Greyson Michael Murphy v The Queen
[2019] VSCA 189
•23 August 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0023
| GREYSON MICHAEL MURPHY | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P and PRIEST JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 18 July 2019 |
| DATE OF ORDERS: | 19 August 2019 |
| DATE OF REASONS: | 23 August 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 189 |
| SENTENCE APPEALED FROM: | [2018] VCC 2220 (Judge Carmody) |
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CRIMINAL LAW – Appeal – Sentence – Assault with intent to commit sexual offence – Sentenced to 3 years’ imprisonment, non-parole period 2 years – Impaired mental functioning – Paranoid schizophrenia – Expert evidence – Applicant floridly psychotic at time of offending – Reduced moral culpability – Reduced weight to general and specific deterrence – Whether community correction order (‘CCO’) appropriate – Community protection – Importance of addressing causes of offending – Whether sentence manifestly excessive – Appeal allowed – Sentenced to 481 days’ imprisonment with CCO of 3 years’ duration – Conditions requiring mental health assessment and treatment, drug dependence assessment and treatment.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D A Dann QC | Lethbridges Barristers and Solicitors |
| For the Respondent | Mr J C J McWilliams | Mr John Cain, Solicitor for Public Prosecutions |
MAXWELL P
PRIEST JA:
An indictment filed in the County Court charged the applicant with assault with intent to commit a sexual offence (one charge – charge 1).[1]
[1]Crimes Act 1958, s 42(1). The maximum penalty is 15 years’ imprisonment.
The applicant pleaded guilty to that charge in the County Court on 1 October 2018; and, following a plea hearing, on 21 December 2018 the judge sentenced the applicant to three years’ imprisonment, upon which the judge fixed a non-parole period of two years.[2]
[2]Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the plea of guilty, he would have sentenced the applicant to be imprisoned for five years, with a non-parole period of three years and three months.
The applicant seeks leave to appeal against his sentence on five grounds:
1. The Learned Sentencing Judge erred in proceeding to sentence on the basis that the best way that the Applicant’s rehabilitation would be enhanced was by the imposition of a period of parole.
2. The Learned Sentencing Judge erred in his approach to Section 5(4C) of the Sentencing Act 1991.
3. The Learned Sentencing Judge erred in failing to alert the parties to the fact that [he] felt an issue had arisen which stood in the way of the Applicant being afforded the benefit of a substantial reduction in moral culpability.
4. The Learned Sentencing Judge erred in proceeding on the basis that he could not be satisfied that the Applicant’s moral culpability was substantially reduced, on account of his Paranoid Schizophrenic illness.
5. The sentence imposed on the Applicant is manifestly excessive.
For the reasons that follow, we would grant leave to appeal, allow the appeal and resentence the applicant in the manner set out below.[3]
[3]See [50] below.
Offending, arrest and interview
Before turning to consideration of the grounds, it is necessary to outline the circumstances of the applicant’s offending and his arrest.
‘CF’, the female victim of the applicant’s offence, worked for an airline as a customer service officer.
On Wednesday, 25 April 2018, at about 5.15 am, in the course of checking-in passengers at Melbourne Airport for a flight to New Zealand, CF visited female public toilets located in the nearby vicinity of her work counter. When she entered, there was nobody else in the toilets and all of the cubicle doors were open. She went into a cubicle and locked the door.
After CF left the cubicle and went to a sink to wash her hands, the applicant — who had in the meantime entered another cubicle — grabbed her around the waist, putting one hand each side. The applicant then began pulling CF back towards a cubicle, saying to her, ‘C’mon baby’. CF said to another woman then present that she did not know the applicant. CF managed to loosen the applicant’s grip and move away towards the door of the toilets, assisted by the other woman who pushed the applicant.
As CF was about to walk around the corner and out the door, the applicant grabbed her left hand and pulled her back into the toilets. She held the wall to stop herself from being dragged back in, but the applicant pulled her firmly. CF again told the other woman that she did not know the applicant, but he said, ‘Yes you do’. CF then managed to break the applicant’s grip and leave.
As CF returned to her counter, the applicant followed her part of the way. She was distressed and complained to colleagues. Australian Federal Police (‘AFP’) were called.
