Konidaris v The Queen
[2021] VSCA 309
•15 November 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0011
| ROSS KONIDARIS | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | EMERTON and OSBORN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 28 October 2021 |
| DATE OF JUDGMENT: | 15 November 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 309 |
| JUDGMENT APPEALED FROM: | [2020] VCC 1685 (Judge Gucciardo) |
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CRIMINAL LAW – Appeal – Sentence – Appellant pleaded guilty to charges of burglary, aggravated burglary, attempted aggravated burglary, attempted armed robbery, common assault, entering a private place without excuse, and unlawful assault with a weapon – Appellant killed grandparents in 2012 while suffering delusions – Appellant diagnosed with schizophrenia and substance use disorder – Appellant found not guilty of murder by reason of mental impairment and subject to custodial supervision order – At time of present offending, appellant living in low-security unit at Thomas Embling Hospital and allowed to leave for recreational and other purposes – Appellant ingested cocaine and then drove to residential area – Appellant formed belief he was being followed and needed to change cars in order to escape – Appellant entered properties and threatened and assaulted residents – Appellant also assaulted victim on street demanding car keys – Total effective sentence 6 years’ imprisonment with non-parole period of 4 years – Whether sentencing judge denied appellant procedural fairness by accessing and relying on medical report not formally tendered or relied on in the plea – Whether denial of procedural fairness by sentencing judge using report to make findings contrary to expert evidence before the Court – Judge acted as investigator and stepped outside the judicial role – Denial of procedural fairness – SD v The Queen (2013) 39 VR 487, applied – Appeal allowed – Appellant resentenced to 5 years’ imprisonment with non-parole period of 3 years.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms S E Lacy and Mr C K Wareham | Greg Thomas, Barristers & Solicitors |
| For the Respondent | Ms S Clancy | Ms A Hogan, Solicitor for Public Prosecutions |
EMERTON JA
OSBORN JA:
On 14 September 2020, the appellant pleaded guilty to burglary, aggravated burglary, attempted aggravated burglary, attempted armed robbery, and common assault. He also pleaded guilty to three related summary offences, being one charge of entering a private place without excuse, and two charges of unlawful assault with a weapon.
The appellant was sentenced on 16 October 2020[1] as follows:
[1]DPP v Konidaris [2020] VCC 1685 (‘Reasons’).
Charge on Indictment K12406470
Offence
Maximum
Sentence
Cumulation
1
Burglary
(contrary to s 76 of the Crimes Act 1958)10 years
6 months
1 month
2
Aggravated burglary (contrary to s 77(1) the Crimes Act 1958)
25 years
4 years
Base
3
Attempted aggravated burglary
(contrary to ss 77(1) and 321M of the Crimes Act 1958)20 years
1 year
4 months
4
Attempted armed robbery
(contrary to ss 75A and 321M of the Crimes Act 1958)20 years
2 years,
6 months9 months
5
Common law assault
5 years
1 year
6 months
Related summary charges
1
Without authorisation or excuse enter a private place
(contrary to s 9(1)(e) of the Summary Offences Act 1966)6 months
1 month
–
14
Assault with a weapon
(contrary to s 24(2) of the Summary Offences Act 1966)2 years
2 months
2 months
15
Assault with a weapon
(contrary to s 24(2) of the Summary Offences Act 1966)2 years
2 months
2 months
Total effective sentence
6 years
Non-parole period
4 years
6AAA Statement
7 years, with a non-parole period of 5 years
Other relevant orders
Disposal order pursuant to s 78(1) of the Confiscations Act 1997
On 10 May 2021, Kyrou JA granted the appellant leave to appeal against his sentence on two grounds:
Ground 1:The learned sentencing judge denied the [appellant] procedural fairness by:
1) accessing and relying on a report not tendered or relied on in the plea; and
2) using that report to reach a finding contrary to the expert evidence before the Court in the plea; and
3) failing to provide the [appellant] sufficient opportunity to either object to his Honour’s reliance on the report or address the finding his Honour intended to make.
Ground 2:In all the circumstances of the offending and the offender, the total effective sentence and non-parole period was manifestly excessive.
For the reasons that follow, the appeal will be allowed and the appellant will be re‑sentenced.
Background
In December 2012, at the age of 23, the appellant killed his grandparents while suffering from delusional beliefs. In the two or three-month period prior to that event, the appellant was using cocaine and methamphetamine. He told police that he had consumed cocaine prior to going to his grandparent’s house. In February 2014, following a special hearing conducted by T Forrest J in the Trial Division, the appellant was found not guilty on the basis of mental impairment under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘CMI Act’).[2] After hearing detailed psychiatric evidence from three expert witnesses, his Honour was satisfied that the underlying cause of the appellant’s paranoid state was paranoid schizophrenia (as distinct from drug-induced psychosis).
[2]R v Konidaris [2014] VSC 89.
In April 2014, the appellant was admitted to the acute unit in the Thomas Embling Hospital (‘TEH’) under a custodial supervision order. He has since progressed, with some setbacks, from higher security to lower security units within TEH as his condition has improved. By February 2019, and at the time of the present offending in September 2019, the appellant was living in the Jardine Unit, a low-security environment forming part of but outside the walls of TEH, where he was supervised and continued to receive treatment, but was allowed unaccompanied leave in the community.
On the morning of Friday 13 September 2019, the appellant told TEH staff that he was leaving to visit his parents and intended to return by 9:00 pm that evening. He left at about 6:00 am in his car.
At about 7:15 am, the appellant parked his car in Ibis Grove, Cairnlea. CCTV footage captured him leaving the car wearing a hooded jumper with its hood pulled over his head, and another covering over the lower half of his face. He walked down Ibis Grove towards Heron Road.
