Lisa McLean (a pseudonym)[1] v The Queen
[2015] VSCA 104
•18 MAY 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0236
| LISA MCLEAN (A PSEUDONYM)[1] | Appellant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the appellant.
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| JUDGES: | WEINBERG and KYROU JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 1 MAY 2015 |
| DATE OF JUDGMENT: | 18 MAY 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 104 |
| JUDGMENT APPEALED FROM: | DPP v [McLean] (Unreported, County Court of Victoria, Judge Cohen, 8 October 2015) |
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CRIMINAL LAW – Sentence – Appellant convicted of one count of attempted armed robbery and two counts of armed robbery – Total effective sentence of 6 years’ imprisonment with non-parole period of 3 years and 5 months – Co-offender who pleaded guilty received total effective sentence of 5 years and 6 months’ imprisonment with non-parole period of 3 years – Whether disparity gives rise to justifiable sense of grievance – Appellant had been victim of rape three months prior to offending – Victim impact statement in relation to that incident tendered as fresh evidence on appeal – Modest reduction in sentence warranted in light of that evidence – Re-sentenced to same sentence as co-offender.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms G F Connelly | Victorian Aboriginal Legal Service |
| For the Crown | Ms F L Dalziel | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
WEINBERG JA
KYROU JA:
The appellant pleaded not guilty, in the County Court at Melbourne, to one charge of attempted armed robbery and two charges of armed robbery. Following a trial, she was convicted on each of those charges, and sentenced by Judge Cohen on 8 October 2014 as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Attempted Armed Robbery [Crimes Act 1958 s 75A(1) and s 321M] 20 years 3 years 12 months 2 Armed Robbery [Crimes Act 1958 s 75A(2)] 25 years 4 years 12 months 3 Armed Robbery 25 years 4 years Base Uplifted Summary Charge Possession of Controlled Weapon [Crimes Act 1958 s 75A(2)] 1 year; 120 penalty units 1 month - Total Effective Sentence: 6 years Non-Parole Period: 3 years 5 months Pre-sentence Detention Declared: 547 days 6AAA Statement: N/A Other Relevant Orders: § Forensic Sample Order
§ Property Disposal Order
§ Compensation Order
The appellant’s partner and co-offender, Tyson Sirotich, pleaded guilty to the same charges. He was sentenced at an earlier stage, by Judge Tinney, as follows.
Charge on Indictment Offence Maximum Sentence Cumulation 1 Attempted Armed Robbery [Crimes Act 1958 s 75A(1) and s 321M] 20 years 30 months 12 months 2 Armed Robbery [Crimes Act 1958 s 75A(2)] 25 years 3 years 6 months 12 months 3 Armed Robbery 25 years 3 years 6 months Base Uplifted Summary Charge Possess cannabis [Drugs, Poisons and Controlled Substances Act 1981 s 73(1)] 5 penalty units $300 fine - Total Effective Sentence: 5 years 6 months Non-Parole Period: 3 years 6AAA Statement: A total effective sentence of 7 years 6 months with a non-parole period of 5 years 6 months Other Relevant Orders: § Forensic Sample Order
§ Property Disposal Order
§ Compensation Order
The appellant was granted leave to appeal on two grounds.[2] At the oral hearing of this appeal, we granted the appellant leave to amend the second of those grounds, and to add an additional ground. As a result, the grounds of appeal which ultimately were before this Court were as follows:
[2]Leave to appeal on an additional ground 3, which contended that the sentence imposed upon the appellant was manifestly excessive, was refused.
Ground 1:The sentence is manifestly disparate with that of the co-offender.
Ground 2:The learned sentencing judge erred in her application of the parity principle.
…
Ground 4:The applicant should be resentenced in the light of fresh evidence rendering the existing sentence inappropriate.
i.The applicant relies on the addendum report of Carla Lechner dated 26 April 2015 in which Ms Lechner indicates that she maintains the diagnosis of major depression for the purposes of the DSM 5, as described in her report of 16 August 2014, and explains how the diagnosis is consistent rather than inconsistent with a finding of moderate depression on the Beck Depression Inventory.
ii.The learned sentencing judge (and possibly counsel for the applicant) proceeded on the basis the diagnosis of major depression under the DSM 5 was inconsistent with a score of moderate depression on the Beck Inventory and that the applicant suffered only from moderate depression ([33] sentencing remarks and T76.24 – 77.13 and 78.2 – 23 plea transcript).
iii.This misunderstanding influenced the learned sentencing judge’s assessment of the link between the applicant’s cognitive impairments and the offending and, therefore, the degree to which she was prepared to moderate the principles of just punishment and deterrence. It also contributed to the learned sentencing judge’s failure to mitigate the sentence at all on account of the applicant finding prison more onerous than a person of normal health ([40] sentencing remarks).
iv.Although counsel for the applicant did not maintain that the diagnosis of major depression ought to have been relied upon, at no stage did he abandon reliance on Verdins principles.