The applicant had been taken to the airport by a friend, Alyson Keily. He had told her that he was worried about getting into ‘loads of trouble’ when he went back to New Zealand. On the way to the airport, the applicant told Ms Keily that he had taken some medication for depression. After checking-in, the applicant told Ms Keily he was going for a walk.
When the applicant returned — having by then assaulted CF — he said to Ms Keily, ‘Aly I think we should go as I just pushed a girl and I am in trouble’. She said, ‘What do you mean you pushed a girl?’. The applicant replied, ‘I was in the girls’ toilet and I grabbed a girl and another girl grabbed her off me’.
AFP officers then attended. The applicant said that he was sorry. When asked why, the applicant said, ‘Because I grabbed that girl and I was trying to rape her but she broke free’.
The applicant was arrested and taken to Broadmeadows Police Station, where he was interviewed by Victoria Police members at about 6.46 am. In the course of the interview, the applicant told police (among other things) that:
· he was going to take medication but the male toilet was closed for cleaning;
· a female airline employee walked past him and he lost control and followed her into the toilets;
· when she walked past him he followed her and tried to rape her;
· he went to a cubicle a few up from her;
· when she flushed the toilet and went to wash her hands he came up behind her and then tried to rape her;
· he grabbed her by the hips and tried to push her into the toilets;
· he intended to have sex with her, to rape her;
· he would undress her and rape her;
· she was attractive so he wanted to have sex with her;
· he defined rape as having sex with someone without them wanting to;
· he acknowledged that she was probably scared, did not know what was going on and was threatened;
· he had been worried about catching the flight and was feeling uneasy; and
· he had spent two weeks in a ‘psycho ward’ in Perth after attempting the same thing in Bali.
Grounds 1 and 2: Judge’s approach to parole and s 5(4C) of the Sentencing Act
Counsel for the applicant submitted to the sentencing judge that a community correction order (‘CCO’) — either alone, or in combination with a sentence of imprisonment[4] — was the appropriate sentence.
[4]By virtue of s 44(1) of the Sentencing Act 1991, a court may make a CCO in addition to imposing a sentence of imprisonment only if the term of imprisonment to be served is one year or less.
To similar effect, the prosecutor told the judge that
ultimately, Your Honour, the submission of the prosecution is that balancing the various considerations that Your Honour is required to make, that a sentence involving a combination of imprisonment along with a community correction order is the appropriate sentence in this case.
In conformity with these submissions, the judge had the applicant assessed for a CCO.
Following assessment by a Community Corrections Officer, however, the applicant was deemed to be unsuitable for a CCO. The relevant Community Correction Order Assessment Outcome Report, dated 27 November 2018, was as follows:
The [applicant] is assessed as unsuitable for a Community Correction Order for the following reasons:
[The applicant] has had no prior involvement with Community Correctional Services (CCS). He presented as willing to comply with the conditions of a Community Correction Order (CCO) should one be imposed. However, this Service has concerns regarding the ability of a CCO to manage [the applicant’s] risk within the community.
[The applicant] reported during assessment that he was experiencing paranoia around the time of the offending, and was hearing voices telling him to offend. He reported that since his remand into custody, he still hears these voices, although noted that he is now prescribed medication that ‘quietens’ them somewhat. Corrections Victoria records also indicate that [the applicant] has been involved in incidents whilst in custody, involving grabbing or attempting to grab female staff. One such incident, on 1st May 2018, involved [the applicant] attempting to grab the female psych [scil., psychiatric] doctor. He later advised the psych nurse that his intention was to rape the doctor. Another incident, on 2nd June 2018, involved [the applicant] approaching and physically grabbing the female mental health nurse as she walked through the prison. A further incident on 23rd July 2018, [the applicant] attempted to approach female staff in the prison, and had to be physically blocked by male officers, before attempting to return and having to be blocked again and then locked in his cell. During assessment, [the applicant] reported that these incidents were also motivated by hearing voices, and stated that he feels a ‘compulsion to grab’ women. [The applicant] was transferred to the Forensic mental health unit at Ravenhall prison in July 2018 and it is noted that [the applicant] is only permitted direct contact with male staff, and any contact with female mental health staff has been under supervision. It appears that even the controlled environment of a prison has been only marginally successful in mitigating the risk [the applicant] poses, particularly towards women, or of preventing him from attempting to re-offend in a similar manner to his current offending. It also appears that this has only been possible by restricting [the applicant’s] access to women. It is noted that it is not possible to prevent contact [sic] all unsupervised contact with women in the community.