At about 7:20 am, a 17-year-old girl (‘C’) was getting ready for school at her home on Furlong Road. C saw the appellant outside attempting to look inside several windows at the rear of the house. She ran to tell her mother but when she returned to the window, the appellant had gone. C contacted the police. This was the basis for Summary Charge 1 — without excuse or authorisation enter private place.
Very soon afterwards, the appellant walked into the backyard and garage of a residential property at 18 Lotus Crescent. A woman who lived there (‘H’) saw the appellant, ran next door to seek assistance, and returned with her neighbour. H searched the garage but the appellant was not there. However, H noticed that cupboard doors in the garage had been opened and the driver’s seat in her car had been adjusted.
About 20 minutes later, H again saw the appellant through the kitchen window, this time walking out of the garage. She lost sight of the appellant before again running to her neighbours for help, and calling 000. This was the basis of Charge 1 — burglary.
At about 7:40 am, ‘D’ and ‘N’ were asleep in their house next door to H on Lotus Crescent, when the appellant entered the rear yard of the house and began searching for an unlocked door or window. He took a concrete garden ornament and threw it through a glass sliding door, breaking the door and shattering a fish tank on the far side of the room. D and N went to the kitchen area where they found the appellant holding a knife and a meat cleaver. The appellant raised the knife, pointed it at them and said ‘give me the car keys’. D and N fled through the broken sliding door and locked themselves inside the garage, calling for help.
H, the victim of the first burglary, heard D and N calling for help and ran next door. She again rang 000.
CCTV footage of the rear yard of the property showed the appellant walking into the rear of the property with his face covered, wearing white gloves and holding two knives (one of which was the meat cleaver), and breaking the sliding doors with the garden ornament. This was the basis for Charge 2 — aggravated burglary, and the two summary charges of assault with a weapon.
The appellant then returned to Furlong Road and entered an address there at about 7:50 am. The two occupants (‘A’ and ‘M’) were in the garage, which had been converted into a kitchen. The appellant entered the rear of the property and attempted to open the sliding door, which was held shut by A. M screamed in fear. The appellant tapped on the glass with the meat cleaver but then left the property by climbing over the rear fence.
The appellant then returned to the garage at 18 Lotus Crescent (H’s residence) and dropped the meat cleaver and a knife in a cardboard box. He took a pair of scissors from a patio table and climbed back over the rear fence of the Furlong Road property where A and M lived, and went into the street by the side entrance. These circumstances formed the basis for Charge 3 — attempted aggravated burglary.
At about 8:08 am, a man (‘Mr C’) standing near a car on a driveway on Tom Rigg Street noticed the appellant pacing back and forth in the street. A short time later, the appellant approached Mr C and demanded his car keys, saying, ‘I'm in trouble, I need your car’. When Mr C refused to hand over his car keys, the appellant said, ‘I have a knife’. Mr C told the appellant that he did not have the keys, and that the car in the driveway was not his car.
The appellant then advanced towards Mr C and produced a pair of scissors. Believing the scissors to be a knife, Mr C took hold of the appellant’s right wrist, and there was a struggle. Mr C held the appellant’s wrist with both his hands to avoid being stabbed, and the appellant began punching Mr C to the head. The appellant then walked away. As a result of the assault, Mr C received minor lacerations to his throat, face and head and defensive wounds to his hands. These were the factual circumstances for Charge 4 — attempted armed robbery, and Charge 5 — assault.
Police attended the scene and found the appellant on Tom Rigg Street. The appellant had blood on him and was still in possession of the broken scissors, a pair of white gloves and a set of car keys. The appellant was taken to the Sunshine Police Station, where a forensic medical officer assessed him as being unfit for interview.
The appellant was discharged from the TEH and placed in prison.
Plea hearing — evidence of Dr Owens
Prior to the plea hearing, the appellant was assessed by Consultant Psychiatrist, Dr Nicholas Owens. Dr Owens prepared a report, dated 15 April 2020, which was relied on at the plea hearing. He also gave evidence at the hearing and was quite extensively questioned by the sentencing judge.
The appellant told Dr Owens that he used cocaine before driving off from TEH and again after he parked his car in Cairnlea. He did not recall how much he used. He said that he formed the belief that he was being followed while he was driving and that when he parked his car, he thought that if he did not change cars the people who were pursuing him could catch up with him and possibly kill him. The appellant said he was not experiencing auditory or visual hallucinations. He did not believe that others were interfering with his thoughts, and could not see anyone pursuing him. He was not sure who was following him or what their motivation was. His motivation was to obtain another car so that he could escape, and that was why he threatened and assaulted people. He wanted their car keys so that he could drive off in their cars.
In his report, Dr Owens stated that the appellant had well-established diagnoses of schizophrenia and substance use disorder. Dr Owens opined that the appellant also met the criteria for a diagnosis of antisocial personality disorder. As to the context of the present offending and the appellant’s drug use, Dr Owens stated:
The offending occurred in the context of cocaine use. According to what Mr Konidaris told me, he relapsed into regular use of cocaine ‘a few weeks’ beforehand. He also used cocaine on the morning of the offending, before driving away from the hospital, and again after he parked the car and only a matter of minutes before the offending. I think that it is likely that cocaine use increased his levels of arousal, increased the likelihood of engaging in aggressive behaviour, and caused disinhibition of his behaviour.
Mr Konidaris described paranoid ideas, which only developed on the morning of the offence, that he was being pursued by unknown assailants who he thought were intending to harm him and possibly kill him, although he was unable to describe who these people were or what evidence he relied on to develop these beliefs. Nevertheless he claimed that his concern about imminent harm by these persecutors motivated him to abandon his car and find another one in order to evade them. He described his actions at the time of the offending as being rooted in his desire to obtain another car.
With respect to the appellant’s level of insight into how his drug use might affect his behaviour, Dr Owens opined:
The fact that Mr Konidaris was also using cocaine prior to the index offence in 2012 suggests to me that despite his years of treatment and rehabilitation since then, he has not developed sufficient insight into the connection between drug use and psychosis and the risk of violence associated with this.
