Kowski v The King
[2024] VSCA 3
•12 February 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0236 |
| CASEY KOWSKI | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | NIALL and BOYCE JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 17 January 2024 |
| DATE OF JUDGMENT: | 12 February 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 3 |
| JUDGMENT APPEALED FROM: | [2023] VCC 1813 (Judge Gwynn) |
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CRIMINAL LAW – Leave to appeal – Sentence – Koori Court – Objective gravity of offending – Whether judge overstated objective gravity of offending – Absence of victim impact statement did not preclude judge from drawing inferences about impact of offence on victims – Bare facts support finding that victims would have been in fear – Victim impact statement not misused for common assault charge – Gravity of offending not mischaracterised – Total effective sentence and individual components not manifestly excessive.
CRIMINAL LAW – Leave to appeal – Sentence – Rehabilitation – Whether judge erred in fixing non-parole period rather than imposing combined sentence – Where previous periods of parole had not prevented further offending – No error in finding prospects of rehabilitation guarded – Well open to conclude offending too serious for combination sentence – Judge not permitted to take into account whether applicant would get parole.
CRIMINAL LAW – Leave to appeal – Sentence – Psychological or psychiatric impairment – Whether judge failed to take into account considerations in R v Verdins (2007) 16 VR 269 (‘Verdins’) – Not the role of the judge to sift through material and identify whether Verdins factors engaged – Not submitted bipolar disorder contributed to offending – Psychiatrist did not accept applicant suffering from bipolar disorder – Leave to appeal refused.
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| Counsel | |||
| Applicant: | Mr C Mylonas | ||
| Respondent: | Ms B Goding | ||
| Solicitors | |||
| Applicant: | RLG Legal & Associates | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
NIALL JA
BOYCE JA:
The applicant pleaded guilty in the County Court to one charge of attempted armed robbery and one charge of common assault. The plea took place in the Koori Court at Mildura.
The applicant was sentenced to a term of imprisonment of 3 years with a non-parole period of 20 months. That sentence was composed as follows:
| Charge on Indictment | Offence | Max Penalty | Sentence | Cumulation |
| 1 | Attempted armed robbery | 20 years | 2 years and 6 months | Base |
| 2 | Common assault | 5 years | 8 months | 6 months |
| Total Effective Sentence: | 3 years | |||
| Non-Parole Period: | 20 months | |||
| Pre-sentence Detention Declared: | 501 days | |||
| Section 6AAA Statement: | Total Effective Sentence 4 years and 8 months Non Parole-Period 3 years and 2 months | |||
| Other Relevant Orders: Nil | ||||
He seeks leave to appeal his sentence on seven grounds. They are as follows:
1.The learned judge erred in her characterization of the objective gravity of the attempted armed robbery.
2.The learned judge erred in her assessment of the objective gravity of the common assault charge.
3. The learned judge erred in finding charge 2 was a wholly separate incident and in doing so failed to give effect to the presumption of concurrency.
4. The learned judge erred in fixing a non-parole period rather than imposing a combined sentence.
5.The learned judge erred in relying on irrelevant matters in the applicant’s priors being the past and potentially future sexual offending.
6. The learned judge erred in failing to identify any Verdins factors.
7. The learned judge erred in imposing a sentence that was manifestly excessive.
Before coming to the issues raised by the application, it is useful to set out the circumstances of the offending and to refer to aspects of the reasons for sentence.
The agreed opening may be summarised as follows.
On 23 May 2022 at approximately 6:40 am, Ms Nguyen was with her 13-year-old daughter as she walked into her garage situated underneath their home. The undercover carpark access to their garage is gained via a lane. Ms Nguyen noticed that the roller door to her garage was up and she believed she had forgotten to put it down overnight.
The applicant, who was not known to Ms Nguyen, approached her daughter as she was standing beside the family car. The applicant demanded that Ms Nguyen’s daughter give him the key to the car, and held a knife towards her throat (Charge 1 — attempted armed robbery). The blade was approximately 15–20 centimetres in length.
Ms Nguyen told the applicant that she did not have the keys and told her daughter to run. The two victims ran from the garage.
About 20 minutes later, the applicant approached a car in which a 69-year-old woman was sitting in the driver’s seat, warming up the car to get ready to depart. The applicant got into the car and sat in the rear passenger seat behind the driver’s seat. The applicant said ‘we’re going to drive; you’re going to drive me’.
