Hayes v The Queen
[2017] VSCA 285
•9 October 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0038
| LEROY HAYES | Appellant |
| V | |
| THE QUEEN | Respondent |
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| JUDGES: | KAYE JA and T FORREST AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 4 October 2017 |
| DATE OF JUDGMENT: | 9 October 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 285 |
| JUDGMENT APPEALED FROM: | DPP v Hayes (Unreported, County Court of Victoria, Judge Stuart, 9 February 2017) |
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CRIMINAL LAW – Appeal – Sentence – Commonwealth and State offences – Attempted aggravated burglary; criminal damage; using carriage service to menace, harass, or cause offence and related summary offences – Four years and six months’ imprisonment – Non-parole period of three years – Whether intellectual impairment reduced moral culpability – general deterrence not appropriate – Whether sentence manifestly excessive – Early guilty plea – Significant criminal history – Appeal allowed – Appellant resentenced to three years and four months’ imprisonment with non-parole period of two years and two months.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr P J Smallwood | Daniel Taylor Lawyers |
| For the Crown | Ms D Mandie | Office of Public Prosecutions |
KAYE JA
T FORREST AJA:
The appellant pleaded guilty, before a judge of the County Court, to one charge of using a carriage service to menace, harass, or cause offence, one charge of attempted burglary, two charges of criminal damage, and related summary offences of unlawful assault, assault with a weapon, and contravention of a condition of bail. He was sentenced, for those offences, to a total effective term of 4 years and 6 months’ imprisonment with a non-parole period of 3 years.[1] That sentence was constituted as follows:
[1]DPP v Hayes (Unreported, County Court of Victoria, Judge Stuart, 9 February 2017) (‘Reasons’).
| Charge on Indictment | Offence | Maximum | Sentence | Cumulation |
| 1. | Use carriage service to harass/menace/offend [Commonwealth Criminal Code s 471.17(1)] | 3 years [Commonwealth Criminal Code s 471.17(1)] | 6 months | 2 months[2] |
| 2. | Attempted aggravated burglary [Crimes Act1958 s 321M and s 77] | 20 years [Crimes Act1958 s 321P] | 4 years (aggregate) | Base |
| 3. | Criminal damage [Crimes Act1958 s 197(1)] | 10 years [Crimes Act1958 s 197(1)] | See charge 2 | N/A |
| 4. | Criminal damage [Crimes Act1958 s 197(1)] | 10 years [Crimes Act1958 s 197(1)] | See charge 2 | N/A |
| Related summary offences | ||||
| 5. | Unlawful assault [Summary Offences Act 1966 s 23] | 15 penalty units or 3 month [Summary Offences Act 1966 s 23] | 1 month | 1 month |
| 6. | Assault with a weapon [Summary Offences Act 1966 s 24(2)] | 2 years [Summary Offences Act 1966 s 24(2)] | 6 months | 2 months |
| 8. | Contravene conduct condition of bail [Bail Act 1977 s 30A] | 30 penalty units or 3 months [Bail Act 1977 s 30A] | 1 month | 1 month |
[2]The sentence of 6 months’ imprisonment is cumulative upon the aggregate sentence imposed for counts 2, 3 & 4. Four months of the sentence is concurrent with the sentences imposed on related summary charges 5, 6 & 8.
| Total Effective Sentence: | 4 years 6 months (State & federal offences) |
| Non-Parole Period: | 2 years 10 months (State offences) 3 years (State & federal offences) |
| (1) of the Sentencing Act 1991Pre-Sentence detention declaration pursuant to s 18: | 288 days |
| 6AAA Statement: The learned sentencing judge stated that the sentence he would have imposed if the applicant had been convicted of this offence after a trial would have been 6 years imprisonment, with the applicant becoming eligible for parole after serving 4 years and 6 months of that sentence. | |
| Other relevant orders:. Forensic sample order pursuant to s 464ZFB(1) of the Crimes Act 1958. | |
The appellant, by leave of a single judge of this Court, appeals the sentence, on the following two grounds:
Ground 1:The sentencing judge erred by concluding that the appellant’s intellectual impairment did not reduce his moral culpability.
Particulars:
The appellant has a full scale IQ of 71. His intellectual impairment has been, and will continue to be, lifelong.
His capacity to exercise good judgment is limited and he is prone to making poor decisions.
His intellectual impairment was relevant (in mitigation) to the assessment of his moral culpability and the weight to be given to denunciation.
Ground 2: The total effective sentence (resulting from the aggregate sentence imposed on charges 2, 3 and 4, the orders for cumulation and the order delaying the commencement of the sentences imposed on the State offences) and the non-parole period fixed are manifestly excessive.