At this time, given the above, [the applicant] is considered unsuitable for a Community Correction Order. Although Community Correctional Services appreciate that it plays no part in the exercise of judicial independence, and that the Court is the sole determinant of an appropriate sentence in any given case, it is respectfully recommended that a Non-parole period would be a more suitable sentencing option, as a Parole order would place more stringent conditions upon [the applicant], in regards to mental health and substance abuse treatment, with the possibility of electronic monitoring or other restrictive conditions able to be explored prior to his release.
Despite the unfavourable assessment, counsel for the applicant urged the judge nevertheless to impose a CCO, the judge apparently accepting in the course of discussion that it was theoretically open to him to do so.
It should be noted that, separately from the unfavourable CCO report, the judge had on the plea received two reports from a consultant forensic psychiatrist, Dr Prashant Pandurangi, dated 17 May 2018 (the ‘first report’) and 18 November 2018 (the ‘second report’). Very significantly, Dr Pandurangi’s opinion was that the applicant was suffering from a serious paranoid psychotic illness. At the time of the offending, Dr Pandurangi said, the applicant was experiencing florid psychotic symptoms, including persecutory delusions and ‘command’ auditory hallucinations.
In Dr Pandurangi’s view, the applicant’s mental illness would render incarceration more onerous compared to others who do not suffer from his condition. And as of mid-November 2018 — a little more than a week before the CCO assessment — Dr Pandurangi’s opinion was that the applicant’s risk of similar re-offending could to a significant extent be mitigated by treatment and monitoring of his mental illness in the community (any CCO needing to include a condition for referral to drug and alcohol service, since use of illicit drugs would be likely to lead to a deterioration in the applicant’s mental state or precipitate a relapse of his schizophrenic illness).
Dr Pandurangi’s first report was based on an interview which he conducted with the applicant four days after the offence was committed. In that report, Dr Pandurangi said:
42 At our interview, [the applicant] presented with florid psychotic symptoms. This was characterised by persecutory and referential delusions, passivity phenomena and auditory hallucinations. He also presented with depressive symptoms, which was associated with his current circumstances and was experiencing suicidal ideas, which required placement in a padded cell. The psychotic symptoms he is presenting with and risks associated with them were of sufficient nature and degree to warrant certification under the [Mental Health Act 2014], for involuntary treatment in a hospital.
43 He has developed a paranoid psychotic illness and the differential diagnosis is either that of paranoid schizophrenia or a drug induced psychotic disorder, as set out in the International Classification of Diseases, 10th Edition (ICD-10). From the nature of psychotic symptoms he describes (which include a systematised delusional belief, passivity phenomena and auditory hallucinations), the duration of these beliefs and the extent [of] drug use he reports, it is likely that he is developing an enduring mental illness, rather than a drug induced psychosis. This can only be clarified on longitudinal follow-up and with further collateral from his family.
44 The description of events as described by [the applicant] clearly indicates that he was suffering from psychosis at the time of the alleged offences and were likely to be causally associated with the offending. He was experiencing florid psychotic symptoms, including persecutory delusions and command auditory hallucinations. He believed that he was a part of a conspiracy and being persecuted by gangs. He was receiving instructions to rape someone in order to protect his friends and family. He was experiencing similar beliefs prior to the alleged incident in Bali and subsequently required hospitalisation for psychosis. He presented with acute psychosis at our interview, which was few days following his arrest and was subsequently certified under the [Mental Health Act 2014], for involuntary treatment in hospital. I have not had sight of the witness statements, record of interview and prison medical records, all of which may provide further information about his mental state, around the time of the alleged offences.
45 The current offending is linked to an underlying unwell mental state and the risk of similar offending can be mitigated by treatment of psychosis. He would also need to desist from use of any illicit drugs. There is currently no evidence available to me which indicates deviant sexual arousal.
46 At the time of our assessment he clearly met the criteria for involuntary treatment under the [Mental Health Act 2014]. In the event he was granted bail, in my opinion, he should be initially transferred to a psychiatric unit, at the local Area Mental Health Service, for treatment of his mental illness. He would need assertive follow-up in the community, once discharged from hospital. I would suggest that you liaise with his treating team at Ravenhall Correctional Centre, who would arrange his mental health follow up in the community, in the event of bail or a community disposal.