The victim, Ms Walshaw, started screaming at the applicant to get out of the car. The applicant told her to stop screaming and leant over her. Ms Walshaw blocked him from getting the keys, removed them from the ignition and threw them onto the floor of the car.
The applicant started to open the door and stated, ‘they’re going to kill me, they’re going to kill me you need to drive’. Ms Walshaw told him that she didn’t care, and he exited the vehicle and ran down the street.
As already observed, the applicant pleaded guilty. As emerges from both the plea and the judge’s reasons, the plea, particularly on charge 2, appears to have been an advantageous one. The description of the offending is, having regard to the elements of the two offences and the gravity of the offending, unduly brief. We note that Ms Walshaw provided a victim impact statement in which she said the applicant, after entering her car, ‘became increasingly verbally threatening towards me, eventually ominous looming over me, grabbing at me and shoving me’ and ‘the thought of driving a large unknown male with the physical capacity to overwhelm me or cause me serious physical harm, who was behaving so threateningly towards me, provoked feelings of extreme fear’.
The victim impact statement is not the place in which to find details of the offending or evidence that makes out the elements of an offence that do not appear in the prosecution opening or evidence before the sentencing judge. The judge was alive to this and did not misuse the statement.[1] Nevertheless, by his plea of guilty to the charge of assault, the applicant admitted the elements. He thereby accepted that by his conduct he caused Ms Walshaw to apprehend the immediate application of force and he intended his actions to cause such apprehension, or was reckless as to that outcome.
[1]DPP v Kowski [2023] VCC 1813, [23] (‘Reasons’).
The Reasons
As already noted, the plea took place in the Koori Court. As is not unusual, it proceeded in two parts. First, the applicant participated in a ‘sentencing conversation’ with the judge and two Koori Elders. Aunty Sandra Stewart and Uncle Warren Clark were the respective Elders who took part in the sentencing conversation that included the applicant, his mother, grandmother, daughter and sister.
Although it is difficult from this distance to appreciate the dynamic of the exchanges, it appears from the transcript the applicant participated in the discussion. He explained the importance of culture to him and the valuable role that art has played in his life. His mother was present and supportive. He expressed remorse for his actions and regret for the impact that it had on the victims of the two crimes.
He spoke of the difficulty that he had with addiction and that he had struggled when being released on parole in the past. He was confronted with the offending by the Elders and appears to have recognised the seriousness of the offending and the need to curb his offending in the future.
The judge adverted to these matters in the Reasons, where she observed that participation in Koori Court is voluntary. By reference to the principles explained by this Court in Honeysett,[2] the judge said:
Each of the Elders challenged you and you were respectful towards them. They reminded you of the importance of your community and what it offers to you by way of assistance and connection. Each of them emphasised that you need to have a plan for a positive future and, quite frankly, to stop using drugs.
When your mother spoke of the impact upon her and other family members of your offending and your incarceration, it was apparent that the negative ramifications upon others of your decision-making is something which you have had brought firmly to your attention.
I find your participation in this process to be genuine and this is another factor taken into account in your favour.[3]
[2]Honeysett v The Queen (2018) 56 VR 375; [2018] VSCA 214.
[3]Reasons, [35]–[37].
In considering the grounds below, it is important to acknowledge that the judge had a real advantage over this Court in hearing from the applicant and in observing him in interactions with the Elders. The direct communication between the Elders and the applicant, unmediated by counsel, afforded the judge a viewpoint that is often absent from pleas. We do not doubt that some of her Honour’s assessments, including as to rehabilitation, remorse and the underlying causes of the offending, were better informed by this process.
The second part of the plea proceeded in front of the judge alone, during which the judge heard submissions about the various sentencing principles that were engaged. One issue that was ventilated was whether Verdins[4] was engaged. We will return to this aspect of the plea in due course.
[4]R v Verdins (2007) 16 VR 269; [2007] VSCA 102 (‘Verdins’).
We observe at the outset that the Reasons are detailed, clear and comprehensive. It is convenient to focus on those parts of the Reasons that are relevant to the grounds of appeal.
