over, I didn’t have a care in the world. Now, I rarely have people over to my house, I avoid certain areas in fear and I don’t go out with friends socially the way I did before.
I had flashbacks for around 3 months and nightmares almost every night for 6 months, these still occur sometimes, especially in the lead up to each court hearing. Any noise in the night used to wake me, I would jump, I felt like someone was in my house, my heart would race, it was terrifying.
Financially, due to being off work for 2 months and then returning to work on decreased hours I have been significantly affected. I had to move out of my home and relocate to a more expensive rental property. I lost my financial independence for several months and had to rely on my parents for financial support. I am still feeling the financial impact to this day.
After the assault, the applicant lay down on the bed next to Ms A and forced her to cuddle him. In the morning, he left without helping her to obtain medical assistance and without displaying any remorse.
On 25 January 2021, the applicant went to Ms A’s parents’ home and damaged her car by performing a burnout adjacent to it with the result that stones struck it. The apparent purpose of this behaviour was intimidation of Ms A and her family. This conduct formed the basis of charge 5 (damaging property) and the summary charge of contravention of family violence intervention order.
As a result of this offending and following late pleas of guilty, the applicant was sentenced in the County Court by his Honour Judge Dean on 11 April 2022 as follows:
Charge
Offence
Maximum
Sentence
Cumulation
1
Damaging property contrary to s 197(1) of the Crimes Act 1958
10 years
9 months
3 months
2
Causing serious injury intentionally contrary to s 16 of the Crimes Act 1958
20 years
78 months
Base
4
Contravention of order intending to cause harm or fear for safety contrary to s 123A(2) of the Family Violence Protection Act 2008
5 years
18 months
6 months
5
Damaging property contrary to s 197(1) of the Crimes Act 1958
10 years
12 months
6 months
Summary
Contravention of family violence intervention order contrary to s 123(2) of the Family Violence Protection Act 2008
2 years
6 months
3 months
Total Effective Sentence:
8 years
Non-Parole Period:
5 years 6 months
Section 6AAA Statement:
10 years with a non-parole period of 7 years
Other relevant orders:
Forfeiture and disposal orders.
Pursuant to s 6F of the Sentencing Act 1991, the offender is sentenced as a serious violent offender in respect of charge 2.
The offending required denunciation and just punishment, and raised issues of general and specific deterrence and protection of the community. In our view, the sentences imposed cannot be said to be disproportionate to the objective seriousness of the offending or to offend the principle of totality.
The applicant initially sought leave to appeal against his sentence on the following grounds:
Ground 1:The sentencing judge failed to moderate the sentence in circumstances where the diagnosis of borderline personality disorder should have reduced his moral culpability.
Ground 2:The learned judge made an error in giving excessive weight to the narratives of prior convictions as tendered by the prosecution.
Ground 3:The learned judge made an error in giving excessive weight to the consideration of the need to protect the community from the offender.
Ground 4:The sentencing judge failed to give appropriate weight to the principles in Verdins with respect to the mental impairment of the accused and the increased hardship and adverse effect that [an] excessive term of imprisonment could have on the accused[’s] mental health.
During the hearing of the application for leave to appeal, proposed grounds 1, 2 and 3 were abandoned, with the consequence that the only ground pursued concerned the increased hardship and adverse effect that an ‘excessive’ term of imprisonment could have on the mental health of the applicant.
The judge’s reasons
The judge’s sentencing remarks recorded the applicant’s pleas of guilty and the fact that they were made late. Nonetheless, he accepted that the pleas were of utilitarian value.
His Honour then addressed the applicant’s prior criminal history:
4You have admitted an extensive criminal history for offences of violence, damaging property and the contravention of family violence intervention orders. You have been the subject of three community correction orders for such offending, which you have persistently breached. You have also been fined and imprisoned for offences of violence. The victims of your offending in the past have been the mother of your children and other women with whom you have been in personal relationships. The seriousness of your offending, which dates to 2011, has escalated, culminating in the grave offending now before this court.
5At the time the family violence intervention order (the subject of Charge 4 on the Indictment) was taken out by your victim in this case on 26 May 2020, you were on a community correction order for offences of violence against your former partner and also on bail in relation to offences of violence against a person suspected of stealing a car from you.
6I have received police summaries in relation to your criminal history, disclosing a pattern of offences of violence committed by you against vulnerable women. Plainly, your criminal history is of particular significance in this case and the protection of the community and specific deterrence are prominent sentencing considerations.
The judge then summarised the circumstances of the offending in careful detail. He concluded:
14It is clear from this summary that you committed a cowardly and vicious assault on an intoxicated and defenceless young woman in her own home in the dead of night. Your attack upon her was relentless and fuelled by a paranoid sense of entitlement. You must have known you were inflicting extremely painful injuries to her, and indeed you have pleaded guilty to intentionally inflicting those injuries, by punching with what must have been great force. You also strangled her.
