Kerney v The King
[2023] VSCA 202
•31 August 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0055 |
| ANDREW JAMES KERNEY | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | MACAULAY JA and J FORREST AJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 23 August 2023 |
| DATE OF JUDGMENT: | 31 August 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 202 |
| JUDGMENT APPEALED FROM: | [2023] VCC 350 (Judge Chambers) |
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CRIMINAL LAW – Appeal – Sentence – Aggravated burglary – Make threats to kill – Commit indictable offence whilst on bail – Fresh evidence – Principles in R v Verdins (2007) 16 VR 269 enlivened – Leave to appeal granted – Appeal allowed.
Bail Act 1977 s 30B; Crimes Act 1958 ss 20, 77.
DPP (Vic) v Weidlich [2008] VSCA 203, R v Eliasen (1991) 53 A Crim R 391, R v McLachlan (2004) 8 VR 403, R v Verdins (2007) 16 VR 269.
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| Counsel | |||
| Applicant: | Mr PJ Smallwood | ||
| Respondent: | Mr J Lewis | ||
Solicitors | |||
| Applicant: | Victoria Legal Aid | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
MACAULAY JA
J FORREST AJA:
On 10 August 2022, the applicant Andrew James Kerney, who at the time of sentencing was 44 years of age, pleaded guilty to one count of aggravated burglary;[1] one count of making threats to kill;[2] and one count of a related summary offence of committing an indictable offence whilst on bail.[3]
[1]Contrary to the Crimes Act 1958 s 77.
[2]Contrary to the Crimes Act 1958 s 20.
[3]Contrary to the Bail Act 1977 s 30B.
Following the plea on 1 March 2023, the applicant was sentenced on 9 March 2023 by her Honour Judge Chambers as follows:
Charge
Offence
Maximum
Sentence
Cumulation
1
Aggravated burglary
25 years
7 months’ imprisonment
Base
2
Make threats to kill
10 years
5 months’ imprisonment
1 month
5
Commit indictable offence whilst on bail
3 months
1 month imprisonment
-
Total Effective Sentence:
8 months’ imprisonment in combination with an 18‑month Community Correction Order
Non-Parole Period:
N/A
Section 6AAA Statement:
3 years’ imprisonment with a non-parole period of 2 years
Other relevant orders:
Disposal order
40 days reckoned as pre-sentence detention
At the time of sentencing no material was adduced as to the applicant’s significant intellectual disability and its effect on his offending and the potential sentence to be imposed. In particular the principles espoused by this Court in R v Verdins (‘Verdins’)[4] and its application were not mentioned to the judge. Her Honour, correctly and unsurprisingly, gave no consideration to the issue.
[4](2007) 16 VR 269; [2007] VSCA 62.
After his sentence and imprisonment the applicant (or more correctly, his lawyers) have obtained reports from a psychologist and neuropsychologist which shed fresh light on his offending and its consequences. No issue arose as to the relevance of this material and that it met the test for the admission of fresh evidence on an appeal, thus reopening the sentencing discretion of this Court. The one issue for this Court to determine was whether we should take a different course to that taken by the judge notwithstanding the fresh evidence.
On 25 August 2023, after obtaining a Community Correction Order (‘CCO’) Pre‑Sentence Assessment Outcome Report, we determined that the application for leave to appeal and the appeal should be allowed. The applicant was resentenced to a total effective sentence of 6 months’ imprisonment with a CCO of 18 months attached. Our reasons for doing so now follow.
The one ground of appeal
On 6 April 2023, the applicant filed an application for leave to appeal against the sentence on the following proposed ground:[5]
Ground 1: Fresh evidence demonstrates the true significance of facts in existence at the time of the sentence.
[5]For convenience, the proposed ground will be referred to as a ‘ground’ from here on.
Circumstances of the offending
The applicant had lived for a time with Graham Carr at leased premises. At a point of time shortly before the offending, the applicant became particularly aggrieved by Mr Carr’s alleged failure to repay the bond and to transfer the lease to him.
Mr Carr was a friend of Ms Buffy Johnson, the victim who resided at Saxonwood Drive in Sunbury.