Particulars:
The sentencing judge gave manifestly insufficient weight to the appellant’s intellectual impairment, his early pleas of guilty, his genuine regret and remorse, the burden that he will experience in custody, and the principle of totality.
The sentences imposed are more severe than that which were necessary to achieve the purposes for which the sentences were imposed.
Circumstances of offending
Each of the offences took place on 28 April 2016. The appellant, who was born on 20 October 1987, was then 28 years of age. The victim was his ex-partner, Rebecca Sawyer. The appellant and Ms Sawyer had lived together at premises in O’Neill’s Road, Lakes Entrance for about three years, but had separated approximately six months before the incident.
On the day of the incident, Ms Sawyer was at her home in Lakes Entrance with two of her children. At approximately 5:30 am, the appellant telephoned her and said ‘open the fucking door, you fucking slut’. She then heard a loud bang at the front door. When she went to the door, she saw the appellant, who appeared to be unsteady on his feet, and fidgety, and was acting in a paranoid and drug affected manner. When Ms Sawyer let the appellant into the house, he began checking the windows and rooms, and he asked her if there was another man in the house. Ms Sawyer went to the bathroom to smoke a cigarette. As a result, the appellant became agitated, raised his clenched fists, and told Ms Sawyer that he would kick her head in. Ms Sawyer asked the appellant to leave, to which he responded by saying ‘as long as I get a suck, because that’s what sluts do’.
Ms Sawyer then got ready for work and left the house with her children, while the appellant remained there. While Ms Sawyer was at work during the day, the appellant continually harassed her by calling her mobile phone approximately 40 to 45 times. In those telephone calls, he accused her of sleeping around, and he threatened to smash up the house and kick her head in. That conduct constituted charge 1 (using a carriage service to menace, harass or cause offence).
At approximately 10:05 pm on the same day, when Ms Sawyer was at home in her bedroom, she heard a tap at the front door. At that time her three children were also home. Ms Sawyer got out of bed, walked to the lounge room sliding door at the side of the house, and opened the blind. She observed the appellant running towards her at the door. The appellant grabbed hold of the screen door and said ‘open up the door, you fucking slut’. Ms Sawyer asked him to leave and she telephoned the police (summary charge 5 — unlawful assault). The appellant then ripped the screen door off its hinges, grabbed a shovel from the front garden, and smashed the window to Ms Sawyer’s bedroom (charge 3 — criminal damage). He said, ‘there is a man in the house, tell him to come out’. He then tried to climb in through the broken window, causing him to sustain minor lacerations to his arms. The appellant grabbed a skateboard and threw it at the front door, hitting the security screen.
Ms Sawyer then checked on her children, and returned to the front door, where she saw the appellant holding a shovel (summary charge 6 — assault with a weapon). He then went around the other side of the house and began tapping on the laundry window, saying ‘I know he’s in there’. He returned to Ms Sawyer’s bedroom window, and again he tried to climb inside the house (charge 2 — attempted aggravated burglary). That attempt by him to climb in through the window caused Ms Sawyer’s television to fall off the bedside table and land on the floor, as a result of which the screen broke (charge 4 — criminal damage).
At that stage the police arrived, and observed the appellant standing outside Ms Sawyer’s bedroom holding the shovel. Upon sighting the police, the appellant immediately put the shovel down. He was arrested and conveyed to Lakes Entrance Police Station, and he was lodged in the cells pending interview. Subsequently the appellant was taken to Bairnsdale Police Station where he was interviewed. He made a partial ‘no comment’ record of interview, before he admitted using the shovel to break the bedroom window. He denied entering the house, and he stated he was drug and alcohol affected at the time.
On 29 April 2016, the appellant was released on bail from Bairnsdale Police Station. However, he immediately sent text messages to Ms Sawyer, thereby breaching a condition of his bail that he not contact her (charge 1 — using carriage service to menace, harass or cause offence; summary charge 8 — contravene condition of bail). As a result, the appellant was arrested again in the foyer of the police station, interviewed, and remanded in custody. He remained in custody until the time of the plea.
The charges against the appellant were resolved at the first committal mention on 17 August 2016. Accordingly, on his plea, it was accepted that the appellant should have the benefit of having pleaded guilty at an early stage in the proceeding.
