Jason Darmos v The Queen
[2015] VSCA 312
•23 November 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0097
| JASON DARMOS | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | REDLICH and WHELAN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 27 October 2015 |
| DATE OF JUDGMENT: | 23 November 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 312 |
| JUDGMENT APPEALED FROM: | DPP v Darmos (Unreported, County Court of Victoria at Bendigo, Judge Chettle, 28 April 2015) |
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CRIMINAL LAW – Sentence – Admissibility of fresh evidence on appeal – Whether psychotic episode after sentence revealed diagnosis of schizophrenia rather than drug-induced psychosis at time of offending – Nguyen v The Queen [2006] VSCA 184 applied –Fresh evidence did not throw ‘significant new light’ on pre-existing analysis or demonstrate material before sentencing judge did not reveal ‘the true significance’ of applicant’s psychiatric condition – Evidence not admissible – Different sentence would not have been imposed – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J E McLoughlin | Victoria Legal Aid, Ringwood |
| For the Respondent | Mr D A Trapnell QC | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
REDLICH JA:
I would refuse leave to appeal for the reasons given by Whelan JA.
WHELAN JA:
On 28 April 2015 at the County Court of Victoria at Bendigo the applicant was arraigned and pleaded guilty to two charges of armed robbery.
The applicant had appeared before the same judge in Melbourne a month earlier. He was then appealing a term of four months’ imprisonment which had been imposed upon him in the Magistrates’ Court in relation to two breaches of Community Correction Orders (CCOs). The term imposed was four months. The judge had adjourned those appeals so that they could be dealt with at the same time as the armed robbery offences to which he pleaded guilty on 28 April. On 28 April he abandoned those appeals.
Between the two hearings a pre-sentence report under s 37(b) of the Sentencing Act 1991, dated 21 April 2015, had been obtained. A pre-sentence report is a pre-condition to the making of a CCO under Part 3A of the Sentencing Act1991.
After hearing a plea in mitigation the applicant was sentenced as follows:
Charge Offence Maximum Sentence 1 Armed Robbery
[s 75A Crimes Act 1958]
25 years’
imprisonment [s 75A(2) Crimes Act 1958]
18 months’ imprisonment (aggregate sentence); Community Corrections Order for a period of 3 years, with special conditions of 200 hours of unpaid community work, supervision, and treatment and rehabilitation. 2 Armed Robbery
[s 75A Crimes Act 1958]
25 years’
imprisonment [s 75A(2) Crimes Act
1958]
Total Effective Sentence: 18 months’ imprisonment (aggregate sentence); Community Corrections Order for a period of 3 years, with special conditions of 200 hours of unpaid community work, supervision, and treatment and rehabilitation.
Non-Parole Period: None Pre-Sentence detention declaration: None 6AAA Statement: 4 years’ imprisonment and a non-parole period of 2 years 6 months. Other relevant orders: Forensic sample order pursuant to s 464ZF(2) of the Crimes Act 1958.
The applicant applied on 28 May 2015 for leave to appeal against sentence. He did not initially request an oral hearing, but he subsequently did so.
An oral hearing of the application for leave to appeal sentence was held on 27 October 2015. Prior to that hearing an application was foreshadowed to rely upon what was said to be fresh evidence, constituted by a report by the forensic psychiatrist, Dr Nina Zimmerman, dated 4 September 2015. At the hearing an affidavit was filed by the applicant’s instructing solicitor deposing that on 22 July 2015 the applicant had been transferred to the Thomas Embling Hospital, where he had been assessed by Dr Zimmerman on 25 August 2015, and producing a copy of Dr Zimmerman’s report dated 4 September 2015. A revised version of the written case was filed. The applicant was given leave to substitute a new Notice of Application for Leave to Appeal against Sentence which included a ground concerning ‘fresh evidence’.
The focus of the submissions at the oral hearing concerned what was said to be the fresh evidence and the report of Dr Zimmerman. In substance, it was submitted that the plea had been made, and the applicant had been sentenced, on the misconception that the applicant’s psychiatric issues were entirely drug-related. The fresh evidence was said to be evidence that he was in fact suffering from schizophrenia. Before turning to those issues, it is necessary to address the circumstances of the offending and some other relevant matters.
