Graeske v The Queen
[2015] VSCA 229
•28 August 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0048
| JOSHUA GRAESKE |
| v |
| THE QUEEN |
---
| JUDGES: | MAXWELL P and WHELAN JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 23 July 2015 |
| DATE OF ORDERS: | 20 August 2015 |
| DATE OF REASONS: | 28 August 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 229 |
| JUDGMENT APPEALED FROM: | DPP v Graeske (Unreported, County Court of Victoria, Judge Wischusen, 7 November 2014) |
---
CRIMINAL LAW – Appeal – Sentence – Recklessly causing serious injury – Assault on sports field – Sentence of 3 years’ imprisonment with non-parole period of 2 years – Combination of imprisonment and community correction order available – Whether judge overlooked option of combination sentence – Importance of treatment to address causes of offending – Appeal allowed – Re-sentenced to 1 year’s imprisonment with a 3 year community correction order – Boulton v The Queen [2014] VSCA 342 applied – Sentencing Act 1991 s 44(1).
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms C A Boston with Mr A Imrie | Melasecca Kelly & Zayler |
| For the Respondent | Ms D Piekusis | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
MAXWELL P
WHELAN JA:
On 28 February 2014 the applicant pleaded guilty to one count of recklessly causing serious injury before a judge in the County Court. The plea hearing began on 14 August 2014 and was adjourned until 31 October 2014 so that further psychiatric and medical evidence could be obtained. On 7 November 2014 the applicant was sentenced to a term of imprisonment of three years. A non-parole period of two years was fixed. The judge indicated that but for the plea of guilty the applicant would have been sentenced to four years six months’ imprisonment with a non-parole period of three years six months. Pre-sentence detention of seven days was declared. The applicant sought leave to appeal that sentence.
The application was heard on 23 July 2015. A pre-sentence report under s 8A of the Sentencing Act 1991 was ordered and the hearing resumed on 20 August 2015. On that day, orders were made granting leave to appeal, allowing the appeal and substituting for the sentence imposed below a sentence of imprisonment for one year with a community correction order of three years commencing upon the expiry of the term of imprisonment. The Court indicated reasons would be published subsequently. These are those reasons.
Circumstances of the offence
At the time of sentence the applicant was 23 years of age. The offence was committed on 14 July 2012 when the applicant was 21 years of age.
The offence itself was committed during the course of an amateur AFL football match. The applicant and the victim were playing against each other. Disputes of a kind which are not unusual in the course of AFL football occurred, culminating in an incident where the applicant and the victim were wrestling. What then occurred was described as follows in the prosecution summary which was tendered on the plea and which was accepted as being accurate:
[The applicant] then dropped to his knees while holding [V’s] jumper, pulling [V] towards him, before twisting so that [V] rolled onto the ground on his back. [The applicant] then straddled [V’s] chest with his knees pinning [V’s] right arm underneath [the applicant’s] left knee.
With [V] pinned down [the applicant] began punching [V] to the face with both fists about five times. [V] turned away and tried to shield his face with his left hand but [the applicant] kept punching [V] to the right side of his face and the back of his head. [The applicant] punched [V] six to eight times in the face and kneed him two or three times to the face. It is noted that the punches to the face caused the majority of the injury. …
…
Other players from each team dragged [the applicant] off [V].
The victim left the field and was taken to Burwood Medical Centre and then to the Epworth Hospital. On the way to the hospital he went into shock and began shaking and vomiting. He was treated at the Epworth Hospital and received further medical treatment subsequently. He was initially diagnosed as suffering nasal fractures, fractures of the right orbit, lacerations and bruising. Later CT scans revealed a displaced right orbital floor fracture as well as medial wall fractures.
The victim impact statement tendered on the plea revealed that the victim suffered considerably for months after the incident. He had significant problems at work and in his private life. He did not play football again that year. At the time the victim impact statement was prepared he was considering whether to have further surgery in relation to ongoing problems which he was experiencing as a result of his injuries.
Applicant’s criminal history
The applicant has prior convictions for violent offending. On 18 December 2009 he was dealt with in two courts, the Dandenong Children’s Court and the Dandenong Magistrates’ Court. In the Children’s Court he was convicted of offences of recklessly causing injury and resisting police and was sentenced to a total effective sentence of four months in a youth justice centre. In the Magistrates’ Court he was convicted of recklessly causing serious injury and assault with an instrument and was sentenced to be detained in a youth training centre for a total effective sentence of 14 months. In the course of the plea the sentencing judge was told that he had been released after 10 months.