47 His mental illness would render incarceration more onerous compared to others who do not suffer from his condition. He continues to experience psychotic and depressive symptoms and was managed in a restrictive setting. In event of ongoing incarceration, I would respectfully recommend that he continues to receive psychiatric treatment from the prison in-reach mental health services.[5]
[5]Emphasis added.
And in his second report, which followed an interview with the applicant on 1 November 2018 (some six months after his initial assessment), Dr Pandurangi expressed the following views:
31 The information available to me both from my interviews with [the applicant] and the collateral records, indicate that he was suffering from psychosis at the time of the incident on 25 April 2018. [The applicant] describes experiencing persecutory delusions and command auditory hallucinations around the time [of the offending]. He was receiving instructions to rape someone in order to protect his friends and family. This was similar to the beliefs he was suffering prior to the alleged incident in Bali and required hospitalisation for treatment of his psychosis. He presented as acute[ly] psychotic, at our interview on 29 April 2018, which was few days following his arrest. I understand that he was subsequently certified under the [Mental Health Act 2014], for involuntary treatment at Thomas Embling Hospital (TEH). Although he was not transferred to TEH, he has remained on the forensic mental health unit at RCC [scil., Ravenhall Correctional Centre], for a prolonged period of time, which is indicative of mental health support he has required since his incarceration.
32 The statement of Ms Kiely does indicate that [the applicant] was mentally unwell at the time, however does not elaborate on any specific beliefs. Interestingly the Police [record of interview] does not reveal any systematised delusions or perceptual abnormalities, which [the applicant] was suffering from at the time.
33 The relationship between [the applicant’s] offending and his underlying mental disorder is not a straightforward one. The available information suggests that his psychotic beliefs, at the time, would have clearly worsened any underlying obsessional beliefs he would have had. He was distressed by the psychotic beliefs and has described not being in ‘control’ or having no ‘feelings’ at the time of the incident.
34 In assessing his risk factors for similar reoffending, firstly, it is important to note the current offending and the alleged one in Bali in 2017, occurred whilst [the applicant] was psychotic. There is no evidence available to me which indicates any similar offending whilst he is not psychotic. There is some degree of physical coercion, but no psychological coercion. He does not tend to minimise or deny the offences. There is no history of other non-sexual offending. There is limited information available to suggest a deviant sexual arousal or a significant personality dysfunction. There is no history of a childhood adversity, such as sexual abuse, which would be considered a risk factor. There is no history of significant problems with intimate and non-intimate relationships. There is no history to suggest problems with planning, treatment and supervision.
35 This would mean that the risk of similar re-offending, can be mitigated, to a significant extent, by treatment and monitoring of his mental illness. He would clearly benefit from ongoing psychological treatment, in the community. He would need to desist from use of illicit drugs, as it is likely to lead to a deterioration in his mental state or precipitate a relapse of the schizophrenic illness, so a referral to drug and alcohol service would be a useful condition for a [CCO].
In his sentencing remarks, the judge adverted to s 5(4C) of the Sentencing Act 1991:[6]
I am mindful of the provisions of the Sentencing Act and in particular [s 5(4C)] which directs the sentencing court to consider whether a [CCO] can achieve the purpose for which this sentence is to be imposed. I have reviewed the case of Boulton[[7]] in considering if a [CCO] would be appropriate in your case, and as you know I had you assessed for a [CCO]. You were assessed as not being suitable. That does not finish the matter.
[6]Section 5(4C) provides:
Subject to subsections (2G), (2GA) and (2H), 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.
[7]Boulton v The Queen (2014) 46 VR 308 (‘Boulton’).
And later in his sentencing remarks, the judge said:
Your enforced psychiatric treatment whilst in prison and Thomas Embling Hospital has resulted in your current mental state being stabilised. Your offending is serious. The factors indicative of the level of the seriousness are:
(1)the random nature of your attack;
(2)the attack occurred in female toilets at an airport, that is a public place;
(3)the nature of your attack in capturing a random person and trying to get her into a toilet cubicle in the toilets;
(4)your expressed desire to rape the woman that you had grabbed; and
(5)the direct effect on your victim.
