Kazami v The King
[2023] VSCA 267
•2 November 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2022 0161 |
| PAYAM KAZAMI | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | PRIEST and MACAULAY JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 7 August 2023 |
| DATE OF JUDGMENT: | 2 November 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 267 |
| JUDGMENT APPEALED FROM: | [2022] VCC 1154 (Judge Gucciardo) |
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CRIMINAL LAW – Appeal – Sentence – Intentionally cause serious injury – Intentionally cause injury – Reduced moral culpability due to mental illness – Whether Verdins principles properly taken into account – Prospects of rehabilitation – Whether sentence manifestly excessive – Whether fresh evidence concerning visa cancellation and deterioration of mental illness post-sentence should be admitted – Leave to appeal refused.
Crimes Act1958, Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, Sentencing Act 1991, Migration Act 1958.
R v Verdins (2007) 16 VR 269, Romero v The Queen (2011) 32 VR 486, R v Williscroft [1975] VR 292, Ryan v The Queen (2001) 206 CLR 267, WCB v The Queen (2010) 29 VR 483, R v W.E.F [1998] 2 VR 385, DaCosta v The Queen (2016) 258 A Crim R 60, Leimonitis v The Queen [2018] VSCA 198.
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| Counsel | ||
| Applicant: | Ms K Farrell | |
| Respondent: | Mr P Bourke KC | |
Solicitors | ||
| Applicant: | Valos Black & Associates | |
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | |
PRIEST JA
MACAULAY JA:
Introduction
On 29 November 2021, the applicant, now aged 52 years,[1] pleaded guilty to one charge of intentionally causing serious injury[2] and one charge of intentionally causing injury.[3] Following a plea in mitigation in the County Court on 18 March and 29 June 2022, the applicant was sentenced on 21 July 2022 as follows:[4]
[1]His date of birth is 20 December 1970.
[2]Contrary to s 16 of the Crimes Act1958.
[3]Contrary to s 18 of the Crimes Act1958.
[4]DPP v Kazami [2022] VCC 1154 (‘Reasons’).
Charge
Offence
Maximum
Sentence
Cumulation
1
Intentionally cause serious injury
20 years
5 years and 6 months
Base
2
Intentionally cause injury
10 years
2 years
6 months
Total Effective Sentence:
6 years imprisonment
Non-Parole Period:
4 years’ imprisonment
Section 6AAA Statement:
7 years’ imprisonment with a non-parole period of 4 years and 9 months
Other relevant orders:
Disposal order
The applicant seeks leave to appeal against sentence on the following grounds:
1. The Learned Sentencing Judge erred as he failed to properly take into account the application of the Verdins[5] principles.
2.The Learned Sentencing Judge erred as he failed to take into account the Applicant’s prospects of rehabilitation.
3.The sentences imposed on charges (1) and (2), the total effective sentence of imprisonment and non-parole period are manifestly excessive and outside the range of sentences reasonably open in the circumstances.
4.Fresh evidence demonstrates that the sentence of imprisonment imposed on the Applicant will weigh more heavily upon him than it would on a person in normal health.[6]
5.Fresh evidence demonstrates that there has been a substantial miscarriage of justice, such that a different sentence should be imposed upon the Applicant, namely that his visa has been cancelled and he is liable to deportation.
[5]R v Verdins (2007) 16 VR 269; [2007] VSCA 102 (‘Verdins’).
[6]The applicant’s appeal hearing was originally set down for 28 February 2023, however, the hearing was subsequently vacated due to his deteriorating mental health. Appeal grounds four and five were added as a result of this.
Facts
Parviz Kazami and Katayoon Taghizaden, the applicant’s parents, are the victims of the applicant’s offending which occurred on 6 November 2019. At that time they were 79 years old and 67 years old respectively.
By November 2019 the applicant had at least 20 years of experience with mental health services and a well-documented history of paranoid schizophrenia. He had had at least 15 inpatient hospital admissions for his psychiatric illness over that period, the last of which had been about three months before his offending. Since his discharge from that admission he had become non-compliant with his medication and was living itinerantly, occasionally in his car. One of his entrenched delusions is that his parents are not his real parents.
On the day before the offending, the applicant’s brother, Pooya Kazami, collected the applicant’s car (without agreement) due to an issue about payment of the registration fee. On 6 November 2019, at around 3:00 pm, the applicant caught a bus to the family home where his parents and Pooya reside. When the applicant arrived, he entered the family home, made himself coffee and sat down at the kitchen table. He believed that no one was home.