15It is the fundamental responsibility of this court to protect women from violent, controlling, paranoid men like you and this sentence must be calculated to deter other men from offending in this appalling manner. These are very serious examples of the offences that you have pleaded guilty to and the court must unequivocally state that offending of this grave nature will be met with the imposition of very significant terms of imprisonment upon conviction. You will also be punished for your vicious and cowardly crimes.
16I have received in evidence victim impact statements of your victim survivor and her parents, detailing the devastating impact your crimes have had upon them. Your victim survivor details the extreme pain she has suffered, the medical procedures she has endured, and the profoundly traumatic effect your offending has had on her quality of life and her employment. Her parents attest to the shock suffered by them seeing their daughter injured in hospital, and the impact on their family life that resulted from your brutal attack on their child in the home that she grew up in.
The judge then turned to the applicant’s personal circumstances and stated:
18You were born on 11 October 1991 in Bendigo and are now aged 30. You are the youngest of your parents’ four children. Your parents separated when you were three years old and you resided with your mother until the age of 12, at which time you moved to live with your father. You were educated in Bendigo until Year 9. Your two sisters reside in Bendigo and you have a good relationship with them. Your brother took his own life three years ago, aged 29, following a relationship breakdown. I accept that this tragic event had a deeply traumatic effect upon you, and it compounded the trauma you suffered following the death of a workmate in a workplace accident that you witnessed.
19You moved out of your father’s house at the age of 20 to live with your partner, with whom you have two children now aged seven and nine. Your partner is the victim of a number of your prior convictions. Despite the criminal treatment of her, she is supportive of you, and I accept that you are close to your two children.
20You have worked as a mechanic for the past 14 years and although you have not completed formal training in relation to that, you have developed a successful business. In 2019, a fire in your workshop resulted in extensive damage and you suffered serious burns for which you were hospitalised in intensive care. This event further aggravated your pre-existing post-traumatic stress disorder.
21I have received in evidence a psychological report of Ms Gina Cidoni, and an update thereto setting out your developmental history and psychological profile. I accept that you suffer from borderline personality disorder, post-traumatic stress disorder and major depressive disorder. It would appear that the origins or your post-traumatic stress disorder and major depressive disorder reside both in your childhood development and the subsequent traumatic experiences that I have referred to.
22Ms Cidoni is of the opinion that your borderline personality disorder confounds your other conditions. In other words, the borderline personality disorder complicates the treatment of those conditions. Ms Cidoni is of the opinion that your borderline personality disorder is causally connected to your offending in this instance and I accept that this is correct. As she states, borderline rage can occur suddenly and unpredictably and that is what occurred on this occasion.
His Honour recorded that it was submitted on behalf of the applicant in reliance upon the psychologist’s report that the applicant’s moral culpability was moderated by reason of his borderline personality disorder and that the principle of general deterrence should also be moderated. His Honour rejected this submission:
24Your criminal history and the police summaries I have been provided with demonstrate that over a number of years you have committed serious acts of violence whilst enraged in the setting of personal relationships. This conduct is well-known to you. You are aware yourself of your explosive personality and it would appear that you have not taken any steps to address this, despite previous dispositions of courts intended to support your rehabilitation. In such circumstances, in my opinion, the diagnosis of borderline personality disorder does not moderate your moral culpability or the application of the principal of general deterrence to you.
The judge went on to reason in the alternative that in any event the applicant’s personality disorder gave rise to countervailing concerns of community protection, a factor which he was required to regard as being the principal purpose of sentencing on charge 2 because the applicant fell to be sentenced as a serious violent offender in respect of the charge of intentionally causing serious injury.[1]
[1]DPP v Giudice [2022] VCC 500 (‘Reasons’), [25] referring to Sentencing Act 1991 pt 2A.
Despite these conclusions, his Honour accepted, ‘as was submitted by counsel’, that the applicant’s mental conditions would increase the hardship of imprisonment upon him and that the applicant would require a lengthy period of supervision in the community upon his release from prison.[2]
[2]Reasons [26].
Lastly, his Honour accepted that the restrictions imposed upon prisoners during the COVID-19 epidemic would increase the hardship of imprisonment upon the applicant.[3]
[3]Reasons [27].
Borderline personality disorder
In Brown v The Queen,[4] a five member bench of this Court held that the principles stated in R v Verdins[5] were potentially enlivened by evidence of the effects of personality disorders. As the Court made clear, however, it is not sufficient that the applicant attract a diagnostic label. It is necessary to demonstrate how the relevant disorder can be said to have affected relevant sentencing considerations in the circumstances of the case.[6]
[4](2020) 62 VR 491 (‘Brown’). See also Wornes v The Queen [2022] NSWCCA 184.