Gravity of the offending
The judge described the offending, compendiously, as ‘obviously serious offending’.[5] Dealing first with the attempted armed robbery, which the judge earlier noted had a maximum penalty of 20 years’ imprisonment, the judge said that each victim would have been frightened to see a man armed with a knife in their garage at the start of their day, holding the knife towards the child’s throat while making demands for the car keys. The judge said that each would have been fearful and that threatening a child with a knife to obtain the car keys was an aggravating feature of the offending.
[5]Reasons, [17].
The judge noted that the attempted armed robbery was of a valuable item and occurred in the victims’ own home, an environment in which they were entitled to feel safe.
In making these findings the judge expressly noted that neither victim had provided a victim impact statement.
In relation to the assault charge, the judge noted that it was a ‘completely separate incident’ and that the applicant had entered the car in an aggressive fashion and demanding that she drive.[6] The judge said that the applicant was of a big build and that the victim was vulnerable because she was 69 years of age, she was alone, it was dark and she was caught by surprise.
[6]Ibid [21].
As already observed, Ms Walshaw provided a victim impact statement which spoke to her fear at the time that she would be seriously harmed by someone she described as a ‘random violent stranger’ and that at the time of the plea she still felt extremely fearful, hypervigilant and anxious as a result of the offending.
Personal circumstances
The judge turned to the applicant’s personal circumstances.
The applicant is 37 years old. He is a Wiradjuri man tracing his heritage through his mother.
It was accepted that his home life was disrupted by his parents’ excessive alcohol consumption and cannabis use, and further when they were incarcerated when the applicant was 15 years old. His schooling was tumultuous, having felt discriminated against as a result of his ADHD which led to learning difficulties.
The applicant has suffered many assaults and accidents throughout his life, having been sexually assaulted at age five, stabbed and hospitalised at age 25, deliberately run over by a car and other serious incidents.
The applicant’s maternal grandmother is an Elder of the Koori community in Mildura. The applicant enjoys a close relationship with his grandmother, mother and sister, who remain supportive but expressed their exasperation at the applicant’s pattern of drug abuse and offending.
Ultimately, the judge accepted that aspects of the applicant’s formative years would have been very difficult and were capable of moderating his moral culpability to some degree.
The applicant has a long history of drug addiction and frequent intravenous drug use, which has been interrupted by periods of incarceration. He commenced injecting amphetamine from 16 years of age and developed a habit that continued until 2006. The judge said that much of the applicant’s life has been characterised by a pattern of drug‑fuelled offending, subsequently being incarcerated, remaining abstinent from drugs whilst in prison, and then relapsing and offending once released back into the community.
The applicant described being on an ‘ice cocktail’ at the time of the offending, which occurred shortly after being released on parole from a four-month term of imprisonment in New South Wales on 8 May 2022. He said he had little memory of the offending, however stated that, at the time, an associate had been murdered and he had become increasingly paranoid that he was being followed and was going to be murdered next. The judge said this explained or gave context to the offending and the possession of the knife used in the attempted armed robbery.
Psychological and psychiatric evidence
On the plea, the applicant relied on a psychiatric report authored by psychiatrist Dr Lester Walton dated 21 March 2012 and three reports authored by psychologist Mr Bernard Healey dated 27 June 2015, 23 November 2018 and 3 February 2023. As already mentioned, the Walton report was obtained after the plea hearing was adjourned to allow the applicant to address the possible application of Verdins considerations.
In addition, a Forensicare discharge summary was in evidence, which referred to a diagnosis of bipolar disorder. The author of that summary did not provide a report or give evidence on the plea.
The three Healey reports corresponded with three separate bouts of offending. In the 2015 report, Mr Healey recorded an IQ of 90 and a vulnerability to a return to drug use. In 2018, Mr Healey linked the then offending, which included two armed robberies, to a major depression disorder, unassisted by non-compliance with prescribed medication and the intake of the drug ice. Mr Healey noted a raised level of depression, anxiety and a hypomanic trend consistent with the legacy of a condition related to ADHD.
In his 2023 report, Mr Healey said the applicant suffered from a drug use disorder, persistent depression, major depression and generalised anxiety. He also indicated paranoid, borderline, Antisocial and Melancholic personality trait patterns at what he described at a ‘disorder level’.