Your prospects of rehabilitation are predominantly dependent on your partaking in a strict psychiatric and psychological regime upon your release from prison. You have the benefit of broad family support. Your mother has moved to Melbourne to support you whilst you are in custody and to reside with you upon your release from prison. If your mental health regime is strictly imposed and complied with by you, then your prospects of rehabilitation are relatively good for someone who has offended in this nature.
The best way of [scil., for] your rehabilitation to be enhanced, is if it is controlled by the Adult Parole Board. That way the protection of the community will be bolstered. …
In support of grounds 1 and 2, counsel for the applicant submitted that the judge’s sentencing remarks demonstrate that he proceeded on the basis that the applicant’s prospects of rehabilitation would best be enhanced by a period of parole, so much betraying an error in approach. That approach, so it was submitted, must involve an assumption that the applicant would not serve the full term of the head sentence and that he would be released on parole. It was not open to make, or to act upon, such an assumption, or to assume that a suitable treatment regime would be available to the applicant if released on parole.
Furthermore, the applicant’s counsel submitted, the judge’s assumptions as to release on parole must have had an adverse impact on his approach to s 5(4C). It was also difficult, counsel submitted, to see how the sentencing judge could properly have complied with s 5(4C) in circumstances where there was an unresolved question as to what exactly would (or could) be put in place by way of treatment and supervision under a CCO. Notwithstanding the judge’s original enquiry as to the nature and extent of any treatment regime that could be put in place under a CCO, the Community Correction Order Assessment Outcome Report was completely silent on that subject. Indeed, there is no indication that the assessing officer ascertained what treatment regime could be put in place for the applicant upon his release into the community.
On the other hand, the respondent’s counsel contended that the sentencing judge neither assumed nor presumed that the applicant would be granted parole. It was submitted that the totality of the judge’s remarks reveal that, balancing the applicant’s interests and the community’s interests, his Honour did not consider that it was open to him to impose a sentence involving a CCO. When referring to the ‘best way’ of enhancing the applicant’s rehabilitation, the judge was not limiting his focus to the applicant’s interests, but was also considering the interests of the community. There was, counsel for the respondent contended, no error in this approach.
Given our conclusion that grounds 3–5 should succeed, it is unnecessary for us to reach a conclusion on these grounds. It is, of course, settled law that a sentencing judge is not entitled to predict whether a sentenced prisoner will be granted parole and, if he or she is, the conditions under which it will be undertaken.[8] If that were a proper characterisation of his Honour’s remarks, it would follow that there was sentencing error.
[8]R v Bruce [1971] VR 656, 657; R v Douglas [1959] VR 182, 182; R v Governor of Her Majesty’s Gaol at Pentridge; Ex parte Cusmano [1966] VR 583, 587; R v Yates [1985] VR 41, 44; Schneider v The Queen [2016] VSCA 76, [23]. See also Sentencing Act 1991, s 5(2AA)(a); Manariti v The Queen [2015] VSCA 160, [39].
On the other hand, when the sentencing court is considering whether a CCO is an appropriate disposition, it will often be necessary to decide whether a CCO or a non-parole period (followed by parole supervision) is likely to be more effective in promoting the relevant sentencing purposes. So much was recognised by this Court in Boulton.[9] For that purpose, the court is entitled to draw on its knowledge of the general characteristics of parole supervision, on the one hand, and of a CCO subject to conditions on the other. An analysis of that kind does not contravene s 5(4C).
[9](2014) 46 VR 308, 351–4.
Grounds 3 and 4: The applicant’s moral culpability
In the course of his plea on the applicant’s behalf, the applicant’s counsel submitted that the applicant’s moral culpability at the time of the offending was reduced on account of his mental illness. Counsel relied on Dr Pandurangi’s opinions — principally as expressed in his first report[10] — submitting that it was ‘not controversial’ that Verdins[11] considerations applied, so that the applicant’s moral culpability was reduced, leading to a moderation of general and specific deterrence as factors in sentencing. The applicant’s mental illness was also ‘relevant to the kind of sentence that should be imposed’, ‘further incarceration [being] more burdensome’ upon the applicant.
[10]See [22] above.
[11]R v Verdins (2007) 16 VR 269 (‘Verdins’).
