Gordon v Tasmania
[2020] TASCCA 17
•30 November 2020
[2020] TASCCA 17
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Gordon v Tasmania [2020] TASCCA 17
PARTIES: GORDON, Trisha Jean
v
STATE OF TASMANIA
FILE NO: CCA 2070/2020
DELIVERED ON: 30 November 2020
DELIVERED AT: Hobart
HEARING DATE: 5 October 2020
JUDGMENT OF: Blow CJ, Pearce J, Porter AJ
CATCHWORDS:
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Wounding and two minor assaults – Woman inflicted thin laceration to mother's throat – Mental disorders requiring treatment – Whether sentence of two years' imprisonment with no parole and 12-month community correction order on release manifestly excessive – Where legislation prevents courts from ordering parole eligibility if sentence of two years' imprisonment or less imposed and community correction order made – Head sentence of two years of itself not manifestly excessive – Failure to provide a degree of relief from obligation to immediately serve whole term made sentence manifestly excessive.
Sentencing Act 1997, ss 8, 17(2A).
R v Verdins [2007] VSCA 102, 16 VR 269, applied.
Aust Dig Criminal Law [3521]
REPRESENTATION:
Counsel:
Appellant: R Mainwaring
Respondent: A Shand*
Solicitors:
Appellant: Legal Aid Commission of Tasmania
Respondent: Director of Public Prosecutions
Judgment Number: [2020] TASCCA 17
Number of paragraphs: 81
*With deep regret, the Court notes that Crown counsel Allison Shand passed away on 15 November 2020.
Serial No 17/2020
File No CCA 2070/2020
TRISHA JEAN GORDON v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
PEARCE J
PORTER AJ
30 November 2020
Orders of the Court
Appeal allowed.
Sentencing orders made on 14 August 2020 set aside.
Appellant sentenced to 2 years' imprisonment with effect from 10 October 2019, with 8 months of that sentence suspended on conditions that:
(a)She commit no offence punishable by imprisonment for a period of 18 months from her release.
(b)During that period she is subject to the supervision of a probation officer and must:
(i) submit to the supervision of a probation officer as required by the probation officer;
(ii) attend educational or other programs as directed by a probation officer;
(iii) undergo assessment and treatment for drug and/or alcohol dependency as directed by a probation officer;
(iv) submit to testing for drug and/or alcohol use as directed by a probation officer;
(v) submit to medical, psychological or psychiatric assessment or treatment as directed by a probation officer.
The appellant must report to a probation officer at 114 Bathurst Street, Hobart within two clear working days of her release.
Serial No 17/2020
File No CCA 2070/2020
TRISHA JEAN GORDON v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
30 November 2020
I agree with the orders proposed by Porter AJ, and with his reasons. There is a little that I would like to add.
When he sentenced the appellant, the learned sentencing judge said, "I backdate the sentence to the date you were taken into custody", but did not say what that date was. Similarly, in the written version of his Honour's sentencing comments (which differed substantially from his oral comments), he wrote, "I backdate the sentence that [sic] to the date you were taken into custody." If one has access to the Court file or the transcript, it is possible to discover that the appellant has been in custody since 10 October 2019. Section 16(1)(b) of the Sentencing Act 1997 empowers a court that is sentencing an offender to a term of imprisonment to "order that the sentence of imprisonment is to commence on a day earlier than the day on which it is imposed". When that course is taken, the order pronounced by the sentencing judge or magistrate should specify the date to which the sentence is backdated, rather than referring only to an event, leaving the date to be ascertained. Accordingly, the order made by this Court on re-sentencing will specify the commencement date of the appellant's sentence.
File No CCA 2070/2020
TRISHA JEAN GORDON v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PEARCE J
30 November 2020
I agree with Porter AJ and with the orders his Honour proposes.
File No CCA 2070/2020
TRISHA JEAN GORDON v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PORTER AJ
30 November 2020
Introduction
This is an appeal against sentence. The appellant pleaded guilty before Geason J to one count of wounding. Pursuant to s 385A of the Criminal Code, his Honour also dealt with the appellant's pleas of guilty to two summary counts of common assault. The three charges arose from the one episode.
On 14 August 2020, the appellant was sentenced to two years' imprisonment to commence on 10 October 2019. The sentencing judge said he did not intend to make an order that the appellant was eligible for parole, and made no order in that regard. Section 17(3A) of the Sentencing Act 1997 (the Act) provides that where no order is made, the prisoner is not eligible for parole. In addition to the term of imprisonment, the appellant was made the subject of a community correction order (CCO) for a period of 12 months with special conditions relating to medical, psychological or psychiatric assessment or treatment, and assessment and treatment for drug dependency.
The sentencing judge took the unusual course of making very short explanatory comments when sentencing the appellant, and later publishing detailed "Comments on passing sentence". Those comments were not read out or otherwise published in open court. When sentencing the appellant, his Honour said that the sentence was imposed "in respect of all matters." However, in the published comments his Honour said he intended to impose a penalty on the indictment and to record convictions in relation to summary matters. The uncertainty is clarified by reference to the signed indictment cover sheet. That reflects the order made in court; the sentence was a global one imposed on the three charges, as originally indicated in court.
Further, when pronouncing sentence his Honour made it a condition of the CCO that the appellant undergo assessment and treatment for alcohol and drug dependency as directed by a probation officer. The reference to alcohol dependency found its way neither into the published comments, nor into the order noted on the indictment cover sheet.