In his report, which was obtained after Verdins considerations had been raised, Dr Walton referred to the Forensicare report. He did not accept that the applicant had a bipolar disorder. He said:
I note that in the Forensicare discharge summary Mr Kowski was regarded as suffering from bipolar disorder and I am aware that the same diagnosis has been raised regarding his mother but I have never obtained any convincing history of the characteristic mood swings of bipolar disorder. It is correct that Mr Kowski is prone to recurring bouts of depressed mood which may be of suicidal intensity but I remain to be convinced that any episodes of elevated mood were other than drug induced.
Dr Walton referred to the applicant’s ‘capacity to consistently exercise proper social judgement’ as ‘significantly impaired due to the combination of mood disturbance and the drugs’. In terms of that issue and the effect of incarceration on the applicant Dr Walton concluded:
it is not my view that this man’s misconduct was the very direct expression of mental illness but he is a man prone to serious mood disturbance and he insisted he was in a state of intense fear at the time, no doubt amplified by his methamphetamine abuse. This might be seen as a psychiatric phenomenon which has at least made some contribution to the offending. I doubt that it could be said that Mr Kowski endures imprisonment as unusually more onerous than other prisoners, for example, he is enjoying the benefit of being re-established on his medication as well as involvement in active group therapy, an opportunity afforded to few prisoners. Hopefully he will make good use of that as it does carry implications in terms of lowering the risk of recidivism.
The judge concluded that given the applicant’s admitted excessive ingestion of methylamphetamine and/or a ‘cocktail of drugs’, it was too difficult to make a determination as to the level of contribution the drugs made to his decision to offend and how much mood disturbance made to that decision. The judge could not see a basis to reduce the applicant’s moral culpability on account of any mental condition or state and expressed ‘an obvious concern that [the applicant appears] to continue to offend in the context of a return to drug usage’.[7]
Criminal history
[7]Ibid [77].
The applicant has a very extensive criminal history which the judge set out in some detail.
In Victoria the applicant has had 20 court appearances over 21 years. He also has convictions in NSW. The history includes sexual offending, a number of dishonesty and violent offences as well as breaches of court orders which include bail orders, family violence orders, sexual offender registry orders and sentencing orders.
In referring to sexual offending the judge added an important caveat. She said that this offending was not relevant in relation to the present offending ‘in a pure sense but is part of [the applicant’s] chronology overall and also [his] response to the imposition of terms of imprisonment’.[8]
[8]Ibid [87].
The applicant has received a number of non-custodial dispositions including some with a therapeutic focus. He has received, and breached, community correction orders (‘CCOs’).
In February 2019, the applicant appeared before the Mildura County Court in relation to two charges of armed robbery and was sentenced to a term of imprisonment of 4 years, with a period of 2 years and 6 months before being eligible for parole.
In March 2019, he appeared before the Mildura Magistrates Court in relation to charges of theft of a motor vehicle, threatening to inflict serious injury, unlawful assault, contravening bail conditions, committing an indictable offence whilst on bail and failing to report a change of telephone number, for which he was sentenced to 4 months’ imprisonment.
Prospects of rehabilitation
The judge noted that the applicant has completed a number of courses during his time in custody, including the Aboriginal Men’s Cultural Healing Program, 24 Hour Managing Ice Addition, Riding the Wave — Emotional Regulation Program and a Marumali Koori Program. He has also been involved in Aboriginal Art classes with art exhibited at the Torch Exhibition. The judge noted that the applicant’s Aboriginality is important to him and that he appeared to be a skilled artist. Some of his work was shown during the sentencing conversation.
The applicant participated in the Moroka Program, an intensive specialist prison inpatient treatment program, to assist with mental illness and challenging behaviours. As observed, the plea was adjourned to allow the applicant to continue in this program and certificates of successful completion of units were provided. Although the applicant had engaged in educational and therapeutic programs in the past the judge found that Moroka was the first occasion in which the applicant was able to access an intensive program related to managing his mental health and remain compliant with it.
Proposed grounds of appeal
There are seven proposed grounds of appeal. Counsel grouped them thematically into three main points: that the judge overstated the objective gravity of the offending; failed to address the need for rehabilitation; and failed to take into account Verdins considerations. Given that each of the grounds were pressed, it is necessary to deal with each in turn, but taking into account the three main points that the applicant sought to convey.