Circumstances of the offending and non-psychiatric issues
On 11 and 13 January 2015 the applicant committed two armed robberies on a hotel where he was well-known. He was recognised on both occasions. On the first occasion he threatened a staff member with a blood-filled syringe saying that he had AIDS. On the second occasion he was armed with a knife and two staff members were involved. On the first occasion he escaped with $240. On the second occasion he escaped with $400. He was arrested on 13 January and made full admissions. He pleaded guilty at the earliest opportunity.
By virtue of the sentence to which I have already referred concerning breach of the earlier CCOs, by the time he came to be sentenced on 28 April 2015 the applicant had spent 106 days in custody. That period was not pre-sentence detention but it was relevant to the issue of totality and the sentencing judge expressly recognised that fact.
At the time of the sentence the applicant was 26 years of age. He had apparently had a fairly normal childhood until his parents separated when he was 13 years of age. His parents had a bitter divorce. The applicant has had difficulties since then.
The applicant completed secondary school and began a university course which he did not finish. Whilst at university he commenced abusing drugs and that abuse significantly escalated over the years.
As the sentencing judge observed, the applicant has a criminal history consistent with a young man with drug issues. He has convictions for possessing and using drugs as well as dishonesty offences. In the past he had received community based dispositions for his offending. His first period of imprisonment was the four months imposed consequent upon the breaches of the CCOs to which I have referred.
The sentencing judge referred at length to this Court’s decision in Boulton v The Queen.[1] He determined that this was an appropriate case for a combination sentence of a term of imprisonment and a CCO. He rejected a submission put on behalf of the Crown that a CCO ought not to be imposed as the offending required the imposition of a term of imprisonment in excess of two years. Pursuant to s 44 of the Sentencing Act a CCO cannot be made if a period of imprisonment of more than two years is imposed.
[1][2014] VSCA 342 (‘Boulton’).
Psychiatric material before the sentencing judge
There was a great deal of psychiatric material before the sentencing judge. Not all of it was tendered. Some of it was out-dated and was not relied upon. The relevant material tendered was: a report by a consultant psychiatrist, Dr Judy Hope, from Eastern Health dated 18 September 2014; a Forensicare report dated 27 March 2015; and a report by the forensic psychiatrist, Mr Ian Joblin, dated 21 April 2015. Mr Joblin had assessed the applicant at the request of the applicant’s solicitor.
Given the way the application for leave to appeal is now put, it is necessary to set out in full what the sentencing judge said about the material before him concerning the applicant’s psychiatric condition.
After completing a brief review of the applicant’s personal history, including an attempt at drug rehabilitation at a residential facility in California in 2010, the sentencing judge said:
Mr Joblin says that he agrees with the report tendered from Community Corrections, which states: ‘That the only beneficial treatment for him would be in a structured involuntary environment where his abstinence from illicit substance abuse and his mental health can be closely monitored and addressed.’
You acknowledge that the offences in Blackburn were committed when you were using copious amounts of ice and you claim to have little recollection of the details. You say that you were hallucinating and deluded, however accept that the motivation for your offending was to obtain money to use on drugs.
Mr Joblin reports that you present with a degree of insight and he is of the view that you have a good intellect. He says he has observed a strong deterioration in your functioning over the years dominated by your drug use and that your psychological problems result from your drug use include hallucinations, delusions and confusion. You have a number of diagnoses in the past including bipolar disorder and schizoaffective disorder.
You maintain now that since being in custody that you were overcoming the problems that drugs have caused you. Mr Joblin is of the view, however, that there is no doubt that you have experienced a very severe disturbance in psychological functioning. He says from his review of the mental health material that that is just symptomatic of your long term drug use. He believes there is no doubt that your mental functioning was impaired and your ability to exercise appropriate judgment was impaired by drugs and that you were disinhibited by that use of drugs and at the time you had an inability to fully appreciate the wrongness of your conduct. You are not psychotic and you are not mentally unwell according to Mr Joblin.[2]
[2]DPP v Darmos (Unreported, County Court of Victoria, Judge Chettle, 28 April 2015) [16]–[19] (‘Sentencing Reasons’).