There are two grounds of appeal. The first is that the sentence is manifestly excessive. The second is that the sentencing judge erred in fact and/or in law in determining that an order for parole eligibility ought not be made. For the reasons that follow, I would allow the appeal and re-sentence the appellant.
The offending
The victim of the wounding was the appellant's mother (the complainant). She arrived home on 10 October 2019 to find the appellant in the lounge room drinking alcohol. She told the appellant she was drunk. At the appellant's request, she had a drink with her. The appellant told her that a friend was going to be visiting. Shortly afterwards, when the complainant asked a further question about the visit, the appellant became angry with her and yelled, "What's it got to do with you?" The appellant then began yelling at the complainant that her father had sexually abused her, saying the complainant was aware of the abuse and did not protect her from it. Apparently, that was an ongoing unresolved issue between the two of them.
The appellant went to the kitchen and obtained a knife. The appellant sat down in a chair and held up the knife saying to her mother that she was a liar and should be dead. As the appellant was talking to her mother the appellant was throwing the knife so that it hit the floor in front of her. The appellant would retrieve it and repeat the gesture. The complainant was scared and crying. The appellant told her to stop crying or she would cut her throat. The appellant approached her, grabbed her by the fringe of her hair, and forced her head onto the back of a couch. That constitutes the first of the summary charges.
The appellant continued to yell abuse. She asked if the complainant was going to call the police. The complainant said she was not. The appellant told her that if they arrived she would cut her throat, and that she would be dead before they got to her. The appellant also said she would kill herself.
When the complainant expressed concern about her dog, the appellant accused her of being more worried about it than the appellant. As the complainant stood up from the couch, she noticed the knife was on the floor and picked it up. The appellant grabbed it from her, put her in a headlock and held it against her throat. The appellant said she was going to slit the complainant's throat, and proceeded to cut the complainant across her neck. The appellant let her go. The complainant described feeling blood dripping down her neck. Before she could leave, the appellant blocked her exit while holding the knife and said, "You're not going anywhere, I'm going to cut your throat."
The complainant managed to get past to the kitchen but returned, at which point the appellant grabbed her, pulled her hair and pushed her against a kitchen cupboard before letting her go. The appellant then took two steak knives from a kitchen drawer and pushed the blunt side of the knives into the complainant's neck. The appellant asked her if she wanted a knife and suggested that they could stab each other. It was at this point that a neighbour, Mr Dobson, knocked on the door. He had a dog with him and asked if it belonged to the complainant. It did, and had run from the house during the commotion.
The appellant went to the door, still in possession of the two knives. Mr Dobson asked if it was the appellant's dog to which she replied, "What you fucking think?" while holding the knives in her right hand by her side. She then said "Put the fucking dog down or I will stab you". Mr Dobson described the appellant as "frothing at the mouth." He was afraid he would be stabbed, and moved away from the property. Although that threat was not referred to in the sentencing judge's comments, it constitutes the second summary charge.
The complainant took the opportunity to run out the back door. She saw Mr Dobson in the driveway and asked him to call police. Officers arrived, and the complainant was seen to be bleeding from the neck. She was given first aid, an ambulance was called and she was taken to hospital. A five centimetre laceration to the neck was noted, but the complainant left before a full examination was conducted.
Police officers went to the complainant's home and tried to speak with the appellant. However, she attempted to slam the door in their face. A number of police forced the door open which resulted in the accused falling to the floor. She was handcuffed and searched. Police found two knives in her leggings. The appellant was emotional and agitated, and continually yelling. She was arrested and taken to the police station. In an interview she denied being responsible for the assault on the complainant. She said she had been drinking, was drunk, and does not usually drink. The appellant did agree that she had been arguing with her mother, but denied the allegation of wounding, and appeared genuinely distressed as police were questioning her about it.
Photographs of the complainant show a thin laceration to the front right part of the neck, more at the base of the throat. The complainant did not make a victim impact statement, and no material as to any long term effects of the assault and wound was put before the sentencing judge.
The appellant's circumstances
The appellant was nearly 37 years old at the time. She has a history of mental illness, self-harm and polysubstance abuse. I will come back to those things. She has a lengthy record of offending starting in 1998. In July 1999, on offences of aggravated burglary, aggravated armed robbery and manslaughter committed when the appellant was 15, she was sentenced to four years' imprisonment. In February 2000, she escaped from custody, and was sentenced to six months' detention.
Between May 2006 and February 2017 the appellant has been convicted on eight occasions of summary charges of assault and, on a separate occasion, one count of aggravated assault. The penalties for that offending have ranged from wholly suspended terms of imprisonment, partially suspended terms of imprisonment and short terms of imprisonment without suspension. The most recent conviction of assault also involved the activation of a wholly suspended term from before. In addition, the appellant has several convictions for assaulting a police officer and resisting a police officer, and quite a number of convictions for offences of dishonesty.
In the proceedings before the sentencing judge, counsel for the appellant made submissions in mitigation and tendered a detailed report from Dr Michael Jordan, a forensic psychiatrist. That report is dated 11 May 2020, and counsel made submissions in relation to it. Additionally, the sentencing judge had a pre-sentence report dated 31 July 2020. In mitigation the sentencing judge was told of the following matters.
· The appellant had a turbulent and traumatic childhood, the effects of which have been continuing throughout her adult life and caused the involvement in this offending.
· The appellant had a disadvantaged background and was subject to domestic violence at an early age, with her parents separating, and when she was 10 years old her father removed her and two siblings from the State without authority; police had to intervene.