Ground 1: The learned judge erred in her characterisation of the objective gravity of the attempted armed robbery
In his written case the applicant submitted that the absence of a victim impact statement from Ms Nguyen or her daughter was ‘prima facie evidence that the victims have not sustained any long term effects’ and that the judge’s findings as to the seriousness of the attempted armed robbery involved speculation as to how the victims perceived the incident. He points to the fact that the victims successfully ran away as evidence that they were not restrained or impeded from escape and this was ‘inconsistent with extreme or paralysing fear’.
In oral argument, the applicant submitted that the applicant had not been charged with burglary or home invasion and that the judge was wrong to treat the fact that it happened in the garage as an aggravating factor or that it was a place the victims were entitled to feel safe.
In our view, there is no merit in this ground. The judge was bound to consider the objective gravity of the offending and in order to do so, was required to make such findings of fact as the material before the Court allowed. To the extent that a matter of fact was aggravating, the judge was not entitled to act on it adversely to the applicant unless the judge was satisfied of the relevant fact beyond reasonable doubt.[9]
[9]R v Storey [1998] 1 VR 359.
The absence of a victim impact statement did not mean that the judge was precluded from drawing inferences about the impact of the offence on the two victims. Nor did it compel an inference that there was no impact, or support some Jones v Dunkel[10] type inference against a finding that the two victims had been in fear. The judge did not make a finding about the long term or ongoing impacts of the offending on the victims. Her findings went no further than that the victims would have been fearful. The bare facts of the offending, and the fact that when faced with an unknown man armed with a knife, using a threatening gesture towards a young girl and demanding keys to the car the victims fled, provide a firm foundation for the findings of fact that the victims would have been in fear. A contrary finding would have been perverse. In argument, counsel for the applicant conceded that the judge’s finding, referred to above, was reasonably open.
[10](1959) 101 CLR 298; [1959] HCA 8.
The applicant is correct to say that he had not been charged with burglary or home invasion. He could not be punished for such offences.[11] The judge did not transgress that principle. The judge did not say, nor could it be inferred, that the applicant was being punished for trespass with intent to steal or assault the victims. It was open to the judge to take into account the location of the offence, a garage underneath the victim’s home. The location made the encounter especially confronting and the judge’s treatment of that factor was well open to her.
[11]R v De Simoni (1981) 147 CLR 383; [1981] HCA 31.
Not only were the impugned findings open, the judge’s overall characterisation of the offending as serious is unimpeachable. We would only add that the sentence imposed of 2 years’ imprisonment, on a maximum of 20 years for a man with an appalling record, does not bespeak any mischaracterisation of the gravity of the offence.
Ground 2: The learned judge erred in her assessment of the objective gravity of the common assault charge
The applicant submits that the gravity of the common assault charge was to be determined objectively on the basis of the prosecution opening and not the victim impact statement.
The applicant says that the prosecution opening shows Ms Walshaw to be a person who stood up to the applicant by yelling at him to leave her car, preventing him from having access to the car keys and getting him to exit the vehicle. He submits that the post-offence account in the victim impact statement was not relevant to the objective gravity of the offence.
Little time was spent in argument analysing the elements of the offence of common assault. As already mentioned, the relevant elements are that the accused did an act that caused the complainant to apprehend the immediate application of force to his or her body; and the accused intended his or her actions to cause such apprehension, or was reckless as to that outcome.[12] The apprehension of force is an element of the offence and its nature and extent is relevant to the gravity of the offending.
[12]Edwards v Police (SA) (1998) 71 SASR 493, 495 (Debelle J); R v Patton, Caldwell & Robinson [1998] 1 VR 7, 13 (Phillips CJ, Winneke P and Southwell AJA).
The surrounding circumstances that the judge took into account, namely that it was dark, the confined space of the car, the comparative size of the applicant and Ms Walshaw, and her age and vulnerability, were all relevant to the apprehension of violence. The applicant’s declaration that ‘they are going to kill me’, while perhaps providing some context, would hardly have allayed the victim’s fear that she was being confronted by a desperate man.
We do not consider that the judge misused the victim impact statement. The judge correctly observed that the statement provided evidence as to the effect of the crime on the victim. We do not take her to have conflated that effect with the apprehension of the infliction of force that constituted an element of the offence.
It may be accepted that this was not a very serious example of a common assault given there was no battery, the agreed facts are brief as to the nature of the apprehended assault and the applicant left the vehicle when Ms Walshaw screamed. That said, having regard to the matters referred to by the judge, we are not persuaded that the judge misunderstood or mischaracterised the gravity of the offence.