At the plea hearing, Dr Owens was specifically asked in his evidence-in-chief about the appellant’s insight into the connection between his mental illness and drug use. Dr Owens responded:
I think one of the important aspects of this in light of the current offending is I think Mr Konidaris’ insight or understanding in connection between substance abuse and the risk of a relapse is poor and certainly was poor when I interviewed him and reading through the [TEH] materials it seems like it has been an aspect of his insight that has been poor for some time. I also think that if just leaving the substance use out of it, I think that his understanding even of his illness and of the nature of his symptoms is not very well developed.
The sentencing judge asked Dr Owens whether he agreed that, since the appellant’s admission to TEH, he had not developed insight into the connection between drug use, his psychosis and the risk of associated violence. Dr Owens replied:
I would agree with that, your Honour, yes. I think that connection was a connection that was extremely relevant to the original offending and is, in my view, relevant, centrally relevant to the current offending.
After cross-examination, the sentencing judge again questioned Dr Owens about the appellant’s insight into the connection between his drug use, his mental health and the offending. The judge asked how that insight or awareness could be assessed. Dr Owens responded:
Yes. Well, I guess there’s different levels to awareness of something like that. There’s awareness to the reality that there’s a causal connection between two things but then there is the interpersonal deepening insight of that into a, if you like, a moral compulsion on one’s behaviour deriving from that so that in the face of a situation where one can potentially relapse into using that substance, for example, it’s offered to you by someone, that insight is sufficiently deep to prohibit you from taking it.
The judge then asked Dr Owens whether he agreed that, as a result of killing his grandparents in 2012 and the events that followed, the appellant would have been aware, well before the present offending, that the connection between his drug use and mental health was alive and ‘cardinal’ (a term that Dr Owens had used earlier in his evidence-in-chief). Dr Owens responded:
Yes, I think that’s a very important aspect of an insight because that’s the whole opportunity afforded by his rehabilitation through [TEH] is to ensure that something like that never happens again. … And to understand that that was a very significant risk factor for that original offending and therefore is, yes, the words a cardinal risk that needs to be avoided in the future would to my mind suggest that that does remain and certainly remained until the period of time before the current offending, a very significant lacuna in his insight.
The sentencing judge plainly remained concerned about the evidence of the appellant’s awareness of the relationship between his drug use and offending conduct. The judge referred to the appellant having said to Dr Owens, after the offending, that ‘this wouldn’t have occurred if I hadn’t taken cocaine’. The judge said, ‘I guess that’s why I am puzzled by this because for him to have said [that], must demonstrate some current level of awareness, must it not?’ Dr Owens replied, ‘Yes, I agree with that’. When asked whether such awareness must have developed at some point after the 2012 offending, Dr Owens responded:
I guess in order to work that out I would need to look at the [TEH] notes with that specific question in mind and see what has been written in them to determine whether that ever did develop. I have to say, your Honour, I can’t answer that question right now.
The sentencing judge put to Dr Owens that it might be a reasonable inference that the appellant had insight into the connection between his drug use and his mental health, based on the fact that he had progressed through the TEH system since 2014, and his treatment at TEH must have focused on that connection to some extent. Dr Owens confirmed that his position was that he would need to review materials from TEH in order to say whether or how the appellant’s insight had developed and what his level of awareness had been to enable him to progress in the way in which he did. Dr Owens said that, based on his knowledge of the programs at TEH, he would be extremely surprised if drug use was not promptly identified as a particular risk factor for the appellant during his treatment. However, in the course of treatment, ‘people can say the right thing’ about their understanding of the risks associated with substance use, without providing enough information to make an accurate assessment of their awareness.
Accessing the Sevar report
Among the materials tendered or referred to in the plea hearing was the judgment of T Forrest J directing verdicts of not guilty by reason of mental impairment on the charges of murder and his ruling to impose a custodial supervision order.[3] For the purpose of deciding whether to impose a custodial supervision order, T Forrest J obtained a psychiatric report on the appellant dated 13 March 2014, prepared by a Senior Psychiatry Registrar from TEH, Dr Katherine Sevar (‘Sevar report’). In his ruling, T Forrest J observed, based on the Sevar report, that the appellant had little insight into his illness but did ‘seem to understand at least that illicit substances impact adversely on his mental health’.[4]
[3]R v Konidaris [2014] VSC 89; R v Konidaris (Ruling No 2) [2014] VSC 139.
[4]R v Konidaris (Ruling No 2) [2014] VSC 139, [4].
The Sevar report itself records the appellant discussing with Dr Sevar his drug use and stating that he was fearful that he would begin to feel paranoid or that his ‘voices’ would return if he was to use drugs again.
The Sevar report was not tendered on the plea in respect of the present offending. It was not provided to Dr Owens for his consideration when assessing the appellant and preparing his assessment report. Dr Owens was not asked about it when he gave evidence. Neither party had had access to the Sevar report.
However, following the plea, of his own volition, the sentencing judge obtained a copy of the Sevar report from the Supreme Court.
On 14 October 2020, the associate to the sentencing judge contacted the parties by email, attaching the Sevar report. The email recorded that the Sevar report had been referred to in T Forrest J’s decision to find the appellant not guilty by reason of mental impairment and that it was mentioned on the plea. The email continued:
The Court has obtained this report from the Supreme Court and provides a copy to the parties as a courtesy.
Later the same day, the associate to the sentencing judge sent out a further email to the parties advising that, if counsel wished to make submissions on the Sevar report, those submissions should be forwarded by email to his Honour’s chambers email address.
The prosecution responded via email advising as follows:
In relation to the report the prosecution does not have any substantial submissions to make. The report was provided to assist his Honour Justice Forrest in making a decision regarding the custodial supervision order in 2014, prior to Mr Konidaris being moved to [TEH], and has been considered in that context.
