Green v The Queen
[2011] VSCA 311
•14 October 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2010 0272
| TROY GREEN | Appellant |
| v | |
| THE QUEEN | |
| Respondent |
---
| JUDGES | MAXWELL P and LASRY AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 9 June 2011 |
| DATE OF JUDGMENT | 14 October 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 311 |
| JUDGMENT APPEALED FROM | DPP v Green (Unreported, County Court of Victoria, Judge Gamble, 27 July 2010) |
---
CRIMINAL LAW – Appeal – Sentence – Armed robbery, recklessly causing injury – Mental illness – Impaired mental functioning – Moral culpability ‘somewhat reduced’ – Application of principles in R v Verdins (2007) 16 VR 269 – Significance of principle of just punishment where moral culpability reduced – Whether specific deterrence relevant – Whether pre-meditation and use of force capable of aggravating seriousness of offence – Manifest excess – Appeal dismissed.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J McLoughlin | Victoria Legal Aid |
| For the Crown | Mr P Kidd | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P:
Summary
The appellant (‘TG’) pleaded guilty to two charges of armed robbery and one charge of recklessly causing injury. He was sentenced as set out below.
| Charge | Offence | Maximum | Sentence | Cumulation |
| 1 | Armed robbery | 25y | 4y | BASE |
| 2 | Recklessly cause injury | 5y | 12m | – |
| 3 | Armed robbery | 25y | 3y | 12m |
| TES: 5y 6AAA TES: 6y 6m NPP: 3y NPP: 4y | ||||
The central issue on the appeal concerned the implications of the judge’s finding, made in accordance with the first principle in R v Verdins,[1] that TG’s moral culpability was reduced on account of his impaired mental functioning at the time of the offending. The issue arose in this way.
[1](2007) 16 VR 269 (‘Verdins’).
TG had a long history of paranoid schizophrenia. The sentencing judge held that there was a connection between his mental illness and the offending conduct, such that his moral culpability should be viewed as ‘somewhat reduced’. At the same time, his Honour said:
(a) the appellant had to be ‘justly punished’ for the serious offences he had committed;
(b) specific deterrence remained a relevant consideration; and
(c) the seriousness of the offending was aggravated by its having been premeditated and having involved ‘some planning’.
The essential submission for the appellant was that the finding of reduced moral culpability either rendered those other sentencing considerations inapplicable or, at the very least, meant that they should have been given little weight, such that a much lower sentence was required.
In my respectful opinion, the sentencing judge’s approach was correct and the sentence was within range, reflecting that proper weight was given to all relevant sentencing considerations. The appeal must therefore be dismissed. My reasons are as follows.
Factual background
The facts of the offending were agreed. TG committed the offences in two separate episodes over a 30-hour period. On each occasion TG ‘carjacked’ a motorist stopped at traffic lights, using a meat cleaver to force the driver to comply.
The first robbery occurred at about 11:00 am on Friday, 1 May 2009. A 62-year-old woman was stopped at traffic lights when TG approached the driver’s side window and said, ‘Get out of the vehicle, get out of the vehicle’. He was holding a meat cleaver and a street directory. Before the driver had a chance to get out as instructed, TG opened the door, climbed over her and sat in the front passenger seat. He then waved the cleaver at her, brushing her face and causing bruising and abrasions around her left eye (count 2: recklessly causing injury), before pushing her out of the car. TG moved to the driver’s seat, closed the door and drove away. He later left the car in a car park. This robbery gave rise to count 1 (armed robbery).
TG was able to be easily connected to this offence by the police. There were many eyewitnesses to the robbery itself and, crucially, when TG dumped the car, he left the street directory he had been carrying on the front seat. The street directory had his fingerprints on it and contained a receipt showing it had been purchased a day earlier using his credit card. His credit card had also been used, only two hours before the attack, to purchase a meat cleaver.