[5](2007) 16 VR 269 (‘Verdins’).
[6]Brown (2020) 62 VR 491, [61].
The applicant relied on two reports from Ms Gina Cidoni, psychologist. The first report dated 5 October 2021 noted that the applicant had a history of self-harm:
37. He reported that he began self-harming in 2020, and his first suicide attempt by hanging occurred the same year. He was taken to Bendigo Hospital and he had community support for a while.
38. He attempted suicide again in November 2020 by overdosing. He reported that he awoke two days later, and he did not attend the hospital.
39. Since arriving in prison he has self-harmed on two occasions, first by cutting and again by punching the concrete walls, effectively fracturing both hands.
40.He is currently engaging with Ms Emily Levinge from Forensicare whilst in prison. This was initiated due to his episodes of self-harming. He reported that he is struggling to cope with the isolation and being away from his children.
The first report concluded:
72.Graham Giudice presented as a 29-year-old man with unstable mental health.
73.His cognitive function appears to be intact.
74.Mr Giudice has the following clinical and personality diagnoses in line with the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5).
- Borderline Personality Disorder (BPD)
- Major Depressive Disorder (MDD) with melancholic traits.
- Post-Traumatic Traumatic Stress Disorder (PTSD) with anxiety.
75.Symptoms result in a low mood, feelings of worthlessness, helplessness, fear, worry, anxiety, at times panic, which can lead to withdrawal and social isolation. Low energy, concentration problems, inability to relax, and restlessness may also be present along with impacted sleep and appetite.
76.BPD is a pervasive pattern of instability in interpersonal relationships, self-image, and emotion, as well as marked impulsivity beginning by early adulthood and present in a variety of contexts, with accompanying symptoms such as chronic feelings of emptiness, emotional instability, impulsive behaviour, inappropriate and intense anger, recurrent suicidal behaviour and a pattern of unstable interpersonal relationships.
77.Personality disorders are characterised by strange thinking, feeling, and behavioural patterns, that also cause marked distress and/or functional issues.
78.The vital factor is a long-term pattern of behaviour and internal feelings that differ greatly from what is normal or expected. His perception of a situation is altered because of this condition. He tends to see things in “all or nothing”, “black or white”, “all good, or all bad.”
79.His exposure to trauma leads to heightened physiological and psychological stress reactivity, which undermines his capacity to respond functionally to stressors.
80.BPD manifests as marked deficits in emotional regulation and results in intense episodes of anger, depression, and anxiety.
81.From a psychological perspective, his personality and psychological disposition are concerning. The complex interplay of his conditions can lead to uncontrollable emotionality, impulsivity and all-or-nothing thinking. These episodes reflect an extreme reactivity to interpersonal stresses.
82.Risk: The key components of a risk management plan are treatment interventions, supervision, monitoring, and victim safety plans. In terms of risk management, treatment needs are defined as treatment or rehabilitation strategies intended to moderate risk factors or enhance protective factors; that is, interventions intended to repair or restore deficits in adjustment and functioning that have been linked to harmful behaviour in the past.
83.In terms of treatment strategies, direct interventions are required to address his thinking, his mood, and its management; also, to address his beliefs about himself and his traumatic [life] experiences.
84.In my opinion, Mr Giudice should attend upon a psychiatrist and accept treatment and attend upon a psychologist for regular professional counselling.
85.In this, he also requires intensive support from reliable family members or other suitable contacts who serve to monitor, contain instability, help normalise his interpretations and manage his emotions in an adaptive way. Meaningful occupation occurs by way of his employment. His long-term involvement in this activity negates any flight risk.
86.In terms of risk management, monitoring needs are defined as those early warning signs that are an indication of self or other harm potential.
87.Concerning victim safety plans, he must comply with conditions, moderating issues of concern like endangering the safety or welfare of the alleged victim.
88.The findings of the assessment indicated that there is an urgent need for this reduced man to receive mental health treatment which he appears motivated to engage with.
89.Prison in the current pandemic is onerous and more so for Mr Giudice as it would cause many different symptoms in response including intense emotional reactions, dramatic mood swings, intensely painful feelings of anxiety, distress, and sadness, and impulsive behaviours that can lead to dramatic conflict with others. The isolation leads to rumination, distress and major depressive episodes and self-harm.[7]
[7]Emphasis in original.
Ms Cidoni’s second report dated 4 April 2022 stated:
8.Mr Giudice has a diagnosis of borderline personality disorder which confound his other clinical syndromes. He has PTSD and major depression arising from his negative experiences and it is likely that certain events during childhood played a role in the development of the disorder.