For her part, the appellant’s counsel sent an email to the Court stating:
The defence does not seek to make any submissions in relation to the report.
Confronted with this situation, neither party objected to the fact that the sentencing judge had obtained and apparently intended to use the Sevar report.
Sentencing remarks
After setting out the details of the offending and its impact on the victims, the sentencing judge observed that the sentencing exercise in this case was ‘particularly complex’, requiring analysis of the present offending, but also prior events.[5]
[5]Reasons [23].
The judge began the exercise by summarising the appellant’s personal circumstances. The appellant was 31 years old at the time of sentencing. He grew up in Sunshine and completed Year 11 at school. His childhood was largely unexceptional, and he had a good relationship with his immediate family. After finishing Year 11, the appellant had a few menial jobs but was mostly unemployed. The appellant used illegal drugs regularly. As a teenager, he smoked cannabis every day. In his early 20s, he used amphetamine and methamphetamine, and began regularly using cocaine.
The sentencing judge recounted the appellant’s experiences in custody following his arrest in 2012 and the acceptance of his defence of mental impairment in 2014. In relation to the Sevar report, the sentencing judge said:
I sought the report which [T Forrest J] received and had made reference to some matters contained within it. I indicated to the parties that I had obtained the report and invited them to make any submissions they wished to make about it.[6]
[6]Ibid [35].
The sentencing judge referred to T Forrest J’s finding that, while the appellant appeared to have limited insight into his mental illness at the time of the CMI Act decision in 2014, he ‘seem[ed] to understand at least that illicit substances impact adversely on his mental health’.[7]
[7]Ibid [36].
Later in his reasons, the judge again referred to the Sevar report:
As I have previously noted, Dr Sevar’s report … included some notable aspects that are relevant to my exercise.
The doctor interviewed you on 13 March 2014, the day of the report. You could not describe what paranoid schizophrenia was. When prompted, you said it was an illness in your head; ‘I have paranoia and voices’. You did not believe the antipsychotic medication was doing anything and you were taking it because the doctors told you to take it. Your explanation … as to why your symptoms have largely resolved is, ‘because you were no longer using drugs’. I quote this because the question as to your awareness, knowledge or belief is relevant in this current matter.
It is not to the point that it was contrary to the opinion of three of the most experienced psychiatrists in the State. You were making a connection at that time between symptoms of mental illness and drug use and its consequences.[8]
[8]Ibid [41]–[43].
The sentencing judge then summarised the appellant’s progress at TEH, noting that there had been ‘backward steps’ when the appellant had been transferred back to higher security units, sometimes due to incidents of substance use. The judge clarified that he undertook that analysis, not as a criticism of the way in which the appellant had progressed through TEH, but rather ‘to make clear the evidence and facts about the important issue upon which the plea focused; [the appellant’s] moral culpability for [the offences] and the impact of that on the sentence itself’.[9]
[9]Ibid [47].
The sentencing judge then summarised various aspects of Dr Owens’ assessment report. With respect to insight, the judge stated:
[Dr Owens’] conclusion was that you had not developed sufficient insight into the connection between drug use and psychosis and risk of violence associated with this. I shall return to this conclusion about which I am not persuaded by reference to Dr Owens’ oral evidence.[10]
[10]Ibid [69].
When the judge later recounted Dr Owens’ oral evidence, he said:
In examination-in-chief, [Dr Owens] said your insight or understanding [of] the connection between substance abuse and the risk of a relapse is poor and had been poor for some time from a reading of the [TEH] material and that your understanding of your illness and nature of [its] symptoms is not very well developed.
The second point of this answer I have no difficulty accepting. The first part is what I have difficulty [with]. When asked to give reasons for this asserted poor understanding, Dr Owens referred … to your difficulty with abstract thinking, that you have grappled with drug use for a long time and you tended to resort to it to assist you to deal with stressful circumstances so that that response is central to your difficulties.
I find this answer less than satisfactory [for] my purposes. …
After being cross-examined, I then went back to this central issue of awareness myself … [Dr Owens] agreed with the proposition that as a result of the earlier offending in [2012] it would be fair to think that you would have been aware of the fact that connection was alive and ‘cardinal’ to use his own term.
Dr Owens answered that,
That’s a very important aspect of an insight because that’s the whole opportunity afforded by his rehabilitation through [TEH] to ensure that something like that never happens again.
[Dr Owens] asserted that it was a very significant lacuna in your insight. When challenged about that opinion and that [a] level of awareness must have developed at some point after the first occasion, he answered that he would need to look at the [TEH] notes to determine whether that ever did develop and without that examination, he could not answer the question.
I explained that it seemed to me improbable that you have progressed so quickly and accessed services and liberty in the fashion that you had unless [TEH] staff was not satisfied that that was at least one of the awareness factors that you had gained during that period …
Ultimately Dr Owens’ position about this issue was put by him in this way, …
I just wanted to add to my knowledge of the programs that happen at [TEH] I would be extremely surprised if that particular risk factor, that is awareness of the effect of drug use, was not something that was identified promptly. In fact, I know that he did undertake drug and alcohol assessment and treatment programs while he was progressing through [TEH].
He then agreed that,
People can say the right thing as to their understanding of the risks associated with it but subsequently it emerges that that they're not actually telling you all the information that you need to know to make that assessment.
I take that to have been a reference to you not having told anyone at [TEH] that you were using cocaine.
At the end of his evidence, Dr Owens agreed with the proposition that despite having insight and awareness, someone might still decide for a number of reasons subjective to them to use drugs. In my view, that is what has happened in this case.[11]
[11]Ibid [82]–[92].