The sentencing judge then set out Mr Joblin’s conclusion. The passages quoted by the judge are these:
In my opinion he is fragile psychologically. He is certainly fragile in relation to drug use. … Mr Darmos should not be left to his own resources. They are simply not sufficient for an optimistic prognosis. … Mr Darmos needs assistance for his drug use, mental health issues and any consideration of antisocial behaviour. These difficulties will not be resolved through Mr Darmos’ own resources and he does need assistance for these issues. … He should not be left to his own resources at liberty. … In my opinion there should be attention for his drug use, his mental health issues and social issues in addition to a significant factor impacting on him as a reminder that his current location will be his destination should any of the above be breached. Without such assistance or with simply warehousing in a prison system, any optimism for his future is limited.
The sentencing judge then continued:
What Mr Joblin is saying is that you need to be reminded that if you do not comply with the therapeutic conditions that may be imposed upon you, you will end up back where you are for an extended period of time. I take the contents of Mr Joblin’s report into account in sentencing you.
The exhibits tendered, Exhibit 2, the Forensicare report and, Exhibit 1, the Eastern Health report demonstrate you to have had long term mental health issues, undoubtedly relating to your drug abuse. The author of Exhibit 2, Brenda Hughes, says that you have been registered with Victorian Public Mental Health database since 2011. You have alerts on that database for drug dependency and aggression and you have been treated on compulsory treatment orders in the past, most recently between October and November 2014. You have had seven psychiatric admissions, four in 2013 and three in 2014, the most recent being in October and November of last year.
The Eastern Health discharge summary, for November last year, reports that you were admitted due to acute psychosis on the background of bipolar affective disorder, schizophrenia disorder and poly substance abuse with a previous diagnosis of social anxiety, obsessive-compulsive disorder, chronic dysthymia, low coping repertoire, borderline traits and adult ADHD. The discharge summary also reported that you were responding to auditory hallucinations of a commanding nature experiencing mood swings with thoughts of harming yourself and of molesting children. You reported that you were self-medicating with ice because of severe stress, anxiety and pressure.[3]
[3]Ibid [20]–[22].
The sentencing judge then set out the content of the Forensicare report which was set out under the heading ‘Substance Abuse’. The relevant passage reads:
Mr Darmos, according to diagnoses he has been given on the public Mental Health database, has engaged in frequent and harmful multiple use of illicit substances as well as prescription medications to the point where he has become acutely psychotic requiring admission to hospital. These instances, August 2013 and March 2014, he had required Electroconvulsive Therapy (ECT) x6 on both occasions.
The sentencing judge then continued:
Dr Judy Hope reports in Exhibit 1 that she is the consultant psychiatrist providing care for you at Koonung Community Mental Health Clinic. She outlines your history of poly substance abuse, mood disorder, attention deficit disorder and episodic psychosis. She says that your current diagnoses would be substance induced psychosis, poly substance abuse, obsessive-compulsive disorder, cluster B personality traits. She outlines the extensive medication you have been prescribed for your condition. She concludes that your prognosis is strongly related to your substance use. She says it would be her opinion that Mr Darmos’ chances of re-offending are related to his substance use. You would benefit from a long term drug and alcohol program to reduce your substances and reduce your chances of re-offending.[4]
[4]Ibid [23].
The sentencing judge then referred to the pre-sentence report of April of this year, which he described as a ‘thorough and helpful’ document and set out the following passages from the section headed ‘Offender Risk/Need Assessment’:
Mr Darmos has current offences of a violent nature and indicated that he committed those offences in order to support his substance abuse. It is recommended that Mr Darmos be assessed by Offending Behaviour Programs to determine his suitability to participate in a program designed to address his violent behaviour and, should he be found suitable, that he participate in such a program.
… Mr Darmos noted that he wishes to address his substance use when released into the community, in order to avoid any further relapses. As such, it is recommended that Mr Darmos be assessed to determine whether drug treatment or counselling is required, and if assessed as suitable, to participate in appropriate treatment or counselling.
… Mr Darmos has a number of mental health issues and concerns, and is currently prescribed a number of medications. As such, it is recommended that he be referred to a General Practitioner to obtain a Mental Health Care Plan, and to engage with a psychologist or psychiatrist if deemed suitable.