Background facts
On New Year’s Eve 2012, the appellant and Mr Sirotich, who lived together in Thornbury, were out on their bicycles in the Thornbury/Preston area. At about 11:00pm, Mr Chirag Shah was waiting for a tram at the corner of St George’s Road and Hutton Street, Thornbury. The appellant and Mr Sirotich were riding their bicycles at the time. They dismounted, and the appellant approached Mr Shah and engaged him in conversation. She asked him for a cigarette, and then for some change. When he replied that he did not have either, she exclaimed ‘Are you for real?’ At that stage, Mr Sirotich came up and produced a knife. He demanded Mr Shah’s mobile phone and wallet, and threatened otherwise to stab him.
Instead of handing over those items, Mr Shah ran from the tram stop, and escaped. This incident gave rise to charge 1, the attempted armed robbery.
Less than 20 minutes later, Ms Bernadette Desmond and a friend were near a tram stop close to the corner of Gilbert Road and Miller Street, Preston. That tram stop was not far from the one at which Mr Shah was attacked. Ms Desmond was confronted by a man and a woman, one of whom held a rusty knife, and demanded her wallet. She could not recall whether it was the man or the woman who was armed. She handed her mobile phone to Mr Sirotich, and her attackers rode off on their bicycles. This event gave rise to charge 2, armed robbery.
Ms Desmond’s mobile phone was subsequently found in the possession of a man living in the same block of flats as the appellant and Mr Sirotich. He gave evidence that he had purchased it from Mr Sirotich some days later. He said that the appellant was present when he took possession of the phone.
Three nights later, on the night of 3 January 2013, Ms Bridget McDowell got off a tram at a stop that was located close by the tram stop at which Mr Shah had been attacked. Ms McDowell walked along the main road and then turned into a side street where her sister lived. The appellant, whom she did not know, called out to her. She then approached Ms McDowell, and produced a knife which was held at shoulder height, pointing towards Ms McDowell’s neck. The appellant demanded her bag, which Ms McDowell handed over. Mr Sirotich was sitting on a bicycle behind Ms McDowell, and he demanded her mobile phone, which she handed over to him. This incident gave rise to charge 3, armed robbery.
Several days later, the police executed a search warrant at the flat where the appellant was residing with Mr Sirotich. They located the handbag and wallet which had been stolen from Ms McDowell, as well as some makeup from that handbag, which was found in the bathroom. Several of Ms McDowell’s credit cards were found in Mr Sirotich’s backpack. A knife matching the description of the one Ms McDowell had described was found in the appellant’s backpack. Her possession of that knife founded the basis of the summary charge against her.
The appellant was arrested on 14 January 2014. She was interviewed by police, but denied any knowledge of these offences. At one stage, she said that she had only moved into the flat a few days earlier with Mr Sirotich. However, at a later stage, she said that she had been living there with him for several months. She claimed to have little, if any, recollection of specific events, and said that she had been drinking copious amounts of alcohol.
During the course of the plea, the appellant tendered a psychological report dated 16 August 2014 prepared by Ms Carla Lechner, as well as a neuro-psychological report dated 17 September 2014 from Dr Sheryl Monteith.
It was submitted on her behalf on the plea that the principle of parity was relevant to the sentencing judge’s task. It was further submitted that if the appellant were to receive a lengthier sentence than Mr Sirotich, that would engender in her a justifiable sense of grievance. In support of that submission, it was emphasised, in particular, that the factual basis upon which the appellant was to be sentenced was identical to that which pertained to Mr Sirotich.
It was accepted that their personal circumstances differed in that Mr Sirotich had pleaded guilty, and she had stood trial. At the same time, although both the appellant and Mr Sirotich had a number of antecedents, his were said to be significantly more serious than hers. In addition, it was submitted that the appellant could call in aid Verdins[3] principles that were not available to Mr Sirotich.
[3]R v Verdins (2007) 16 VR 269 (‘Verdins’).
All in all, the burden of the appellant’s submissions was that she should receive a sentence no greater than that imposed upon Mr Sirotich, their respective aggravating and mitigating factors essentially balancing out.
Ms Lechner’s diagnosis of the appellant’s condition was that she was suffering from Poly-Substance Use Disorder, Major Depression, and Post-Traumatic Stress Disorder (‘PTSD’). She noted that the appellant had reported having been the victim of domestic violence in the past, including on the part of Mr Sirotich. She expressed the opinion that the appellant had symptoms similar to those associated with Battered Wife Syndrome, and that this had made it difficult for her to terminate her relationship with him.