The sentencing judge said that the reason for recounting this ‘long history’ and other evidence, including Dr Owens’ assessment report, was to make findings about the appellant’s moral culpability for the offending and, in particular, about the appellant’s level of insight and choice. The judge accepted that the appellant’s moral culpability was ameliorated, to some extent, by his mental health issues, but stated that no other reductions were warranted in the circumstances. The judge concluded:
In my view, the preponderance of the evidence before me indicates that you were aware of the likely impact of drug taking because of all the factors I have mentioned before. You were not feeling well and happy so you decided to use cocaine in the face of your awareness that your mental health which was otherwise under control would be severely impacted under its influence and you would behave badly under its influence.
Whether the existence of an addiction as a causal factor in the offending warrants a reduction in moral culpability depends upon the extent to which a decision to take the drug is freely made. Here, this was not the case of an addiction proper, as in the matter of R v Wright. Rather this was a return to frequent use of a drug which use attenuated over time the effect of antipsychotic medication of a serious psychiatric condition which was still in remission.
The practically free-made decision to obtain and use cocaine does not warrant such a major reduction. However, in my view, I cannot deal with you simply as a person who has offended under the influence of drugs as in Wright’s case. The court can have regard to the circumstances which led to the drug-taking, the factors which led to that choice which arose out of the circumstance of being in [TEH] where a still extant diagnosis of paranoid schizophrenia was being addressed. This context cannot be simply discounted in this case coupled with your incomplete understanding as to the nature of the illness.
In the end, even Dr Owens had to accept that it was likely you did have a level of understanding that cocaine use would seriously undermine your mental health and lead to inappropriate conduct activated by delusional processes of the mind.
In my view, you had sufficient foreknowledge of the mental state that would be induced by the use of drugs. The illness in full remission did not rob you of the ability to make a rational choice to use and of your awareness of the likely consequences. In my view, even if moral culpability is lessened because of mental illness in your case countervailing sentencing considerations would prevail. These require the difficult exercise of forming a view about your prospects of rehabilitation and community protection which I will come to in a moment.[12]
[12]Ibid [95]–[99].
The sentencing judge found that the mitigating effect of the appellant’s mental illness was moderate because this was not a case where drug taking was merely a catalyst, heightening the involuntary effects of the appellant’s illness. There was no active psychosis at the time to be heightened, such that denunciation remained a relevant factor in the sentence.[13] The judge further explained:
The central question involves considering whether the probable consequences of the ingestion of drugs by you were foreseen by you. In my view, all the material, I repeat, indicates you had insight and could have anticipated these probable consequences going right back to the very grave events which brought you into [TEH] in the first place. That earlier matter would alone have put you on notice, the years spent at [TEH] with its treatment and programs must have made it clear to you that drug use was likely to precipitate criminal offending now that you had access into the community at large.[14]
[13]Ibid [106].
[14]Ibid [107].
While the appellant’s poor mental health did not greatly reduce his moral culpability, the sentencing judge accepted that the mental health conditions had other effects for the sentence imposed. In particular, the appellant’s poor mental health would slightly, but not completely, diminish the importance of general and specific deterrence as sentencing factors.[15] The judge also applied limbs 5 and 6 of Verdins,[16] that is, his Honour accepted that imprisonment would weigh more heavily on the appellant because of his mental health conditions, and that imprisonment would also have a significant adverse effect on those conditions.[17]
[15]Ibid [100]–[104].
[16]R v Verdins (2007) 16 VR 269; [2007] VSCA 102 (‘Verdins’).
[17]Reasons [104]–[105].
The sentencing judge recorded that the Crown did not seek to argue that the use of drugs was an aggravating feature of the offending, which he accepted and applied ‘without derogating from [its] significant role as the cause of these serious events that followed’.[18] The judge concluded that denunciation was a relevant factor in the sentence, because the drug taking was not merely a catalyst heightening the involuntary effects of the appellant’s mental illness. There was no active psychosis at the time to be heightened. The mitigatory effect of the illness was therefore moderate.[19]
[18]Ibid [105].
[19]Ibid [106].
As to the ‘central question’ of whether the consequences of the ingestion of drugs were foreseen by the appellant, the judge stated that the material showed that he had insight and could have anticipated the probable consequences. The years spent at TEH had made it clear to him that drug use was likely to precipitate criminal offending once he had access to the community.[20]
[20]Ibid [107].
As to prospects of rehabilitation, the judge found that the appellant’s rehabilitation ‘must still be guarded’, though there was potential ‘to achieve a level beyond that’ in future with proper supervision and support. The judge noted, in that respect, that the appellant had the support of his family.[21] He acknowledged that imprisonment would be a major setback to the appellant’s rehabilitation and that, based on passages from Dr Owens’ report, there would be significant challenges in providing treatment to the appellant to facilitate his rehabilitation. That being said, there was no indication, at that time, that the appellant was experiencing deterioration in his mental health whilst in seclusion.[22]
[21]Ibid [108].
[22]Ibid [109]–[113].
The sentencing judge also took into account the value of the appellant’s plea of guilty in reducing his sentence.[23] As to community protection, the judge accepted that the long-term interest and protection of the community lay in the appellant’s rehabilitation. However, he considered that this long-term goal must make way for other considerations.[24]
[23]Ibid [114]–[115].
[24]Ibid [116].
The judge recorded that the events were contained in a short time frame and that parsimony and totality had a role to play. While each offence was discrete, the events were analogous to a course of conduct which required large measures of concurrency. The judge did not find the spontaneous nature of the offences to be mitigatory, but neither were the offences carefully planned so as to aggravate the sentence imposed.[25]
[25]Ibid [117]–[118].
Finally, the judge considered the appellant’s personal circumstances as summarised earlier in the Reasons, and the particularly onerous effects of imprisonment during the current COVID-19 pandemic conditions.[26]
[26]Ibid [119]–[120].
Ground 1: procedural fairness
The appellant submits that the sentencing judge denied the appellant procedural fairness by:
(a) accessing and relying on a report not tendered or relied on in the plea;
(b) using that report to reach a finding contrary to the expert evidence before the Court on the plea; and
(c) failing to provide the appellant with sufficient opportunity to either object to the sentencing judge’s reliance on the report or address the finding his Honour intended to make.