A short time later, Parviz (the applicant’s father) and Katayoon (the applicant’s mother) entered the kitchen. There was no conversation between the applicant and his parents. Parviz made his way to his bedroom and Katayoon entered her separate bedroom.
The applicant took two knives from the drying rack at the kitchen sink (one, 25 cm long with a 13 cm stainless steel blade and, the other, a boning knife with a 16 cm long stainless-steel blade). The applicant entered Parviz’s bedroom and started stabbing him with both knives (charge 1). Parviz picked up a wooden stick and tried to defend himself.
Hearing a commotion Katayoon entered Parviz’s bedroom and saw the applicant bending over Parviz on the bed. Katayoon tried to pull the applicant away from Parviz. The applicant began attacking Katayoon by punching her (charge 2). He pushed her to the ground and fell on top of her. Katayoon grabbed the applicant’s hair trying to stop him. Parviz used the wooden stick, hitting the applicant in an effort to get him off Katayoon.
When Katayoon cried out that she wished she had died and not given birth to the applicant, he ceased the assault. Katayoon escaped from the bedroom and called 000. At some stage the applicant also called 000 to report that he had stabbed his parents. When police arrived at 5:43 pm, the applicant was at the front door, his clothing covered in blood.
Parviz received multiple stab wounds to his torso, neck, groin and back and he was transferred to the Royal Melbourne Hospital. He underwent emergency chest surgery due to the presence of a life threatening haemo-pneumothorax. Parviz was transferred to the Intensive Care Unit (‘ICU’) where he was intubated for 48 hours and placed on a ventilator. He remained in the ICU for one week.
Katayoon sustained a stab wound to her face which caused extensive bleeding and a 4 cm laceration to her right chest wall.
The applicant received a wound to his right thumb.
A report was later prepared by Dr Raymun Ghumman of the Victorian Institute of Forensic Medicine (VIFM) as to the extent of the injuries to Parviz and Katayoon. Injuries to Parviz were found to have endangered his life. Injuries sustained by Katayoon were mostly superficial and did not satisfy the legal standard of ‘serious injury’.[7]
[7]VIFM report of Dr Raymun Ghumman dated 15 January 2020.
Police arrested the applicant and conveyed him to the Box Hill police station. After being taken to hospital for the treatment of his own injuries, the applicant was returned to the police station and interviewed. During the initial interview at 9:30 pm, the applicant remained motionless and mute. The next day, close to midday, he was assessed by a doctor, remained mute, and could not be assessed. Later that day he was reinterviewed in the presence of an independent third person. He was cooperative throughout. The applicant made admissions to having stabbed both parents. His explanation for doing so was that it was ‘revenge time’ for 20 years of abuse. He denied intending to kill them saying, ‘if I wanted to kill them, I would have used a bigger knife’.
The applicant was charged with the two offences for which he was ultimately sentenced. Following his remand into custody on 6 November 2019, he was assessed and treated with antipsychotic medication but his mental state continued to decline. He was transferred to Thomas Embling Hospital on 3 January 2020. By the time he was arraigned and pleaded guilty in November 2021 he was held on remand at a prison.
Circumstances leading to the applicant’s plea hearing
A committal case conference took place in the Magistrates Court in May 2020 at which time the court entered a not guilty plea on the applicant’s behalf. The matter was transferred to the County Court. Seven directions hearings took place between June 2020 and November 2021 during which time numerous psychiatric reports were obtained. They were directed to questions of the applicant’s fitness to plead and whether the defence of not guilty by reason of mental impairment was open to him. Reports were prepared during 2020 by two psychiatrists who differed as to whether the applicant was fit to plead.[8] A further report dated 14 September 2021 showed that there had been some improvement in the applicant’s psychiatric condition leading to the agreed view that he was then fit to plead.[9] Nonetheless, the common view between the psychiatrists was that, due to the applicant’s mental state at the time of his offending, the defence of not guilty by reason of mental impairment[10] was suitable for consideration.[11]
[8]Reports of Dr Prashant Pandurangi dated 17 May 2020 and 18 October 2020, compared with the Report of Dr Lucien de Alwis dated 5 August 2020.
[9]Report of Dr Pandurangi dated 14 September 2021.
[10]Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, Part 4.
[11]Reports of Dr Pandurangi dated 18 May 2020 (AB 8.6) and 14 September 2021, and Dr de Alwis dated 5 August 2020.
The matter was scheduled for a hearing of the applicant’s defence of mental impairment before a judge on 24 November 2021. It was unopposed. On that day, however, the applicant announced he did not wish to pursue that defence but, instead, wished to plead guilty to the charges (subject to some short time for negotiating the nature of the charges to which to plead). Explaining that decision, the applicant later told a psychiatrist that he pleaded guilty to avoid a lengthy stay in a psychiatric hospital rather than in gaol.[12] The applicant was formally arraigned on 29 November 2021 on the two charges as originally laid, to which he pleaded guilty.