Appellant’s previous convictions
The appellant has a significant criminal history. As noted by the judge,[3] between 13 April 2007 and 27 January 2016, he had 11 previous court appearances, which involved 41 different charges. Nineteen of those charges concerned offences for violence or related conduct. They included six charges of recklessly causing injury, one charge of intentionally causing injury, one charge of intentionally causing serious injury, four charges of unlawful assault, one charge of assault with an instrument, three charges of damaging property, one charge of affray, and one charge of behaving in a riotous manner. On five separate occasions, the appellant had been sentenced to serve a community corrections order, and on one occasion, an intensive corrections order. He subsequently breached the first two community corrections orders. The last two such orders were imposed on 12 August 2015 and 27 January 2016 respectively. The appellant breached both of those orders by his offending in the present matter.
[3]Reasons [22].
The appellant’s circumstances
The appellant, who is Aboriginal, is a member of the Kurnai people. No evidence was led, or information provided to the judge, on his plea, as to his involvement in that community, or of any circumstances which might have enlivened the application of the principles that have been described in cases such as R v Fernando,[4] R v Fuller-Cust[5] and R v Bugmy.[6]
[4](1992) 76 A Crim R 58, 62–63.
[5](2002) 6 VR 496, [78]–[80] (Eames JA).
[6](2013) 249 CLR 571, 592–5 [37]–[44].
The appellant’s parents separated when he was very young, and he was raised by his mother and stepfather. He attended school to Year 10 level, but he had significant difficulties, due to his limited intelligence, to which I shall shortly refer. The appellant commenced abusing alcohol at around the age of 16 years, and subsequently used cannabis, and, more recently, methylamphetamine. He had two significant intimate relationships. He had three children as a result of his relationship with his first partner. That relationship was, on all accounts, quite tempestuous. In late October 2010, the appellant was admitted to the Alfred Hospital having been stabbed by his then partner with a large knife after an argument. He sustained a laceration to the lower pole of the kidney and to the gall bladder. The laceration to the kidney was repaired, and his gall bladder was removed. The appellant remained in hospital, as a result of that injury, for a period of 12 days.
The appellant subsequently commenced a relationship with Ms Sawyer. As mentioned, that relationship had ended some six months before the events that gave rise to the present charges against the appellant. It appears that, notwithstanding the appellant’s conduct on that occasion, Ms Sawyer has remained somewhat supportive of the appellant, and she has visited him, with his children by his first relationship, in prison. She has also provided assistance to the appellant’s elderly mother, Mrs Hayes, who has been left with the responsibility of caring for the appellant’s three young children.
The appellant’s children were, at the date of the plea, aged 8 years, 7 years and 5 years respectively. The evidence, adduced on the plea, included two medical reports, provided by Gippsland Lakes Community Health, to the effect that the appellant’s mother was suffering from end stage chronic lung disease. A report dated January 2017 noted that she had required hospitalisation on at least six occasions in the last year, including spells on a ventilator. The report stated that Mrs Hayes was not fit enough to care for the three children, although she continued to be their primary carer.
The appellant was examined on two occasions in custody by Mr David Ball, a forensic psychologist. Mr Ball provided a report which was tendered on the plea. Intellectual testing conducted by Mr Ball established that the appellant had a verbal comprehension index of 66, a perceptual reasoning index of 82, and a full scale IQ of 71. On that basis, 97% of the community would perform better on the tests than the appellant. Mr Ball considered that the appellant was ‘functionally illiterate, innumerate and … a generally low functioning adult’. He considered that the appellant’s impairment was congenital. Mr Ball’s mental state examination was described in the following terms:
Mr Hayes impressed me as a low functioning and somewhat dependant man with limited capacity to exercise good judgment. He possesses little insight into his alleged offending and his own psychological functioning. He presented with a history of substance addiction, failing to plan and execute positive and self-sustaining behaviour and living on the fringes of the community.
Notwithstanding the appellant’s lack of adequate insight into his offending, Mr Ball noted that he expressed regret and remorse for his actions, acknowledging that they had frightened Ms Sawyer and her children, for whom he cared ‘a lot’.
Mr Ball further stated:
Mr Hayes’ social reasoning reflects his persisting dependant and anti-social personality features and markedly dull intellect. His social reasoning is unsophisticated and he tends to reduce even complex problems to simplistic concrete terms. As a result, he considers only a small number of options and rapidly forecloses on a solution without exploring either a comprehensive set of alternatives or giving sufficient time for the implications of a course of action to come to mind.
Therefore Mr Hayes tends to be impulsive. He often makes poor decisions and frequently chooses his course of action based on short term considerations rather than on their long term consequences. He learns poorly and slowly from negative consequences and has a history of long term drug and alcohol abuse.