It is against this backdrop that on the evening of 19 March 2022, at about 6:15 pm, the applicant drove his vehicle to Ms Johnson’s home. He believed Mr Carr was still at the house, having dropped him there earlier in the day.
CCTV footage showed the applicant outside the house armed with a wooden pole. He approached the front door, which was open. He opened the security screen door and entered Ms Johnson’s home, carrying the wooden pole. (This was count 1, aggravated burglary.) Ms Johnson, who had been sitting in her loungeroom, heard the applicant yelling, picked up her phone and walked to the front door. She recognised the applicant.
Ms Johnson recognised the applicant, who shouted: ‘I’m gonna kill you. Where is he?’, as he walked towards the kitchen. Ms Johnson urged him to leave. The applicant shouted once more: ‘I’m gonna kill you. Where the fuck is he?’. (This was count 2, making threats to kill.)
Ms Johnson’s 11 and 15 year old children came out came out of their bedrooms and stood behind their mother. She thought the applicant was looking for her ex-partner (and not Mr Carr), and said, ‘He’s not here, get out’. The applicant hesitated, and then walked back towards the front door. Ms Johnson followed a few metres behind him as she was scared and wanted to lock the door behind him.
The applicant walked out the front door and stood on the front lawn. He continued to yell towards the house. Ms Johnson shut and locked the door behind the applicant, before calling 000. She could still see the applicant outside her front window.
The applicant then went around to the side of the house and began banging on the house with the wooden pole. Ms Johnson was worried he would come back through the side gate, so she asked her children to run and lock the back door. She heard the applicant yell, ‘Get the fuck out here, Graham!’. Then the applicant returned to his Ford Falcon and drove away.
This entire unhappy incident occurred in under two minutes. The applicant was inside the property for no longer than 30 seconds. It caused the victim, and her two children, considerable fear and shock — understandably so. Indeed, it was aggravated by the applicant’s continuation of his behaviour once he became aware that there were two young children in the house.
When the applicant was later arrested, he initially denied the offending, but he identified himself upon being shown stills of the CCTV footage.
The plea
The plea was heard before Judge Chambers on 1 March 2023. The applicant was represented by a lawyer.
At the outset of the plea, there was a minor controversy as to whether the applicant should plead guilty to making threats to kill Johnson, given that he was in reality looking for Mr Carr, not Ms Johnson, nor her ex-partner. After a short adjournment, the applicant pleaded guilty to count 2, making threats to kill Ms Johnson.
The prosecutor proceeded to read his opening statement. No victim impact statement was provided by Ms Johnson.
Then tendered was a bundle of documents, including a letter from the applicant’s sister Kylie, and a letter from the applicant’s mother Ms Shirley Langshaw. Ms Langshaw’s letter was supportive of the applicant, and the judge described it as ‘very detailed and helpful’.
A Court Integrated Services Program (‘CISP’) report was also tendered, as well as a mental health summary dated 16 February 2023 from the Mental Health Advice and Response Service (‘MHARS’).
The applicant’s legal representative then set out the applicant’s background and raised factors in mitigation. Relevant to the present application is the following excerpt:
MR DOUGLAS: … He told me that he doesn’t have a disability, but he’s not very smart, that’s what he told me.
HER HONOUR: Yes.
MR DOUGLAS: He’s part of the working poor. I needed reports, you know. It would be good if I had a psychological report, or an intellectual assessment, or something, but I don’t have and he was funded by Legal Aid while he was in gaol, but then when he gets out of gaol, he gets a job and then the funding stops …
MR DOUGLAS: Now, I contacted Forensicare, to see if they had had any dealings with Mr Kerney. It’s just, you fill out a form, you send it off and you get a report. I just went on a fishing trip, Your Honour. I find it interesting that he had involvement with our mental health system on 15 and 16 March last year and then three days later, this incident occurs. So, I asked him, I said, ‘Well, what was that all about?’ and this is what he told — I mean, his involvement with the — Forensicare. You know, what was that all about and he told me that his car was unroadworthy. He wasn’t working. He couldn’t get to work. He had no supports. He was stuck in Melbourne. Life hadn’t worked out how he had hoped and he called the Sunbury police station and he told the police that, ‘I’m going to kill myself.’ It was a cry for help and the police arrived and he was telling me that they were terrific. They stayed with him and they called an ambulance. He was telling me that it took five hours for the ambulance to turn up, but the police never left him. I thought that was terrific - - -
Later, the sentencing judge said:
So I appreciate that’s the background and certainly clear that in or around that time, he’d engaged with the area mental health service and that they had diagnosed him with an acute stress reaction, but also disorders due to harmful alcohol abuse, cannabis abuse and stimulant being the medication.