The report in question is, of course, the Sevar report.
It is the appellant’s primary submission that as the Sevar report was not in evidence on the plea, the sentencing judge was not permitted to have regard to it. If the sentencing judge intended to carry out any further investigation, he was required to seek the consent of the parties. According to the appellant, in having regard to the Sevar report, the sentencing judge made a specific error.
Furthermore, it is submitted, even if the Sevar report was properly in evidence, the sentencing judge should not have made an adverse finding based upon it without having first warned the appellant of the risk of that finding. In this case, while the parties were aware that the sentencing judge had obtained the Sevar report, the invitation to make submissions was made in a vacuum. The sentencing judge did not make it clear to the parties how (if at all) the Sevar report was proposed to be used or, indeed, indicate to them that he had shifted from the position taken during the plea. The appellant submits that the sentencing judge was required to advise the parties how the Sevar report impacted upon his assessment of the evidence given on the plea.
The appellant further submits that if the judge wished to rely on the Sevar report to make findings contrary to the opinions expressed by Dr Owens, Dr Owens should have been recalled and asked if his evidence had changed as a consequence of the contents of the Sevar report.
The respondent submits that the sentencing judge did not deny the appellant procedural fairness in using the Sevar report for three reasons. First, the appellant’s counsel was given an opportunity to make submissions in relation to the Sevar report and clearly communicated to the court that she did not wish to make any submissions about it.
Secondly, the sentencing judge did not use the contents of the Sevar report to make any adverse finding against the appellant. Thirdly, the sentencing judge rejected Dr Owens’ opinion regarding the appellant’s insight into the connection between drug use, psychosis and the risk of violence on the basis of deficiencies in Dr Owens’ evidence on that point, not by reference to the Sevar report. Defence counsel was on notice about this during the plea hearing.
The respondent submits that it was not in issue that the appellant committed the offences while in a state of cocaine-induced intoxication, which acted to induce paranoid thinking, as well as to increase arousal and aggression, and to reduce his ability to inhibit violent behaviour. It was also uncontentious that the appellant’s paranoid schizophrenia was in remission and had been well managed by medication in the five years leading up to the offending. The appellant’s counsel did not advance a submission that the appellant had no insight or foreknowledge of the possible consequences of his mental function from abusing cocaine.
According to the respondent, the sentencing judge, notwithstanding his rejection of Dr Owens’ opinion about the sufficiency of the appellant’s insight into the connection between drug use, psychosis and the risk of violence, ultimately accepted the submission that his moral culpability was moderated by his ‘mental health matrix’.[27] According to the respondent, the sentencing judge determined the question of insight in the appellant’s favour by not treating it as an aggravating feature of the offending and not using it as a basis to reject the appellant’s submission that his moral culpability was reduced by virtue of his ‘mental health matrix’. Consequently, the judge made no adverse or prejudicial finding against the appellant.
[27]Ibid [94].
Furthermore, so the respondent submits, the sentencing judge did not indicate on the plea hearing that he accepted Dr Owens’ opinion regarding the level of the appellant’s insight regarding drug use, his mental health and risk of violent behaviour. The judge put to the witness a series of questions on this issue at the conclusion of the prosecutor’s cross-examination, and there was discussion between the judge and the appellant’s counsel during which the judge clearly telegraphed that he was not inclined to accept Dr Owens’ evidence on the appellant’s insight. It was deficiencies in the oral evidence of Dr Owens on the question of insight that led the sentencing judge to reject that aspect of his opinion.
The respondent submits that the sentencing judge did not change his position on the issue of insight after receipt of the Sevar report. Rather, during Dr Owens’ evidence and in submissions on the plea, the sentencing judge clearly indicated the difficulty he had with that opinion and put the appellant’s counsel on notice of his position, giving her the opportunity to make submissions in response. At this time, the appellant’s counsel conceded that the appellant had some understanding of the relationship between his drug use, mental illness and the offending behaviours.
Finally, the respondent submits that the sentencing judge’s access to the Sevar report did no more than to provide the particular expressions made by the appellant to support the finding of T Forrest J that in 2014, the appellant seemed to understand that illicit substances impacted on his mental health.
Analysis
The Sevar report records statements made by the appellant in 2014 that:
(a) his symptoms had largely resolved because he was no longer using drugs; and
(a) he was fearful he would begin to feel paranoid or that his ‘voices’ would return if he was to use drugs again.
These statements might be seen to demonstrate insight — well before the present offending — into the relationship between drug taking and difficulties managing his mental illness, which at that time had resulted in him killing his grandparents.
It is common ground that on the plea neither of the parties relied upon, or sought to rely upon, the Sevar report. It is unclear whether either party had access to the Sevar report until it was provided to them by the sentencing judge two days before he delivered the sentence. On the plea, the only evidence about the appellant’s insight into what might happen if he took drugs was the evidence of Dr Owens. Dr Owens was not asked about the Sevar report.
The sentencing judge took steps to obtain the Sevar report after the plea hearing had concluded. He did not advise the parties of what he was going to do or seek their consent. The sentencing judge’s decision to forward the Sevar report to the parties was unexpected and unexplained.
In his Reasons, the sentencing judge described the ‘central question’ as whether the probable consequences of the ingestion of drugs by the appellant was foreseen by him.[28] He found that the preponderance of the evidence indicated that the appellant was ‘aware of the likely impact of drug taking’.[29]
[28]Ibid [107].
[29]Ibid [95].
In this context, his Honour described the Sevar report as including some ‘notable aspects’ relevant to his sentencing task.[30]
[30]Ibid [41].