Mr Ball further considered that the appellant suffered a raft of dependant and anti-social personality features, and, in particular, that he regards himself as a person who is dependent on others who would support and protect him. Mr Ball could not find any evidence of explosive violence, episodic dyscontrol or intermittent explosive disorder in the appellant’s history. Mr Ball considered the appellant’s intellectual impairment to be congenital and lifelong. Importantly, for the purposes of ground 1 of this appeal, he stated:
I confirm that he must have been affected by his intellectual impairment and the dependant and anti-social features of his personality at the time of his offending.
Mr Ball concluded by stating that the appellant would require intensive and structured cognitive behavioural treatment to address the dependant and anti-social aspects of his personality.
A number of other documents were also tendered in support of the plea. They included a report by the Department of Justice and Regulation as to the appellant’s progress in respect of the last community corrections order imposed on him. That report stated that the appellant’s attendance at the Lakes Entrance Aboriginal Health Association was initially consistent, although as time progressed, his attendance there rapidly declined from the beginning of December 2015. The appellant completed a total of 38 hours out of the 200 hours of community work that he had been ordered to undertake. The report stated that his attendance to supervision was inconsistent, although his engagement was noted as satisfactory. He had been encouraged to attend the YMCA Bridge Program, and the reports from the facilitators of that program indicated that the appellant had been actively engaged throughout the program and he had been noted to successfully complete its requirements.
In April 2015 the appellant, on his own initiative, sought to address his drug and alcohol addictions. For that purpose, he attended Depaul House on 22 April as an inpatient for a period of seven days’ detoxification. That process was, apparently, a prerequisite to the appellant’s entry to Galiamble Men’s Residential Recovery Centre in St Kilda on 29 April. A report by the manager of Galiamble Men’s Recovery Centre, was tendered on the plea. The report noted that he had remained with the centre until 21 July 2015, but that he had left to attend to urgent family matters, which apparently concerned the health of his mother. During the time that he was at the centre, the appellant had participated in all relevant programs, he had showed respect for his fellow residents and staff, and he had engaged in duties that were allocated to him.
The plea
The plea proceeded on a number of different dates between October 2016 and February 2017. On the first date, on 13 October 2016, counsel for the appellant tendered the documents, to which we have referred, and outlined to the judge the appellant’s background and circumstances. Based on Mr Ball’s reports, counsel submitted that as a result of the appellant’s intellectual impairment, he should not be considered to be a vehicle for general deterrence. The judge agreed with that proposition. Counsel further submitted that the appellant’s intellectual impairment, and the features of his personality, reduced his moral culpability. In particular, it was submitted, notwithstanding that alcohol and drug use played a role in the offending, there was also sufficient evidence of a link between the appellant’s intellectual impairment and the offending.
Counsel also contended that because of the appellant’s dependant personality, he would be vulnerable in a custodial setting, so that he might be taken advantage of by other prisoners, notwithstanding that there was no evidence that that had occurred during the six months in which the appellant had been in custody. Counsel further informed the judge that the appellant was quite depressed in prison, that he thought very poorly of himself, and that he had, on one occasion, attempted to commit suicide. She referred to a reference in the Depaul House Discharge Summary dated 29 April 2015 noting a history of depression. In addition, counsel noted that the Galiamble materials, and the report of the Department of Justice & Regulation, indicated that the appellant did have the capacity to take steps to his own rehabilitation. Counsel also referred to the health issues suffered by the appellant’s mother, and the circumstances in which she was responsible for the care of his children. She submitted that, as a result of those circumstances, the appellant’s time in prison would bear more heavily on him.
In the course of the plea, counsel suggested that the appellant might fit within the Department of Health & Human Services’ definition of intellectual disability so as to qualify for the formulation of a justice plan. Accordingly, she submitted that the appellant should be assessed as suitable for a community corrections order with such a plan. In response, the judge, while noting that the appellant needed help beyond that which had been provided in the past, stated that he considered the appellant also needed further time in custody, but that he should nevertheless request that a pre-sentence report be provided to the court. As a consequence, the appellant was remanded in custody for a period of two months until 14 December 2016.
Unfortunately, on that date, due to an administrative error, the relevant documentation had not been communicated to Disability Services until shortly before the hearing date. Accordingly, the plea was further adjourned and it subsequently resumed on 8 February 2017.
On that date, the Department provided a report stating that the appellant did not fall within the definition of having a disability within the relevant legislation. Counsel for the respondent then addressed those submissions to the judge. He submitted that the attempted aggravated burglary offence was attended by aggravating circumstances, including the presence of Ms Sawyer’s young children. It was noted that the appellant only ceased his behaviour when the police arrived. Counsel submitted that the appellant’s intellectual disability had not been demonstrated to have had any causative effect on his offending, so as to reduce his moral culpability for the offences for which he was to be sentenced. It was submitted that Mr Ball’s report primarily explained that the offending was due to the consumption of alcohol and the use of methylamphetamine at the time of the offending. Counsel for the respondent did accept that, because of the low level of the appellant’s intellectual functioning, he was a less suitable vehicle for general deterrence.