The prosecutor submitted that the applicant’s offending was of a kind
which would usually render deterrence and protection of the community key sentencing considerations, but it’s accepted by the prosecution that in light of [the applicant’s] significant mental health issues, most particularly the diagnosis of schizophrenia and its apparent operation both at the time of the offending and currently, that these sentencing considerations ought to be moderated, and that rehabilitation takes on a much greater significance.
It was also accepted by the prosecution that
Verdins principles do apply given the diagnosis of paranoid schizophrenia, including to reduce [the applicant’s] moral culpability, reducing his suitability as a vehicle for general deterrence and denunciation, and also that increased burden of imprisonment on [the applicant] for any time he serves while in custody.
Moreover, the prosecutor submitted
there would still be some, perhaps very limited role for both general and specific deterrence in Your Honour’s [sentencing] exercise, but it’s accepted that the predominant purpose of Your Honour’s sentencing task is to focus on rehabilitation and protection of the community, as those two sentencing considerations interact together.
The effect of these submissions, in our view, was to produce what amounted to an agreed position on a number of matters: first, that the applicant suffered from paranoid schizophrenia, which was operative both at the time of offending and at the time of sentence; secondly, that the applicant’s moral culpability was reduced because of it; thirdly, that the applicant’s suitability for the application of general deterrence and denunciation was thereby reduced (albeit that general and specific deterrence might still have some ‘very limited role’); fourthly, that the focus should be ‘on rehabilitation and protection of the community, as those two sentencing considerations interact together’; and, fifthly, that the applicant’s mental illness ‘increased [the] burden of imprisonment on [the applicant] for any time he serves while in custody’.
His Honour dealt with these issues in his reasons by first setting out in full two paragraphs from Dr Pandurangi’s second report.[12] He then said:
I accept that at the time of the offending, you had an underlying mental disorder identified in September 2017 in Perth. The conflict between Ms Keily’s assessment of your mental state and your responses in the record of interview, do not assist in being satisfied [that] your moral culpability for this offence is substantially reduced. I will make some allowance for a reduction in your moral culpability, in your sentence, due to your underlying mental disorder.
The sentencing factors of general deterrence and specific deterrence are appropriately moderated to reflect your underlying mental disorder, at the time of the offending. Further, specific deterrence is to be moderated at the time of your sentence, as you are appropriately medicated under Correctional supervision and the risk of reoffending is correspondingly reduced. Further, I accept your mental condition weighs more heavily on you than a person of normal mental health due to your custodial status. I note you have been placed in lockdown due to touching, as it was described, a female Correctional staff member. [13]
[12]See [23] above (paragraphs 32 and 33).
[13]Emphasis added.
In this Court, the applicant’s counsel submitted that the judge denied procedural fairness to the applicant. At no time in the course of the plea, it was said, had the judge raised with counsel any perceived conflict between Alyson Keily’s assessment of the applicant’s mental state and his responses in the record of interview, none having been suggested by the prosecution. The reasons indicated, however, that his Honour had identified a ‘conflict’ which did not ‘assist in being satisfied [that the applicant’s] moral culpability for this offence is substantially reduced’. Given the manner in which the plea was conducted, counsel submitted, procedural fairness required that the applicant’s counsel be provided with the opportunity to make submissions or call evidence to address the perceived conflict. Failure to do so had led the sentencing discretion to miscarry.
Despite the submissions made to the sentencing judge by the prosecutor, counsel for the respondent in this Court submitted that the material before the judge did not demand a finding that the applicant’s moral culpability was reduced because of his psychiatric condition at the time of the offending. Further, so it was submitted, the judge had not in the course of the plea indicated that he would make such a finding.
Consideration
With respect to the judge, it was an error to rely for this purpose on anything said by Ms Kiely. Her lay assessment of the applicant’s mental state at the time of the offending was wholly overtaken by the expert opinion of Dr Pandurangi. As we have said, Dr Pandurangi interviewed the applicant within four days of the offence. His firm and clear opinion was that the applicant’s description of events ‘clearly indicates that he was suffering from psychosis at the time of the alleged offences and were likely to be causally associated with the offending’.[14]
[14]See [22] above (paragraph 44).
This expert evidence was not challenged by the prosecution. On accepted principles, an opinion of operative psychosis at the time of the offending should have resulted in the applicant’s moral culpability being very substantially reduced (if not eliminated entirely). Denunciation should have assumed little relevance,[15] and both general and specific deterrence should have been substantially moderated (if not eliminated) as sentencing considerations.[16]
[15]Verdins, 276 [32] (proposition 1).