He then extracted the following of the pre-sentence report’s conclusions:
It is noted, however, that Mr Darmos’ past compliance with the conditions of his orders has been unsatisfactory and he has continued to use drugs despite being offered opportunities to address his drug use. As such, it is with hesitancy that this Service deem Mr Darmos to be suitable for a Community Correction Order.
The position as outlined by the sentencing judge might be summarised as follows:
(1) There is a strong connection between the applicant’s drug abuse and his psychiatric condition. The assessment of his psychiatric condition is intricately bound up with his drug abuse.
(2) The applicant has a long history of serious psychiatric disturbance. He has had psychotic episodes on many occasions. He has had many admissions to psychiatric facilities. He has been treated with anti-psychotic medication and with electroconvulsive therapy.
(3) The applicant has received various psychiatric diagnoses in the past. Relevantly for present purposes, the material before the Court indicates that these have included schizophrenia disorder (Eastern Health) and schizoaffective disorder[5] (Mr Joblin), as well as other conditions such as bipolar disorder and obsessive compulsive disorder.
(4) Previous non-custodial dispositions have been unsatisfactory as the applicant has never been able to maintain abstinence from drug use. It is necessary to address both his drug abuse and his mental health issues.
(5) The conclusion of both Mr Joblin and of Community Correctional Services is that the best disposition was one which provided for a ‘structured involuntary environment’ in which both drug abuse and mental health might be monitored and addressed.
[5]Schizoaffective disorder involves a combination of schizophrenia and a major depressive or manic episode: Diagnostic Manual of Mental Disorders: DSM–5 (American Psychiatric Association, 5th ed, 2013) 104.
In the light of the matters subsequently raised, the following further observations in relation to the sentencing judge’s analysis of the psychiatric material need to be made.
First, the sentencing judge misquoted Mr Joblin at one point. The sentencing judge said: ‘You are not psychotic and you are not mentally unwell according to Mr Joblin’. The relevant passage of Mr Joblin’s report reads:
It would be naïve to consider that Mr Darmos’ problems are over and while I indicated that he did not appear depressed at the time of my interview with him and certainly did not appear to be psychotic, I am not of the opinion that he is mentally well.
As set out in the passages quoted earlier, before the misquote the judge had set out Mr Joblin’s view that there was ‘no doubt’ the applicant had experienced ‘a very severe disturbance in psychological functioning’, and, after the misquote the judge quoted a long section from Mr Joblin’s report expressing the opinion that the applicant was ‘fragile psychologically’ and referring to his need for assistance in relation to ‘his drug use, mental health issues and social issues’.
Secondly, the psychiatric material which was before the sentencing judge revealed that there was, at the least, a real risk of deterioration in custody. Dr Hope had expressed the opinion that he would be ‘adversely affected’ by a custodial sentence. Mr Joblin had seen the applicant when he was in the Melbourne Remand Centre. He had expressed the opinion that continued detention in the conditions existing there ‘will have a significantly adverse effect on his mental health.’
As to the state of the evidence in the absence of Dr Zimmerman’s report, the written case annexed to the Notice of Application for Leave to Appeal Sentence filed before the applicant’s transfer to Thomas Embling Hospital, and before Dr Zimmerman’s assessment, is noteworthy. In that written case, the relevant import of the psychiatric material before the sentencing judge was described as follows:
Further, the mental health issues in this case represented powerful mitigating factors:
· The sentencing judge accepted that the applicant had long term severe psychological problems which had no doubt plagued the applicant for many years;
· It was also accepted by the sentencing judge that the applicant’s mental functioning was impaired at the time of committing both offences;
· The applicant has been given a likely diagnosis of paranoid schizophrenia or delusional disorder;
· The psychological materials establish a nexus between the applicant’s long standing substance abuse with his chronic mental health issues.
Report of Dr Zimmerman
The applicant’s solicitor has deposed that on 9 July 2015 he instructed the forensic psychiatrist, Dr Nina Zimmerman, to assess the applicant. He has deposed that on 22 July 2015 the applicant was transferred to Thomas Embling Hospital from Melbourne Assessment Prison. On 25 August 2015 Dr Zimmerman assessed the applicant at Thomas Embling Hospital. She produced a report dated 4 September 2015.
