Jamieson v the Queen
[2014] VSCA 294
•19 November 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0165
| ROSE JAMIESON |
| v |
| THE QUEEN |
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| JUDGES: | REDLICH and WHELAN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 18 November 2014 |
| DATE OF JUDGMENT: | 19 November 2014 |
| MEDIUM NEUTRAL CITATION: | [2014] VSCA 294 |
| JUDGMENT APPEALED FROM: | DPP v Jamieson [2014] VCC 1016 (Judge Lacava) |
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CRIMINAL LAW – Appeal – Sentence – Application of Verdins principles – Depression – Offences of a repetitive nature over protracted period – Expert opinion that causal link between offending and depression – Judge entitled to reject opinion as to centrality of depression to offending – Limited extent to which depression could reduce moral culpability – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr S Gillespie-Jones | Taylor Whelan & Whelan |
| For the Respondent | Mr T Gyorffy QC | Office of Public Prosecutions |
REDLICH JA
WHELAN JA:
On 24 June 2014 the appellant, Rose Jamieson, pleaded guilty to four counts of theft and four counts of attempted theft. A plea hearing was conducted that day in which evidence was called from people close to Ms Jamieson as to her character and personal history, from a social worker who had been counselling her after her arrest for the offences, and from a psychiatrist who had conducted a medico-legal assessment for the purpose of the plea, Dr Lester Walton.
The maximum penalty on each of the attempted theft counts was five years’ imprisonment. The maximum penalty on each of the theft counts was 10 years’ imprisonment. Ms Jamieson was sentenced to an aggregate sentence on all charges of 2½ years’ imprisonment with a non-parole period of 15 months. The judge declared pursuant to s 6AAA of the Sentencing Act 1991 that had she not pleaded guilty he would have imposed a sentence of 4½ years’ imprisonment with a non-parole period of 3 years. An order was made for compensation in favour of the Department of Human Services.
The offences to which Ms Jamieson pleaded guilty were all ‘rolled-up’ charges. In total they concerned 394 discrete incidents over the period between 22 December 2010 and 7 November 2012.
Ms Jamieson was aged 25 to 27 at the time of the offending and 28 at the time of sentence.
On 1 December 2008 Ms Jamieson began employment with the Department of Human Services in an administrative role. When widespread flooding caused damage and loss in Northern Victoria in December 2010 and January 2011 the State government provided assistance by way of emergency relief. Part of that assistance involved the provision of debit cards in various denominations to those in need enabling them to access money through automatic teller machines using a PIN provided with the card. Between December 2010 and April 2011 Ms Jamieson was seconded to the organisation implementing this emergency relief. Whilst seconded in that position she began stealing the debit cards and PINs. She continued stealing the cards after she returned to her normal duties. Over the period of her offending she stole 356 debit cards. She accessed funds using those cards on 364 occasions and attempted to access funds using those cards on 30 further occasions. After an audit had revealed that cards were missing, police investigations identified Ms Jamieson as the offender using CCTV footage at ATMs. She was arrested at her workplace on 8 November 2012. The last occasion upon which she had attempted to use one of the stolen debit cards was the day before her arrest, 7 November 2012.
In all, Ms Jamieson stole the total sum of $318,790. She was dismissed from her employment on 24 December 2012.
On 22 October 2014 Ms Jamieson was granted leave to appeal on a single ground. That ground is:
The learned sentencing judge erred in failing to find that the applicant’s medical condition materially contributed to her offending.
The evidence centrally relevant to this ground is that of Dr Walton.
Evidence of Dr Walton
Dr Walton saw Ms Jamieson on one occasion, on 1 October 2013, at the request of her solicitors. He prepared a report dated 4 October 2013 which was tendered on the plea.
In his written report Dr Walton recorded a history of depression beginning in 2004. Ms Jamieson had previously received treatment for depression including anti-depressant medication. Dr Walton observed that despite the fact that her depression had deteriorated after she ceased active treatment in around 2009, she had not sought professional assistance until soon after her arrest. Dr Walton also set out her personal history. Amongst other things, her life has been significantly affected by the suicide of her father when she was very young. Her father had been diagnosed with bi-polar disorder.