Reasons for sentence
The judge commenced his reasons by setting out, in some detail, the circumstances of the offending, the appellant’s previous convictions, and the content of Mr Ball’s report. In respect to the appellant’s offending, the judge observed that women are entitled to feel safe from men in their own home after they are separated, and that the appellant’s offending was ‘particularly serious’ because he deliberately chose to go to Ms Sawyer’s home.[7] The judge also noted that the appellant had a criminal history of some gravity, and that he had been dealt with leniently in the past by the courts, particularly by being accorded five community corrections orders and an intensive corrections order.[8] The judge regarded it as ‘perturbing’ that the appellant was on two community corrections orders at the time that he committed the instant offences.[9]
[7]Reasons [20]–[21].
[8]Reasons [22]–[24].
[9]Reasons [25].
The judge, having quoted extensively from Mr Ball’s report, rejected the submission made on behalf of the appellant that there was a nexus between his diminished intellectual functioning and his poor ability to make decisions, with the offending in the instant case, such that his moral culpability should be reduced.[10] The judge considered that it was the appellant’s choice to become intoxicated, and that he well understood the connection between his alcohol and drug abuse and the potential for violence. Accordingly, the judge rejected the submission that the appellant’s low intellectual functioning should be regarded as reducing his moral culpability.
[10]Reasons [47].
The judge further commented as follows:
It was your choice to engage in the sustained behaviour that you engaged in. You only stopped and significantly, when the police arrived. You knew what was the problem. … You chose to start and when circumstances changed, you made an entirely sensible, rational, considered decision to immediately stop when the police arrived and dropped the shovel. But more than this, it cannot be said in this case that your conduct was in any way explained by your alcohol and drug affected condition, on the evening. For the following morning, having been in the cells, having sobered up, you then re-commenced your abusive and harassing contact on the same topic with your victim, in breach of the conditions of bail that you had just entered.[11]
[11]Reasons [48].
The judge noted that the appellant had previously admitted himself to the St Vincent’s Hospital Alcohol and Drug Withdrawal Unit, and that he had been admitted to the Depaul House in April 2015, from which he was later discharged. He further noted that after that discharge, he commenced a four month period as an in-patient with Galiamble Men’s Recovery Centre. The judge considered that it was to the appellant’s credit that he had taken that action to assist in dealing with his polysubstance abuse issues.[12]
[12]Reasons [52].
The judge noted that the appellant’s mother’s health concerns would affect him while he was in prison, both as a son and as a father, so that a term of imprisonment would be more burdensome for him than for others.[13] The judge accepted that, because of the appellant’s intellectual functioning, he was a less suitable vehicle for general deterrence.[14] The judge also accepted that, during the appellant’s incarceration, he had reflected on his life and gained some insight into how drugs and alcohol had led to his contact with the criminal justice system.[15] In addition, the judge accepted that the appellant had pleaded guilty at the earliest possible time, and his Honour accepted that his plea was evidence of his remorse. His Honour considered that the appellant’s pleas had served an important utilitarian purpose in saving time and cost of the legal proceedings.[16]
[13]Reasons [56].
[14]Reasons [57].
[15]Reasons [59].
[16]Reasons [50].
Submissions
In support of ground 1, counsel for the appellant referred to the report of Mr Ball, and, in particular, to the opinion expressed by Mr Ball that the appellant had limited capacity to exercise good judgment, that his social reasoning was unsophisticated, and that, as a result of his impairment, he only considered a small number of options, without exploring alternatives or giving sufficient time to consider the implications of the course he has chosen. It was submitted that the judge erred in failing to take into account the appellant’s impairment, and, in particular, the impact of that impairment on his decision making and judgment, when assessing the appellant’s moral culpability. It was further submitted that the fact that the appellant was affected by alcohol and methylamphetamine at the time of the offending could not be ‘divorced from his poor judgment and decision making’, which were an aspect of his mental impairment. Counsel contended that, relevantly, the sentencing judge held that the appellant’s offending could not be explained by his alcohol and drug affected condition, particularly in light of his resort to further offending on the day after his release.
In support of ground 2, counsel submitted that the total effective sentence, and the non-parole period, were manifestly excessive, in light of the appellant’s intellectual impairment, his pleas of guilty which were at the earliest possible time, and his genuine regret and remorse. In addition, the sentence failed to take into account that the circumstances of the appellant’s time in custody would be more burdensome, as a consequence of his concern for his mother and children, and also because this was his first term of imprisonment. In that respect, it was noted that the appellant had attempted to commit suicide on one occasion since he was remanded in custody.