[12]Reasons, [45], at which the judge refers to what the applicant told Dr Pandurangi in September 2021, although it is more likely the judge was referring to what the applicant told Dr Elena Bhattacharya on 26 April 2022, as recorded at [68] of her report dated 20 May 2022.
His plea hearing eventually came before Judge Gucciarido on 18 March 2022. Because charge 1 is a category 2 offence, subject to the possibility of the judge ordering a Court Secure Treatment Order pursuant to s 94B of the Sentencing Act 1991 there was no dispute that the Court was required to sentence the applicant to a term of imprisonment and a non-parole period.[13] After some discussion, the judge sought a further report in relation to the applicant’s suitability to be dealt with by way of a Secure Treatment Order. Dr Elena Bhattacharya, a psychiatrist with Forensicare, provided to the court a report dated 20 May 2022 following her interview with the applicant on 26 April 2022. On the second day of the plea hearing, 29 June 2022, it was the common position of both the applicant and the respondent that the option of a Secure Treatment Order was not available as a matter of law.[14] The judge proceeded to sentence the applicant as set out above.
Submissions before the sentencing judge
[13]Sentencing Act 1991, s 5(2H). An exception to the mandatory operation of that provision appears in paragraph (e). Pursuant to s 94B(1)(c), upon the recommendation by a psychiatrist whose opinion has been obtained for the purpose, a Court may make a Court Secure Treatment Order by way of sentence, which has the effect that the offender is detained and treated at a designated mental health service instead of a prison.
[14]It appears that the reason for that view was that the pre-requisite for making a Secure Treatment Order under s 94B(1)(c) is that the court first make a Court Assessment Order under s 90(1) A condition of making such an Assessment Order is that the person is ‘not in custody pending sentencing’ (s 91(1)(e)) but the applicant was in custody (Reasons [21]).
Counsel for the applicant on the plea made relatively brief submissions, both in writing and orally. Counsel explained that the point of difference between the two parties was the nature of the custodial order sought. The prosecution sought a Court Secure Treatment Order whereas the applicant submitted there was ‘no need’ to go down that path and that a prison sentence with a non-parole period was appropriate.
Counsel emphasised that the applicant had no prior criminal history, and that this was his first time in custody. His time spent on remand had occurred under COVID-19 restrictions, and he was subject to lockdowns and quarantine. His plea of guilty was entered during the course of the pandemic and attracted a sentencing discount as set out in Worboyes.[15]
[15]Worboyes v The Queen [2021] VSCA 169; (2021) 96 MVR 344 (‘Worboyes’).
Drawing upon the principles articulated in Verdins, after relying upon the applicant’s history of mental illness as recounted in the exhibited psychiatric reports, counsel submitted that the applicant’s schizophrenic illness ‘reduce[d] his moral culpability’ and that the extent of his impairment at the time made him ‘an inappropriate vehicle for deterrence’. Counsel specifically conceded that there was:
no evidence in the reports as to whether [the applicant was] doing his time in custody harder because of his schizophrenic illness or whether his time in custody is having an adverse impact on his mental health. In fact, it could be said that the exact opposite has occurred because he’s getting better in prison by getting treatment.
The prosecutor accepted that the Verdins principles had ‘full application in a case like this’. Specifically, the prosecutor accepted that the applicant’s impaired mental functioning could be causally linked to the commission of the offence and substantially reduced his culpability.
Counsel for the applicant made no specific mention to the purpose of rehabilitation as such. Submissions were focused upon the applicant’s need for psychiatric treatment — and where he would most appropriately receive it — in the context of the psychiatric opinion that painted a direct link between his mental illness, non-compliance with medication and his offending.
Born in Iran, the applicant had emigrated to New Zealand when he was 19 years old, then to Australia in 1994 where he had remained on a visa. It is unclear whether any submission was made on the applicant’s behalf about the prospect of his visa being cancelled, but it was certainly a matter raised by the prosecutor on the plea as being relevant to take into account. The prosecutor correctly pointed out that upon the court sentencing the applicant to a term of imprisonment of 12 months or more s 501(3A) of the Migration Act required the Minister to cancel the applicant’s visa, although such a cancellation would be susceptible to an application to revoke the cancellation.
