Jesse Wright v The Queen

[2015] VSCA 88

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0025

JESSE WRIGHT	Applicant
v
THE QUEEN	Respondent

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE
(DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315
OF THE CRIMINAL PROCEDURE ACT 2009)

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JUDGE:	OSBORN JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 May 2015
DATE OF JUDGMENT:	6 May 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 88
JUDGMENT APPEALED FROM:	DPP v Wright (Unreported, County Court of Victoria, Judge Taft, 18 November 2014)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Aggravated burglaries, sexual offences, dishonesty offences and drug offences – Sentence of 11 years 3 months’ imprisonment with non-parole period of 8 years 6 months imposed – Where applicant diagnosed with chronic paranoid schizophrenia at the time of the offending – Whether sentencing judge erred in his approach to the ‘Verdins’ considerations – Leave to appeal granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Dann	C Marshall & Associates
For the Respondent	Mr B F Kissane QC	Ms V Anscombe, Acting Solicitor for Public Prosecutions

OSBORN JA:

1. The applicant, Jesse Wright, seeks leave to appeal against sentences imposed in respect of a series of aggravated burglaries, sexual offences, dishonesty offences and drug offences. 

1. Following pleas of guilty he was sentenced by his Honour Judge Taft in the County Court on 18 November 2014 as follows.

Charges	Offence	Maximum	Sentence	Cumulation
1.	Aggravated Burglary [s 77(1) Crimes Act 1958]	25 years [s 77(2) Crimes Act 1958]	3 years	9 months
2.	Indecent Assault [s 39(1) Crimes Act 1958]	10 years [s 39(1) Crimes Act 1958]	3 years	12 months
3.	Theft [s 74(1) Crimes Act 1958]	10 years [s 20 Crimes Act 1958]	6 months	-
4.	Theft [s 74(1) Crimes Act 1958]	10 years [s 74(1) Crimes Act 1958]	6 months	-
5.	Burglary [s 76(1) Crimes Act 1958]	10 years [s 76(3) Crimes Act 1958]	2 years	-
6.	Burglary [s 76(1) Crimes Act 1958]	10 years [s 76(3) Crimes Act 1958]	2 years	6 months
7.	Theft [s 74(1) Crimes Act 1958]	10 years [s 74(1) Crimes Act 1958]	12 months	-
8.	Theft [s 74(1) Crimes Act 1958]	10 years [s 74(1) Crimes Act 1958]	12 months	-
9.	Obtain Property by Deception [s 81(1) Crimes Act 1958]	10 years [s 81(1) Crimes Act 1958]	7 days	-
10.	Aggravated Burglary [s 77(1) Crimes Act 1958]	25 years [s 77(2) Crimes Act 1958]	5 years	12 months
11.	Rape [s 38(1) Crimes Act 1958]	25 years [s 38(1) Crimes Act 1958]	7 years	Base
12.	Rape [s 38(1) Crimes Act 1958]	25 years [s 38(1) Crimes Act 1958]	7 years	12 months
13.	Possess drug of dependence [s 73(1) Drugs, Poisons and Controlled Substances Act 1981]	5 PU [s 73(1) Drugs, Poisons and Controlled Substances Act 1981]	Convicted and discharged	-
Summary Charge	Deal with proceeds suspected of being the proceeds of crime [s 195 Crimes Act 1958]	2 years [s 195 Crimes Act 1958]	Fined $200

Total Effective Sentence:	11 years 3 months
Non-Parole Period:	8 years 6 months
Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:	203 days
6AAA Statement:  15 years imprisonment with a non-parole period of 12 years imprisonment
Other relevant orders:  Sentenced as a ‘serious sexual offender’ in respect of Charges 11 and 12 pursuant to s 6B of the Sentencing Act 1991; Forfeiture Order pursuant to s 32 of the Confiscation Act 1997; Disposal Order pursuant to s 77 of the Confiscation Act 1997; Compensation Order pursuant to s 86 of the Sentencing Act 1991; Registered as a sex offender for life pursuant to s 34 of the Sex Offenders Registration Act 2004.

1. It is unnecessary for present purposes to summarise the facts involved in the offending, save to record that that offending included some very serious matters.  Charges 1, 2 and 3 arose out of an incident on 19 August 2013 in which the applicant entered a home in Elwood as a trespasser and sexually assaulted a woman in her bedroom.  Charges 10, 11 and 12 arose out of an incident on 29 April 2014 in which the applicant entered a flat in Elwood as a trespasser and sexually assaulted a woman sleeping there. 

1. The proposed ground of appeal is:

The learned sentencing judge erred in his approach to the ‘Verdins’ considerations that arose in the applicant’s case. 

1. The applicant had an established diagnosis of chronic paranoid schizophrenia at the time of the offending.  The proposed ground of appeal seeks to agitate the following issues:

·Whether the sentencing judge improperly discounted the significance of the applicant’s underlying mental illness in reliance upon evidence of pre-meditated offending; 

·Whether his Honour gave due weight to the evidence of a psychiatrist that, at the time of the April incident, the applicant was affected by a psychotic process; 

·Whether the applicant’s underlying psychiatric condition bore on his moral responsibility for acts undertaken while under the influence of ice and/or in the absence of anti-psychotic medication; 

·Whether the applicant’s underlying psychiatric condition moderated his moral culpability in the circumstances of the offending; 

·Whether the applicant’s underlying psychiatric condition bore materially on the relevance of general deterrence; 

·How the applicant’s underlying psychiatric condition bore materially on the question of specific deterrence; 

·How the applicant’s underlying psychiatric condition bore on the need for ongoing protection of the community. 

1. The proposed ground thus embraces both evidentiary issues and issues of sentencing principle.  I should add for completeness that the submissions to the sentencing judge with respect to these issues were perhaps less definitive than they might have been. 

1. The written case for the Crown emphasises the proposition endorsed by the plurality in Veen (No 2),[1] that mental illness may, on the one hand, favour the mitigation of the sentence otherwise proportional to the gravity of the offending, whilst, on the other hand, favour a longer custodial sentence (within the limit of proportionality) in order to protect the community. 

   [1]Veen v The Queen(No 2) (1988) 164 CLR 465, 476-7.

1. Significantly for present purposes, it is stated at one point in the written case for the Crown:

In short, the Crown submits this sentence application provides the perfect vehicle for a necessary refinement of the Verdins principles in light of binding High Court authority. 

1. In one sense, the Crown case may also raise both evidentiary issues and issues of principle.  Embedded in the competing sentencing principle relied on is the need to prove matters adverse to a prisoner (including aspects of the consequences of mental illness) beyond reasonable doubt.  Although the repeat nature of the offending in this case plainly raises the issue of protection of the community, the view taken of the psychiatric evidence might be thought to affect the understanding of the nature and gravity of the risk in issue. 

1. In my opinion, leave to appeal should be granted.  It may be that the correct view is that the sentence imposed should not be reduced but the issues raised by the proposed ground of appeal are sufficiently arguable to warrant leave and it cannot be said that there is no reasonable prospect of reduction in the sentences imposed. 

1. I have considered whether the proposed ground should be further refined, but have come to the conclusion that the individual matters raised by the submissions, which I have sought to summarise above, can properly be regarded as raised by the ground proposed.  No further particulars of the ground were sought by the Crown.

1. Accordingly the order of the Court will be that leave to appeal is granted.

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