Ground 3: The learned judge erred in finding charge 2 was a wholly separate incident and in doing so failed to give effect to the presumption of concurrency
The applicant submits that the two offences were closely linked in time and circumstance and that the degree of cumulation was not open to the judge. He says that the common assault was a continuum of the attempted robbery, or at least a series of offences of the same or a similar character. It is contended concurrency should have been greater although it is conceded not total.
While the two offences were on the same day, the offending the subject of charge 2 was at a separate location and time and against a different victim to charge 1. We agree with the respondent’s submission that the two incidents are discrete and the finding made by the judge was open on the facts.
The order for cumulation reflects the separate criminality of both incidents and is such that the total effective sentence reflects the total criminality.
Ground 4: The learned judge erred in fixing a non-parole period rather than imposing a combined sentence
In advancing this ground, the applicant complains that the judge did not give sufficient weight to the importance of rehabilitation in this case; and did not give sufficient weight or any weight to the applicant’s inability to obtain parole.
The applicant submits that given he had offended in the past and that periods of parole had not prevented further offending, the judge should have proceeded on the basis that he would not get parole and that a CCO with conditions was the only way the court could ensure supervision once the applicant was released from prison. For that reason it was argued that the failure to impose a CCO was an error.
The judge regarded the applicant’s prospects of rehabilitation as guarded. There is no error in that conclusion. Based on the applicant’s past, with his repetitive cycle of drug relapse, offending and incarceration, a more favourable assessment would have been unduly generous and quite unrealistic. We note that the present offending occurred shortly after the applicant was released on parole in NSW. If it had occurred while the applicant was still on parole that would have been an aggravating feature of the offending. However, the material did not allow such a finding to be made and the judge did not sentence on that basis. Rather the judge noted that the offending had occurred soon after release and that this had been a recurring problem for the applicant.
Rather than being too severe, we consider that the judge gave appropriate allowance for the applicant’s sincere participation in the sentencing conversation and the positive aspects of his life, including his art and community connection, that had been blighted by past drug use.
The scourge of the applicant’s addiction, which had frustrated and exasperated his family, was a long-term problem for the applicant. No doubt it contributed to past offending; it led to property offences to fund his addiction, impeded his judgment when he was intoxicated and encouraged his association with anti-social peers.
The judge was plainly of the view that the offending was too serious for a combination sentence. That conclusion was well open. The judge was required to fix a non-parole period. That did not mean that the judge ignored rehabilitation. The judge was plainly alive to the need for rehabilitative support to be provided to the applicant outside prison.
Contrary to the applicant’s submission, the judge was not permitted to take into account whether or not he would get parole. Rather, the judge determined to allow a relatively lengthy period for parole. Whether he gets parole is a matter for the executive and irrelevant to the sentencing exercise.[13] In the sentence she imposed, the judge allowed for the applicant to be considered for parole after 20 months’ imprisonment.
Ground 5: The learned judge erred in relying on irrelevant matters in the applicant’s priors being the past and potentially future sexual offending
[13]Sentencing Act 1991, s 5(2AA)(a).
This ground was faintly pressed. It is meritless.
The applicant’s criminal record was relevant to show the cycle of offending to which the judge referred and which was obviously a central consideration to any disposition of these offences. His prior convictions showed that he had, in the past, been resistant to avoiding further offending. His prior convictions were relevant to his prospects of rehabilitation and the need for specific deterrence. As noted at [43] above, the judge applied an important caveat when it came to the applicant’s prior sexual offending.
To the extent that the applicant submits that the judge treated extant charges as aggravating there is nothing to the complaint. The judge did not do so. To the contrary, the judge referred to the extant matters as providing a basis to mitigate penalty; they were ‘a considerable source of anxiety and distress’ for the applicant during his ‘current remand’.[14]
Ground 6: The learned judge erred in failing to identify any Verdins factors
[14]Reasons, [54].
The applicant submits that on the plea, Verdins was relied upon to mitigate sentence based on the applicant’s psychological difficulties and bipolar illnesses contributing to the offending conduct, moral culpability and impaired judgement.
The applicant submits that the Healey reports supported a diagnosis of bipolar disorder and ‘clearly raised’ the ‘issue of Verdins’.