[16]Ibid, 276 [32] (propositions 3 and 4).
In his second report, Dr Pandurangi drew attention to the matter which had concerned the judge, namely, that the record of interview with police did ‘not reveal any systematised delusions or perceptual abnormalities’.[17] Crucially, this did not cause Dr Pandurangi to alter his opinion that the psychosis had been operative at the time. As we have said, Dr Pandurangi’s opinion was that there was a causal link between the applicant’s psychotic condition and the commission of the offence. In our respectful view, it was not open to his Honour to reject that opinion in the absence of a sound foundation for doing so.
[17]See [23] above (paragraph 32).
Grounds 3 and 4 must succeed.
Ground 5: Manifest excess
As we have indicated, we consider that grounds 3 and 4, which allege specific error, should be upheld. But we are also of the view that, in the circumstances of this case, the sentence is manifestly excessive.
The applicant’s counsel accepted that ‘in other circumstances’ a sentence of three years’ imprisonment would reasonably be open. Counsel submitted, however, that several factors dictated a different conclusion, including the applicant’s mental illness, and his prospects of rehabilitation (provided suitable treatment and supports were in place). Counsel submitted that Verdins considerations should have dictated that deterrent and punitive aspects of sentencing should have been moderated in their effect. That did not happen, so that the sentence ultimately imposed was not reasonably open.
The respondent’s counsel submitted that the sentence imposed was reasonably open in the sound exercise of the sentencing discretion. Counsel for the respondent submitted that the offending was serious, involving a random attack with rape as its purpose. It had a profound effect on CF. Having regard to the attack’s brazen and public nature, it was submitted, community protection was of significant consideration in sentencing.
It must be acknowledged that the offending objectively was very serious and had a marked effect on CF. But the decisive consideration for sentencing purposes was the causal link between the offending and the applicant’s mental condition. As we have said, that link meant that his moral culpability was very greatly reduced, to an extent that the sentencing considerations of curial denunciation, general deterrence and specific deterrence were all but eliminated. The sentence imposed does not reflect that this is so. In our opinion, it is outside the range of those reasonably open in the sound exercise of the sentencing discretion.
Disposition
At the conclusion of oral argument, we were of the view that the grounds of appeal had been made out, and provisionally considered that we should grant the application for leave to appeal against sentence, allow the appeal and resentence the appellant to a combination sentence involving both custodial and non-custodial components. We therefore obtained a further pre-sentence report from Community Correctional Services,[18] and an updated report from Dr Pandurangi, both of which were extremely thorough and very helpful. It must be acknowledged that reports of such high quality could not have been produced, with the expedition that they were, without the industry and commitment of Community Correctional Services officers (in particular, Stephen Miriklis) and Dr Pandurangi. We wish to express our gratitude for the considerable assistance thereby given to the Court.
[18]Sentencing Act 1991, s 37.
In the Extended Pre-Sentence Assessment – Outcome Report, dated 6 August 2019, received from Community Correctional Services, the appellant was ‘deemed to be a suitable candidate for a CCO’.[19] The author made it plain that further information was revealed in the course of the preparation of the report that had not been available to the author of the initial CCO report dated 27 November 2018, so that ‘subsequently a finding of suitability has been determined’. It was noted that:
It appears that the time in custody since has allowed [the appellant] to demonstrate an ability to abstain from further incidents (in custody) and successfully engage with treatment and intervention, offering some comfort and ameliorating concerns in relation to further offending.
Ultimately, a number of conditions were recommended for inclusion in the CCO, all but one of which we saw fit to include.[20]
[19]We note that the author of the report had received information from the Australian Border Force that the appellant’s visa was cancelled on 26 April 2019 — so that his residency status is ‘unlawful non-citizen’ — and that the time limit for challenging revocation of his visa had lapsed. Notwithstanding this information, counsel for the respondent submitted — correctly, we consider — that we should ‘impose a just and lawful sentence’, and should not endeavour to predict any executive action that might be taken with respect to the appellant’s immigration status.
[20]The suggested condition was for electronic monitoring. Counsel for the appellant and respondent both submitted that such a condition was not necessary.