Dr Zimmerman set out the applicant’s personal and psychiatric history. She set out what he told her as to the circumstances in which he came to be transferred to Thomas Embling Hospital. According to that account, he was coping in prison until he ‘allegedly punched an officer’ and was placed in ‘the slot’ (presumably a management unit) for approximately three days. It was while he was in that unit that he suffered a psychotic episode. He told Dr Zimmerman that he was transferred to Thomas Embling Hospital and that his anti-psychotic medication was changed. He had engaged in self-harm.
Dr Zimmerman reviewed the psychiatric records. She noted a concern about non-compliance with medication. Her report then contains the following passage:
According to a confidential file note from psychiatric nurse Ms Hughes dated 22 June 2015, Mr Darmos was reviewed by a psychiatric consultant on 2 June 2015 and was noted to be psychotic with bizarre and paranoid delusional references. [He] was described as having been perplexed, appearing to be responding to hallucinations and thought disordered. He was being prescribed the antipsychotic olanzapine [plus] the mood stabiliser sodium valproate at the time. He was diagnosed as having schizophrenia and was on a waiting list for transfer to Thomas Embling Hospital.[6]
[6]Emphasis in original.
Dr Zimmerman’s report continues:
I obtained written consent from Mr Darmos to speak with his treating team. According to a conversation I had on 25 August 2015 with Dr Emily Moriarty, psychiatric registrar at Thomas Embling Hospital, Mr Darmos continued to describe delusional beliefs and appeared disorganised in his thinking at times. Dr Moriarty reported that staff had recently discovered that Mr Darmos was being non-compliant with his medication and was re-infecting his wound by rubbing things into it. She informed me that he couldn’t be cleared to return to the prison until his wound has healed.[7]
[7]Ibid.
Relevantly, Dr Zimmerman’s report contains the following conclusions:
Based on Mr Darmos’ history and the available collateral information, it is clear that he meets criteria for polydrug abuse, including abuse of stimulants. With regards to his psychiatric presentations, there has been striking diagnostic uncertainty. His personality appears to have been marked by disregard for social rules from a young age, a tendency to use drugs to cope with difficult emotions, rapidly changing emotional states without any clear history of sustained elevation or depression of mood provided to me, and at least one serious self harm episode. These symptoms have led him to be diagnosed with a borderline/antisocial personality disorder by clinicians in the past and this would seem consistent with the material available to me. I did not feel that there was evidence of a bipolar affective disorder, which would require a history of sustained abnormal mood states. In addition to these symptoms have been repeated episodes of psychosis that have required involuntary treatment, electroconvulsive therapy and antipsychotic treatment intermittently since his early 20s. These episodes appear to have been understood to have occurred predominantly in the context of substance abuse and have attracted a diagnosis of drug-induced psychosis. However, given his recent relapse in frank psychosis in prison, he has been re-formulated as suffering from schizophrenia. Certainly the symptoms that he has reported of hallucinations, disordered thinking and grandiose, religious and bizarre delusions would be consistent with such a diagnosis. He did not appear to be psychotic when I reviewed him and it is interesting to note that this is despite having apparently been non-compliant with his mediation. I am of the opinion that Mr Darmos suffers from a relapsing psychotic process, most likely to be schizophrenia but with episodes frequently precipitated by drug abuse. Whatever the underlying cause of his psychotic illness, the appropriate treatment is relief of symptoms via antipsychotic medication and abstinence from illicit drugs.
It is clear from the psychiatric information provided by the prison and by the treating doctor at Thomas Embling Hospital that Mr Darmos experienced a relapse into a severely psychotic state between the time when the sentence was imposed on 28 April 2015 and May 2015. That is, his mental state deteriorated significantly during his time in custody when he was hopefully not accessing illicit drugs. This would suggest that Mr Darmos does suffer from an enduring psychotic illness such as schizophrenia and that substance abuse is not the only stressor that can precipitate episodes of his illness. In this case, it would appear from Mr Darmos’ account that the stress associated with having been placed in a punishment cell triggered his relapse. This psychotic episode is in partial remission, now that Mr Darmos has been removed from the prison and managed at Thomas Embling Hospital.
His prospects for rehabilitation will depend upon Mr Darmos remaining meaningfully engaged with psychiatric services. The issue of compliance on his medication will need to be carefully monitored. Drug and alcohol counselling will be central both to Mr Darmos remaining well but also in order to decrease the motivation for further offences.