The second robbery occurred at about 8:00 pm the following day, Saturday, 2 May 2009. The victim, a man in his early 30s, was stopped at traffic lights when TG came up from behind and opened the driver’s side door. After the first incident, TG had acquired another street directory, and was holding this along with a different meat cleaver. He thrust the directory in front of the driver, who kicked him in the legs, knocking him away from the car. TG rushed back at the driver who, noticing he was holding a cleaver, kicked TG away, left the car and walked slowly away from it with his hands in the air. TG got into the car, dropping the street directory on the road, and escaped by driving through a red light. This robbery gave rise to count 3 (armed robbery). Numerous pieces of evidence linked TG to the second robbery, including a receipt again left in the street directory. Once again, his credit card had been used earlier that day to buy a meat cleaver.
After the second robbery, TG drove to the ACT in the second victim’s car. He then arranged for the car’s windscreen to be replaced, so as to avoid coming to the attention of police. He subsequently drove to South Australia, where he attempted to register the vehicle. As he did so, however, the fact it had been stolen came to the attention of the registration agency, which contacted police. TG was then arrested. The police found several additional pieces of evidence in his possession and in the car, which linked him to the robberies.
At the time of the offending, TG was 31. He was unemployed and homeless.
Relevance of offender’s mental illness
Ground 1(a) was in these terms:
The learned sentencing judge erred in the application of the principles in Verdins by:
(a)giving significant weight to specific deterrence and just punishment in sentencing the appellant;
After his arrest in South Australia, TG was certified mentally ill under the Mental Health Act 1986 (Vic) and was transferred to the Thomas Embling Hospital in July 2009. He remained under treatment at that facility for seven months. After approximately one month there, he was diagnosed with ‘chronic paranoid schizophrenia’. TG had previously been hospitalised in other States seven times over 10 years, and had previously been given anti-psychotic medication. He was not able to be assessed by the psychiatrist until February 2010.
The sentencing judge summarised the conclusions of the Forensicare psychiatrist, Dr Sullivan, about TG’s mental disorder, as follows:
[He is] a person who has had a long history of paranoid schizophrenia manifest in disorder[ed] behaviour, bizarre delusions and perceptual abnormalities. Owing to [his] psychotic illness, [he has] been transient for some years, and repeated contacts with psychiatric services, at least on [his] account, have not been followed by sustained follow-up. [He] would also satisfy a past diagnosis of alcohol abuse/dependence … There is no indication of clinically significant cognitive impairment, gross personality disorder or significant mood disorder.[2]
[2]DPP v Green (Unreported, County Court of Victoria, Judge Gamble, 27 July 2010) (‘Reasons’), [23].
The judge noted that
the police officer who arrested [TG] in South Australia observed that [he was] behaving oddly; [he] appeared agitated and irrational, and refused to accept that he was in fact a South Australian police officer.[3]
The judge also noted TG’s appearance on going into custody:
In the subsequent record of interview conducted on 12 May 2009, [he was] suspicious, irritable and essentially limited in cooperation … upon reception into custody … [his] speech was rambling, with thought disorder, loosening of associations and derailment. [He was] found to be monotonous and to have bizarre delusions.[4]
On a later assessment by Dr Sullivan, TG ‘remained significantly disabled, with a severe and enduring mental illness. [His] mental state had improved but only after protracted treatment’.[5]
[3]Ibid [22].
[4]Ibid.
[5]Ibid [24].
Dr Sullivan concluded that TG did not have a mental impairment defence. Dr Sullivan expressed the following opinion:
At the time of the alleged offending, he was clearly aware of the nature and quality of his actions and his efforts. There is no sense that his actions were associated with delusional thinking, and his actions to evade police after the alleged offences indicated that he was able to reason about the wrongfulness of his conduct.[6]
[6]Exhibit 1, Psychiatric Report of Dr Danny Sullivan, 25 February 2010, [37]. See also Reasons, [23].
In a later report, Dr Sullivan said:
In part the alleged offending appears to have been premised upon Mr Green’s impaired judgment, and the circumstances of the offences suggest that Mr Green was not behaving calmly or rationally. The intent of the offences is somewhat unclear and it is likely that poor judgment related to his chronic psychotic disorder was implicated in the offending.