In the Melbourne Magistrates’ Court on 10 May 2010 the applicant was convicted of two counts of unlawful assault for which he was fined.
The plea hearings — 14 August 2014 and 31 October 2014
The submission made on behalf of the applicant at the initial plea hearing on 14 August 2015 was that a community correction order was ‘the appropriate sentence in all the circumstances of this case’.
During that hearing the sentencing judge expressed concern about the applicant’s psychiatric condition and history. The plea was adjourned to obtain further information in relation to those matters. There was already a report by the psychologist, Ms Carla Lechner, dated 10 August 2014. A further report, by the psychiatrist Dr Anthony Cidoni, dated 16 October 2014, was obtained after the plea was adjourned and was relied upon at the resumed plea hearing on 31 October 2014. In addition, medical records from Cardinia Medical Centre were obtained and tendered. Those records had been made available to Dr Cidoni.
At the resumed plea hearing on 31 October 2014 the submission on behalf of the applicant that the appropriate sentencing disposition was a community correction order was repeated.
In the course of addressing the relevance of the applicant’s psychiatric condition and history counsel on his behalf submitted the following to the sentencing judge:
It doesn’t really expand upon that as to whether that would impact on his moral culpability, so I don’t make that submission per [se], but it’s a factor to be considered, in the overall assessment of his mental health and the desirability or otherwise of a [sentence] of imprisonment in terms of prospects of rehabilitation [for] Mr Graeske, but also in what’s in the community’s best interest and ultimately I’ll be submitting to your Honour that a corrections order that has both the punitive aspect to it, unpaid community work and a therapeutic aspect to it is a sentence that can meet the — those dual requirements of punishing Mr Graeske for what he’s done, as well as reducing his risk of reoffending and enabling him to hopefully live a productive life in the community and not reoffend again. Yes, your Honour, otherwise just rely on the matters set out in the reports that have been tendered.
A little later the following submission was made:
Ultimately, your Honour, the submission is that notwithstanding the fact that there are previous custodial sentences for similar offending, given the circumstances of this offending, the plea and the matters that I’ve taken your Honour to, the appropriate sentence would be a community corrections order and that one that will require Mr Graeske to undertake potentially a significant amount of unpaid hours to punish him and show the court’s denunciation for his conduct, and also require him to undergo ongoing counselling and therapy of a psychological nature to enable him to stay out of trouble and hopefully not get into any trouble of this kind or any kind in the future … Ultimately, the submission is it would be a backward step to now imprison him after that period of time and put him in company with other offenders and jeopardise his mental health, and that wouldn’t be, in my respectful submission, in either his interests or the community’s interest.
It is important to note at this point that the submissions made were premised upon an assumption that the sentencing judge was faced with a choice between imprisonment and a community correction order. The possibility of a combination of both was not addressed.
The prosecution submission in response was brief. The prosecutor submitted:
The prosecution submission is that only a sentence of immediate custody would be appropriate.
Again, an assumption appears to have been made that the choice was between imprisonment and a community correction order. The possibility of a combination was not addressed.
Amendments between the plea hearings and guideline judgment in Boulton
On 29 September 2014 the Sentencing Amendment (Emergency Workers) Act2014 commenced. Amongst other things, this Act inserted ss 5(4C) and 36(2) into the Sentencing Act 1991 and substituted the existing s 44(1) with a new provision.
The new s 5(4C) provides:
A court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a community correction order to which one or more of the conditions referred to in sections 48F, 48G, 48H, 48I and 48J are attached.
The new s 36(2) states:
Without limiting where a community correction order may be imposed, it may be an appropriate sentence where, before the ability of the court to impose a suspended sentence was abolished, the court may have imposed a sentence of imprisonment and then suspended in whole that sentence of imprisonment.
The new s 44(1) increased the maximum term of imprisonment which could be combined with a community correction order from three months to two years.
Both the explanatory memorandum to the amending Act and the Attorney-General’s second reading speech emphasised that community correction orders were intended to have a punitive effect and could be an appropriate sentence to address serious offending.
On 22 December 2014 this Court published a guideline judgment in DPP v Boulton.[1] Amongst other things, that guideline judgment emphasised the significance of the amendments which came into operation on 29 September 2014.[2]
[1][2014] VSCA 342 (‘Boulton’).
[2]Ibid [117]–[121].