While sentencing properly remains a matter for the court, any custodial sentence carries a risk of deterioration in Mr Darmos’ mental health. He now has a documented history of relapse of his psychosis in the context of the stresses associated with surviving in a prison environment. He has a pattern of engaging in serious self-harming behaviours when faced with overwhelming stress and I believe that this behaviour remains a risk, even in the absence of psychotic symptoms. If Mr Darmos is to remain in the prison system, it will be important that he remains linked in with prison psychiatric services, so that his mental state and compliance with medication can be monitored. If Mr Darmos was to receive a non-custodial sentence, his history of non-compliance with such orders is clearly of concern. However, it would appear that Mr Darmos is currently highly motivated to avoid a return to the environment that induced a relapse in his psychotic illness and it is arguably a moment when he might be more willing to participate more meaningfully in conditions imposed. Clearly these would need to include requirements that he attend regular drug and alcohol counselling and follow the directions of his mental health service.[8]
[8]Ibid.
Principles on fresh evidence
The general principles as to when fresh evidence may be admitted on appeal were not in dispute. Those principles were set out by Redlich JA in Nguyen v The Queen:
It is common ground that this Court may, in limited circumstances — sometimes described as ‘rare and exceptional’ — permit evidence to be led of matters or events that have occurred since the sentence was imposed to enable this Court to reconsider the sentence in the light of that additional evidence. The following principles apply to the admission of such evidence:
(i)the new evidence must relate to events which have occurred since the sentence was imposed;
(ii)the evidence must demonstrate the true significance of facts in existence at the time of the sentence;
(iii)the evidence will not be admitted if it relates only to events which have occurred after sentence and which show that the sentence has turned out to be excessive;
(iv)the new evidence may be admissible even though the applicant did not refer to the pre-existing state of affairs in the course of the plea;
(v)upon the admission of the new evidence, it is unnecessary to determine whether the original sentence was vitiated by error, or whether it was manifestly excessive; and
(vi)the question is whether, on all of the material now before the Court, any different sentence should be substituted to avoid a miscarriage of justice.
The consistent approach of this Court has been to treat the sentencing discretion as reopened once it has been concluded that the fresh evidence throws significant new light on the pre-existing facts. The Court must determine what is the appropriate sentence on the basis of all of the material then before it.[9]
[9][2006] VSCA 184 [36]–[37] (citations omitted).
Submissions on fresh evidence
Counsel for the applicant relied on Dr Zimmerman’s conclusions that substance abuse was not the only stressor precipitating psychotic illness, and that any custodial sentence carries a risk of deterioration in the applicant’s condition. He relied upon what Dr Zimmerman said about a diagnosis of schizophrenia. He also relied upon on the fact of the applicant’s psychotic episode in prison and consequent transfer to Thomas Embling Hospital. Together, it was submitted, these factors demonstrate a ‘dramatic change’ in the applicant’s circumstances since the sentence was imposed sufficient to satisfy the requirements for the admission of fresh evidence on appeal.
Counsel for the respondent submitted that the report of Dr Zimmerman should not be admitted as it did not meet the requirements for admission of fresh evidence. The judge had already taken into account Mr Joblin’s opinion that there was a ‘serious risk that continued detention … will have a significantly adverse effect’ on the applicant’s mental health and that the applicant was ‘fragile psychologically’, as well as the reports of Eastern Health and Forensicare to the effect that the applicant would be adversely affected by a custodial sentence. Even if the report was admitted, counsel submitted leave to appeal should be refused as there is no reasonable prospect of the Court imposing a less severe sentence than that already imposed. Counsel relied on Dr Zimmerman’s conclusion that the applicant’s psychotic episode was in partial remission, and that the appropriate treatment was via anti-psychotic medication and abstinence from illegal drugs, which, it was submitted, there was no reason to believe could not be implemented in custody.