It is necessary to refer to the course of the plea.
On the first day of the plea,[15] counsel for the applicant referred to Mr Healey’s reports. The topic of Verdins came up. Pressed by the judge as to whether the applicant was submitting that his impairment or condition contributed to the offending or was relevant to the burden of incarceration, counsel said:
No, I’m saying that there are matters that can be considered by the court as mitigatory. Possibly, they may fall short of Verdins, but they’re matters because of his background, his ADHD, his bipolar, the fact that he’s done a lot of prison, that he’s institutionalised, that we will submit that the probability is that to some extent, he’s self-medicating at that time, and he instructs me that he took drugs, particularly after the event of the murder of the friend, which I don’t have - I only have his instructions about that and that that’s affected him. But it’s obviously clear pattern, if he gets out, he does use drugs and we can’t resile from that.
[15]3 July 2023.
Given that equivocal response the judge sought a direct answer to her question, to which counsel replied, ‘I think that the answer to the question might be difficult, that it might be that we need to get a further report’.
The judge expressed the view that she could not see any support for Verdins in the Healey reports but that if it was to be argued, then the judge would allow time to get a further report. After the matter was stood down in order to obtain instructions, counsel said the applicant wished the matter to proceed on the material as it was and ‘on the basis that he falls short of Verdins but there are mitigating factors to be taken into consideration’.
Ultimately that position changed somewhat and the plea was adjourned to allow a further medical report to be obtained and to get an update on the applicant’s progress in a prison rehabilitation program.
In the interim the report was obtained from Dr Walton, the details of which are set out above.
In one sense the formulation of the ground shows why it must fail. At least in a case where the accused is represented by counsel it is not the role of the judge to sift through material and identify whether or not any of the Verdins factors are engaged. As this Court said in Sharbell v The Queen:
As this Court has emphasised, where expert evidence is to be relied on in support of a submission that one or more of the sentencing principles identified in Verdins is engaged, it is the responsibility of defence counsel on the plea to be specific about the evidence relied on and to identify the way(s) in which it is said to make those sentencing principles relevant. This Court will not entertain on appeal arguments which could have been, but were not, put on the plea.[16]
[16][2018] VSCA 324, [4] (Maxwell P and Niall JA).
The chronology of the plea set out above also shows that the ground fails on the merits.
Insofar as it is suggested that the applicant’s mental state contributed to the offending, the evidence does not support it. On the first day of the plea, counsel appearing made submissions on the strength of the Healey reports and, after an exchange with the judge, accepted that they did not support the applicant of Verdins.
It was not submitted on the plea that the applicant was suffering from a bipolar disorder and that this contributed to the offending. In the circumstances of this case that is enough to reject the point in this Court.
In any event, the submission is not supported by the evidence. Dr Walton did not accept that the applicant was suffering from bipolar disorder. His was the only psychiatric evidence relied on during the plea. Moreover, the Walton report did not support a finding that any of the applicant’s conditions contributed to the offending in a way that reduced his culpability. Indeed, the report stood strongly against such a finding. As to the applicant’s experience in custody, Dr Walton opined that he doubted that it could be said that the applicant ‘endures imprisonment as unusually more onerous than other prisoners’.
There was no error in the judge’s conclusion that the offending was likely drug induced. Given the applicant’s history, it would perhaps have been open to treat the drug use as aggravating rather than mitigating. Favourably to the applicant, the judge did not do so.
Ground 7: The learned judge erred in imposing a sentence that was manifestly excessive
This was another ground that was faintly argued.
Once it is accepted, as it must be, that the sentence and its individual components were not wholly outside the range of available sentences, this ground must fail.
Indeed, we consider that the judge very carefully weighed the competing considerations. As we have already mentioned, the judge had the advantage of the sentencing conversation, and her reasons explaining the sentence are exemplary and plainly show why the sentence arrived at was justified. This was serious offending. The applicant is not a young man. He has an appalling criminal record. For an attempted armed robbery with a large knife on two vulnerable victims, the sentence of 2 years’ imprisonment is certainly within range and may be regarded as at the lenient end. Although we would not regard the sentence on charge 2 as lenient, it has not been shown to be manifestly excessive.
Conclusion
None of the proposed grounds have been made out.
Leave to appeal must be refused.
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