Reasons for sentence
After outlining the facts of the offending, matters preceding the hearing of the plea and the reasons why a Secure Treatment Order was unavailable, the judge turned to other matters. The judge took the view that the applicant’s offending was ‘objectively very serious’, with life-threatening injuries inflicted on his father which may not have taken much more to prove fatal, together with injuries inflicted on his mother.[16]
[16]Reasons, [23].
The judge referred to the ‘powerful and impassioned plea’ made by the applicant’s mother that the applicant should receive proper treatment against the background of the ‘vicious cycle’ of past community treatment orders, his discharge from those orders, then a decline in mental health and the need for a further treatment order.[17]
[17]Reasons, [25]–[27].
The judge took into account the applicant’s plea of guilty accepting it as having significant utilitarian value. Remorse was difficult to assess due to the applicant’s mental health. Because the plea was made during the pandemic conditions the judge accepted the applicant should receive a reduction to his sentence, specifically referencing Worboyes principles.[18]
[18]Reasons, [29]–[30].
As to the applicant’s background, the judge noted that he had no prior criminal history. The judge recounted the applicant’s birth in Iran and the steps taken to arrive in Australia from New Zealand in 1994.[19] He specifically noted that the applicant’s offending may expose him to the cancellation of his visa upon a sentence of imprisonment of 12 months or more. The judge went on to say that once a sentence was passed, the Minister must decide whether to exercise a discretion to refuse or cancel the applicant’s visa. It is not disputed that this particular understanding of the operation of section 501 of the Migration Act was somewhat inaccurate, the significance of which will be addressed below. Nevertheless, after stating that it was not a matter upon which he should speculate, the judge acknowledged that the prospect that the applicant might have his visa cancelled would weigh heavily upon him and his family, making his time in custody more burdensome.[20]
[19]Reasons, [32].
[20]Reasons, [33].
The judge mentioned other aspects of the applicant’s background. They included that the applicant obtained the equivalent of year 12 education in New Zealand and had worked both in carpentry and as a house painter. The judge described the applicant’s use of illicit drugs, commencing with cannabis then progressing to using heroin between 2000 and 2017 and ‘ice’ after 2018. The judge recorded that the applicant had his first contact with mental health services in 1999 and had had numerous hospitalisations due to relapses of his mental illness — diagnosed as paranoid schizophrenia — usually due to non-adherence to medication, illicit drug use and stress.[21]
[21]Reasons, [34].
The judge listed the psychiatric reports which he had read and to which he had regard: the reports of Dr Pandurangi dated 17 May 2020, 18 May 2020, 18 October 2020 and 14 September 2021; Dr Angelo De Alwis dated 5 August 2020 and Dr Elena Bhattacharya dated 20 May 2022.
Having referred to all of the reports, the judge particularly concentrated on the most recent report of Dr Bhattacharya which he regarded as ‘very comprehensive’.[22] He noted that the applicant had expressed a number of likely delusional beliefs including those which relate to disbelieving that his parents were his real parents, or that his brother was his real brother. The applicant had reported to the doctor that he regretted his actions because he was now in prison, but felt that he ‘needed to take justice into [his] own hands’. The judge referred to the applicant’s psychiatric history taken by the doctor, including an attempt to commit suicide in 2001 when the applicant jumped off a balcony after which he spent 3 months in hospital and psychiatric units. The doctor recorded a history of further admissions to psychiatric units together with a history of community treatment orders, a placement at a psychosocial recovery centre, and prolonged hospitalisations between November 2011 to March 2012 and also in August 2019.
[22]Reasons, [37].
Summarising Dr Bhattacharya’s opinion about the applicant, the judge said:[23]
In her assessment you continue to display psychotic symptoms and delusional beliefs and that your mental illness played a significant role in carrying out the offences. She noted a history of violence which can be gleaned from past reports. She outlined a number of factors to reduce the risk of further violence at paragraph 73.
Your medium to long-term risk is associated clearly with your mental illness. The mental health specific offence work with an experience psychologist would be required in order to manage the risk to others on release from prison. Importantly, she outlined that prison services are able to provide adequate acute and follow-up mental health case [sic, care] through Forensicare, including in-reach teams, admissions to mental health units within prisons, a Secure Treatment Order as a pathway to short term hospitalisation if required, pre-release planning, assessments of functioning and reintegration programs, as well as substance misuse programs and education.
She concluded you can remain subject to Forensicare attention while in prison and transfer to Thomas Embling Hospital if necessary and be linked to mental health services at the expiration of any term.
[23]Reasons, [46]–[48].