Application for leave and proposed grounds
The applicant sought leave to appeal the sentence on two proposed grounds. They were as follows:
1The learned sentencing judge erred in failing to have regard to the amendments to the Sentencing Act 1991 effected by the Sentencing Amendment (Emergency Workers) Act 2014.
2 The head sentence and non-parole period are manifestly excessive.
Ground 2
In relation to proposed ground 2, our conclusion was that that ground was not arguable. The sentence here was clearly within range. Leave to appeal was refused on this ground.
Ground 1
No express reference was made either during the course of the plea hearing or in the sentencing reasons to the amendments which commenced on 29 September 2014.
The sentencing judge addressed everything put to him on the plea in an impeccable manner.[3] The problem arises as a result of matters not put.
[3]DPP v Graeske (Unreported, County Court of Victoria, Judge Wischusen, 7 November 2014).
The absence of reference to the option of imprisonment combined with a community correction order is difficult to understand given the following matters:
(a)consequent on the amendments, a term of up to two years’ imprisonment could be combined with a community correction order, thereby meeting the prosecution submission that an immediate custodial sentence was required;
(b) the applicant was a young offender;
(c)the applicant had never been given a community-based disposition before; and
(d)Dr Cidoni’s opinion, which the sentencing judge accepted, was that the applicant suffered from a depressive disorder and an associated generalised anxiety disorder as well as a substance abuse disorder associated with cannabis and alcohol. Consideration of how effective treatment might be obtained, and consideration of the possibility of a combined term of imprisonment and a community correction order in that context, was called for, given the amendments, and given the matters subsequently elucidated in Boulton. I will return to Dr Cidoni’s report.
The significance, and perhaps even the existence, of the amendments must have been overlooked by both counsel. The explanation for this may well be the timing of the plea hearing. The plea hearing straddled the date upon which the amendments became operative. The plea and sentence were before the decision in Boulton. Whatever the reason, counsel for neither party addressed the amendments. Without any submissions on what was obviously an important matter to be considered in this case, we were forced to conclude that the sentencing judge had misdirected himself as to the available sentencing options.
Ground 1 was made out. Leave to appeal was granted. The issue then was whether a different sentence should be passed.
The applicant’s personal circumstances
The applicant is one of three children. His parents separated when he was young. His mother formed a new relationship and the applicant experienced considerable difficulties with his mother’s new partner. He left home as a young teenager. His schooling was disrupted. He has a long history of substance abuse commencing in his early teenage years. Notwithstanding these difficulties, he has maintained employment for significant periods of time and has had a long-term relationship.
The applicant pleaded guilty and the sentencing judge accepted that he was genuinely remorseful. He is young. He was 21 at the time of the offence and 23 at the time of sentence. The applicant did not commit any offences during a lengthy period of delay between the commission of this offence and the sentence. The sentencing judge assessed the applicant’s rehabilitation prospects as reasonable. The applicant has never had the opportunity of a community correction order.
The applicant filed further written submissions in relation to relevant matters which had occurred since sentencing. The submissions filed and the material attached to those submissions indicated that the applicant has been taking up such opportunities as have been available to him in the prison system. He has completed a number of courses. He has attempted to gain entry into violence and substance abuse programs, thus far without success due to the demand upon those programs within the prison system. Urine screen analyses confirm that he is drug free. A number of additional references from friends and family members were attached to the further submission testifying to the applicant’s determination to rehabilitate himself and to assist his family. He has re-established the long-term relationship to which I previously referred.
In written submissions in response the respondent queried the assumption that effective intervention was unlikely in prison and submitted that, in any event, the applicant’s rehabilitation must not yield to other sentencing purposes. It was submitted that if a term of less than two years’ imprisonment was seen as appropriate, a community correction order longer than one year (the period of eligibility for parole under the existing sentence) could be imposed.
The pre-sentence report
A pre-sentence report dated 31 July 2015 was received and further oral submissions were heard on 20 August 2015.
The pre-sentence report has both positive and negative aspects.
The report indicates that, in the account he gave the Corrections officers of his offending, whilst Mr Graeske expressed remorse for his victim, he also sought to minimize his offence and to cast some of the blame on the victim.
The report confirms the re-establishment of his relationship with his former partner and also advises that Mr Graeske has re-established a relationship with his biological father. But the report also states that Mr Graeske has been involved in three prison incidents ‘each involving physical and verbal aggression as a result of his not being able to receive his medication’.