Dr Pandurangi interviewed the appellant on 1 August 2019, and produced a further report dated 16 August 2019. He stated that the appellant ‘now has an established diagnosis of paranoid schizophrenia, which is characterised by persecutory delusions, auditory hallucinations, passivity phenomena and disorganised behaviour’. (The appellant also suffers from a long-standing anxiety disorder, ‘Obsessive Compulsive Disorder’.) Dr Pandurangi said that the appellant’s use of illicit drugs ‘has either contributed to the development or precipitated his mental illness’, although he did not believe ‘that they are causally associated with it’. At the time of interview, Dr Pandurangi said, the appellant did not present ‘with any symptoms suggestive of psychosis’. With respect to ‘risk factors’, Dr Pandurangi observed:
28 In assessing his risk factors for similar reoffending, the current offending and the alleged one in Bali, in 2017, occurred whilst [the appellant] was floridly psychotic. There is no evidence available to me which indicates any similar offending whilst he is not psychotic. There was no evidence of psychosis at our most recent interview, which is as a result of his compliance with psychotropic medications and engagement in psychological treatment. …
30 The configuration of risk factors suggests that [the appellant’s] main difficulties, which are directly relevant to risk of re-offending, lie in the domain of mental disorder, in particular the schizophrenic illness and substance misuse which are likely to precipitate the psychotic illness. In my opinion, his current risks are sufficiently managed with a stable mental state, compliance with treatment and psychological treatment.
And as to future management, Dr Pandurangi stated:
31 A risk of similar re-offending which is linked to an underlying abnormal mental state would mean that this risk can be mitigated, to a significant extent, by ongoing treatment and monitoring of his mental illness. He would need assertive follow-up in the community to ascertain his compliance with treatment and prompt identification of any deterioration in his mental state. …
As we have indicated, at the conclusion of oral argument we were of the view that the grounds of appeal had been made out. Having then had the benefit of further reports from Community Correctional Services and Dr Pandurangi, we concluded that leave to appeal against sentence should be granted; the appeal allowed; and a combination sentence involving imprisonment and a CCO substituted for the sentence first imposed. Thus, on 19 August 2019, we made orders granting leave to appeal; allowing the appeal; and resentencing the appellant to a term of 481 days’ imprisonment (being time already served) together with a CCO of three years’ duration.[21]
[21]Declaration of the appellant’s presentence detention under s 18 of the Sentencing Act 1991 (481 days), resulted in a term of imprisonment after deduction of pre-sentence detention of less than one year. See Luchian v The Queen [2019] VSCA 145, [64]–[66].
The CCO will commence upon the appellant’s release from custody. It will contain the mandatory conditions set out in s 45 of the Sentencing Act 1991, together with conditions requiring the appellant to:
1. … be under the supervision of a Community Corrections Officer for a period of three years.
2. … undergo mental health assessment and treatment, as directed by the Regional Manager of Community Corrections (‘the Regional Manager’).
3. … engage in programs that address the factors related to [his] offending behaviour, as directed by the Regional Manager.
4. … undergo assessment and treatment in relation to [his] drug abuse or dependency, as directed by the Regional Manager.
5. … undertake urine analysis as directed by the Regional Manager.
6. … be supervised, monitored and managed as directed by the Secretary to the Department of Justice and Community Safety (‘the Secretary’).
7. … complete 150 hours of unpaid community work over the three year period. Hours completed as directed by the Regional Manager pursuant to paragraphs 2, 3 and 4 of this CCO may be deducted from community work hours outstanding.
8. … reside at [named address] and must not change address without consent first obtained from the Secretary/the Regional Manager.
9. … be and remain in [his] place of residence between the hours of 7:00 pm and 7:00 am each day.
10. … appear before the County Court not later than 18 November 2019 (and at intervals no greater than six-monthly thereafter) for review under s 48L of the Sentencing Act 1991 of [his] compliance with this order.
Pursuant to s 6AAA of the Sentencing Act 1991, we declare that, but for the appellant’s plea of guilty, we would have sentenced him to be imprisoned for three years, with a non-parole period of two years.
The sentence we have imposed reflects our view that community protection will best be enhanced if the appellant’s rehabilitation can be achieved through treatment of his psychiatric illness and his drug addiction.[22]
[22]Boulton (2014) 46 VR 308, 327–328 [73]–[75].
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