· She was sexually abused by her father between the ages of 8 and 12, that abuse only ending when her father died. From her teenage years there was a history of depression and post-traumatic stress disorder-like symptoms; her education suffered badly.
· The unresolved and untreated issues stemming from her childhood abuse have defined her behaviour in later years, with her record reflecting that, along with involvement with antisocial people of similar age.
· When out of youth detention, she began to use drugs and was not living at home, there being a "fairly complex relationship with her mother." She did have some periods of employment in the hospitality and agricultural industries.
· Her background issues have never resolved, and in 2016 she was admitted to hospital following a suicide attempt.
· The relationship with her mother has been a difficult one over the years. They have lived together for some periods and had lived together for about a year before this incident. There were some arguments but they were generally getting along well.
· The appellant has conflicting feelings of love and a sense of betrayal in relation to her mother. She seems to appreciate and understand that her mother may not be accountable for what the father did to her as a child, the appellant feels, perhaps naturally it was suggested, that she had not been protected. Those unresolved issues were the catalyst for the relevant events.
· A few months before these events, the appellant's nephew was murdered; the appellant found difficulty in coping, it significantly affected her behaviour and she started to drink to excess.
· For about 12 months beforehand, the appellant had been able to cease all drug use, so at the relevant time she was not using illicit substances but was drinking heavily due to the death of the nephew which caused a significant setback in her emotional state and mental health.
· The appellant has an extremely patchy recollection of the incident in which her mother was wounded. She recalls arguments escalating in the days beforehand. When the complainant arrived home, the appellant was inebriated and had become preoccupied with the trauma of the sexual abuse she had suffered.
· The appellant accepted what was said by her mother and Mr Dobson about what happened. She feels ashamed and devastated about what she had done; there is a significant element of self-loathing. There had certainly been arguments before but no physical confrontation.
· The appellant is still unable to reconcile the childhood trauma, and is clearly aware that she requires assistance in the form of counselling and treatment.
Dr Jordan's report
As to the appellant's psychiatric history, Dr Jordan notes she was admitted to hospital in July 2016, having taken an excessive amount of various medications. Following recovery, the appellant was admitted on the basis of a two week history of depression and suicidal ideation. She remained on the psychiatric ward until early August when she failed to return from leave and was discharged in her absence. Dr Jordan notes it does not appear that there were any efforts to organise a formal follow-up with the local Community Mental Health Team.
Dr Jordan says the appellant's description of impulsivity, identity disturbance, affective instability and difficulty controlling anger over many years fits the pattern of those diagnosed with Borderline Personality Disorder. Further, her descriptions of recurrent intrusive memories, sleep disturbance with nightmares, negative cognitions regarding herself, and reckless self-destructive behaviour fit with the diagnosis of Post-Traumatic Stress Disorder. He notes that the appellant does not appear to have completed much treatment apart from some psychological therapy about four to five years ago and some interventions when in custody.
As to the history of substance abuse, Dr Jordan refers to abuse of various substances since teenage years, with amphetamine use when approximately 14/15 and varying amounts of amphetamine-based substance abuse ever since. There has been more significant use of alcohol in recent years, although there is evidence of intermittent abuse over an extended period.
As to the offending and the prelude, Dr Jordan notes a report of increased instability over the approximate six month period since the death of her nephew. Although the appellant described that she was enjoying "the best relations" that she had enjoyed with her mother for a considerable period, she admitted she would often get into arguments with her mother over events from her past, particularly when drinking, and it would appear there had been an increased pattern to these arguments in the days leading up to the offending.
On the particular day, the appellant is reported to have drunk a significant amount of alcohol in a two hour period from midday. When the appellant's mother returned home the appellant was inebriated and soon steered the conversation to why her mother had not done more to protect her from the predatory activities of her father. The appellant reported to Dr Jordan that her memory of events in and around this point became more difficult for her to access. She can remember "bits".
She has some recollection of walking into the kitchen but was unclear if she had picked up any particular knife. She has no recall of throwing knives onto the carpet, and no recollection of the actual assault and wounding, nor any recollection of the encounter with Mr Dobson. Dr Jordan notes the appellant accepted that she was responsible for what is alleged to have occurred.
Dr Jordan addresses the six "Verdins domains", being the ways the Victorian Court of Appeal said impaired mental functioning was relevant to sentencing: R v Verdins [2007] VSCA 102, 16 VR 269 at [32]. The "domains" are otherwise mostly referred to as principles or sometimes as limbs. I will stay with "principles". Dr Jordan notes the diagnoses of post-traumatic stress disorder and borderline personality disorder[1], together with bouts of depression and extended periods of substance misuse. He says the appellant's description of abuse at the hands of her father was instrumental in her mental health problems, and understandably this has complicated her relationship with her mother. He further notes that while it is not possible to comment on the mother's knowledge of what happened, it has left "a significant blight on the dynamics between Ms Gordon and her mother".
[1] In Director of Public Prosecutions v O'Neill [2015] VSCA 325, 47 VR 395 at [71], the Court said that the Verdins principles could not apply to personality disorders such as those from which the respondent in that case suffered. This has been taken as authority for the broad proposition that personality disorders do not enliven the Verdins principles. However, in Brown v The Queen [2020] VSCA 212 at [6], the Court held that an offender diagnosed with a personality disorder should be treated as in no different a position from any other offender who seeks to rely on impairment of mental functioning in one or other of the ways identified in Verdins. Whether and to what extent the offender's mental functioning is or was relevantly impaired should be determined on the basis of expert evidence.
