Glatz v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0009

DALE ANTHONY GLATZ	Applicant
v
THE KING	Respondent

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JUDGES:	T FORREST and OSBORN JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	8 June 2023
DATE OF JUDGMENT:	12 July 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 161
JUDGMENT APPEALED FROM:	DPP v Glatz (County Court of Victoria, 9 December 2022) (Judge Dyer)

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CRIMINAL LAW – Appeal – Sentence – Aggravated burglary – Causing injury recklessly – Theft – Attempted theft – Applicant broke into victim’s sleeping accommodation and assaulted him with a metal bar, stealing victim’s phones and attempting to steal victim’s car – Applicant diagnosed with schizoaffective disorder – Applicant sentenced to 4 years’ imprisonment with a non-parole period of 2 years and 3 months – Whether sentencing judge gave insufficient weight to mitigating factors relating to history of mental disturbances and diagnosed mental illnesses of the applicant – Initial failure to treat applicant in accordance with psychiatrist’s recommendations – Prisoners’ rights – Initial failure to treat and ongoing experience of psychiatric condition made burden of imprisonment exceptional – Risk imprisonment would worsen condition – Protection of the community best achieved by facilitating applicant’s ongoing medication, treatment and transition back into community – Leave to appeal granted – Appeal allowed – Resentenced to 3 years and 8 months’ imprisonment with a non-parole period of 2 years.

Corrections Act 1986, ss 47(1)(f), 47(1)(g).

R v Verdins (2007) 16 VR 269, Hogarth v The Queen (2012) 37 VR 658, Veen v The Queen (No 2) (1988) 164 CLR 465, Wright v The Queen [2015] VSCA 333, Brown v The Queen (2020) 62 VR 491, Worboyes v The Queen [2021] VSCA 169 referred to.

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Counsel
Applicant:		Ms G Connelly
Respondent:		Ms E Ruddle KC
Solicitors
Applicant:	Rolfe Criminal Law
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

TABLE OF CONTENTS

Introduction

Background facts

Personal circumstances

The judge’s Reasons

Analysis

T FORREST JA
OSBORN JA:

Introduction

Following pleas of guilty, the applicant was sentenced by his Honour Judge Dyer in the County Court at Melbourne on 9 December 2022, in respect of four charges arising out of an incident of aggravated burglary and consequential offending.
The sentences imposed were as follows:

Charge	Offence	Maximum	Sentence	Cumulation
1	Aggravated burglary (contrary to s 77 of the Crimes Act 1958)	25 years’ imprisonment	3 years’ imprisonment	Base
2	Causing injury recklessly (contrary to s 18 of the Crimes Act 1958)	5 years’ imprisonment	2 years’ imprisonment	6 months
3	Theft (contrary to s 74(1) of the Crimes Act 1958)	10 years’ imprisonment	6 months’ imprisonment	3 months
4	Attempted theft (contrary to ss 321M and 74(1) of the Crimes Act 1958)	5 years’ imprisonment	6 months’ imprisonment	3 months
Total Effective Sentence:		4 years’ imprisonment
Non-Parole Period:		2 years 3 months
*Pre-sentence Detention declaration pursuant to s 18(1) of the Sentencing Act 1991:*		472 days
Section 6AAA Statement:		5 years and 6 months’ imprisonment with a non-parole period of 3 years and 6 months
Other Relevant Orders:		Forfeiture and disposal orders

The applicant now seeks leave to appeal on two proposed grounds (omitting particulars):
Ground 1:The individual sentences, orders for cumulation, total effective sentences and non-parole periods fixed for each [charge] are manifestly excessive.
…
Ground 2:The learned Sentencing Judge gave insufficient weight to mitigating factors relating to the significant history of mental disturbances and diagnosed mental illnesses of the [applicant].
For the reasons that follow, proposed ground 2 is made out and, despite the undoubted gravity of the offending, we would grant leave to appeal and impose a reduced sentence.