Ms Lechner recognised that the appellant’s instructions to her were entirely inconsistent with submissions made on behalf of Mr Sirotich on his plea to the effect that he had been acting under the influence of an older woman, and heavier drug user.
Dr Monteith had diagnosed the appellant with a mild intellectual disability. She believed that the appellant had reduced reasoning capacity, and impaired capacity to foresee the consequences of her actions.
It was submitted on behalf of the appellant that the evidence on the plea established that the combination of PTSD and impaired mental functioning that had been identified had contributed significantly to the offending. Accordingly, the appellant’s moral culpability should be regarded as reduced.
The appellant was brought up in what was described as a ‘blended’ family. She had six siblings, one of whom had died at the age of 15 from cystic fibrosis. Her childhood had been difficult. She grew up in Brisbane. She commenced drinking at the age of 9 and began injecting heroin at the age of 11. Her early history of dishonesty was said to be associated with her drug use.
It was noted that the appellant seemed not to have committed any offences between 2003 and 2011. This was said to be attributable to her strong motivation to look after her three children aged 13, 9 and 7. When her children were taken from her in 2011, she relapsed, and then moved from New South Wales to Victoria. Her children live in New South Wales, and the appellant expressed a strong desire to return to that State at the completion of her sentence, in order to be part of their lives.
The appellant indicated that she would prefer to receive a straight sentence without a non-parole period. This was based upon her past failure to comply with supervision orders that had been imposed, and her consequent fear that she could not comply with parole requirements. However, as we have indicated, it was noted that she had gone through a period of established rehabilitation from 2003 to 2011, and that suggested that she might be capable of complying with such requirements.
Finally, the appellant drew attention to the s 6AAA statement that Judge Tinney had included in his sentencing remarks when sentencing Mr Sirotich. That was to the effect that he would have imposed a total effective sentence of 7 years and six months, with a non-parole period of 5 years and 6 months, but for the plea of guilty. It was submitted on the appellant’s behalf that the notional sentence that had been pronounced in relation to Mr Sirotich was not part of the sentence that had been imposed upon him, and should not influence the judge who was tasked with giving effect to the principle of parity when sentencing her. In particular, it was submitted that the judge should not treat the s 6AAA statement in Mr Sirotich’s case as any sort of ‘starting point’, from which the appellant would have to ‘work downwards’.
In her sentencing remarks, the judge observed that there was nothing to indicate any remorse on the appellant’s part. Her prior criminal history, which was extensive, was relevant, but so too was the period of eight years during which she had not been brought before the courts. The difficulty was, given the appellant’s history, and the fact that the offences occurred less than three months into a community based order, specific deterrence had to loom large in the sentencing synthesis.
Her Honour accepted that some limited weight should be given to Verdins, and that it would be appropriate to moderate the sentence imposed upon the appellant, at least to some degree. With regard to parity, Mr Sirotich had pleaded guilty, and was entitled for that reason to a measure of leniency. The appellant could not rely upon any such mitigating factor. As regards the differing accounts given by each of the two offenders as to who bore primary responsibility for what had occurred, her Honour simply indicated that she was not in a position to come to any finding regarding that matter. All she could say was that they had acted as a team, and were to be regarded as equally blameworthy for all three incidents.
In these circumstances, the sentencing judge determined that the appellant should receive a sentence somewhat lower than that notionally fixed for Mr Sirotich under s 6AAA, namely 7 years and 6 months.
Having carefully considered all of these matters, her Honour concluded that the appellant should receive a marginally longer total effective sentence and non-parole period than had been fixed for Mr Sirotich. Hence her total effective sentence was 6 years (as compared with his total effective sentence of 5 years and 6 months). In the same way, her non-parole period was 3 years and 5 months, whereas his non-parole period was 3 years.
At one point in her sentencing remarks, the judge commented that if the appellant received exactly the same sentence as Mr Sirotich, after he had pleaded guilty but she had not, he would be entitled to feel a ‘justifiable sense of grievance’. It seems that it was primarily that observation that formed the basis of the grant of leave in this case.
Grounds 1 and 2
Both grounds 1 and 2 concern the manner in which her Honour dealt with the issue of parity. The appellant’s complaint in that regard had two limbs.