Finally, towards the end of the plea, the applicant’s legal representative said:
MR DOUGLAS: I really, you’ve read everything, which is good. I wish I had more reports. I said in my submission - - -
HER HONOUR: No and I’m not — certainly not critical of you. I understand the situation.
MR DOUGLAS: All right. I said in my little report, that if you’re thinking about giving him more time, a Forensicare assessment may be, or whatever, I don’t know — look, I’m in your hands, Your Honour. You know, you know where I’m heading. You know what I want. It’s a matter of whether I’ve persuaded you or not.
That additional time, which was tentatively asked for, was ultimately not granted.
The judge’s sentencing remarks
The sentencing judge commenced by setting out the circumstances of the offending.[6]
[6]DPP (Vic) v Kerney [2023] VCC 350, [1]–[18] (‘Reasons’).
The judge considered that the applicant’s offending was a ‘reasonably serious example’ of offending of that nature. Her Honour noted that no force was applied to enter the home, and that the incident was short-lived and unsophisticated. But she also noted the victim’s, and her children’s, entitlement to feel safe in their home; the sanctity of said home; the 25-year maximum penalty of the offence; and authorities referring to the need for sentences for aggravated burglary to reflect the inherent seriousness of the offence.[7]
[7]Reasons, [18]–[27], [53].
The judge then turned to the personal circumstances of the applicant. His was a blended family, owing to his parents’ divorce when he was aged nine. He stayed with his father, and his father’s new partner, in Melbourne; before later moving to Queensland, where his mother resided with her new family. There was conflict between the applicant and his stepbrothers. He moved back and forth between Melbourne and Queensland.[8]
[8]Reasons, [28]–[29], [31]–[32], [34].
The judge noted that the applicant started abusing alcohol from the age of 18, but he began to drink excessively after the breakdown of his five-year relationship with his partner. Later, he began to mix alcohol with his prescribed medication.[9]
[9]Reasons, [33], [35].
The judge recorded the following accounts from the applicant’s mother:
Your mother says you were a quiet child and displayed learning difficulties from a young age. Between 12–18 months you required the assistance of an occupational therapist and did not learn to talk until the age of three.
After years of struggling, she says you returned to Melbourne to be close to your father. You would return to Queensland intermittently. In Melbourne, you obtained factory work for a year. When you lost this job, your mental health again declined, and you were prescribed anti-depressant medication to manage your suicidal thoughts. Your mother states you eventually found casual work at a meatworks factory, but continued to suffer from mental health issues, particularly after being informed your father had been diagnosed with an aggressive form of cancer.[10]
The applicant’s father eventually passed away.[11]
[10]Reaosns, [30], [34].
[11]Reasons, [46].
The applicant’s prior criminal history was described by the sentencing judge as ‘not substantial’, although it dated back to 1997, and included a couple of recent incidents of anger-related offending.[12]
[12]Reasons, [36]–[37].
Turning to the applicant’s mental health issues immediately prior to the offending, the judge said:
A report from Forensicare dated 16 February 2023, states that you were admitted to the Mid-West Area Mental Health Service on 15 March 2022 and diagnosed with an, ‘acute stress reaction and a mental and behavioural disorder due to harmful alcohol and stimulant use, and cannabis abuse’. This was your first engagement with mental health services, and occurred after you attended at a police station seeking assistance with suicidal thoughts. You were discharged following one night in hospital. You have also disclosed significant methylamphetamine and cannabis abuse at the time of the offending.[13]
[13]Reasons, [38].
Noting also that the applicant was intoxicated at the time of the offending in question, the judge concluded his future prospects ‘very much depended upon’ two interrelated issues: his ability to abstain from alcohol and illicit drugs, and his ability to control his anger.[14]
[14]Reasons, [39]–[40].