Disturbingly, the report contains the following passage:
It is noted on 17.07.2015, prison staff were monitoring a National Aboriginal and Islander Day Observance Committee (NAIDOC) football match when they noticed two prisoners, one being Mr Graeske, starting to push each other. This incident escalated into both prisoners, according to a prison incident report, ‘throwing multiple punches’ at each other. Other prisoners were attempting to separate them, however they continued to throw punches at each other. Both prisoners were escorted to the Management Unit, where the other prisoner continued to be verbally aggressive towards Mr Graeske. The investigation has commenced, however no outcomes have yet been completed for this incident.
The report assesses Mr Graeske as being ‘at high risk to reoffend’ and recommends the following conditions be imposed on any community correction order:
· supervision;
· assessment and treatment for drug and alcohol abuse or dependency;
· mental health assessment and treatment; and
· assessment and participation (if suitable) in programmes to reduce the risk of re-offending.
Counsel for the applicant submitted that the matters of concern in the pre-sentence report, namely the prison incidents over medication and the incident on the football field, were exactly what Dr Cidoni, the psychiatrist who had assessed Mr Graeske prior to the plea, would have predicated. Dr Cidoni’s major conclusions in this regard were set out by the sentencing judge in his sentencing reasons.
Relevantly, Dr Cidoni had said that psychological treatments, involving anger and anxiety management strategies, implemented by a clinical psychologist, would be the ‘mainstay’ of the steps which needed to be taken to address Mr Graeske’s risk of re-offending. He said that this could be undertaken by a mental health plan subsidised by Medicare. Dr Cidoni said that it was significant in assessing Mr Graeske’s prospects of rehabilitation that he had never had specific psychotherapy treatment. He said Mr Graeske would present a risk of reoffending ‘unless and until effective psychological treatment can be put in place’. He predicted that Mr Graeske would be very vulnerable and unstable in gaol and would suffer from escalated anxiety, depression and anger. Mr Cidoni doubted that further medication would be of ‘any more use than it has been so far, and that is marginal at best’.
Counsel for Mr Graeske submitted that the pre-sentence report revealed that Dr Cidoni’s predictions had been realised, and that the incidents referred to in the pre-sentence report highlight the importance of a disposition which would enable the steps to be taken which Dr Cidoni had said would address the risk of re-offending. Counsel said Mr Graeske had received no psychological treatment in gaol, other than medication. He had undertaken no offence-specific programs, despite his efforts to do so, and had no prospect of undertaking any such programs as he had not even been assessed for them.
Counsel for the Crown submitted that it ought not to be assumed that psychological treatment and offence specific programs would not be available to the applicant in custody. But when the Court pressed for detail as to Mr Graeske’s individual position, we were told that the Director of Public Prosecutions is unable to obtain information of that kind from Corrections Victoria.
Issues such as the availability of treatment and programs can be very significant in assessing the appropriate disposition in cases of this kind. If it is the case that Corrections Victoria does not, or cannot, make this kind of information available to the Director of Public Prosecutions, where it is relevant, that means the sentencing court is without important, and potentially critical, material.
The submissions made on the applicant’s behalf were cogent. A sentence which ensured that psychological treatment, and, if appropriate, offence-specific programs, were available would enable the causes of the offending to be addressed. In that way, the objective of community protection can be advanced. This is the kind of case, in our view, in which a combination sentence can be seen as appropriately serving the applicable sentencing objectives.
Disposition
For these reasons we concluded that the appeal on ground 1 should be allowed, and that a different sentence should be imposed with a shorter term of incarceration and a longer term of supervision under a community correction order.
The sentence of the Court below was set aside and in lieu thereof the applicant was sentenced to be imprisoned for a term of one year with a community correction order of three years commencing upon his release, upon the following conditions (in addition to the mandatory statutory terms: Sentencing Act 1991, s 45):
· the applicant undergo treatment and rehabilitation (Sentencing Act 1991, s 48D), specifically:
o assessment and treatment for drug and alcohol abuse or dependency;
o mental health assessment and treatment; and
o assessment and participation (if suitable) in programs that address factors related to his offending behaviour; and
· the applicant is to be supervised, monitored and managed as directed by the Secretary to the Department of Justice (Sentencing Act 1991, s 48E).
The applicant had consented to an order in those terms.
Insofar as it is necessary to do so, we indicate pursuant to s 6AAA of the Sentencing Act 1991 that had the applicant not pleaded guilty we would have sentenced him to a term of imprisonment of four years six months with a non-parole period of three years six months. The ancillary orders made in the court below were confirmed.
- - -
4
0
0