First, the appellant focussed upon the sentencing judge’s remarks, to which we have previously referred, regarding the notional sentence that would have been imposed on Mr Sirotich had he not pleaded guilty, as revealed by the s 6AAA statement. Those remarks were as follows:
As I have already explained, I am of the view that your sentence should be moderated to reflect the role of your underlying intellectual limitations and psychological conditions. For this reason I do not consider that your circumstances warrant a sentence as high as what Judge Tinney said he would have imposed on Mr Sirotich had he not pleaded guilty.[4]
[4]DPP v [McLean] (Unreported, County Court of Victoria, Judge Cohen, 8 October 2014), [49] (‘Sentencing Remarks’).
The appellant also relied in support of grounds 1 and 2 upon the following passage in her Honour’s sentencing remarks:
However, as you did not attract the considerable benefit of pleading guilty to these charges as Mr Sirotich did, I am of the view that your sentence, both the total and the non-parole period, must be higher than his for these charges. That is to appropriately reflect that there will be considerable reduction in sentence for pleading guilty at an early stage. In my view that could not justify a reasonable grievance on your part for receiving a somewhat higher sentence than him. On the contrary, if you receive no higher a sentence than him, after he pleaded guilty, it would create a justifiable sense of grievance on his part.[5]
[5]Ibid [51].
The sentencing judge provided a report to this Court. In that report, she sought to explain what she had meant to say when she referred to Judge Tinney’s s 6AAA statement. She said this was not intended to indicate that the notional sentence of 7 years and 6 months had been the ‘starting point’ for the appellant’s sentence. On the contrary, her intention had been to make it clear that she would not be using that notional sentence at all in sentencing the appellant.
The judge went on to say that, equally, the actual sentence of 5 years and 6 months imposed upon Mr Sirotich had not been used as a ‘starting point’, but merely as a ‘reference point’ for the issue of parity.
There is a live issue as to whether a trial judge, in a report to this Court, should endeavour to explain what he or she intended to convey in a passage in that judge’s sentencing remarks that appears, on its face, to be unambiguous.[6] For reasons that will become apparent, it is unnecessary to explore that matter any further.
[6]See R v Groom [1999] 2 VR 159, 160-1 (Tadgell JA, dissenting), 170 (Batt JA), 172 (Buchanan JA).
With respect, we think it is unfortunate that the judge, in her sentencing remarks, considered it necessary to refer to Mr Sirotich’s possible ‘justifiable sense of grievance’ if the appellant were given the same sentence as he received. The only sense of grievance that ought to have concerned her, when sentencing the appellant, was one that the appellant might harbour, based upon principles of parity. That said, we do not think that one could infer from her Honour’s comments that she imposed a sentence greater than that she considered appropriate merely to assuage Mr Sirotich’s feelings.
The second limb of the appellant’s argument under cover of grounds 1 and 2 alleged that the sentencing judge erred in finding that the fifth principle set out in Verdins — namely, that prison may be more burdensome for an offender suffering from a mental impairment — had no application in the appellant’s case, or alternatively, by failing to give that factor sufficient weight. There were two bases upon which the appellant submitted that Verdins five applied in her case.
Initially, she submitted that the principle was engaged by the evidence which emerged from the psychological and neuropsychological reports from Ms Lechner and Dr Monteith. However, in the course of oral argument before this Court, counsel for the appellant accepted that neither of those reports provided any direct support for the proposition that the appellant would find imprisonment more burdensome by reason of her mental condition. The closest one comes is a reference in Dr Monteith’s report to the fact that the appellant’s intellectual disability would make her ‘more vulnerable to negative influence’ from other prisoners. As the sentencing judge correctly noted, that is quite different from a finding that the appellant’s mental impairment would cause a prison sentence to weigh more heavily upon her than upon a person of normal health.
Counsel for the appellant also submitted, perhaps somewhat optimistically, that such a finding could arise by implication from Ms Lechner’s diagnosis that the appellant suffered from Major Depression. It would require more than such a diagnosis to engage Verdins five.
The second basis upon which the appellant argued that Verdins five had been engaged related to her having previously been the victim of a rape. That incident had occurred on 21 September 2012, just over three months prior to the offending in this case. The perpetrator of the rape was identified, and stood trial in November 2014. He was convicted, and sentenced on 18 November 2014. The appellant was required to give evidence at his trial. She also provided a victim impact statement in relation to his sentencing.
At the appellant’s plea hearing, which took place a month or so before the rape trial, her counsel tendered the summary of prosecution opening that had been prepared for that trial. Counsel relied upon the rape as a factor which formed part of the ‘background’ to the appellant’s offending, and which ‘corroborated’ Ms Lechner’s and Dr Monteith’s psychological assessment of her. The matter was not, however, the subject of detailed submission.