The judge noted that after having being remanded in custody for 40 days, the applicant was granted bail subject to compliance with the CISP on 27 April 2022. A final progress report from CISP reported that he had successfully concluded in engagement in drug and alcohol treatment and counselling in September 2022. He was re-employed by the meatworks factory and was at the time of sentencing employed five days a week. His lawyer stated that he had reduced his alcohol consumption significantly.[15]
[15]Reasons, [41].
Various matters in mitigation were then considered by the judge, including that he had pleaded guilty at an early stage, his limited prior offending, his successful engagement in alcohol treatment, his maintenance of full-time employment, and his focusing on his mental health.[16]
[16]Reasons, [42]–[50].
The judge said she had had regard to the assessment reports of Community Corrections and MHARS, which both recorded some relatively recent drug use. She also took into account the applicant’s report of suffering from depression requiring medication.[17]
[17]Reasons, [54]–[55].
The judge concluded that the applicant should be sentenced to 7 months’ imprisonment on the aggravated burglary charge, 5 months for making threats to kill (with cumulation of 1 month), and 1 month for committing an indictable offence whilst on bail (served concurrently). An 18 month CCO was also imposed. Central to the judge’s sentencing was the objective seriousness of the offending.[18]
Ground 1 — Does the fresh evidence demonstrate the true significance of facts in existence at the time of the sentence?
The fresh evidence
[18]Reasons, [51]–[53], [56]–[65].
Some 20 days after the applicant’s sentencing, on 28 and 29 March 2023, Ms Gina Cidoni, a psychologist, examined the applicant by video conference. Ms Cidoni’s report was apparently intended to be used for a separate and unrelated hearing concerning the applicant at the Broadmeadows Magistrates’ Court.
Her opinion, contained in a report dated 29 March 2023, was that the applicant had ‘extremely low intellectual and adaptive capacity’ and a tendency to act impulsively. It was also said that he suffered from anxiety and depression.
On 25 May 2023, Dr Felicity Evans, a neuropsychologist, examined the applicant at Port Phillip Prison. Her opinion, contained in a report of 21 June 2023, was that the applicant had a significant cognitive disability making his functioning below 99 per cent of other people of the same age. Notably, she considered that the applicant’s condition was permanent and unamenable to treatment.
Ms Miranda Williams, solicitor for the applicant, on 21 August 2023, in a further affidavit appended a body of information relating to the applicant’s eligibility for the National Disability Insurance Scheme (‘NDIS’).
In addition, shortly prior to the hearing of the appeal Ms Williams’ affidavit exhibited four documents:
(1)an NDIS plan that has been approved for the applicant dated 10 August 2023;
(2)a Statement of Intellectual Disability issued by the Department of Families, Fairness and Housing (‘DFFH’) dated 15 August 2023;
(3)a letter authored by Ms Geanette Urbancic, Social Worker, Intensive Support Team, Statewide Disability and Housing Operations, DFFH dated 16 August 2023; and
(4)a letter authored by Ms Jennifer Nunn, Support Co-Ordinator, Phoenix Specialised Youth and Disability Services dated 16 August 2023.
The contents of these documents demonstrate that the applicant having been deemed eligible for the NDIS will receive considerable support upon his release, including disability support, occupational therapy and psychological treatment. The applicant indicated in his NDIS plan that once his CCO is complete, he hopes to move to Queensland to live closer to his mother.
On 3 April 2023, the applicant was convicted of a number of offences (assault with a weapon, threat to destroy/damage property, making a false report to police, careless driving of a motor vehicle, criminal damage) at the Broadmeadows Magistrates’ Court. These offences were committed prior to the subject offence but related to the same background issues (namely, his dispute with Mr Carr). The magistrate convicted and sentenced the applicant to a CCO for a period of 15 months to take effect within two clear working days after his release from imprisonment on the current charges. The CCO contained supervision, treatment and rehabilitation conditions.