I should note however that there is no evidence of disinhibition, intoxication or lack of awareness of wrongfulness in the offences.[7]
[7]Exhibit 2, Supplementary Psychiatric Report of Dr Danny Sullivan, 1 May 2010, [4]–[5].
On the plea, the Crown submitted that these statements of Dr Sullivan were inconsistent on the question whether a causal connection existed between the offending and the mental disorder.[8] His Honour did not, however, accept that there was a relevant inconsistency, given that the reports were prepared for different purposes. The second report was, in his Honour’s view, ‘clear and unequivocal’.[9]
[8]Reasons, [39].
[9]Ibid.
On the basis of Dr Sullivan’s opinion, the trial judge agreed with defence counsel’s submission that TG’s moral culpability should be viewed as ‘somewhat reduced’.[10] At the same time, his Honour said, TG ‘must be justly punished’ for the serious offences he had committed.[11]
[10]Ibid.
[11]Ibid [43].
Just punishment
The submission for the appellant was that, because of the link between TG’s mental illness and the offending, just punishment ‘was of little significance for sentencing purposes’. This submission misunderstands, however, the first of the principles summarised in Verdins,[12] as follows:
1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
[12](2007) 16 VR 269, 276 [32] (emphasis added).
Other things being equal, a reduction in moral culpability will ordinarily mean that ‘the punishment that is just in all the circumstances’ will be less than it would have been had there been no such reduction. But the assessment of moral culpability is only one aspect of the Court’s task of determining a ‘just punishment’. As the judge correctly pointed out on the plea, the determination of ‘just punishment’ must be based on a consideration of all relevant sentencing principles.
The Court in Verdins said:
The effect on the court’s assessment of culpability will, of course, vary with the nature and severity of the condition, and with the nature and seriousness of the offence. It is not appropriate for an appellate court to be prescriptive in this regard, nor is it possible to be exhaustive. It may assist sentencing judges, nevertheless, if we list the various ways in which impaired mental functioning has been held — correctly, in our view — to be capable of reducing moral culpability.
Impaired mental functioning at the time of the offending may reduce the offender’s moral culpability if it had the effect of:
(a) impairing the offender’s ability to exercise appropriate judgment;
(b) impairing the offender’s ability to make calm and rational choices, or to think clearly;
(c) making the offender disinhibited;
(d) impairing the offender’s ability to appreciate the wrongfulness of the conduct;
(e) obscuring the intent to commit the offence; or
(f) contributing (causally) to the commission of the offence.[13]
[13]Ibid [25]–[26] (footnotes omitted). It appears the relevant aspects here are (a), (b) and (e).
The effect of impaired mental functioning on moral culpability is a matter of degree, to be determined on all of the evidence before the Court.[14] For this purpose, the sentencing judge will take into account both the nature and seriousness of the offending and what the evidence shows about the link (if any) between the offender’s condition and the offending conduct. Very often, this question is approached as one of causation. Did the evidence establish a causal connection between the impairment of mental functioning and the offending?[15] With the assistance of any expert evidence, the Court will consider the conduct of the offender before, during and after the offending, in order to assess the extent to which the mental impairment materially contributed to what occurred.[16]
[14]Verdins (2007) 16 VR 269, [8], [13]; see also R v Howell (2007) 16 VR 349, 357 [24].
[15]Carroll v The Queen [2011] 150, [20] and the cases there cited.
[16]Ibid [22].
In the present case, the judge accepted the expert’s opinion that TG was probably not behaving ‘calmly or rationally’ when he committed the armed robberies. At the same time, the expert had made clear in both reports that TG was aware of the nature and gravity of what he was doing, and that it was wrong. It is that awareness, of course, which is the foundation of the attribution of legal responsibility. In the light of that evidence, and given the judge’s findings about premeditation and planning, it can readily be understood why his Honour was not prepared to view TG’s moral culpability as more than ‘somewhat reduced’.