In response, on ground 1, counsel for the respondent noted that while the appellant had a full scale IQ of 71, his perceptual reasoning index score was 82. It was submitted that that index related to the appellant’s capacity to use information gained through his senses, to make judgments about the world, and to act accordingly. Further, it was noted that, in the course of the plea, it was accepted by counsel for the appellant that he did not fall within the definition of having an intellectual disability. Counsel for the respondent contended that the judge was correct in determining that the appellant’s offending was not causatively related to his mental impairment. In particular, the appellant’s offending was not impulsive, and the fact that he had limited capacity to exercise good judgment did not mean that he was unable to appreciate the probable consequences of abuse of alcohol and drugs. Thus, it was submitted, it was appropriate for the judge to determine that the appellant’s dull intellect or intellectual impairment did not play a causative role in his offending, and therefore was not a factor that reduced his moral culpability.
In respect of ground 2, counsel for the respondent submitted that the sentence imposed on the appellant was within range. It was submitted that each of the factors, relied on by the appellant in support of the ground, were expressly taken into account by the judge, including the appellant’s intellectual impairment, his early plea of guilty, his remorse, and the fact that a sentence of imprisonment would be more burdensome on him. It was submitted that the aggregate sentence of 4 years’ imprisonment imposed on counts 2, 3 and 4 did not bespeak error, notwithstanding that it might be considered to be a sentence ‘towards the higher end of the applicable range’.
Counsel for the respondent pointed out a number of relevant factors which, he submitted, had the effect that the sentence was not beyond the permissible range. In particular, the offending took place in the context of a broken domestic relationship, there were three young children present during the offending, the offending was persistent, and its purpose was to terrorise the victim in her own house. It was further pointed out that the appellant had only ceased his offending when the police arrived. He had a criminal history of some gravity, which included 19 previous offences involving violence, and he had previously been sentenced to five community corrections orders and an intensive corrections order, several of which he had breached. Taking those matters into account, it was submitted that it could not be maintained that the sentences imposed on the appellant were manifestly excessive.
Ground 1 — analysis and conclusion
It is well recognised that, in an appropriate case, the fact that an offender suffered from a psychological or intellectual impairment at the time of the offending may operate to reduce the offender’s culpability for the commission of the offence.[17] However, in such a case, in order that the psychological or intellectual impairment constitute a mitigating circumstance in that way, the impairment must be demonstrated to have played a relevant role in, and to have contributed to, the involvement of the offender in the particular offence.[18]
[17]R v Verdins (2007) 16 VR 269, 275 [26] (Maxwell P, Buchanan and Vincent JJA) (‘Verdins’).
[18]DPP v O’Neill (2015) 47 VR 395, 412 [68] (Warren CJ, Redlich and Kaye JJA).
Ordinarily, a causal link may be more readily established between an impairment and the offending in question where the particular offender suffers an intellectual, rather than a psychological, impairment. In Muldrock v The Queen,[19] the High Court stated:
A question will often arise as to the causal relation, if any, between an offender’s mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender’s moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community.[20]
[19](2011) 244 CLR 120.
[20]Ibid, 140–141 [54]; Caldwell v The Queen [2014] VSCA 274 [56].
In the present case, the judge gave particular consideration to the effect of the appellant’s intellectual impairment on the relevant aspects of sentencing. His Honour recognised that the appellant’s deficit was of a sufficient degree, that the weight to be given to general deterrence in this case should be moderated, in keeping with the principle stated in a number of the authorities, including R v Anderson,[21] R v Yaldiz[22] and R v Verdins.[23] However, the judge was not satisfied that the appellant’s intellectual disability contributed in any relevant way to his involvement in the offending. In order for ground 1 to succeed, therefore, the appellant must demonstrate that the judge erred in finding, as a fact, that it was not established that the appellant’s diminished intellectual capacity adversely affected his ability to make a reasoned decision whether to engage in the offending to which he pleaded guilty.
[21][1981] VR 155, 159–161 (Young CJ and Jenkinson J).
[22][1998] 2 VR 376, 381 (Batt JA), 383 (Winneke ACJ).
[23](2007) 16 VR 269, 276 [32].
As mentioned, the evidence, as to the appellant’s intellectual impairment, was contained in the report of Mr Ball. The appellant did not call Mr Ball to give viva voce evidence, and he was not cross-examined. However, the judge was not obliged to accept, in their totality, all of the views contained in Mr Ball’s report. As is common with pleas in this State, evidence, and other material, is ordinarily presented by way of the tender of reports, testimonials and the like. The sentencing judge is not required to accept each statement of fact or opinion contained in such documentation. Rather, in each case, the judge is required to weigh the contents of that material against other evidence before the Court, including the circumstances of the offending.