9.Borderline personality disorder (BPD) is a serious illness that occurs in the context of relationships with problems regulating emotions and thoughts, and causing impulsive and reckless behaviour, and unstable relationships. There are ongoing patterns of difficulty with self-regulation where he can’t soothe himself in times of stress and he has trouble with emotions, thinking, behaviours, relationships, and self-image.
10.The clinical picture indicates a causal connection with the severe violence he perpetrated in January 2021. Characteristic of BPD is inappropriate, intense anger where the level of anger is more intense than is warranted by the situation or event that triggered it. Borderline rage can occur suddenly and unpredictably, and it is often triggered by an intense fear of being alone. Subtle cues associated with rejection can set off intense reactions and views of the world tend to be profoundly abnormal. This affects the ability to exercise appropriate judgment and think clearly and make calm choices.
The second report further noted:
15. Whilst the sentencing disposition is solely a matter for the Court, it is noted that Mr Giudice’s mental health issues would likely be exacerbated by a period of imprisonment. His affective instability produces overwhelming challenges that would weigh more heavily upon him than a person without his conditions. The concern with incarceration is that it would place him at an increased risk of additional emotional deterioration in view of his low coping resources, resulting in him being subject to a substantially greater than ordinary burden.
16. Further, Mr Giudice is unlikely to receive treatment specific to his BPD which limits prospects of rehabilitation whilst in custody. He also presents with PTSD and MDD that would likely make prison a more onerous experience for him than somebody without his conditions. It would also place him at an increased risk of additional emotional deterioration in view of his low coping resources.
The reports of Ms Cidoni were supplemented by a report dated 30 August 2021 of Ms Emily Levinge, Senior Clinical Psychologist, Mobile Forensic Mental Health Service, Forensicare.
Ms Levinge’s report stated that the applicant was referred to Forensicare while he resided at Ravenhall Correctional Centre. He was accepted for individual treatment at Marngoneet Correctional Centre on 21 April 2021. Ms Levinge states:
At the writing of this letter, Mr Giudice has attended 10 treatment sessions with Ms Levinge. Consistent with the basis of referral, treatment has sought to target coping, emotion regulation and distress tolerance, trauma symptom management, in addition to providing psychoeducation regarding the psychological impact of trauma. Mr Giudice attends sessions on time and has remained engaged throughout the process. He reports deriving benefit from sessions to better support him to manage his mental health. Since the beginning of treatment, Mr Giudice has obtained work as a Library Billet and remained settled at the location. Upon Mr Giudice’s return to the community it would be crucial to ensure he continues to have access to mental health support, via a Psychologist and/or Psychiatrist, in the community to continue psychological work.
At the time of the plea (21 March 2022), Ms Levinge was still seeing the applicant weekly at the Marngoneet Correctional Centre.
The effects of imprisonment
The judge accepted the opinion of Ms Cidoni that the applicant’s mental condition would increase the burden of imprisonment, as counsel had submitted. Counsel’s submissions relied on the reports to which we have referred.
It is plain that his Honour took this factor into account.
The applicant submitted, however, that the sentencing judge failed to give appropriate weight to the adverse effect that an excessive term of imprisonment could have on the applicant’s mental health.
In support of this submission, particular attention was drawn to the applicant’s history of self-harm in prison.
The specific risk of deterioration in the applicant’s mental health fell to be assessed in circumstances which included the following:
•The applicant had a prior history of self-harm and extensive violence quite independently of imprisonment.
•The applicant had failed to take advantage of psychological support offered to him pursuant to community correction orders imposed prior to the current offending.
•Taken as a whole, the evidence supported the conclusion that the applicant’s greatest need was for ongoing treatment.
•The applicant had been receiving treatment in prison and there was no evidence to suggest appropriate treatment would not continue.
•Prison is free from some stressors which have been problematic for the applicant, including, in particular, consumption of alcohol.
•Ms Levinge’s report described the applicant’s situation at Marngoneet as relatively stress-free.
•On the plea, the applicant’s counsel accepted that the applicant was being treated by Forensicare at Marngoneet.
•On the application for leave to appeal, counsel for the applicant accepted that Ms Levinge’s report did not support the conclusion that prison was exacerbating the applicant’s condition.
To this may be added that on the application for leave (one year after the plea) there was no further evidence of episodes of self-harm or deterioration in the applicant’s condition.
In the circumstances, we are not persuaded that it is reasonably arguable that the sentencing judge erred in the approach that he took of making some global allowance for the adverse effects of imprisonment upon the applicant’s mental health.
Further, in circumstances where the sentencing judge was required by s 6D of the Sentencing Act 1991 to regard protection of the community from the offender as the principal purpose for which the head sentence was imposed, there is nothing in the sentences imposed which is manifestly excessive and which might support the inference that the factor now relied on was not properly taken into account.
Conclusion
We would refuse the application for leave to appeal.
---
4
0