Background facts

At the time of the offending, the applicant and the victim were both mature adult males living in emergency accommodation at a motel in Bendigo. They met each other through a mutual friend on 21 August 2021.
On the night of the following day, the victim went to sleep in his motel unit at around 10:30 pm.
At approximately 4:30 am the following morning, the applicant began bashing against the door of the victim’s motel room. The applicant then forced his way through the door and into the victim’s room (charge 1 — aggravated burglary). The applicant turned on the light and said: ‘Where’s my money cunt?’
The applicant then hit the victim (who was still in bed) striking him in the face and mouth with a metal dumbbell bar four or five times. The victim suffered a split lip, chipped tooth, bruising and swelling of the chin and bleeding. The applicant then further punched the victim and placed him in a headlock before the victim broke free and ran out of the room (charge 2 — causing injury recklessly).
The applicant chased the victim out of the room and around the victim’s car which was parked directly outside his motel room. The applicant returned to the victim’s room and stole two Apple iPhones and a set of car keys belonging to the victim (charge 3 — theft).
The applicant then unlocked, entered and attempted to start the victim’s car but was unsuccessful (charge 4 — attempted theft). The applicant then again chased the victim around the victim’s car while trying to hit him, before walking off and driving away from the motel in the applicant’s own vehicle.
By way of explanation of the offending, the applicant subsequently told Ms Gina Cidoni, a psychologist who saw him for medico-legal purposes:
…he said he lived at the motel and lent the victim money, but the victim didn’t pay him back. He felt the victim was avoiding him and this angered him. He said I asked where my money was, and he acted dumb so I whacked him a couple of times. He admitted he also stole his telephone. He admitted he was under the influence of alcohol but denied being under the influence of drugs.