Dr Jordan continues:
"As a consequence of her borderline personality disorder, Ms Gordon can respond to stress in a both extreme and dysfunctional fashion particularly when intoxicated. This was the case in terms of the index offence."
As to whether the condition may reduce the appellant's moral culpability – the first Verdins principle – Dr Jordan says:
"There does not seem to be history of Ms Gordon previously assaulting her mother and her actions in using the knife and cutting her mother were serious. Ms Gordon's judgment at the time of these assaults was impaired.
However Ms Gordon had voluntarily become intoxicated and although the circumstances of her sexual abuse at the hands of her father were terrible, these arguments do not necessarily reduce her moral culpability."
As to whether the condition has bearing on the kind of sentence that is imposed and the conditions in which it should be served – the second Verdins principle – Dr Jordan says:
"An assault such as this by a daughter on a mother is most unusual. The circumstances of drug offences relate back to the sexual abuse allegations involving assaults by Ms Gordon's father on herself. Ms Gordon's life and trajectory have been deleteriously affected since those offences during her formative years albeit complicated as she grew up with substance misuse and other offences that led to periods in custody. She still requires significant psychological therapy to help her process what occurred to her and enable her to be able to face difficulties in her life without resorting to extreme behaviour, often in the context of intoxication.
In order to reduce the chances of further offending into the future, I would recommend that psychological therapy potentially via the domain of a supervisory order at the end of any custodial sentence is incorporated in the general sentencing terms. Ms Gordon should also receive the input of a drug and alcohol service – drug and alcohol rehabilitation is notoriously difficult to get accessed within the prison system and can only be genuinely offered on a return to the community." [My emphasis.]
Dr Jordan dealt with the third and fourth Verdins principles as follows. As to the possible moderation or elimination of general deterrence as a sentencing consideration, Dr Jordan says there will be little ground to reduce that factor given not only the gravity of the offence but the likelihood that in some fashion, it related back to substance misuse. "However it is accepted that the longer term circumstances of the relations between Ms Gordon and her mother are complicated."
As to the moderation or elimination of specific deterrence, Dr Jordan notes the appellant's personality structure and commensurate judgment-making that emanate from her personality, were significantly altered by her exposure to abuse and other events. She has significant problems in terms of self-esteem, emotional stability, difficulty controlling anger, trust and issues in terms of impulsivity. She has spent significant periods in custody, and there is no evidence that these periods have been successful in deterring future offending: "That is unlikely to change specifically if Ms Gordon does not receive the psychological and psychiatric inputs required for her to gain a better understanding of the enduring effects of the abuse and how to counter those."
The fifth and sixth Verdins principles can be dealt with together. As to the impact of imprisonment on the appellant, Dr Jordan says it is evident that the appellant has found the environment of prison somewhat paradoxically, quite stabilising compared with her existence in the community. Her mental state has improved significantly given the relative stability of the custodial setting for her, and she is taking regular psychotropic medication. Dr Jordan says, "Although not desirable, prison is not currently compromising her mental health condition but at the same time is not providing longer term solutions."
The published comments on passing sentence
It is necessary to set out part of the written reasons at some length. After detailing the facts, the sentencing judge continued:
"[Dr Jordan's] report describes a horrible childhood because your father was a violent alcoholic who frequently physically, sexually and emotionally abused you. Your exposure to that abuse during the formative years of your childhood has led to significant problems of low self-esteem, emotional instability and difficulty controlling anger. This has resulted in your having spent significant periods in custody in the past, none of which has, demonstrably, deterred you from further offending. It is opined by Dr Jordan that unless you receive psychological and psychiatric care, this will not change.
You have been diagnosed with post-traumatic stress disorder and borderline personality disorder. You have suffered depression and issues with substance abuse over an extended period. I accept that the abuse at the hands of your father was instrumental in the mental health problems which have emerged. That abuse is material because of the way in which it has complicated your relationship with your mother. This episode is an exhibition of the anger which has emerged from those issues. It explains it to that extent. It does not excuse it. In terms of your culpability, and the so called Verdins principles, I note the content of Dr Jordan's report, to the effect that those principles are not engaged.
Within the reports I have received, you have described your current mental health as good, something you attribute to the receipt of prescription antipsychotic drugs, appropriate antidepressants and mood stabilising medications through correctional health. Indeed Dr Jordan observes that the stability associated with your being in custody has benefited you. In that respect this period of incarceration represents an opportunity for you to engage in such programs as you can to address your anger issues, and to do so within a structured and relatively stable environment.
Your record is not a good one. You have a history of offending involving violence. I cannot ignore that in fixing sentence for the reason that it reveals not just a propensity to violence but the fact that past sentences have not deterred you, a matter I have already observed. The most recent offending occurred in 2017, and I note that there are older convictions between 1999 and 2014.
The pre-sentence report indicates that you are keen to address the criminogenic needs you have by completing anger management courses and re-engaging with mental health support and maintaining medication. If this is to succeed there needs to be a significant commitment on your part. You commenced a Court Mandated Diversion Program in the past, but your attendance and participation was unsatisfactory and the order was cancelled. Parole orders, although many years ago now, were revoked too due to your non-compliance. I don't intend to make a parole eligibility order, a matter which influences the length of the sentence I intend to impose. That is in part because of your past failures, but not principally so. It is because it is my view based on the psychiatric report that such treatment as is available is most likely to be efficacious within the prison environment, rather than through community based programs, at least initially. I will impose a community corrections order to carry you through on your release.
In sentencing you the Court must have regard to the need for personal and general deterrence. Most of the matters to which I have referred already, relate to the need to deter you. Those circumstances which are personal to you I have factored in to the sentence.