Having regard to these matters, the judge found that the applicant’s moral culpability was ‘reduced by [his] mental illness to a significant extent’. He was satisfied that the applicant’s treatment needs and medication requirements were best met in a secure, stable and restrictive environment where the applicant could be given adequate assistance which would also ‘provide for community protection’. [24] The judge did not consider the applicant was ‘a good vehicle’ for either general or specific deterrence but considered that his offending required ‘just punishment and denunciation’.[25] He continued,
…[a]s currently advised, I do not view your incarceration as prospectively more burdensome than that of a prisoner who does not have your condition, but of course that may deteriorate depending on your circumstances and I take that potential into account, although I am confident in Correctional authorities' capacity to adequately respond to provide optimum care when required in difficult times.
....
.. I should say that in my view Verdins principles fully are operational here. The prosecution also properly accepted that the Court should proceed on the basis that this was a relatively early plea, entitling you to a significant reduction.[26]
[24]Reasons, [49].
[25]Reasons, [49], [50].
[26]Reasons, [50], [52].
Did the Judge err in the application of the Verdins principles?
Proposed grounds 1 and 4 were argued together in oral submissions. The applicant’s first proposed ground is that the sentencing judge erred in failing to properly take into account the application of the Verdins principles. His fourth proposed ground is that fresh evidence demonstrates that the sentence of imprisonment imposed will weigh more heavily upon him than it would on a person in normal health.
In Verdins, this Court held that impairment of mental functions may be relevant to sentencing in the following ways:
(a)The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
(b)The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
(c)Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
(d)Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
(e)The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
(f)Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.[27]
Submissions
[27]Verdins, 276 [32].
The applicant pointed out that it had not been disputed on the plea that there was a direct causal connection between his mental illness and his offending. For an example of medical opinion supporting that causal link, he relied upon Dr Pandurangi’s opinion, expressed in his report of 18 May 2020, in which the doctor said that the applicant’s actions on the day of his offending would have been ‘completely driven by his underlying psychotic beliefs’ while he was ‘in the midst of a relapse of his schizophrenic illness’.
Furthermore, the applicant pointed to a portion of the plea transcript at which the judge accepted that the applicant’s offending was:
completely explicable by the fact that it is related to the man’s mental condition and all of the Verdins principles are engaged and moral culpability, on any view, would have to be extremely low.
The applicant also drew attention to the prosecutor’s concession on the plea that Verdins principles had ‘full application’.
Against that background, the applicant referred to several specific findings which the judge made, namely that:[28]
(a)the applicant’s moral culpability for the offending was ‘reduced…to a significant extent’;
(b)the applicant was ‘not a good vehicle for both general and specific deterrence’;
(c)the offending ‘required just punishment and denunciation’; and
(d)the applicant’s time in custody would not (as ‘currently advised’) be more burdensome than for prisoners without his condition.
[28]Reasons, [49], [50].
The applicant submitted that these findings were made in error. According to the applicant, his mental impairment was such that his moral culpability was ‘eliminated’, not merely reduced, and that the sentencing principle of denunciation had no role to play at all. In oral submissions, the applicant wavered to an extent, arguing that it was ‘open’ to the judge to find that moral culpability was eliminated and that ‘none or very little weight’ should be given to general deterrence, specific deterrence and denunciation.
When it was pointed out that a concession that some weight could be given to these factors would move the argument away from an allegation of error and relegate it to a limb of manifest excess (proposed ground 3), the applicant returned to submitting that the effect of the mental impairment was to extinguish the force of those sentencing principles. At the very least, the applicant argued, the judge was in error by not reducing the weight given to the principle of denunciation.
In oral argument, the applicant acknowledged that no argument had been advanced by defence counsel on the plea to the effect that the existence of the applicant’s mental impairment would make imprisonment more burdensome (that is, the fifth Verdins limb). Nevertheless, counsel did not abandon the argument altogether. He submitted that it was one of those exceptional occasions where, despite no argument having been put on the plea, the Court should entertain the argument on appeal to avoid a miscarriage of justice.[29]
[29]Romero v The Queen (2011) 32 VR 486, 489–90, [11].
As for any supporting evidence, counsel accepted that there was no psychiatric opinion to say that prison would be more burdensome by reason of the applicant’s mental condition. Instead, it was put as a matter of logic — that is, the applicant’s delusional belief that his parents were not his real parents and that his actions were therefore justifiable would, logically, lead him to believe that he was being unjustly punished while they went free.
Related to the argument with respect to the fifth limb of the Verdins principles, the applicant submitted that fresh evidence[30] reveals that the applicant suffered a relapse of his psychotic condition in February 2023 and was transferred from prison to the Thomas Embling Hospital for a period of two months to receive treatment. Afterwards, he was transferred to the Erskine Subacute Psychiatric Unit at Ravenhall prison to receive inpatient treatment.