The sentencing judge concluded that the appellant’s statements in 2014 that are recorded in the Sevar report involved him ‘making a connection at that time between symptoms of mental illness and drug use and its consequences.’[31] This finding about the appellant’s insight in turn led the judge to the following conclusions:
In my view, you can process and appreciate the seriousness of your current predicament in the sense that the relationship between your condition and drug taking and criminal conduct must be absolutely clear to you by now, as clear must be the response of the law. Your reintegration in the community will only be possible after a measure of punishment and deprivation of liberty.
…
This was not a case as the prosecutor asserted where drug taking was merely a catalyst heightening the involuntary effects of your illness. There was no active psychosis at the time to be heightened. That is why the mitigatory effect of the illness is moderate. The only effect it may have had was to lower the threshold to you becoming acutely psychotic, even if you were medicated and in remission because of the attenuation of the effect of your medication by the drug taking. Therefore, to my mind denunciation remains a relevant factor in the sentence.[32]
[31]Ibid [43].
[32]Ibid [103], [106].
Seen in the context of his Honour’s earlier acknowledgement that the Sevar report included ‘some notable aspects’ relevant to his task, it is plain that the sentencing judge considered that the Sevar report threw light on the nature of the appellant’s decision to take drugs on the day of the offending. His Honour concluded, in substance, that the choice to take drugs on that day was an informed choice as the appellant had insight into the ‘probable consequences’ of ingesting drugs, namely, that ‘drug use was likely to precipitate criminal offending’.[33]
[33]Ibid [107].
These findings were, as the judge himself said, a foundation for a finding about the appellant’s moral culpability.[34] Although his Honour accepted that the appellant’s ‘mental health matrix’ was a contributing causal factor ‘in the same sense that [his] personality disorder was a contributing factor’,[35] he found only that the appellant’s moral culpability was ‘somewhat reduced or moderated by it’[36] and that that was the only reduction warranted.[37] Elsewhere, the sentencing judge described the mitigatory effect of the appellant’s mental illness as ‘moderate’, having regard to the fact that there was no active psychosis at the relevant time.[38]
[34]Ibid [93].
[35]Ibid [94].
[36]Ibid.
[37]Ibid [95].
[38]Ibid [106].
In so concluding, the judge rejected Dr Owens’ evidence of the appellant’s poor understanding of the connection between the drug taking, his mental state and the offending. It will be recalled that Dr Owens’ evidence was, relevantly, that:
(a) the fact that the appellant was also using cocaine prior to the offence in 2012 suggested that despite his years of treatment and rehabilitation since then, he had not developed sufficient insight into the connection between drug use and psychosis and the risk of violence associated with this connection;
(b) the appellant’s understanding of the connection between substance abuse and the risk of a relapse was poor and it appeared to be an aspect of his insight that had been poor for some time. In fact, the appellant’s understanding of his illness and the nature of his symptoms was not very well developed; and
(c) there was ‘a very significant lacuna’ in the appellant’s insight in this regard.
If follows from this analysis that we do not accept the respondent’s submission that the sentencing judge did not use the contents of the Sevar report to make a finding that was adverse to the appellant’s case on the plea. Furthermore, we do not accept the submission that the judge’s finding regarding the appellant’s insight into the connection between drug use, psychosis and the risk of offending was simply based on the rejection of Dr Owens’ opinion. The ‘preponderance of the evidence’ referred to by the sentencing judge included the evidence about the appellant’s state of mind prior to the 2012 offending that was contained in the Sevar report.
In SD v The Queen,[39] this Court determined an appeal against sentence where SD had been sentenced for the sexual abuse of a minor. It was submitted that SD was denied procedural fairness by the judge’s resort to a body of material that she had not raised with counsel in the course of the plea.
[39](2013) 39 VR 487; [2013] VSCA 133 (‘SD’).
At the plea hearing, a psychological assessment report prepared by a forensic psychologist was tendered on behalf of SD. The psychologist assessed SD’s risk of re-offending in a similar or escalating manner as ‘low’ and ‘very low’ respectively. The content of the report was not criticised by the prosecutor. However, after the hearing, the judge consulted a number of diagnostic and statistical manuals and, in her sentencing remarks, expressed surprise at the psychologist’s assessment of risk. Although the judge had expressed some concern during the hearing about the ‘very low’ classification arrived at by the psychologist, she did not alert counsel to the possibility that she would carry out her own research and rely on that material to impinge upon the views expressed by the forensic psychologist.
SD appealed the sentence on the ground that the judge’s conduct in consulting the diagnostic manuals after the plea hearing involved a denial of procedural fairness. In allowing the appeal on this ground (and other grounds), the Court stated:
Where a court of its own motion seeks to inform itself in private on a question of fact or an opinion germane to an issue and which is by no means free from controversy the course is … wholly objectionable.[40]
[40]Ibid 497 [41] (Ashley, Redlich and Priest JJA).
The Court cited Bray CJ in Cavanett v Chambers,[41] where his Honour warned that courts ‘should not embark on such investigations except by consent’.[42]
[41][1968] SASR 97.
[42]Ibid 102.
In reaching the conclusion that there had been a breach of procedural fairness, the Court said:
It is axiomatic that a judge may not search for, or take account of, information that is not in evidence, save where a fact is of such notoriety that a judge may take judicial notice of it. Mason CJ and Brennan, Deane, Dawson and Gaudron JJ in Re Media Entertainment & Arts Alliance; Ex parte Hoyts Corporation Pty Ltd[43] referred to the undoubted principle that a judge’s decision must be made on the basis of the evidence and arguments in the case and not ‘on the basis of information or knowledge which is independently acquired’. A court is not entitled to take into account factual material not in evidence without notice to the parties.[44]
[43](1994) 119 ALR 206, 210.
[44]SD (2013) 39 VR 487, 496 [37]; [2013] VSCA 133 (citation in original) (Ashley, Redlich and Priest JJA).