In his written report Dr Walton expressed the opinion that there was a ‘history of chronic mixed-anxiety/depressive disorder’. He made the following observation:
I believe that Ms Jamieson is an example of the commonly recognised phenomenon of an adult female engaging in out-of-character dishonesty offending which is intimately connected to mood disturbance.
He went on to say that ‘classically’ this takes the form of shop lifting and he expressed the opinion that Ms Jamieson’s conduct represented a ‘variant’ of that theme. He expressed his conclusion as follows:
It is my view that there are relevant psychiatric factors which were in operation rather than more conventional criminal motivation.
Dr Walton referred to the fact that there had been a failure to seek treatment and an inability to recognise that treatment was necessary.
As to the protracted nature of the offending Dr Walton expressed the following view:
Although Ms Jamieson’s offending was protracted, it does arise as out-of-character behaviour which further points to the fact that psychological factors may be relevant.
He referred to this conclusion as ‘my hypothesis’.
Dr Walton expressed the opinion that it would be ‘open’ to apply the principles in Verdins, a reference to this Court’s decision in R v Verdins,[1] and then observed:
I do see this woman’s psychiatric illness as making a centrally relevant contribution to her misconduct.
[1][2007] VSCA 102 (‘Verdins’).
Ms Jamieson had previously involved herself in dishonesty. In early 2007 she had received psychiatric treatment after what was described as a ‘pattern of stealing’ from members of her family. It emerged early in Dr Walton’s oral evidence that he did not know of that aspect of her history.
In the course of his oral evidence Dr Walton expressed his opinion in these terms:
I certainly see that depressed mental state as relevant to the offending.
As he had in his written report, he referred to this conclusion as being his ‘hypothesis’.
In his evidence-in-chief he repeated the misconception he had that there had been no prior dishonesty.
In cross-examination Dr Walton agreed that the kind of depression from which Ms Jamieson had been suffering had not been depression that had manifested itself in daily living, such as an inability to get out of bed for days, and he agreed that it would not have been obvious to work mates. He agreed that she had been able to hold down a responsible job. He observed that whilst there can be cognitive impairment as a consequence of depression that had not been a feature of her case.
In the course of his cross-examination Dr Walton said that it was significant that the conduct involved was ‘not usual’ for Ms Jamieson and that she was ‘not given to this type of behaviour’.
At the end of his cross-examination the judge read to Dr Walton a large section from an earlier psychiatric report which detailed the pattern of stealing from her family which had culminated in psychiatric treatment early in 2007. In response to that information Dr Walton agreed with a suggestion put to him by the trial judge that it beggared belief that she had not sought treatment. Dr Walton then continued:
Well, all I can tell you is this, unfortunately for us treating psychiatrists, it’s a commonly encountered problem when people are, you know, lose the insight that they need ongoing treatment. So it’s not, not at all uncommon what’s occurred. And, if it is correct that the same sort of dynamic was happening back then in relation to depression, it sort of underscores, ah, really, how important it is that her depression needs to be treated properly if, in fact, she’s going to be relieved of that, or partially relieved of the risk of reoffending.
Relevant sentencing remarks
The sentencing judge dealt with Dr Walton’s evidence in the following passage:
I accept Dr Walton’s opinion that you suffer from a mixed anxiety-depressive disorder. I also accept that this can be treated by mood-stabilising medication and counselling. I accept his opinion that because you suffer from a mixed anxiety-depressive disorder, any time in prison will be difficult for you and more difficult than for others.
I do not accept, however, that your condition materially contributed to your offending. As I said earlier, this was not one-off offending. The rolled-up theft charges reflect you offended hundreds of times. This offending cannot be compared to shoplifting. It is far more serious and organised and repetitive. The offending occurred in the context of your employment, and your depression did not prevent you from holding down a good job in which you held a position of trust. Your offending at the start may have been in part contributed to by your depression, but I cannot accept you did not realise that what you were doing was wrong and utterly dishonest. Your moral culpability may have been slightly diminished because of depression at the time you commenced offending, but when looked at over the 18 month period of offending your moral culpability must be regarded as high.