[30]Report of Dr Praveen Das, Forensicare, dated 24 May 2023.
Even though the judge had recognised that the applicant’s condition may deteriorate in prison and said that he had taken that potential into account, the applicant argued that merely recognising that potential was significantly different from the actuality of what has now occurred. The mitigatory weight given to the prospect of future deterioration was, he argued, ‘minimal’. The fresh evidence ought to be admitted for the purpose of assessing whether an error was made in respect of the sentence imposed.
In brief compass, the respondent argued that the applicant’s contentions under proposed ground 1 were essentially an argument about the weight to be attributed to the Verdins principles. This follows from the fact that the applicant did not contend that the sentencing judge had failed to take the principles into account. The weight to be given to those principles is, the respondent submitted, a matter of discretion for the sentencing judge, not a basis for alleging specific error. At its highest, this ground is really an element of the manifest excess argument, it submitted.
Further, the respondent denied that the evidence of a deterioration in the applicant’s mental health post-sentence constitutes fresh evidence that the court would entertain under established principles. The sentencing judge had a wealth of expert evidence in relation to the applicant’s mental health, including that the applicant had experienced past relapses when non-compliant with his medication. Dr Battacharya, in her report, specifically addressed the prospect of a further deterioration and how that would be managed either by prison services or, if necessary, hospitalisation. Further, the judge had specifically adverted to that potential for deterioration and had taken it into account. It followed, the respondent submitted, that evidence of the actual materialisation of the very risk that the judge took into account was not ‘fresh evidence’ that threw a different light on circumstances that existed at the time of sentence.
Consideration
As the judge himself observed,[31] this was a difficult sentencing exercise. It was complicated by the fact that, for his own reasons, the applicant eschewed a defence of mental impairment when it was the common view of the psychiatrists, and accepted by the prosecution, that because of his mental impairment he was unlikely to have been capable of forming the requisite criminal intent at the time of his offending. Nevertheless, for sentencing purposes, the judge was required to sentence him as if the applicant could form that intent.
[31]Reasons, [51].
There is no doubt that the judge accepted that the Verdins principles applied. He sought to apply them in respect of the relevant sentencing purposes and principles set out in s 5 of the Sentencing Act. The judge found that the applicant’s moral culpability was reduced ‘to a significant extent’ which implied that he did not consider it was altogether eliminated. In our view, this was a conclusion that was reasonably open to the judge.
It followed that there was still room to consider just punishment and denunciation as relevant considerations insofar as the judge thought it appropriate in view of the applicant’s reduced moral culpability. Neither category of deterrence was considered by the judge to be appropriate to inform the sentencing process. Hence, he said:
You are not a good vehicle for both general and specific deterrence, so that your period of reclusion must of necessity reflect that conclusion. However, the offending requires just punishment and denunciation.[32]
[32]Reasons, [50].
Given the applicant’s concentration in oral argument on the role of denunciation as reflected by the judge’s last statement, it is useful to bear in mind the difference between denunciation and general deterrence. Whereas deterrence is concerned with punishing the offender to deter others from yielding to the same impulses and committing a similar offence,[33] denunciation is a more symbolic communication of society’s condemnation of the wrong committed by the offender.[34] By including a measure of denunciation in the sentencing synthesis, the court recognises the nature and significance of the wrong affecting the victims, asserts society’s values and attributes responsibility for that wrongdoing to the offender.[35]
[33]R v Williscroft [1975] VR 292, 298–99.
[34]Ryan v The Queen (2001) 206 CLR 267, 302 [118] (Kirby J).
[35]WCB v The Queen (2010) 29 VR 483, 493-94 [35].
The rationale for refraining to use the mentally impaired offender as an example to deter others[36] does not automatically apply to eliminate, or to reduce to the same extent, the applicability of denunciation as a sentencing purpose. In this case, as reflected in the short passage extracted above, the judge recognised that distinction and considered that, along with just punishment, denunciation still had a relevant purpose for this sentencing exercise. Nonetheless, it is clear from the judge having reiterated that the Verdins principles were ‘fully operational’[37] that he moderated its weight by reference to the applicant’s reduced moral culpability.
[36]Verdins, (2007) 16 VR 269, 272–74 [14]–[22].
[37]Reasons, [52].
Otherwise, we accept the respondent’s submission that the applicant’s arguments are better understood as complaints about the weight the judge attributed to sentencing considerations by reference to the Verdins principles rather than as grounds of specific error. More appropriately, they fall to be considered as aspects of the applicant’s argument about manifest excess under proposed ground 3.