In terms of general deterrence, the objective is to deter others from behaving in the way that you have. The Court must also vindicate your victim, and impose a sentence which shows that it understands the impact of your offending on your mother. That offending was undeserved, unprovoked and cruel.
I take account of your plea of guilty and reduce the sentence I would otherwise have imposed by 20% in recognition of the benefit which accrues to the administration of justice thereby.
In particular that plea has saved the complainant the need to give evidence and relive what must have been a terrible experience.
I intend to impose a penalty in respect of the indictment and to record convictions in relation to the summary matters, on the basis that the summary matters arise from the same episode the subject of the indictment, and a sentence which approaches your conduct in that 'rolled up' way is the most logical and appropriate. In essence that is one penalty for all your conduct on this day." [My emphasis.]
The appeal
As to ground 1, the appellant argues that the sentence of two years' imprisonment without parole eligibility is manifestly excessive. It follows that there is some overlap with ground 2. That is because in addition to an alleged specific error, the appellant argues that the exercise of the discretion not to allow for parole eligibility was unreasonable or plainly unjust. No issue is taken with the making of the community correction order, although there is the question of the reference to alcohol dependency missing from the published comments and from the signed record which should be addressed in the re-sentencing process. In spite of that position, the CCO is relevant to the disposition of ground 2 for reasons I will later explain.
The specific error alleged under ground 2 concerns the sentencing judge's comment that he did not intend to allow for parole eligibility "because it is my view based on the psychiatric report that such treatment as is available is most likely to be efficacious within the prison environment, rather than through community based programs, at least initially". The appellant says this is the primary reason for not granting parole eligibility, but has identified a secondary basis, said to have been given excessive weight. This relates to the sentencing judge's suggestion of the appellant's "past failures", presumably relating to her release on parole in 2001. That release is noted in the record both before the sentencing judge and before this Court. However, if that is so, the record seems to have been misconstrued by all parties. I will mention that when dealing with ground 2.
There is one other matter which appears from his Honour's comments. It is that his Honour said that he did not intend to make a parole eligibility order, "a matter which influences the length of the sentence I intend to impose". It is probably more relevant to the issue of the head sentence of two years, and I will mention that when dealing with ground 1.
Ground 1 – Manifest excess?
The appellant does not submit that an immediate term of imprisonment should not have been imposed. The submission is that by not imposing a partially suspended sentence – whether combined with a CCO or not, or a non-parole period – the sentencing judge "did not mark the relative seriousness of the conduct and the competing aims of sentencing, resulting in a sentence that was manifestly excessive ...". It is said that the issues of the appellant's traumatic childhood, her mental health difficulties and the broader related aspect of rehabilitation should have been given appropriate weight.
The appellant points to mitigatory matters as follows. The plea of guilty, deep remorse, a difficult and traumatic childhood, sexual abuse by her father with her relationship with her mother being complicated as a result, depression and post-traumatic stress disorder with those matters affecting her life and contributing to the crime, the feeling of shame and upset about her behaviour to the extent of self-loathing, and insight into the difficulties she experienced along with the concession of the need for counselling and treatment. Much of the focus of the submissions was on Dr Jordan's report; in particular, that part in which Dr Jordan addressed the Verdins principles.
It will be recalled that the sentencing judge said those principles were not engaged. The appellant takes issue with that statement but accepts that Dr Jordan's statements are, in some respects, a little equivocal. Nonetheless, the appellant says that the first four Verdins principles were, to varying degrees, relevant in the sentencing process. First, in relation to the moral culpability issue, the appellant submits that in spite of the terms in which Dr Jordan's comments were expressed, he provided sufficient evidence that because of mental impairment, the appellant's judgment was impaired.
It will be recalled that Dr Jordan said the appellant's judgment at the time of the assaults was impaired but that, however, she had voluntarily become intoxicated. He added although the circumstances of the sexual abuse were terrible "these arguments do not necessarily reduce her moral culpability." The qualification seems to relate to intoxication.
The appellant points out a later paragraph in the report to the effect that as a consequence of her borderline personality disorder, the appellant can respond to stress in a both extreme and dysfunctional fashion, particularly when intoxicated. The submission is that, in short, the appellant's judgment was impaired at the time and that there is evidence in the material that this was not simply due to intoxication. That is, the intoxication compounded the effects of the borderline personality disorder and post-traumatic stress disorder, making them more severe.
Turning to the second Verdins principle, the appellant argues that there was sufficient in Dr Jordan's report to make mental impairment a relevant consideration in relation to the kind of sentence that is imposed. In this regard, the appellant refers to Dr Jordan's recommendation for psychological therapy, and drug and alcohol rehabilitation, that being notoriously difficult to be accessed within the prison.
Further, although the applicability of the third Verdins principle was disavowed before the sentencing judge, the appellant now relies on the relevant parts of Dr Jordan's report in support of the moderation of general deterrence as a sentencing consideration. The reason advanced is that the unusual nature of the crime in terms of its motivation, together with the mental health considerations, make the appellant an inappropriate medium for making her an example to others.
It was put to the sentencing judge that the factor of specific deterrence had less weight because the appellant had largely become institutionalised with no effect, and had poor insight into her psychological and psychiatric issues. The appellant also puts the matter to this Court on the basis that these things highlight the need for significant weight to be given to the need for rehabilitation.