There was no challenge to this finding. This is not surprising, as the finding was well open on the evidence before the Court.[17] It was particularly important, in my view, that in the opinion of Dr Sullivan there was ‘no sense that [TG’s] actions were associated with delusional thinking’. The case may be contrasted with one where the offending behaviour is wholly or substantially the product of active delusions. Obviously enough, the greater the extent to which an offender can be shown to have been ‘out of touch with reality’ when committing the offence, the lower the degree of moral culpability properly attributable.[18] (The exception, of course, is where the state of mental impairment is knowingly self-induced).[19]
[17]Ibid [18].
[18]See, for example, R v Sebalj [2006] VSCA 106.
[19]See Martin v The Queen (2007) 20 VR 14.
The decision of this Court in Ashton v The Queen[20] provides a useful contrast. There, as in the present case, the offender suffered from paranoid schizophrenia. Unlike the present case, however, the sentencing judge accepted that it was ‘probable that the [offender] was in a psychotic state when he committed the offences’. That being so, this Court concluded, his psychiatric abnormality ‘significantly reduced his moral culpability’.[21] Likewise in R v Broadbent,[22] a decision relied on by the appellant, the judge accepted that the offender was ‘significantly affected by psychosis’ at the time of the offending.[23]
[20][2010] VSCA 329.
[21]Ibid [33].
[22][2009] VSCA 320, [13] (‘Broadbent’).
[23]Ibid [16].
There was no error in the judge’s approach to just punishment.
Specific deterrence
For similar reasons, his Honour was correct to conclude that specific deterrence remained a relevant consideration notwithstanding the reduction in moral culpability.
The principle of specific deterrence is premised on the assumption that an appropriate punishment will operate to deter an offender from repeating the same or similar conduct in the future. Whether and to what extent that assumption is applicable to a person whose mental functioning was impaired at the time of the offending will depend on the circumstances. As Steytler J explained in Payne v The Queen:[24]
[I]n a case in which the mental illness contributed to the commission of the offence, the importance of personal deterrence may, depending upon the nature and effect of the illness, be lessened. The whole notion of personal deterrence assumes some rational analysis or reasoning in the course of comparing the likely gains from the crime against the prospect, and likely severity, of punishment. Where the illness affects the person’s ability to make that very analysis, there is no justification for affording the consideration of personal deterrence the same measure of significance as it might have in the case of a well person, although there may then be a greater need to protect the public.
[24][2002] WASCA 186, [43]. Steytler J was in the minority, but the other members of the court did not disagree on this point of principle.
In the present case, specific deterrence still had real significance. On the uncontested evidence, TG had been fully aware of what he was doing and that it was wrong. Although his decision-making was, on the evidence, impaired to some extent by his chronic illness, the evidence showed that he had been able to act in a logical and purposeful way, first in planning and then in carrying out the armed robberies. It was appropriate to treat as one of the purposes of this sentence the deterring of TG from engaging in similar conduct in the future.
TG’s submission relied on his own statement to Dr Sullivan that he thought jail would be a ‘reasonable place to stay’.[25] This statement is not referred to in the sentencing judge’s reasons, and appears not to have been drawn to his Honour’s attention on the plea. I do not regard it as affecting the conclusion I have reached.
[25]See Exhibit 1, Psychiatric Report of Dr Danny Sullivan, 25 February 2010, [30].
Aggravating factors
Ground 1(b) contended that his Honour erred in:
(b)treating premeditation and the unnecessary use of force as aggravating the appellant’s culpability for count 1.
The sentencing judge assessed the seriousness of the first armed robbery in these terms:
The offence of armed robbery committed against [the first victim] was, in my view, a very serious example of its type. The offence was premeditated and involved some planning. You went to the trouble of purchasing the weapon, and selected the site of the offence because of its proximity to public transport. You targeted a lady aged in her early 60s who was vulnerable on account of her gender and age and by the fact that she was alone in her unlocked vehicle facing a red traffic light. You approached her vehicle at a time when she was most vulnerable. Your behaviour towards her was aggressive and extremely intimidating. The offence was not over in a matter of a few seconds but lasted considerably longer. The weapon that you chose to use was of a type that would inevitably place any victim in great fear. The incident to varying degrees was witnessed by a number of members of the public, who I have no doubt would have been alarmed by what they saw.