Although it was not in issue, we should confirm our view expressed in Court that this material (ie the psychologists’ reports and the NDIS material) met the test for the admission of fresh evidence. In R v McLachlan, Chernov JA (with whom Winneke P and Vincent JA agreed) said:
It seems plain enough that evidence of an event occurring after sentence is not admissible if it is led merely to show that the sentence imposed is excessive, or, put another way, that the sentence turned out to be excessive. But evidence of an event occurring subsequent to the sentence may be admitted, in the court’s discretion, in order to avoid a miscarriage of justice, if it shows the true significance of a relevant circumstance that existed at the time of sentence, even though its existence was then not known.[19]
[19]R v McLachlan (2004) 8 VR 403, 406–7 [10] (Winneke P agreeing at 410 [24], Vincent JA agreeing at 410 [25]); [2004] VSCA 87 (emphasis added). See also Rout v The Queen [2016] VSCA 126, [49] (Whelan, Priest and Beach JJA), quoting R v Nguyen [2006] VSCA 184, [36] (Maxwell P agreeing at [1], Neave JA agreeing at [2]).
This is consistent with what the Full Court (Crockett J, with whom McGarvie J and Phillips J agreed) had earlier said in R v Eliasen:
This Court accedes very sparingly to applications of this kind. Applications for leave to appeal are dealt with on the basis that, unless the sentencing judge has been shown to have erred in the exercise of his sentencing discretion, this Court will not intervene in the matter. The question as to whether error has occurred is to be determined by a reference to the matters available to be considered by the judge at the time that he determines upon the sentence.
However, it is plain that authority now establishes that this Court may, if it considers the case an appropriate one to do so, permit evidence of matters or events that have occurred since the date of the passing of the sentence upon an applicant to be placed before this Court with a view to this Court’s reconsidering the matter in the light of that additional evidence. It must follow that, if the Court does think that the additional evidence should lead to the imposition of a sentence different from that imposed by the judge, then even where the judge’s sentencing discretion has not miscarried the case must be treated as one calling for appellate intervention.
It has been said by this Court that if, on the material placed before it for the hearing of an application for leave to appeal against sentence, it considers that the sentence imposed was not an appropriate sentence, then the application may be allowed and a different sentence passed in lieu of that imposed below: see Prior [1966] VR 459; Tutchell [1979] VR 248; Martin (unreported, Court of Criminal Appeal, Vic, 19 March 1990).[20]
[20](1991) 53 A Crim R 391, 394 (McGarvie J agreeing at 397, Phillips J agreeing at 397). See also Langton (a pseudonym) v The Queen [2022] VSCA 79, [16]–[19] (Maxwell P, McLeish and Macaulay JJA).
The evidence of the two psychologists and the NDIS material paints a very different picture of the applicant’s mental state to that advanced before the judge. It demonstrated the true significance of the applicant’s intellectual disability which had, unfortunately, not been explored before the sentencing judge. As mentioned, it was accepted, sensibly, by the Director that the material just referred to constituted relevant fresh evidence falling within the criteria we have just identified and that consequentially, the sentencing discretion of this Court is enlivened.
What sentence should now be imposed?
It was submitted by the applicant that the first, second, third, fourth and fifth of the principles enunciated by this Court in Verdins were enlivened as a result of the fresh evidence, namely:
1.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.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. 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.
4. 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.
5. 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.[21]
[21](2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA); [2007] VSCA 102.
The applicant in further submissions (filed just before the hearing of the application for leave to appeal) adverted to the conclusions in Dr Evans’ report and the enlivenment of the Verdins principles and those contained in the High Court decision in Muldrock v The Queen.[22] It was submitted that:
(a)The applicant’s intellectual disability informs the assessment of the weight to be given to both general deterrence and specific deterrence.
(b)The fresh evidence could also have affected the kind of sentence to be imposed, as the applicant was, unbeknownst to the sentencing judge, eligible for a sentence with a justice plan condition pursuant to s 80 of the Sentencing Act 1991.
(c)The nexus between the applicant’s intellectual disability and his offending informs reduces his moral culpability and the weight to be given to denunciation.
(d)A term of imprisonment would be more difficult and stressful for the applicant because of his intellectual disability.
[22](2011) 244 CLR 120; [2011] HCA 39.
It was therefore contended on the appeal that the applicant should be resentenced to a shorter term of imprisonment with no additional CCO.
The Director argued that no different sentence to that of the judge should be imposed.
In written submissions, the Director submitted that Ms Cidoni’s report merely contained a suspicion, rather than a diagnosis, of intellectual disability. She further submitted that whether Verdins principles are enlivened is a matter for the Court, not the expert witness.