Lastly, as I have noted, the appellant's argument is that this ground is in part based on the failure of the trial judge to make provision for parole eligibility. Such a failure, or a very lengthy parole ineligibility period may make a sentence manifestly excessive: Pickrell v Tasmania [2011] TASCCA 13; Groenewege v Tasmania [2013] TASCCA 7; Deakin v Tasmania [2016] TASCCA 19.
Discussion
Generally speaking, in order for the first, second, third and fourth Verdins principles to have application, there must be a connection between the impairment of mental functioning and an offender's moral culpability or the need for general and specific deterrence; if the mental impairment exists with the type of offending, it must have some, at the least, realistic connection with the offending. To show the necessary connection the offender must establish that the mental impairment affected his or her ability to appreciate the wrongfulness of the conduct, or obscure the offender's intent to commit the offence, or impaired the ability to make calm and rational choices or to think clearly at the time of the offence. For these propositions see Director of Public Prosecutions v O'Neill [2015] VSCA 325, 47 VR 395 at [74]-[75].
In my view, reading Dr Jordan's report as a whole, there is sufficient to establish mental impairment, and a contribution of that impairment to the offending. I think it can fairly be said that there is some reduction in moral culpability given the underlying personal relationship issues between the appellant and her mother, the cause of that, and the fact that it was that which was at the heart of the assault. As noted in the pre-sentence report the appellant had been harbouring resentment towards her mother for a long time, and had wanted answers since she was a child. As to general deterrence, I think there is some ground for moderating this factor because the evidence suggests that the psychological disorders impaired the appellant's judgment at the time of the assaults. However, the case for significant moderation of this factor is not a compelling one. That is primarily because of the degree and effect of intoxication.
For the specific deterrence factor to be moderated because of mental impairment, the impairment must reduce or negate the offender's capacity to learn from the pronouncement of the court: R v Curtain [2007] VSC 309 at [59]. Alternatively, the factor might be eliminated as a consideration where the offender, because of the mental condition, has no insight into the condition, or by reason of the illness, is not able to accept blame: R v Imadonmwonyi [2008] VSCA 135 at [27]. In this case, there is support in Dr Jordan's report for the first proposition to the extent of some reduction in the appellant's capacity to take heed of the sentence passed.
Of course, aggravating features of the offending need to be considered. The first is the appellant's state of mind. In this appeal, the respondent submits that the wounding was intentional, although that submission was not made to the sentencing judge and his Honour made no finding. It seems clear that the holding of the knife against the complainant's neck was intentional, and even if the infliction of the wound itself was reckless, the degree of recklessness was so high that the distinction between the specific intention and recklessness would have little ultimate consequences in terms of the outcome. The respondent identified further aggravating factors as follows: the inherent danger of the conduct, the use of several knives, the attack being in the complainant's home, and that Mr Dobson was assaulted "in the process of doing a good deed". All of that must be accepted.
Counsel for the respondent put before the Court some statistical data. First, the range of sentences for a single count of wounding between 1990 and 2000 was between one month and two years, while the range for the same period for global sentences involving a count of wounding was between one month and three years. Additionally counsel referred to more contemporary data provided by the Sentencing Advisory Council. The range of sentences for a single count of wounding between 2001 and 2014 (141 cases) was between two months and five years, with a median of 12 months. For the same period, multiple counts involving at least one count of wounding (59 cases) the range was between 4 months and 3½ years, with an average of 14.7 months.
Of course, it is trite that an established range does not mean that the range is correct, nor that its lower and upper limits are correct. Even where a sentence is outside the range of comparable offending it is not determinative of the issue; it merely serves to increase the level of scrutiny, with the appeal court to make its own valuation of the gravity of the offence in light of all the facts and circumstances. See for instance Cordwell v Tasmania [2017] TASCCA 14 at [38] and the cases cited; TGW v Tasmania [2017] TASCCA 10 at [38].
Resolution
The view I have reached about this ground is that of itself, the head sentence of two years cannot be said to be manifestly excessive. It is not outside the range available to the sentencing judge in the exercise of a sound discretionary judgment. Although the long-term physical consequences to the complainant might not have been great, the physical actions involved in the offence make it a serious one. The appellant was intoxicated and there was a high risk of very serious injury. Although there is no victim impact statement, clearly the attack would have caused the complainant much emotional distress and anxiety. The Court must not overlook the assault on Mr Dobson, involving as it did, a threat to stab him while the appellant was holding two knives.
I do not disregard the appellant's traumatic childhood, the presence of mental disorders, and the relationship issue which lay at the heart of the attack. However, in my view, those matters are more appropriately taken into account in relation to whether any relief ought to have been afforded in relation to the service of the two years' imprisonment. Although of course relevant to setting the head sentence, they also readily relate to the question of the appellant's rehabilitation.
The issue of parole eligibility is specifically the subject of ground 2. As I have concluded that the appeal should succeed on that ground, I do not think I need to say any more about the present ground, save to say that were it necessary to decide, I would take the view that the failure to make provision for parole makes the sentence of two years' imprisonment manifestly excessive.
Before leaving this ground, I refer to the sentencing judge's approach to the effect that his intention not to make a parole eligibility order influenced the length of the sentence he intended to impose. This approach appears to be contrary to principle: R v Currey [1975] VR 647 at 651; R v Grmusa [1991] 2 VR 153 at 158; R v Zamagias [2002] NSWCCA 17 at [26]; Whitehurst v The Queen [2011] NTCCA 11 at [27]. Although the approach adopted operates in the appellant's favour, it would be an error vitiating the exercise of the discretion.