Whilst no reference was made to them in submissions, the applicant gave notice of reliance on eight previous decisions of this Court where the Court had admitted fresh evidence. In seven of the eight cases the fresh evidence concerned a psychiatric diagnosis. I have reviewed the cases notwithstanding the absence of submissions. In date order (oldest to most recent) they are:
·R v Danaher — where fresh evidence of a diagnosis of schizoaffective disorder was admitted in circumstances where sentence had been passed on the basis that there was no relevant psychiatric condition.[10]
·R v Kucma — which concerned fresh evidence of a diagnosis of paranoid schizophrenia on a conviction appeal relating to a possible defence of mental impairment.[11]
·R v Ahmed — where a psychiatric condition, to which no prior reference had been made, only truly manifested itself after sentence.[12]
·R v SH — where there was a substantial deterioration and aggravation of a previous psychological condition after sentence as a result of an assault in prison leading to a diagnosis of moderate to severe post-traumatic stress disorder.[13]
·Lucas v The Queen — where a diagnosis of delusional beliefs after sentence introduced for the first time the considerations in Verdins.[14]
·Driscoll v The Queen — which concerned fresh evidence of the effect of physical injuries on the appellant.[15]
·TS v The Queen (‘TS’) — where there was revealed to have been ‘a complete misdiagnosis’ in that what had been characterised as self-induced drug psychosis was diagnosed after sentence as schizophrenia. The Crown did not object to the fresh evidence and the psychiatrist who made the diagnosis gave oral evidence and was cross-examined.[16]
·Monaghan v The Queen (‘Monaghan’) — where there was a post-sentence psychiatric re-assessment from depression to possibly a borderline personality disorder and psychosis ‘very likely’ due to schizophrenia.[17]
[10][2003] VSCA 119.
[11](2005) 11 VR 472.
[12][2005] VSCA 279.
[13][2006] VSCA 83.
[14][2012] VSCA 245.
[15][2013] VSCA 366.
[16][2014] VSCA 24.
[17][2014] VSCA 82.
The cases similar to this case are TS and Monaghan. The contrast in those two cases between the position as apprehended by the sentencing judge and the position as revealed by the post-sentence fresh evidence was more stark than here, in my view.
Consideration of fresh evidence — proposed ground 4
The revised Notice of Application for Leave to Appeal Sentence added the following proposed ground of appeal:
4. The applicant should be re-sentenced in the light of fresh evidence now available that he is suffering from schizophrenia and not a drug-induced psychosis.
The ‘significant new light’ which the fresh evidence is said to throw on the pre-existing facts arises from the circumstance that the applicant suffered a psychotic episode whilst in custody. This is said to have real significance because it reveals that he suffers from a serious mental condition which is not related solely to his drug use and which has only now been diagnosed as schizophrenia. This, it is said, throws significant new light on both his culpability and the effect of incarceration upon his psychiatric health.
In my opinion Dr Zimmerman’s report is not as significant as counsel for the applicant contends it to be.
Dr Zimmerman does not diagnose schizophrenia herself. Rather, she repeats a diagnosis said to have been made by treating clinicians within the prison system. She does observe that the symptoms described are consistent with that diagnosis. He was not psychotic when she reviewed him.
The strong linkage between the applicant’s mental health and his drug abuse remains in Dr Zimmerman’s report. As to the linkage between drug abuse and the psychotic episode in prison Dr Zimmerman refers to the fact that this occurred in circumstances ‘when he was hopefully not accessing illicit drugs’. The applicant has not been drug tested. It cannot be assumed that he was not accessing illicit drugs, at least prior to being placed in what was (presumably) a management unit of some kind.
Dr Zimmerman’s own conclusion is that the applicant has a psychotic condition ‘most likely to be schizophrenia but with episodes frequently precipitated by drug abuse’. She says that the psychotic episode in prison reveals that ‘substance abuse is not the only stressor that can precipitate episodes of his illness’. She expresses the opinion that since a psychotic episode has been brought on by the stresses associated with surviving in a prison environment it will be important that he maintains links with prison psychiatric services during incarceration. She expresses a somewhat tentative opinion that the experience might have improved the applicant’s motivation to engage with appropriate treatment if and when released on a non-custodial disposition.
Dr Zimmerman’s report does contain relevant material, and it does include analysis of a factor, being the psychotic episode whilst in prison, which is new. I do not consider, however, that it throws ‘significant new light’ on the pre-existing analysis or demonstrates that the material before the sentencing judge did not reveal ‘the true significance’ of the applicant’s psychiatric condition.
The strong connection between drug abuse and the applicant’s psychiatric problems remains.