As noted, the judge gave detailed consideration to the nature and extent of the appellant’s intellectual incapacity. In doing so, the judge carefully examined the report of Mr Ball concerning his psychological assessment of the appellant. The judge accepted Mr Ball’s views as to the nature and degree of that impairment, but his Honour, expressly, did not accept that part of Mr Ball’s report, in which he stated that the appellant ‘… must have been affected by his intellectual impairment and the dependent and anti-social features of his personality at the time of his offending’.[24]
[24]Reasons [50].
In his reasons for sentence, the judge set out the basis on which he reached that conclusion. He noted, in particular, that the actions of the appellant had involved a degree of deliberateness, and the judge regarded as significant that, as soon as the police arrived, the appellant desisted from his actions, and dropped the shovel that he was then holding. The judge further considered that the conduct of the appellant was not aimless, but that it was directed to the purpose of terrorising his ex-partner in her own home.[25] Further, the judge noted that, after the benefit of ‘overnight reflection’, the appellant resumed his harassment of Ms Sawyer on the next day, by telephoning her almost as soon as he had been bailed from the police station.[26] As we have mentioned, the judge concluded:
It was your choice to become intoxicated. It was your choice to go to the premises. It was your choice to engage in the sustained behaviour that you engaged in. You only stopped and significantly, when the police arrived. You knew what the problem was. … You chose to start and when circumstances changed, you made an entirely sensible, rational, considered decision to immediately stop when the police arrived and drop the shovel.[27]
[25]Reasons [18].
[26]Reasons [19].
[27]Reasons [48].
It was based on that view of the facts that the judge rejected the proposition, contained in Mr Ball’s report, that the appellant’s intellectual disability played a relevant causative role in his offending. In particular, the judge considered that the degree of deliberation by the appellant, in the offending, was inconsistent with the proposition contained in Mr Ball’s report that his intellectual impairment affected his capacity to make a reasoned decision about his conduct.
The matters, on which the judge relied, were plainly relevant to an assessment as to the effect of the appellant’s intellectual impairment on his offending. Views might reasonably differ as to whether those facts precluded a finding that the appellant’s intellectual impairment influenced his involvement in the offending. However, in our view, it could not be maintained that, based on those facts, the judge was not entitled to find, as he did, that he was not satisfied that the appellant’s intellectual impairment played a causative role in his offending so as to diminish or moderate his moral culpability for his commission of the offences.
For those reasons, we consider that ground 1 of the appeal should not succeed.
Ground 2 — analysis and conclusion
In order to establish the second ground of the appeal, that the sentence imposed on the appellant was manifestly excessive, the appellant must demonstrate that the sentence was ‘wholly outside the range of sentencing options’ available to the judge.[28] It has been recognised that manifest excess is a stringent ground, that is difficult to make good. In essence, in order to succeed, the appellant must demonstrate that the sentence imposed on him was so excessive as to bespeak error in the exercise of the sentencing discretion, notwithstanding that no specific error can be identified in the reasons for sentence given by the judge.[29]
[28]Clarkson v The Queen (2011) 32 VR 361, 384 [89].
[29]House v The King (1936) 55 CLR 499, 505; McPhee v The Queen [2014] VSCA 156, [9]–[11] (Redlich and Priest JJA).
Certainly, as counsel for the respondent has pointed out, there were serious features attaching to the offending by the appellant. The offending took place over a period of time, in the context of the failed relationship between the appellant and his former partner. Of particular concern is that three young children were present throughout the offending. As the judge found, the purpose of the offending was to terrorise Ms Sawyer in her own home, in the presence of her children. In addition, the appellant had a long history of previous convictions, and it is of concern that, at the time of the offending, he was subject to two community corrections orders.
Clearly, each of those matters were relevant to an assessment of the gravity of the offending by the appellant in this case. On the other hand, there were significant mitigating factors attaching to the appellant’s circumstances, which were required to be taken into account in the exercise of the sentencing discretion. The appellant pleaded guilty at an early stage. The judge accepted that the plea was accompanied with regret and remorse on behalf of the appellant. In addition, it had important utilitarian value, in particular as it spared the appellant’s ex-partner the stress of a contested trial. The judge accepted that the appellant had reflected on his wrongdoing while in prison, and he had gained some insight into how the consumption of drugs and alcohol had caused him to come into contact with the criminal justice system and affected his life.[30]
[30]Reasons [59].