Finally, we decline to take the ‘rare and exceptional step’[38] of admitting the report of Dr Das dated 24 May 2023 as fresh evidence. As was submitted by the respondent, evidence of the materialisation of a risk which the judge clearly took into account does not ‘throw a different light on circumstances which existed at the time of the sentence’.[39] Additionally, because we are unpersuaded that that the judge failed to properly consider the weight to be given to the fifth limb of the Verdins principles, or that any miscarriage of justice would flow from the way it was dealt with on the plea. For that reason, we would not permit an argument to be run on an appeal against sentence that was not advanced (in fact disavowed)[40] before the sentencing judge, especially (in this case) one that is not supported by the medical opinion but only by lawyer’s logic.
[38]R v WEF [1998] 2 VR 385, 388–389.
[39]Ibid.
[40]See above at [21].
Leave to appeal should be refused in respect of grounds 1 and 4.
Did the judge fail to take into account prospects of rehabilitation?
Proposed ground 2 contends that the judge failed to take into account the applicant’s prospects of rehabilitation. First, the applicant submitted, the judge failed to mention rehabilitation prospects at all. Secondly, the applicant is a first time offender, his risk of reoffending is directly linked to the treatment and control of his mental illness and, if so, his prospects of rehabilitation are good.
In our view, this contention can be disposed of quickly. Although the judge did not specifically refer to prospects of rehabilitation, throughout the entire plea process and in the judge’s sentencing reasons, the dominant consideration was the applicant’s mental illness and its effective treatment, acknowledging that his mental impairment was causative of the offending. Doubtless, the applicant’s mental illness is inextricably linked to his prospects of rehabilitation. As noted, the judge ordered a further report from Dr Bhattacharya to determine the applicant’s most up to date psychiatric condition and treatment needs so as to fashion a sentencing disposition that most reliably took into account the prospects of reoffending and targeted the issue that caused him to offend.
The contention that the applicant has ‘good’ prospects of rehabilitation is somewhat problematic given his history of non-compliance with treatment. Despite our refusal to admit the evidence of Dr Das as fresh evidence to aid the applicant’s arguments on this application, the very fact that an argument has been put based upon the applicant’s recent deterioration in mental health illustrates the problematic nature of his arguments under proposed ground 2. In short, the applicant’s prospects of rehabilitation were inextricably linked with his mental illness and the substantial focus on the plea process, and the judge’s reasons were devoted to that issue. Leave to appeal on this proposed ground must be refused.
Should fresh evidence be admitted in respect of the cancellation of the applicant’s visa?
By proposed ground 5 the applicant contends that fresh evidence about the cancellation of his visa demonstrates that the sentence of imprisonment will weigh more heavily upon him by reason of that fact. As set out above (see [28]) the judge specifically took into account the prospect of the applicant’s visa being cancelled due to his sentence, thus rendering his incarceration a greater burden to him. Evidently, the judge believed that it still lay within the Minister’s discretion to determine whether the visa should be cancelled. In fact, by s 501 of the Migration Act 1958 (Cth) cancellation of the visa is automatic upon a sentence of 12 months or more being imposed. The applicant wished to tender fresh evidence to show that his visa was cancelled on 21 April 2023.[41] The judge considered that he could only (but ought not) speculate whether the applicant’s visa would be cancelled. The applicant submitted that the fresh evidence demonstrates that it is no longer a matter of speculation and that the likelihood of his deportation is greater now than it was considered to be at the time of sentence.
[41]Letter from the Australian Department of Home Affairs, 21 April 2023.
Once again we do not consider that the evidence of the cancellation of the applicant’s visa is, relevantly, fresh evidence. At the time of sentence, the judge took into account the fact that the prospect of the applicant’s deportation would weigh heavily upon him in prison. Although his visa has been cancelled, the applicant intends to seek the revocation of that cancellation, as he is entitled to do.[42] Accordingly, his actual deportation remains a matter of speculation. In other words, it still remains a prospect and the proposed new evidence does not shed any new light, in any meaningful way, on the circumstance that the judge took into account at the time of sentence.[43]
[42]Migration Act 1958, s 501CA
[43]See DaCosta v The Queen (2016) 258 A Crim R 60, 70 [41]–[43].
Leave to appeal on this proposed ground must be refused.
Was the sentence imposed manifestly excessive?
By proposed ground 3, the applicant submits that the sentences imposed on charges 1 and 2, the total effective sentence of imprisonment and non-parole period are manifestly excessive. The applicant submitted that, on the plea, he could properly rely upon the following matters in mitigation:
(a)His mental health and the application of the Verdins principles.
(b)His plea of guilty, its timing and utility.
(c)The likelihood of deportation.