The material in Dr Zimmerman’s report concerning schizophrenia is not entirely new. He has received diagnoses of schizophrenia in the past, and material to that effect was before the sentencing judge. The applicant in fact relied upon what was said to be a ‘likely diagnosis of paranoid schizophrenia or delusional disorder’ before Dr Zimmerman’s assessment.
On any view, the applicant’s psychiatric diagnosis is a very complicated issue, which has led, as Dr Zimmerman observes, to ‘striking diagnostic uncertainty’. The recent incident has not resolved that uncertainty. Dr Zimmerman herself still refers to schizophrenia as the ‘most likely’ diagnosis.
The risk of deterioration in custody was a circumstance known at the time of sentence.
The past non-compliance with non-custodial dispositions remains a very relevant factor when assessing the appropriate disposition.
If the material in Dr Zimmerman’s report had been available at the time of sentence it would have been relevant and no doubt would have been taken into account. It does not, however, throw significant new light on the pre-existing facts.
In any event, I consider that the submission of the respondent that Dr Zimmerman’s report would not lead to the imposition of a different sentence is well-founded. The strong connection with drug abuse remains. The applicant’s previous inability to comply with community based orders remains. If anything, the concerns expressed by Dr Zimmerman as to whether the applicant was compliant with his treatment exacerbates those concerns.
In my view the fresh evidence should not be admitted and leave to appeal should be refused on proposed ground 4.
Other proposed grounds of appeal
There are three other proposed grounds of appeal:
1. The individual sentences imposed on the two counts are manifestly excessive for the following reasons:
(a) They do not accurately reflect the level of criminality involved;
(b) Not enough weight was placed on the applicant’s mental health issues;
(c) The judge erred in failing to recognise that a CCO in itself could fulfil the need for punishment.
2. The combination of an 18 month term of imprisonment and a three year CCO breached the sentencing principle of proportionality.
3. The sentence of imprisonment imposed offended the totality principle in that the sentencing judge erred in failing to sufficiently take into account the sentence the applicant was already serving and the effect of the 3 year CCO on totality.
Proposed ground 1: Manifest excess
Counsel for the applicant submitted that insufficient weight had been given to the applicant’s mental health issues. Counsel described the applicant as having a ‘likely diagnosis of paranoid schizophrenia or delusional disorder’ and that his mental issues were ‘powerful mitigating factors’. Counsel submitted that the offending fell at the lower end of the range of seriousness having regard to the ‘amateurish’ nature of offending, including the applicant’s failure to wear a disguise, and submitted that the offending ‘calls for pity’. Counsel submitted that, despite the seriousness of the offence of armed robbery, the time already spent in custody before release on a CCO was sufficient to properly meet all relevant sentencing purposes.
Counsel for the respondent submitted that the term of imprisonment was well within range, that the judge had given sufficient weight to the applicant’s mental health issues and that the judge had carefully considered Boulton.
In my opinion this sentence is clearly within the range open to the sentencing judge. I do not consider the contrary to be arguable. This was serious offending. Whilst they were not the most serious examples of armed robbery, they each nevertheless constituted serious criminal conduct. Community based dispositions in the past have not been successful. In all the circumstances, the sentences were merciful. I do not consider it to be arguable that they are outside the range of sentences open to the sentencing judge.
Proposed ground 2: Breach of principle of proportionality
Counsel for the applicant submitted that an 18 month term of imprisonment in addition to a three year CCO was disproportionate to the gravity of offending having regard to the circumstances of offending and the applicant’s mental health issues.
Counsel for the respondent adopted the ‘careful analysis and full reasons’ of the sentencing judge.
For the reasons I have given in relation to proposed ground 1, I do not consider that this proposed ground is arguable and I would refuse leave to appeal.
Proposed ground 3: Breach of principle of totality
Counsel for the applicant submitted that insufficient weight had been given by the sentencing judge to the 106 days served in custody prior to sentence for breaches of the earlier CCOs.
Counsel for the respondent submitted this was a matter of weight, and so was properly to be considered as a particular of the ground of manifest excess, but that otherwise the judge had had due regard to the principle of totality.
Again for the reasons given in proposed ground 1, I do not consider this proposed ground to be arguable and I would refuse leave to appeal.
Conclusion
Leave to appeal should be refused on each of the proposed grounds.
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