In addition, the judge accepted that a term of imprisonment would be particularly burdensome for the appellant, in light of his understandable concern for his mother’s health, and her capacity to care for his three young children. The evidence demonstrated that Mrs Hayes has a serious medical condition, and that physically she is not sufficiently healthy to be able to care for the three children who are of tender age. It was also relevant, in that respect, that the appellant had already made one attempt at committing suicide.
Finally, as noted, the judge accepted that because of his intellectual impairment, the appellant was less suitable as a vehicle for general deterrence.[31] Ordinarily, in cases involving actions of the kind carried out by the appellant towards his ex-partner, general deterrence is a factor which is given substantial weight. Based on the matters contained in Mr Ball’s report, the judge was, in our view, correct in determining that, in this case, the appellant was not a suitable medium for general deterrence, so that the weight to be given to that sentencing function should be appropriately modified.
[31]Reasons [57].
As we have stated, the offending in this case was serious. However, the appellant did not physically injure or harm Ms Sawyer. As alleged in charge 2, to which the appellant pleaded guilty, at the time the appellant committed the attempted burglary (shortly before the police arrived), he intended to assault Ms Sawyer. However, the appellant’s attempts to effect entry into the home were plainly inept and ineffectual. The judge, in his reasons, did not find that the appellant had set out with the purpose of actually physically assaulting Ms Sawyer, but, rather, his Honour considered that the appellant’s purpose was to terrorise her in her own home.[32] Such a purpose is, of course, reprehensible. Nevertheless, the absence of any physical harm to Ms Sawyer, and the judge’s view as to the appellant’s general purpose during the incident, are of importance in assessing the offending by the appellant, in respect of charges 2, 3 and 4, and the appellant’s culpability for that offending.
[32]Reasons [18].
The task that confronted the sentencing judge was by no means a simple one. However, and notwithstanding the stringency of the ground relied on by the appellant, we are persuaded that the sentence imposed on charges 2, 3 and 4, namely, an aggregate sentence of 4 years’ imprisonment, was wholly outside of the range of the sentencing options available to the judge in the case.
In those circumstances, it falls to us to resentence the appellant on those charges.
In the course of submissions, counsel for the appellant provided an affidavit sworn by his client, together with other documents, on the basis that they would be relevant if the ground of appeal relied on by the appellant succeeded. In his affidavit, the appellant deposed that he has served most of his sentence at Fulham Correctional Centre, where he is a unit billet. He has participated in the Marumali Healing Program, and he has not used drugs while he is in prison. The negative results of a urine test provided on 15 September 2017 were tendered to that effect. The appellant has also deposed that his mother is very ill, and that he has only had a limited opportunity to see her. A further report of Gippsland Lakes Community Health, which was tendered, states that Mrs Hayes now suffers from severe late stage lung disease which has required multiple hospitalisations, including two episodes of respiratory failure. The report concludes that it is doubtful that Mrs Hayes would survive a further episode of respiratory failure.
In our view, and taking into account the matters relied on by the respondent as going to the gravity of the offending, and the mitigating circumstances relied on on behalf of the appellant, including those described in his affidavit, we consider that the appropriate sentence should be an aggregate term of 3 years’ imprisonment in respect of charges 2, 3 and 4.
It follows that the appeal must be allowed, and the aggregate sentence imposed on charges 2, 3 and 4 set aside. In lieu of the sentence first imposed on those three charges, we resentence the appellant to a term of 3 years’ imprisonment, but otherwise confirm the sentences imposed on charge 1 on the indictment, and on the related summary offences contained in charges 5, 6 and 8. We confirm the orders for cumulation in respect of those summary offences, but direct that the sentence on charge 1 commence on the date on which the sentences on charges 2, 3 and 4, and the sentences on the related summary charges, commence. We make that latter direction in order to serve the principle of totality, and to avoid unnecessary complication in the structure of the sentence.[33]
[33]Cf Fasciale v R (2010) 30 VR 643, 646–649 [27]–[37] (Weinberg JA).
Thus, the total effective sentence will be a term of 3 years and 4 months’ imprisonment. We fix a non-parole period of 2 years and 2 months’ imprisonment.
On an appeal of this nature, where the appellant had originally pleaded guilty, there is an added artificiality to this Court making the statement required by s 6AAA of the Sentencing Act 1991, as to the term to which the Court would have re-sentenced the appellant if he had not pleaded guilty before the sentencing judge. Nevertheless, and bearing that in mind, we state that, but for the appellant’s pleas of guilty, an appropriate sentence, on re-sentencing by this Court, would have been a total effective term of 4 years and 6 months’ imprisonment with a non-parole period of 3 years and 3 months.
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