I have moderated the sentence that I will shortly pass, because you suffer from a mixed anxiety-depressive disorder. I do so because your condition may have influenced your offending in a very limited way and because you will require ongoing treatment in prison and, because of that, your time in prison would be more burdensome than for others.[2]
[2]DPP v Jamieson [2014] VCC 1066 [38]–[40] (‘Reasons’).
The principles in Verdins
The focus of attention on this appeal is what the sentencing judge said about moral culpability.
A reduction in moral culpability is one of the six ways that impaired mental functioning may be relevant to sentencing in accordance with the Verdins principles.[3] The Court in Verdins explained that the effect on the Court’s assessment of moral culpability will vary with the nature and the severity of the relevant condition and of the nature and seriousness of the offence. Without being prescriptive, the Court said that moral culpability might be reduced because of impaired ability to exercise appropriate judgement, impaired ability to make calm and rational choices or to think clearly, disinhibition caused by the mental condition, impaired ability to appreciate the wrongfulness of the conduct, obscuring of the necessary intent, or contribution in a direct causal manner to the commission of the offence itself. This was not intended as an exhaustive list.[4]
[3]Verdins [32].
[4]Verdins [23]–[26].
Submissions
The submission made on behalf of the appellant, both in writing and orally, was that given the long standing medical disorder which had previously been associated with thefts from her family and which had successfully responded to treatment, it was unreasonable to reject the evidence of Dr Walton that Ms Jamieson’s mental condition had materially contributed to the offending.
On behalf of the prosecution it was submitted that the conclusion reached by the sentencing judge was one which had been clearly open for the reasons the sentencing judge had given. In addition to those reasons, the prosecution also referred to the fact that Dr Walton had specifically given evidence that there was no cognitive impairment in this case and to the fact that Dr Walton’s opinion had been based upon the misconception that there was no history of prior similar behaviour.
Analysis
The sentencing judge did apply the Verdins principles in relation to this offender. He moderated the sentence because of her ‘mixed-anxiety/depressive disorder’, he found that her mental condition may have influenced the offending although only ‘in a very limited way’, and he found that prison would be more burdensome for her than for others.
The submission made is that he was bound to go further and to accept Dr Walton’s opinion that Ms Jamieson’s condition had ‘materially contributed’ to the offending.
The reasons which the sentencing judge gave for not accepting Dr Walton’s evidence in that respect were, in our view, both factually accurate and relevant. The offending conduct had occurred hundreds of times. It was serious and organised and repetitive. It had occurred in the context of employment in circumstances where the mental condition concerned had not prevented Ms Jamieson from carrying on her work and holding a position of trust. Ms Jamieson must have realised that what she was doing was wrong and utterly dishonest.
The sentencing judge’s conclusion that notwithstanding the existence of the depression Ms Jamieson’s moral culpability must be regarded as high is one which was, in our view, clearly open.
In our view the conclusion reached by the sentencing judge was not only open but was correct. In that respect, in addition to the matters set out by the sentencing judge, we refer to the following matters:
1.The particular conclusion relied upon on the appellant’s behalf was one reached when Dr Walton was ignorant of Ms Jamieson’s complete history. The conclusion was based on the proposition that the offending was unusual and out of character. That was not the position. The evidence Dr Walton gave when the correct history was put to him did not relevantly advance the position. What he said was that the circumstance that a person might lose insight as to their need for treatment was not at all uncommon, and that the fact that the prior conduct had occurred underscored the need for treatment.
2.Dr Walton accepted that there was no cognitive impairment in this case.
3.With the exception of the one passage in his written report (confirmed in his oral evidence) where he had described the illness as ‘centrally relevant’, his conclusions were generally expressed in a cautious manner. He referred to his conclusion as an ‘hypothesis’. He suggested that the psychiatric factors were ‘relevant’, which is consistent with what the sentencing judge found, and at one place he expressed his conclusion in terms that psychiatric factors ‘may be relevant’.
4.Dr Walton saw Ms Jamieson on only one occasion.
For these reasons, the appeal should be dismissed.
There is another reason why this appeal should be dismissed. The sentence imposed was, in our view, a merciful one. Even if error had been established, our conclusion would have been that a different sentence should not be imposed.
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