The Court explained:
The rationale for the prohibition is to be found within the fundamental rule of natural justice that a party is entitled to know the case sought to be made against it and be given an opportunity of replying to that case. The entitlement of a litigant is to a fair opportunity to correct or contradict any relevant material which is prejudicial.[45]
[45]Ibid 496 [38], referring to Kioa v West (1985) 159 CLR 550, 569 (Gibbs CJ), 582 (Mason J); [1985] HCA 81.
Reference was also made to the decision of the High Court in Kuhl v Zurich Financial Services Aust Ltd,[46] in which Heydon, Crennan and Bell JJ observed:
Judges are not entitled to criticise expert witnesses by reference to expert material not in evidence without those witnesses having an opportunity to respond.[47]
[46](2011) 243 CLR 361; [2011] HCA 11.
[47]Ibid 387 [69].
In this case, the parties did not give consent to the judge obtaining and using the contents of the Sevar report. They were belatedly provided with a copy of the Sevar report and asked, in vacuum, whether they wished to make submissions. They were not told why they were being provided with the Sevar report or how the judge saw it as relevant to the sentencing exercise. In effect, the parties were not given notice of ‘material not in evidence’ that the sentencing judge proposed to take into account. As a result, they had no proper opportunity to answer it.
We have reached this conclusion despite the fact that in the course of the plea hearing, the sentencing judge made very clear his concerns about the appellant’s awareness of the likely consequences of his drug taking, and his reluctance to accept Dr Owens’ evidence that the appellant did not have a clear appreciation of those consequences.
We consider that in obtaining and using the Sevar report to counter the evidence given by Dr Owens, the sentencing judge acted not as an adjudicator, but as an investigator and, in so doing, stepped outside the judicial role. It is not within the limits of the judicial function for a judge to attempt to fill a gap in the evidence on a matter of controversy, as this involves ‘trespassing into prohibited territory’.[48]
[48]SD (2013) 39 VR 487, 498 [43]; [2013] VSCA 133 (Ashley, Redlich and Priest JJA), referring to R v H [2005] NSWCCA 282, [67]–[69] (Studdert, Bell and Latham JJ); Perrin The Queen [2006] NSWCCA 64 (McClellan CJ at CL, Rothman J, Smart AJ).
The appeal must be allowed on ground 1, and the sentence imposed by the sentencing judge set aside. The appellant stands to be re-sentenced.
It is therefore unnecessary to consider ground 2.
Resentencing
The appellant’s offending is objectively serious, involving threatening and, at times, terrifying conduct towards seven victims, and forcible entry or attempted entry into their homes and property where, it goes without saying, they were entitled to feel safe. The threats involved the use of bladed weapons, including a meat cleaver.
The probable impact of the offending on each individual victim must be recognised and condemned by the Court.
There can be no doubt that the appellant’s conduct required denunciation and punishment by way of a custodial sentence, but the appropriate sentence must seek to balance competing considerations against the undoubted objective gravity of the offending to which we have referred.
The offending occurred while the appellant was under the influence of cocaine, which he ingested against a background of mental illness involving a combination of schizophrenia, substance use disorder and anti-social personality disorder. The appellant must be resentenced on the basis that his insight into the probable consequences of the ingestion of drugs was compromised, consistently with the expert opinion of Dr Owens. As Dr Owens explained, the better view is that the appellant had some but inadequate insight into the potential consequences of drug use.
This continuing manifestation of the appellant’s mental illness diminishes his moral culpability, but raises in importance the need for community protection.[49]
[49]Veen v The Queen (No 2) (1988) 164 CLR 465, 476–7; [1988] HCA 14; Wright v The Queen [2015] VSCA 333, [6].
The appellant remains subject to a custodial supervision order for a term of 25 years under the CMI Act, which has a further 17 years to run. He will return to custodial supervision under the CMI Act once he has served the term of imprisonment for the present offending. In the circumstances, a lengthy term of imprisonment is not required to ensure community protection, as the intensive supervision and treatment the appellant will receive when he is managed under the custodial supervision order is the most satisfactory means of facilitating his rehabilitation and ensuring community protection.
Due weight must also be given to the further considerations properly identified by the sentencing judge:
· the appellant’s pleas of guilty which must both be regarded as reflecting remorse and having substantial utilitarian value;
· a moderation of the weight to be given to both general and specific deterrence by reason of the appellant’s mental illness;
· the fact that the appellant’s mental illness will make his time in prison particularly onerous and that the evidence establishes imprisonment is likely to adversely affect his mental health; and
· the short time frame involved in the offending which requires recognition by way of considered application of the principles of parsimony and totality.
The appellant will be resentenced as follows:
Charge on Indictment K12406470
Offence
Maximum
Sentence
Cumulation
1
Burglary
(contrary to s 76 of the Crimes Act 1958)10 years
6 months
1 month
2
Aggravated burglary (contrary to s 77(1) the Crimes Act 1958)
25 years
3 years, 9 months
Base
3
Attempted aggravated burglary
(contrary to ss 77(1) and 321M of the Crimes Act 1958)20 years
1 year
4 months
4
Attempted armed robbery
(contrary to ss 75A and 321M of the Crimes Act 1958)20 years
2 years,
6 months6 months
5
Common law assault
5 years
1 year
2 months
Related summary charges
1
Without authorisation or excuse enter a private place
(contrary to s 9(1)(e) of the Summary Offences Act 1966)6 months
1 month
–
14
Assault with a weapon
(contrary to s 24(2) of the Summary Offences Act 1966)2 years
2 months
1 month
15
Assault with a weapon
(contrary to s 24(2) of the Summary Offences Act 1966)2 years
2 months
1 month
The total effective sentence will be five years, with a non-parole period of three years.
We declare pursuant to s 6AAA of the Sentencing Act 1991 that, but for the appellant’s pleas of guilty, we would have sentenced him to a total effective sentence of seven years’ imprisonment, with a non-parole period of four and a half years.
- - -
0
12
0