Personal circumstances

The applicant was 39 years of age at the time of the offending. He was raised by his mother in Bendigo and completed Year 10 at school before commencing an apprenticeship as a plasterer. He did not complete his apprenticeship but subsequently worked in a variety of jobs as a labourer.
The applicant was a successful boxer up until the age of 25 but on attempting to return to the sport at the age of 30 suffered bad losses and incidental injuries which the judge noted may have contributed to a deterioration in the applicant’s mental state.
Medical records show that he was admitted to the psychiatric ward at Bendigo Hospital in September 2014 resulting in a number of significant mental health diagnoses, including a severe depressive episode with psychotic symptoms and a schizoaffective disorder.
At the date of sentence, the applicant had numerous prior convictions including convictions for burglary, theft and offences of violence. He had first offended in 2001 however there was a significant gap in offending between 2002 and 2017. A substantial number of offences were committed in 2017, 2018 and 2019. In 2017, he was sentenced to 65 days’ imprisonment with a Community Correction Order (‘CCO’) for 9 months. He breached the CCO in 2018 and was sentenced to 310 days’ imprisonment. He was sentenced to 1 year and 9 months’ imprisonment in 2019 and on 18 December 2020 was sentenced to 8 months’ imprisonment with a CCO for 12 months. A condition of the Magistrates’ Court order made at this time provided:
Corrections to arrange and fund a neuropsychological assessment of Mr Glatz.
Although such an assessment had been arranged before the date of the offending now in issue, it had not been undertaken at the date of sentence and has still not been undertaken. The obvious purpose of such an assessment is to ascertain whether the applicant has suffered an acquired brain injury.
On the plea hearing, detailed evidence was adduced as to the applicant’s psychiatric condition. A report dated 18 October 2021 from Dr Sam Pang, a forensic psychiatrist who saw the applicant four days after his arrest for the offending in issue on 23 August 2021, indicates that the applicant was suffering from severe mental illness shortly after his arrest.
As mentioned, I had first reviewed Mr Glatz on 27/8/21. At that time, I had determined him to be experiencing a severe mental illness and that he would benefit from the resources of the Acute Assessment Unit (AAU), so referred him.
Mr Glatz was admitted to the AAU on 8/9/21. On 13/9/21, I determined Mr Glatz's severe mental illness to be treatment-resistant, and determined that he needed the antipsychotic clozapine in order to recover. Clozapine cannot be started in prison, meaning to access this treatment he needed transfer to Thomas Embling Hospital. For this reason, I recommended/certified Mr Glatz under section 158 of the Mental Health Act 2014 (Vic) and he was waitlisted.
Very unfortunately Mr Glatz has still been unable to access Thomas Embling Hospital, and it is likely this will still take a long time to get him there.
In recognition of the exceptional pressures faced by prison mental health services at present, Mr Glatz was permitted to be transferred out of a forensic bed-based prison unit to mainstream Melbourne Assessment Prison on 18/9/21.
Mr Glatz remains unwell and in need of clozapine.
Putting Mr Glatz's situation aside for a moment, I do note that in the community, if a patient requires clozapine, this can usually be actioned very quickly (within a few days) via an admission to a psychiatric inpatient unit.[1]
[1]Letter dated 18 October 2021 from Dr Sam Pang, forensic psychiatrist, Forensicare, to Nicholas & Elly, Solicitors.
A report dated 1 July 2022 from Ms Cidoni describes the applicant’s further treatment:
56.The Bendigo Health Psychiatric Report by Sophie Wanklyn (13.04.22) indicated he was admitted to the Alexander Bayne Centre from 13.09.14 to 14.09.14 and to Thomas Embling Hospital from 26.10.21 to 13.01.22. There were also residential placements at the Melbourne Assessment Prison and Ravenhall Correctional Centre. He had two episodes of compulsory treatment, from 26.10.21 to 11.11.21, and from 16.11.21 to 13.01.22. There were also five periods of short-term crisis intervention.
57.When he came to Ravenhall, he spent time in the Erskine (mental health) unit and is now in the mainstream unit.[2]
[2]Psychological Assessment Report of Gina Cidoni, psychologist, Healey & Cidoni Psychologists, dated 1 July 2022, [56]–[57].
Ms Cidoni expressed the following opinion:
87.He is a 40-year-old man presenting with cognitive difficulties likely to be linked to his unstable mental health.
88.The clinical evaluation indicated he has the following clinical diagnoses in line with the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5):
-    Schizotypal Personality Disorder
-    Post-Traumatic Stress Disorder (PTSD)
-    Generalised Anxiety Disorder (GAD)
-    Stimulant Use Disorder (in remission)
-    Persistent Depressive Disorder
89.He reported a history of considerable trauma that contributed to his presentation today.
90.Schizotypal personality disorder is a mental condition characterised by a pervasive pattern of intense discomfort with and reduced capacity for close relationships, distorted cognitions and perceptions, and by eccentric behaviours.
91.The anxiety component results in persistent worrying about a number of areas that are out of proportion to the impact of the events, overthinking plans and perceiving situations and events as threatening when they aren’t. There are difficulties handling uncertainty, fear of making wrong decisions, difficulties relaxing and feeling keyed up or on edge.
92.Schizoaffective Disorder is a severe psychiatric condition that is chronic in nature and was likely to be present during the offending period. The disorder presentation involves psychotic experiences where there is a loss of contact with reality, and it was clear in the assessment that he becomes overwhelmed by these psychotic processes that present in the form of voices and paranoid ideations.
93.This is relevant to the offending as there are frequent incorrect interpretations of ordinary occurrences as having special meaning. There is a grandiosity, and he thinks he is equipped with special powers that enable him to sense events before they happen, or to read other people’s minds and happenings. Speech is odd in that it [is] excessively abstract, there is lack of understanding of usual social cues, excessive social anxiety and frank suspiciousness that drives behaviour.
94.Psychiatric intervention with medication to stabilise the psychotic symptoms with community mental health support will counter risk of reoffending. Psychotherapy can assist him with acquiring social skills, recognising obstacles addressing problematic behaviours and teaching him to learn to tolerate his contrary beliefs and feelings. Management of emerging unfamiliar, and even threatening, emotions may be carefully coordinated with cognitive strategies aimed at creating less absolutist beliefs and attitudes, as well as developing interpersonal strategies. Attention should be given to any withdrawal tendencies and/or persistent mistrust of others. Psychotic decompensations can be modified with supportive therapy, with medication, and cognitive reframing techniques.
95.He will suffer severely if his imprisonment continues as his particular presentation could result in an inability to adapt to the difficulties of living in prison. This can subsequently lead to negative attention and ideas of reference; odd beliefs or magical thinking; unusual perceptual experiences and bodily illusions; odd thinking and speech; suspiciousness or paranoid ideation and behaviours that are odd or peculiar.[3]
[3]Ibid [87]–[95].
In a supplementary report dated 17 November 2022, Ms Cidoni further stated:
3.Mr Glatz has a history of auditory hallucinations where the research indicates that psychosis is known to result from damage to the frontal and temporal areas and dysregulation of the dopaminergic system. Traumatic brain injury triggers pathophysiological processes can result in dementia and episodic psychotic behaviour has also been reported in the literature.
4.Schizoaffective disorder is a mental health disorder that is marked by a combination of schizophrenia symptoms, such as hallucinations or delusions, and mood disorder symptoms, including depression and/or mania.
5.Untreated schizoaffective disorder may lead to problems functioning at work, and in social situations, causing issues with loneliness, loss of social and occupational skills and trouble holding down a job. Usually, there are paranoid delusions with false and strange beliefs about situations and misconceptions about people’s actions, also sensing that things aren’t real. Along with this are sudden manic escalations in energy levels, racing thoughts, and risky behaviour which can easily lead to conflicts and acts of violence.
6.As indicated in the previous report this is relevant to the offending as there are frequently incorrect interpretations of ordinary occurrences then [sic] take on a special meaning. There is a grandiosity, and he thinks he is equipped with special powers that enable him to sense events before they happen or to read other people’s minds and happenings.
7.Speech is odd in that [it] is excessively abstract and doesn’t make sense, there is a lack of understanding of usual social cues and frank suspiciousness that drives behaviour.
8.Schizoaffective disorder has the features of schizophrenia, like hallucinations, delusions, and disorganized thinking, along with those of a mood disorder, like mania and depression.
9.He is currently prescribed Clozapine (anti-psychotic) 350mg. Clozapine is an atypical antipsychotic medication used to treat mental/mood disorders. It works by restoring the balance of neurotransmitters (namely dopamine and serotonin) in the brain to improve thinking, mood and behaviour. It decreases hallucinations and also helps to prevent suicide in clients who self-harm. There are side effects including drowsiness, light-headedness, headaches, shaking, and weight changes and there are cognitive effects.
10.Mr Glatz suffers from a severe psychiatric condition that is chronic in nature and he would find imprisonment more burdensome than the average person as a result. Mr Glatz’s illness may be worsened as his complex state leads to marked alterations in arousal, reactivity, and impulsivity which could result in unwanted attention by others. Amongst his problems, are his delusional beliefs and paranoid function. This causes significant social issues that would make prison an extremely difficult place where others are in close contact, highly stressed and sometimes there is no escape. The implications of his impulsivity and difficulty inhibiting an immediate/inappropriate response may also lead to problems and deterioration in this setting. A combination of medication and psychotherapy is the best course for the effective treatment of schizoaffective disorder. Psychotherapy is specialised and often not available at the frequency he needs to learn what triggers his psychotic episodes i.e., when hallucinations or delusions exacerbate and how to reduce or stop them.[4]
[4]Supplementary Psychological Assessment Report of Gina Cidoni, psychologist, Healey & Cidoni Psychologists, dated 17 November 2022, [3]–[10].