The Director submitted that no nexus between the offending and the applicant’s low intellectual functioning can be readily discerned, such that the relevant Verdins principle is not enlivened. She further submitted that Ms Cidoni’s opinion that imprisonment would do little to rehabilitate the applicant was beyond the scope of her expertise. Furthermore, she submitted that Ms Cidoni did not specify why imprisonment would be more onerous for the applicant. The Director’s written submissions were filed before Dr Evans prepared her report confirming the diagnosis of intellectual disability.
Finally, the Director submitted that the sentence imposed by the judge was modest, indeed merciful, and that on resentencing even allowing for Verdins considerations no different sentence should be imposed. In oral submissions, the Director accepted that the applicant had an intellectual disability, but generally maintained her submission that no different sentence should be imposed.
The Verdins principles are well understood — the applicant’s recitation of the principles at [48] was not disputed. It suffices for present purposes to repeat what was said by this Court in DPP (Vic) v Weidlich, in a passage subsequently quoted with approval in DPP (Vic) v Eli and R v Safatli:
Generally, the measure of culpability of an offender under the criminal law rests upon the extent to which the individual can be seen to be personally responsible for both the prohibited acts and their consequences. Little thought is required to appreciate that the greater the level of insight and understanding possessed by him or her concerning the act and its potential harm, the higher becomes the level of culpability for then deliberately engaging in the conduct involved. The Court in Tsiaras and Verdins recognised that sometimes as a consequence of the contribution made to the commission of an offence by a mental disorder from which a perpetrator was suffering at the time, it would be unjust to attribute to the offender a full measure of personal responsibility. The presence of the disorder could bear upon the sentencing judge’s assessment of the individual’s motivation and level of culpability, prospects of rehabilitation, the need for specific deterrence and the appropriateness of giving full effect to the principle of general deterrence. However it follows, when addressing the question of the significance of the disorder for these purposes, that the nature and extent of its possible effect upon the offender’s behaviour must be carefully explored.[23]
[23][2008] VSCA 203, [17] (Vincent, Weinberg JJA and Mandie AJA) (citations omitted), quoted in [2008] VSCA 209, [28] (Vincent, Weinberg JJA and Mandie AJA) and [2008] VSCA 232, [15] (Maxwell P, Vincent JA and Vickery AJA).
Of course, ultimately, as the Director submitted, whether one or more Verdins considerations is engaged is a matter for the Court.[24] It is a finding of fact to be made on the balance of probabilities.[25]
[24]Newton v The Queen [2021] VSCA 207, [38] (Niall JA, Priest JA agreeing at [1]), quoting O’Connor v The Queen [2014] VSCA 108, [38] (Maxwell P, Weinberg and Priest JJA).
[25]Thomas v The Queen [2021] VSCA 97, [31] (Maxwell P, McLeish and Sifris JJA), quoting Carroll v The Queen [2011] VSCA 150, [17], [20] (Maxwell P, Buchanan JA agreeing at [70]).
In our view, the conclusions reached by Dr Evans in her comprehensive and comprehensible report clearly and powerfully engage Verdins considerations.
After carrying out extensive neuropsychological testing Dr Evans summarised the applicant’s intellectual disability as follows:
The current assessment provides confirmation of Mr Kerney’s intellectual disability. For this diagnosis, the following criteria must be met:
1.Performance on a standardised measure of intelligence needs to fall two standard deviations below the population mean. On the WAIS-IV, this equates to a full-scale IQ of approximately 70 or below. In Mr Kerney’s case, his full-scale IQ was 66. His intellectual functioning fell below at least 99% of other people his age.
2. It is necessary to establish that the difficulties began during the developmental period. In Mr Kerney’s case, his mother reported that his development was delayed. She indicated that he experienced difficulties with learning from an early age.
3. It is necessary to establish that the intellectual impairment impacts on adaptive functioning. Adaptive functioning refers to how a person functions in their environment and how they cope with daily tasks at a conceptual, social, and practical level. Information provided by Mr Kerney’s mother, Shirley, indicated that he needs support and prompting to carry out almost all daily tasks. Shirley rated Mr Kerney’s overall adaptive functioning as falling below 99.7% of his same-aged peers.