Ground 2
The appellant argues that the sentencing judge "misapplied" material relevant to the consideration of parole. As earlier noted, this relates to the sentencing judge's comment that the reason he would not grant parole eligibility was that such treatment as is available is most likely to be efficacious within the prison environment, rather than through the community, at least initially. The appellant argues that there was no support in this in Dr Jordan's report or in any other material.
The appellant points to the following statements of Dr Jordan as possibly the source of his Honour's comment, parts of which statements I have emphasised:
· It is evident that the appellant has found the environment of the prison, somewhat paradoxically, quite stabilising compared with her existence in the community.
· Although not desirable, prison is not currently compromising her mental health condition but at the same time is not providing longer term solutions.
· The appellant's mental health state has improved significantly given the relevant stability of the custodial setting for her.
However, it will be recalled that earlier in the report, Dr Jordan says:
· He recommends that psychological therapy potentially via the domain of a supervisory order at the end of any custodial sentence, be incorporated in the general sentencing terms.
· The appellant should also receive the input of the drug and alcohol service – drug and alcohol rehabilitation is notoriously difficult to be accessed within the prison system and can only be generally offered on a return to the community.
With respect, I find it a little difficult to understand what the sentencing judge had in mind when he made the impugned comment. It is certainly arguable that what his Honour said is not consistent with Dr Jordan's report. But it might well be that his Honour took the view that the better option from a sentencing perspective was a continuation of the prison regime "at least initially", to be then followed by community-based intervention. Given the manner of expression, I am not persuaded that there has been any specific error relating to the misapplication of the material, as argued by the appellant.
However, I am concerned about the reference to the appellant's "past failures"; an apparently clear reference to what his Honour described as the revocation of parole "orders" which, "although many years ago now, were revoked too due to … non-compliance". Again with respect, I find this rather puzzling. The record shows a release on parole on 24 July 2001 for six months and 15 days. There follows what is noted as a variation of that order on 8 August 2001 with an end date of the parole period being set as 8 February 2002. The only effect of that seems simply to have been fixing a date rather than setting a period.
There is no record of any offence being committed within the parole period. The record contains no later reference to revocation, nor any release on parole as there is no later term of imprisonment in respect of which, because of the lengths of the terms involved, parole eligibility could have been ordered.
I note that in the proceedings before the sentencing judge, when outlining the appellant's prior convictions, Crown counsel did not suggest any breach of parole or refer in any way to the release on parole in 2001, and neither did counsel for the appellant. In this Court, the appellant's counsel seemed to accept that there had been parole breaches in 2001, but submitted that because of their antiquity and the appellant's age at the time, they were of no real significance.
I think it is an inevitable conclusion that the sentencing judge misunderstood the import of the entries in the record relating to parole in 2001. This misunderstanding affected his Honour's view as to parole eligibility. Such a mistake is a material one vitiated in the exercise of the discretion, requiring this Court to proceed to re-sentence: Kentwell v The Queen [2014] HCA 37, 252 CLR 601 at [42]; Jenkins v Tasmania [2019] TASCCA 12 at [139]. That said, as the factual error I have identified was not relied on as such, nor the subject of any submissions, and as the appeal should be allowed on other grounds, I am content to leave the matter there.
Before dealing with the argument that the decision not to provide for parole eligibility was an unreasonable exercise of the discretion, I need to mention an important point. Section 17(2)(b) of the Act provides that a court that imposes a sentence of imprisonment on an offender may order that the offender is not eligible for parole in respect of that sentence before the expiration of such period as is specified in the order. My point is that with the combination of the orders made – a term of imprisonment and a CCO – the sentencing judge could not, as a matter of law, have made an order under s 17(2)(b).
That is because of s 17(2A), which is in the following terms:
"(2A) A court that imposes a sentence of imprisonment on an offender may not make an order under subsection (2)(b) in respect of the offender if the court —
(a)makes in respect of the offender a community correction order; and
(b)orders that the operational period, within the meaning of section 42AM , of the community correction order is to commence at the end of the sentence of imprisonment."
Other relevant provisions of the Act are s 8(1)(a) and s 42AR(2). The former states that a court that orders a term of imprisonment may also make a CCO "but only if the sentence of imprisonment is not for a term of more than two years". The latter provides that for the purposes of specifying in a CCO when the operational period of the order commences, a court may specify that the period commences "when the offender lawfully ceases to be imprisoned under a sentence of imprisonment that has not been wholly suspended". Accordingly, if a term of imprisonment is two years or less, a CCO can be made but no parole eligibility ordered; if the term is greater than two years, parole eligibility can be ordered but no CCO made.
It can be seen that the s 17(2A) prohibition on creating parole eligibility arises if a CCO is made, and the operational period is ordered "to commence at the end of the sentence of imprisonment". That is different to the wording of s 42AR(2)(c). Arguably, the phrase "ceases to be imprisoned under a sentence of imprisonment" could mean when an offender is released on parole, although a person on parole is still subject to the term of imprisonment. Section 42AR(2) is undoubtedly an enabling provision, and the wording of s 17(2A)(b) has to be read in that light. The difference in wording would simply seem to be poor drafting.
Section 17(2A) was inserted by the Sentencing Amendment (Phasing out of Suspended Sentences) Act 2017 with effect from 14 December 2018. That legislation introduced CCOs. As I have shown, the operation of the Act in its amended form clearly provides for parole and community orders to be alternatives depending on the length of the term of imprisonment. Two years is the cut-off point. This was the recommendation of the Sentencing Advisory Council: Phasing out Suspended Sentences-Final Report, March 2016 at 106-108. The Council referred to "significant conceptual and practical difficulties" in combining parole eligibility and CCO's.[2]
[2] That phrase was used by the Court in Boulton v The Queen [2014] VSCA 342, 46 VR 308 at [199]. The Court said the two types of orders should not ordinarily be treated as alternatives.