(d)His lack of criminal history and this being his first time in custody.
(e)His prospects of rehabilitation.
Taking into account the evidence of his mental illness and the degree to which his moral culpability was reduced, the applicant argued that the circumstance called for a substantial moderation of individual sentences, the total effective sentence and the non-parole period. He submitted that the consequences of his mental health and the application of the Verdins principles were not sufficiently taken into account.
Moreover, his plea of guilty at the earliest opportunity during the COVID-19 pandemic attracted a substantial sentencing discount. The prospect that he faced deportation to a country where he has not lived since 1994 (New Zealand), suffering from paranoid schizophrenia, constituted an additional punishment which also called for a significant sentencing discount.[44]
[44]Citing Guden v The Queen (2010) 28 VR 288, 294–95 [25]–[27].
Whereas, in written submissions, the applicant had sought to rely upon certain cases said to be comparable, on the oral hearing the applicant withdrew those submissions, conceding that none of them were sufficiently comparable.
The respondent did not dispute any of the individual matters which the applicant identified as being relevant matters in mitigation. On the other hand, the respondent submitted that each of them had been taken into account by the judge and given adequate weight in the sentencing process. Objectively, the offences committed by the applicant were very serious. The consequences for the victims were significant.
Even so, the respondent accepted that the application of the Verdins principles was very significant in this case. Given the limited options the sentencing judge was left with after the applicant eschewed the defence of mental impairment, and the option of a Secure Treatment Order was unavailable, the respondent submitted that considerations of the applicant’s risk of reoffending and the protection of the community warranted a sentence of imprisonment with a period of parole upon release that would best enhance his ongoing supervision and psychiatric treatment.
In oral submissions, the respondent conceded, again, that this was a difficult sentencing exercise for the judge. Alluding to evidence that suggested that the applicant’s mental condition is treatment-resistant, and that his past compliance with treatment has been ‘pretty patchy’, the respondent submitted that protection of the community was a significant consideration.
Consideration
In Leimonitis v The Queen,[45] this Court said:
…[M]anifest excess is a conclusion which does not depend upon the attribution of identified specific error. Moreover, it is a conclusion that ordinarily does not admit of much elaboration or sustained argument, since excess is, or is not, plainly apparent, and a sentence is, or is not, unreasonable or plainly unjust. The sentence may be excessive because the wrong type of sentence has been imposed, or because the sentence imposed is manifestly too long. A judge of an appellate court will approach the task of assessing whether a sentence is manifestly (as opposed to simply arguably) excessive in much the same way that a sentencing judge approaches the imposition of sentence at first instance; that is, by instinctively synthesising all relevant factors in order to determine whether he or she considers the impugned sentence to be just and appropriate. But it is not enough for appellate intervention to be warranted that the judges of the appellate court regard the impugned sentence as stern, or that they would not themselves have passed the same sentence. Intervention is justified only if the sentence is wholly outside the range of those open in the sound exercise of discretion.[46]
[45][2018] VSCA 198.
[46]Ibid [32] (Priest JA, Weinberg JA agreeing).
In our view, the individual sentence on charge 1 of 5 years and 6 months imprisonment in particular, and the total effective sentence of 6 years, may be regarded as stern for a first time offender acting under the mental impairment which afflicted this applicant at the time of his offending. Nonetheless, after careful consideration, we are unable to conclude that any of the individual sentences, the total effective sentence or the non-parole period are manifestly excessive in all the circumstances. A first offender without the mental impairment suffered by the applicant could justifiably be imprisoned for significantly longer terms for the commission of these offences even after pleading guilty to them.
We have taken into account the arguments put on behalf of the applicant, as outlined above. The offences were, objectively speaking, very serious. The impact on the victims was profound and serious. Without emergency treatment, his father would likely have died. Although undoubtedly to be moderated, some measure of just punishment and denunciation was warranted.
Because of the entrenched nature of the applicant’s mental illness and the pattern of relapse over many years, the measure of the applicant’s prospect of rehabilitation is almost entirely bound up with the likely course of his future illness and its amenability to treatment. On this front, his prospects could not be considered as good. Community protection, therefore, was a significant consideration. Unable to take the path of subjecting the applicant to mandatory treatment, the necessary disposition to serve the sentencing purposes involved the imposition of imprisonment for a number of years together with the prospect of parole of a sufficient duration to permit careful psychiatric monitoring upon the applicant’s release back to the community. As the judge observed, community protection and the applicant’s treatment needs both pointed in the same direction.[47]
[47]See above, [33].
Leave to appeal must be refused in respect of proposed ground 3.
Disposition
Leave to appeal will be refused.
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