Mr Kerney’s performances across all cognitive domains were consistent with his low level of intellectual functioning. He demonstrated difficulties in his attention, new learning and memory, executive functioning, his ability to recognise visual patterns, and his performances on language-based tasks.
Mr Kerney’s intellectual disability is lifelong and permanent. His intellectual disability is not amenable to treatment or rehabilitation. He will require regular, ongoing support for the rest of his life. …
It is possible that Mr Kerney’s mental health difficulties might exacerbate his cognitive problems. Similarly, if he continues to consume large quantities of alcohol when he is released, then this also has the potential to exacerbate his difficulties. It will be essential that Mr Kerney receives an intensive level of ongoing mental health support, as well as support to abstain from alcohol, if he is released into the community.
Dr Evans was asked a number of questions which are relevant to determining whether any of the Verdins factors are met. She said this:
7. What is the relationship, if any, between my client’s condition and the offending?
In my opinion Mr Kerney’s intellectual disability is relevant to his offending. Mr Kerney has impaired executive functioning.
This means that he has difficulty appreciating the consequences of his actions. He will struggle to weigh up the potential risks and benefits of any choices that he makes. He has impaired reasoning and judgment. It is likely that he will make poorer decisions than a member of the community who does not have an intellectual disability.
8. Whether the condition would be likely to affect adversely the ability of my client to cope with imprisonment.
Due to Mr Kerney’s intellectual disability, a term of imprisonment will be more difficult and stressful for him, compared with a member of the community who does not have an intellectual disability.
Although the prison environment provides Mr Kerney with a high level of routine and structure from which he may benefit, he will be placed in a vulnerable position in a prison environment. His impaired reasoning and judgment will make him vulnerable to being influenced by others.
9. Whether the condition would be likely to deteriorate as a result of my client being imprisoned[.]
Mr Kerney has an intellectual disability. His condition is lifelong and permanent. His intellectual disability will make him particularly vulnerable in the prison environment.
Mr Kerney’s condition will not deteriorate as a result of him being imprisoned. A period of imprisonment, however, will not enable him to function at an optimal level. …
11. … b) Whether there are any aspects of Mr Kerney’s mental functioning which may impede rehabilitation or whether the condition is amenable to effective treatment
In my opinion Mr Kerney is a poor candidate for traditional rehabilitation. His cognitive difficulties will make it difficult for him to engage in rehabilitation. His difficulties must be managed by controlling his environment and providing him with a high level of routine and structure. He will require an intensive level of ongoing support for the rest of his life.
Ms Cidoni’s assessment, after setting out the result of psychological testing conducted upon the applicant and under the heading ‘Summary and Opinion’, was as follows:
He is a 44-year old male presenting with extremely low intellectual and adaptive capacity. At this low level, critical thinking skills are compromised, and there is a tendency to act impulsively. Cognitive flexibility is a major challenge as is poor decision-making, where he consistently fails to weigh the pros and cons of decisions made.
His intellectual challenges may be congenital in origin. From his self‑report, Mr Kerney indicated challenges in school and his mother confirmed no diagnoses were ever made.
At the level assessed and his simple presentation, I suspect Mr Kerney [has an] Intellectual Disability (ID).
The clinical evaluation is a reserved one given his impaired intellectual function. He seems to suffer from anxiety and depression. He suffers from alcohol use disorder (early remission). He used methamphetamines and cannabis up to 6 months ago and would meet all the diagnostic criteria for stimulant and cannabis use disorder in early remission. There were signs of psychosis when drug affected.
As drug use commenced early, likely in response to childhood instability. This affected his formation and likely contributed to the symptoms he is reporting.
He cites his family as his only supports. He presented with low adaptive skills and his mother believes he has little or no capacity to live independently.
This finding enlivens Verdin’s principles in that his impaired mental functioning impacts his moral culpability.
Imprisonment is an onerous experience for many offenders but especially so for Mr Kerney where it shows little effect in terms of helping or rehabilitating him.
His cognitive impairment is likely a significant contributor to his offending behaviours. He has an extremely limited capacity to independently problem-solve and develop adaptive solutions to complex issues or conflicts. Impairments in response inhibition, planning and organisation mean he would be completely overwhelmed when attempting to undertake tasks as ordered. His impairments in executive function make him vulnerable to poor emotional and behavioural regulation which adds to his problems.