The judge’s Reasons

Following an initial plea hearing in November 2022, the sentencing judge sought a report as to the suitability of the applicant for a further CCO. The appraisal result was negative. When the matter came back before his Honour in December 2022, there was no simple option available to him which was appropriate to the applicant’s case.
In formulating his sentencing reasons,[5] his Honour summarised the circumstances of the offending[6] and the applicant’s personal circumstances.[7]
[5]DPP v Glatz (County Court of Victoria, Judge Dyer, 9 December 2022) (‘Reasons’).
[6]Ibid [3]–[6].
[7]Ibid [7]–[11].
His Honour referred to the report of Dr Pang and the first report of Ms Cidoni.[8] In so doing, his Honour accepted that there can be little else to explain the applicant’s behaviour on the night of the offending other than his mental illness.[9] He further appears to have accepted Ms Cidoni’s opinion that the applicant was overwhelmed by psychotic processes in the form of voices and paranoid ideations.[10]
[8]Ibid [10].
[9]Ibid.
[10]Ibid [11].
Turning to sentencing considerations, his Honour noted the emotional stress suffered by the victim and elaborated in a victim impact statement.[11]
[11]Ibid [12].
The judge also noted the applicant’s early pleas of guilty and the added importance of such pleas during the backlog of cases due to COVID-19.[12] His Honour then stated:
I also accept that whilst the need to protect the community from further offending of this nature is very important, the fact of your mental health condition must be taken into account in measuring the degree to which general and specific deterrence is emphasised in the sentence which I intend to impose upon you. It is important, in my view, that you are given some opportunity upon your release from custody to obtain some further treatment, and a lengthier than normal period on parole may facilitate this.[13]
[12]Ibid [13].
[13]Ibid [14].