These reasons are not the appropriate vehicle to debate the issue. Suffice it to say that for my part the reduction in the flexibility previously possessed by a sentencing court is not ideal, and may hinder a court's attempts to fashion a sentence in the interests of the community and of the offender. Of course, where there is parole eligibility, release is at the discretion of the Parole Board, while the operation of a CCO is certain.
By a combination of provisions in the Act and in the Corrections Act 1997, a court can order parole eligibility for a period up to one half of the sentence, with the prisoner not to be released before the completion of the non-parole period or a continuous period of six months whichever is the greater. Any period of parole ordered by the Parole Board, and the period of the sentence of imprisonment the prisoner has already served at the time of release, may exceed the full term of the sentence. In relation to CCO's, s 42AP of the Act specifies special conditions that a court may impose. They range in nature from punitive and disabling to rehabilitative and therapeutic.
With sentences of two years or less, a court might take the view that parole eligibility is fully warranted
,while at the same time regard a CCO relating to appropriate supervision and rehabilitative intervention as strongly indicated on different or overlapping grounds. With sentences of more than two years, a certainty of supervised structured rehabilitation might be highly desirable. I should note that in this State, parole and CCOs are both managed by the agency of Community Corrections.In all of this, the only way to approach the ground of appeal is to determine whether the exercise of the discretion miscarried due to a failure to afford some relief from immediately serving the full two year term. Several options were open. One was to suspend the execution of part of the term. Additionally, if it were thought desirable, instead of making a CCO, the effect of such an order could have been introduced into the sentence pursuant to s 24(2) of the Act. Appropriate conditions of the suspension could have been ordered, thus adding additional rigour to the rehabilitative component. Where supervision is a condition of suspension, the core conditions of a CCO become conditions of suspension by virtue of ss 24(5B) and 42AO.
Speaking generally, and using the often quoted passage from Power v The Queen (1974) 131 CLR 623 at 629, parole is intended to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom once the prisoner has served the minimum time that a judge determines justice requires that he must serve, having regard to all the circumstances of the offence. Considerations of mitigation or rehabilitation may make it unnecessary, or even undesirable, that the whole of a sentence should actually be served in custody: R v Shrestha (1991) 173 CLR 48 at 67.
A failure to provide for eligibility for parole increases the severity of the punishment. While it may have the effect of protecting the public, an absence of parole eligibility may discourage reformation and good behaviour in prison, and prevent or lessen the chances of rehabilitation under supervision through conditional freedom. See Gill v The Queen unreported serial no 34/1990 per Crawford J (as he then was) at 7-8, Neasey J agreeing.
As to suspending the execution of all or part of a term of imprisonment, consideration of such an order involves close attention to how the exercise of that discretion would contribute to the rehabilitation of the offender. However, the power to suspend is not confined by reference wholly, mainly or specially to the effect the suspension would have on the rehabilitation. Attention can be given to circumstances personal to the offender as well as objective features of the offence: Dinsdale v The Queen [2000] HCA 54, 202 CLR 321 per Gaudron and Gummow JJ at [26], per Kirby J at [86]-[87].
In this case, although counsel for the Crown did not specifically point it out to the sentencing judge nor did his Honour mention it, the appellant was the subject of a suspended term of imprisonment at the time of this offending. On 29 August 2019 the appellant was sentenced to six months' imprisonment the execution of the whole of which was suspended on conditions for two years. That was imposed in respect of traffic offences including evade police. This offending was about six weeks later. In the sentencing proceedings, the Crown did not make an application for its activation, and there has been no other opportunity for such a step.
When the appellant's background of sexual abuse, her nature and extent of her illnesses, the underlying explanation for the attack on her mother, her remorse and the prospects of rehabilitation with sustained psychological therapy are taken into account, I do not think that a suspension of part of the two year term would have been unwarranted or unjustifiable.
Adopting the approach to this ground that I have outlined, I consider the failure to provide some relief from the full force of the two years' imprisonment, to be unreasonable and plainly unjust. Because of the circumstances of the offences and of the offender that I have just outlined, the case called for some individualisation. The sentencing discretion miscarried to that extent. I would uphold ground 2.
I would allow the appeal and set aside all sentencing orders. In the pre-sentence report, the probation officer recommended community supervision. That should again be adopted but the mechanism and conditions will be different. I would sentence the appellant to two years' imprisonment to commence on 10 October 2019, the execution of eight months of which is suspended on the following conditions:
(a)She commit no offence punishable by imprisonment for a period of 18 months from her release.
(b)During that period, she is subject to the supervision of a probation officer and must:
(i) submit to the supervision of a probation officer as required by the probation officer;
(ii) attend educational or other programs as directed by a probation officer;
(iii) undergo assessment and treatment for drug and/or alcohol dependency as directed by a probation officer;
(iv) submit to testing for drug and/or alcohol use as directed by a probation officer;
(v) submit to medical, psychological or psychiatric assessment or treatment as directed by a probation officer.
Because of section 24(5B) of the Act, some of the core conditions of a CCO apply. They are set out in s 42AO(b), (c), (d), (e) and (f). As required by s 42AO(b), I would specify a day within two clear working days of release as the day on or before which, and 114 Bathurst Street Hobart as the place at which, the appellant must report to a probation officer.
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