The offence of recklessly causing injury … is, in my view, a serious example of its type. You injured your vulnerable victim during a totally unnecessary brandishing of a fearsome looking and very sharp weapon during the course of committing that armed robbery. Your actions were callous since you could so easily have obtained possession of her vehicle without such a resort to that weapon. As a result of your aggressive conduct towards her, she was left in a confused and bloodied state on Rosanna Road. Her injuries required some treatment at hospital. Whilst her physical injuries are to be viewed as being at the lower end of seriousness for this type of offence, it is a relevant consideration that it was indeed fortunate that she was not more seriously injured. The patent dangerousness of brandishing the type of weapon that you had in the vicinity of the victim's face and neck needs no elaboration.[26]
[26]Reasons, [28]–[29].
It follows from what I have already said that there was no inconsistency between his Honour’s finding of reduced moral culpability and his finding that premeditation and unnecessary use of force aggravated the offending.
TG planned the armed robberies and took the necessary preparatory steps of acquiring (on each occasion) a street directory and a meat cleaver, both of which he then used in the assault on car and driver. Once Dr Sullivan had ruled out any link between the offending and ‘delusional thinking’, these features could properly be seen as aggravating the seriousness of the conduct for which TG was being held criminally responsible. On ordinary principles, these instances of armed robbery were more serious than if the aggravating features had not been present. These features were properly brought to account in assessing the punishment to be imposed.
Manifest excess
Ground 2 was in these terms:
The sentence imposed on count 1 (armed robbery) the total effective sentence and the non-parole period are manifestly excessive.
In granting leave to appeal, Nettle JA considered that the Verdins grounds, described above, were most appropriately argued as particulars of manifest excess. I respectfully agree. His Honour said:
It is clear from the judge’s sentencing remarks that his Honour was alive to the application of the Verdins principles. He said that he accepted defence counsel’s submission that, in light of the opinions expressed by Dr Sullivan, it was appropriate to view the applicant’s moral culpability as to some extent reduced, and to moderate the weight to be given to deterrence as a sentencing principle. His Honour also noted that incarceration would be more burdensome for the applicant than for other prisoners. The only question, really, is whether the sentence which the judge imposed is of a length which makes sufficient allowance for those considerations.
As this Court has repeatedly emphasised, the ground of manifest excess will only succeed if it can be shown that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge. That is, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did, if proper weight had been given to all the relevant circumstances of the offending and of the offender. This is a stringent requirement, difficult to satisfy. It reflects the oft-repeated policy that sentencing is for judges and magistrates at first instance. Sentencing is not the task of appellate courts, except where clear error is shown.[27]
[27]DPP v Karazisis [2010] VSCA 350, [127] (Ashley, Redlich and Weinberg JJA, with whom Warren CJ and Maxwell P agreed); F A J v The Queen [2011] VSCA 137, [23].
I am not persuaded that the ground is made out in the present case. This was very serious offending, with significant aggravating features. It was clearly open to the judge, on the uncontested psychiatric evidence, to attribute to TG a considerable – though not the full – measure of responsibility for it. Unlike the position in Broadbent,[28] there was no evidence to suggest that TG was unable to appreciate the effect of his conduct on the victims. At the same time, his Honour accepted that general deterrence was of less significance than in a case where there was no associated mental impairment and, further, that TG’s condition would make a period of imprisonment more burdensome.
[28][2009] VSCA 320.
The sentences for armed robbery can be viewed as moderate, in my view, having regard to the seriousness of the offending. This reflects the fact that appropriate weight was given to the important matters in mitigation.
LASRY AJA:
I have had the advantage of reading the judgment of Maxwell P in draft. I agree with both his Honour’s reasons and conclusion that the appeal should be dismissed.
---
8
0