Analysis

The evidence made clear that the applicant was likely to suffer very real psychiatric stress as a result of imprisonment. The sentencing judge was plainly aware that the evidence of the applicant’s psychiatric condition was of major significance in formulating an appropriate sentence, but he did not advert to the fifth and sixth considerations identified in Verdins[14]. These considerations are:
5.The existence of the condition at the date of sentencing (or its foreseeable recurrence) could mean that a given sentence would weigh more heavily on the offender than it would on a person in normal health.
6.Where there was a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this factor would tend to mitigate punishment.[15]
[14]R v Verdins (2007) 16 VR 269.
[15]Ibid 269 (Maxwell P, Buchanan and Vincent JJA).

On the hearing in this Court, senior counsel for the respondent accepted this case was ‘an extreme example of the applicability of those provisions.’ Thus, although we have no doubt his Honour took into account the effect of the applicant’s mental illness in assessing his moral culpability and evaluating the weight to be given to general and specific deterrence, nonetheless in our view ground 2 must be upheld. A very significant aspect of the case for the applicant was not acknowledged in the judge’s Reasons.
On the hearing of the application for leave to appeal, senior counsel for the respondent accepted that the real issue in this Court is thus whether a lesser sentence should be imposed.
Accordingly, we turn to the question whether the applicant should be resentenced. This is not without difficulty.
First, it must be acknowledged that the objective gravity of the offending was very high. The applicant committed a confrontational aggravated burglary when armed with a weapon. He broke into the victim’s sleeping accommodation and assaulted him at night whilst the victim was vulnerable. He inflicted facial injuries with a metal bar, stole the victim’s phones and attempted to steal the victim’s car. In the ordinary course of events, a very significantly sterner sentence than that imposed by the sentencing judge would be appropriate.[16]
[16]Hogarth v The Queen (2012) 37 VR 658.
As against this however, the applicant could call in aid his early pleas of guilty, Worboyes[17] considerations, and most significantly, the evidence as to his mental illness.
[17]Worboyes v The Queen [2021] VSCA 169.
As the judge accepted, this evidence was materially explanatory of the offending, thus reducing the applicant’s moral culpability and suitability for general and specific deterrence.
Moreover, the evidence established that the applicant’s mental illness very materially affected the burden of imprisonment upon him. As counsel for the applicant submitted, it is apparent from the records to which we have referred, that, despite a diagnosis of severe mental illness:
•the applicant had to wait 12 days in mainstream prison before finally being admitted to the Acute Assessment Unit on 8 September 2021 after Dr Pang’s initial referral of the applicant on 27 August 2021;
•again, despite referral from the Acute Assessment Unit for treatment at Thomas Embling Hospital on 13 September 2021, the applicant was not admitted to that hospital until 26 October 2021;
•while waiting for transfer to Thomas Embling Hospital, the applicant was placed back in mainstream prison on 18 September 2021 due to lack of prison resources;
•the applicant remained at Thomas Embling Hospital until 13 January 2022 before returning to prison. Whilst at Thomas Embling Hospital he was subject to two secure treatment orders for all but five days;
•after treatment at Thomas Embling Hospital he was transferred to the Forensicare serviced units at Ravenhall Correction Centre (initially the Moroka Forensic Mental Health Unit, then the Erskine Forensic Mental Health Unit); and
•on 25 February 2022 he was placed in mainstream prison receiving outpatient Forensicare services.
As Dr Pang’s report makes clear, the applicant was initially denied treatment with Clozapine which would have been readily available to him if he were not in custody. The applicant has also been sequentially denied accommodation appropriate to his treatment.
After the initial delay, the applicant has received appropriate medication which he continues to take on a voluntary basis and has been able to work successfully in the prison kitchen whilst serving his sentence. Nonetheless, we accept that the burden of imprisonment has been exceptional because of the state of his mental health, initial failure to provide the applicant with adequate treatment and the ongoing subjective experience of his illness as explained by Ms Cidoni. We further accept that there is an ongoing risk that imprisonment may worsen his condition.
Counsel for the applicant submitted that the initial failure to treat the applicant in accordance with Dr Pang’s recommendations was particularly egregious given the provisions of s 47(1)(f) and (g) of the Corrections Act 1986.[18] These sections provide that prisoners have the right of access to reasonable medical care and treatment for the preservation of health including mental health. We accept that these provisions demonstrate that the applicant has suffered a burden during imprisonment which has been exceptional, not only in the sense that he has not received adequate care but also in the sense that his treatment has fallen short of that which prisoners are ordinarily entitled to receive.
[18]Sections 47(1)(f) and (g) provide as follows:
As a matter of principle, the mitigatory matters flowing from the applicant’s mental illness may be offset by the need for protection of the community.[19] In the present case however, we are satisfied that the protection of the community is best achieved by facilitating the applicant’s ongoing medication, treatment and transition back into the community. His prospects of rehabilitation are almost totally dependent on the receipt of appropriate ongoing treatment. For this reason, we agree with the sentencing judge that it is appropriate to provide for a longer non-parole period than would ordinarily be the case.
[19]Veen v The Queen (No 2) (1988) 164 CLR 465, 476–7 (Mason CJ, Brennan, Dawson, Toohey JJ); Wright v The Queen [2015] VSCA 333, [6], [57] (Maxwell P, Redlich and Osborn JJA); Brown v The Queen (2020) 62 VR 491, 509–10, [70]–[71] (Maxwell P, Niall, T Forrest, Emerton and Osborn JJA).
Having regard to the above matters, counsel for the applicant ultimately submitted that the applicant’s history and position in custody were truly exceptional and justified the imposition of an exceptionally lenient sentence.
Conversely, senior counsel for the respondent submitted that the sentences imposed by his Honour already reflected a significant and adequate discount in respect of the consequences of the applicant’s mental illness.
In our view, the applicant’s submissions should be accepted. The history of the applicant’s treatment whilst in custody demonstrates a very serious level of hardship resulting from his mental illness. In all the circumstances, there must be some moderation of the penalty imposed by the trial judge.
We would grant leave to appeal on proposed ground 2, allow the appeal and resentence the applicant as follows:

Charge	Offence	Maximum	Sentence	Cumulation
1	Aggravated burglary (contrary to s 77 of the Crimes Act 1958)	25 years’ imprisonment	2 years and 8 months’ imprisonment	Base
2	Causing injury recklessly (contrary to s 18 of the Crimes Act 1958)	5 years’ imprisonment	2 years’ imprisonment	6 months
3	Theft (contrary to s 74(1) of the Crimes Act 1958)	10 years’ imprisonment	6 months’ imprisonment	3 months
4	Attempted theft (contrary to ss 321M and 74(1) of the Crimes Act 1958)	5 years’ imprisonment	6 months’ imprisonment	3 months
Total Effective Sentence:		3 years and 8 months’ imprisonment
Non-Parole Period:		2 years

We confirm the forfeiture and disposal orders made by the trial judge.
We declare that, but for his pleas of guilty, we would have imposed a total effective sentence of five years’ imprisonment with a non-parole period of three years and three months.
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Prisoners Rights
(1)Every prisoner has the following rights—
…
(f)the right to have access to reasonable medical care and treatment necessary for the preservation of health including, with the approval of the principal medical officer but at the prisoner’s own expense, a private registered medical practitioner, dentist, physiotherapist or chiropractor chosen by the prisoner;
(g) if intellectually disabled or mentally ill, the right to have reasonable access within the prison or, with the Governor’s approval outside a prison to such special care and treatment as the medical officer considers necessary or desirable in the circumstances;

[2023] VSCA 161

12 July 2023