In terms of risk, because of his impaired intellectual function, he can find it particularly hard to manage anger, which can lead to significant strain on their relationships and other areas of his life. Substance abuse heightens risk and risk can be moderated if he remains abstinent.
We accept the evidence of Ms Cidoni and Dr Evans as to the applicant’s level of intellectual disability and its consequences for the applicant. We also accept that the matters identified by them (and set out above) satisfy the first, second, third, fourth and fifth of the Verdins considerations — as argued by the applicant. In addition, we think it particularly relevant that the applicant has now been accepted for the NDIS program.
Under the plan, the applicant will receive funding for both occupational therapy and psychological assistance on a regular basis as well as support for increased social and community participation. The reality is that once released, there is a funded support plan, which, in conjunction with the terms of the CCO, should enhance the prospects of rehabilitation and reduce significantly the prospects of reoffending.
The CCO that we propose to impose generally reflects that imposed by the Magistrates’ Court and includes provisions for drug, alcohol, mental health and anger management treatment and rehabilitation.
We should mention the following. We were initially attracted to the suggestion that the imposition of a CCO by this Court may simply complicate that which is already in place — namely, the CCO imposed by the Magistrates’ Court. However, after hearing submissions from the Director as to the imposition of an adequate sentence and the need to ensure that any behaviour that would breach a CCO should engage a consequence for the sentence this Court imposed, we consider that it is appropriate for us to impose a CCO. The CCO we impose will reflect the terms of the CCO that is already in place by reason of the Magistrates’ Court order.
We consider that, in the light of this fresh evidence, denunciation, general deterrence and punishment should be subject to a real degree of moderation — although not eliminated. We also note that the offending, whilst serious, was transient and did not involve any actual violence being inflicted upon Ms Johnson or her children — which is not to say that this was not a traumatic incident for the family. Although the need for community protection might be slightly heightened by the applicant’s inability to appreciate the consequences of his own behaviour; and by the permanent, neuropsychological nature of his disability, this will almost certainly be ameliorated by the applicant’s compliance with the terms of the CCO and his acceptance into the NDIS.
Rehabilitation may, for this same reason, be a little difficult, given the factors which have the potential to exacerbate the consequences of his intellectual disability — namely his alcohol and drug use. Again, in this connection, the imposition of the CCO (with treatment and rehabilitation conditions pertaining to drug use, alcohol abuse and mental health) and the NDIS involvement will, hopefully, militate against these pitfalls.
On balance, to satisfy a measure of denunciation, and to reflect a moderated approach to general deterrence and punishment, we have imposed a total effective sentence term of imprisonment of 6 months as set out in the orders below.
Finally, we should make it clear that this application has succeeded through no fault of the sentencing judge. It would have been highly desirable if the material before us had been before her Honour.
Ground 1 was therefore made out.
Conclusion
For the reasons expressed above, orders to the following effect were made:
(1)The application for leave to appeal against sentence is granted.
(2)The appeal is allowed.
(3)The sentences of imprisonment imposed in the County Court on 9 March 2023 are set aside and in their place the appellant is sentenced as follows:
(a)Charge 1 (aggravated burglary): 5 months’ imprisonment.
(b)Charge 2 (threats to kill): 3 months’ imprisonment; and
(c)Charge 5 (indictable offence whilst on bail): 1 month imprisonment.
(4)The sentence on charge 1 is the (new) base sentence. The order for concurrency on charge 5 is confirmed. The order for cumulation on charge 2 is set aside and it is further ordered that 1 month of the sentence on charge 2 be served cumulatively upon the base sentence (charge 1) and the other sentences of imprisonment, making a total effective sentence of 6 months’ imprisonment.
(5)It is declared that the period of 209 days, not including 25 August 2023, is to be reckoned as already served under this sentence.
(6)The CCO imposed in the County Court on 9 March 2023 is set aside.
(7)In lieu, on charges 1 and 2, the appellant is sentenced to a CCO of 18 months’ duration, with conditions of supervision, treatment and rehabilitation.
(8)The wooden pole in the custody of the Chief Commissioner of Police be destroyed.
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