Before this Court, the appellant sought to place a somewhat different complexion upon the importance of that incident, and its aftermath. Specifically, she submitted that having to endure prison as a person who had recently been raped, and having to give evidence against the offender whilst incarcerated, were factors which provided a basis for finding that prison would be considerably more onerous for her, and would engage Verdins five.
In support of that submission, the appellant sought to rely upon her statement to police and her victim impact statement in relation to the rape. It was submitted on her behalf that those statements illustrated the significant impact the rape had had upon her, and in particular, the difficulties she experienced in having to give evidence against the perpetrator.
The judge who sentenced the perpetrator of the rape described the circumstances surrounding its commission as follows:
Early evening, [the appellant] went to a food van which was parked near Hanover House. It was at the food van that she encountered you. You had not known each other before that. You asked her to your place to continue partying, which she took as to join you drinking alcohol. At that time you were living in a tent, which had been erected in a car park on an abandoned property in Southbank, about 80 metres from Hanover House. The photographs that were tendered during the trial depict the area very well.
The [appellant] accepted your invitation. She followed you through a hole in the perimeter fence which was corrugated iron, and then into a small tent where you were both sitting down on cushions.
A short time later, unexpectedly as far as she was concerned, you overpowered her and raped her, by penetrating her vagina with your penis. You were not wearing a condom. You ignored her when she yelled to you that she had her period, and you ignored her when she yelled to you to stop. After you penetrated her vagina with your penis, she believed you ejaculated. You then moved away and she ran off.[7]
[7]DPP v Graham (Unreported, County Court of Victoria, Judge Douglas, 18 November 2014), [5]–[7].
Her Honour went on to quote the following passage from the appellant’s victim impact statement:
This has affected me massive. I felt hurt, violated and dirty. I feel I can’t trust. It’s made me hate myself. It’s brought up a lot of memories from childhood, bad memories. It made me hate and not trust men. Having this done to me made me very angry, hurt and hated the world, not understanding why this would happen to me. It made me feel like I was treated like rubbish. I felt like I was not a woman, like it was taken from me without my consent. Before this happened, I was doing well for quite some time. Yes, I would drink, but not to the amount I drank after [the] incident. After this happened my drinking and drug intake got much worse. I felt like I couldn’t control myself anymore. I felt like I couldn’t tell anyone because I was ashamed, and felt dirty.[8]
[8]Ibid [12].
The appellant’s victim impact statement, which was made on 14 November 2014, approximately a month or so after she had been sentenced for the present offending, was tendered as an exhibit on this appeal. She sought leave to rely upon it as fresh evidence which was said to amplify matters which existed at the time of her sentence.
That application was opposed by the Crown. It pointed to the fact that the appellant placed little emphasis upon the incident at the plea, and in any event did not rely upon it in the manner that she seeks to do now — namely as enlivening Verdins five. The Crown also submitted that the sentencing judge was an experienced judge who would have presided over many trials involving victims of sexual offences. Accordingly, she could be expected to have fully understood the impact that offending of this kind would have had upon the appellant, and factored that into her sentence, without the benefit of the additional material now sought to be relied upon.
The principles regarding when evidence of this kind will be admitted on appeal are well-established. In R v Eliasen,[9] Crockett J[10] said:
This Court accedes very sparingly to applications of this kind. Applications for leave to appeal are dealt with on the basis that, unless the sentencing judge has been shown to have erred in the exercise of his sentencing discretion, this Court will not intervene in the matter. The question as to whether error has occurred is to be determined by a reference to the matters available to be considered by the judge at the time that he determines upon the sentence.
However, it is plain that authority now establishes that this Court may, if it considers the case an appropriate one so to do, permit evidence of matters or events that have occurred since the date of the passing of the sentence upon an applicant to be placed before this Court with a view to this Court's reconsidering the matter in the light of that additional evidence. It must follow that, if the Court does think that the additional evidence should lead to the imposition of a sentence different from that imposed by the judge, then even where the judge’s sentencing discretion has not miscarried the case must be treated as one calling for appellate intervention.
It has been said by this Court that if, on the material placed before it for the hearing of an application for leave to appeal against sentence, it considers that the sentence imposed was not an appropriate sentence, then the application may be allowed and a different sentence passed in lieu of that imposed below.[11]
[9](1987) 53 A Crim R 391 (‘Eliasen’).
[10]McGarvie and Phillips JJ agreeing.
[11]Ibid 394 (citations omitted).
The relevant principles were also summarised by Redlich JA[12] in R v Duy Duc Nguyen:[13]
[12]Maxwell P and Neave JA agreeing.
[13][2006] VSCA 184.
It is common ground that this Court may, in limited circumstances — sometimes described as ‘rare and exceptional’ — permit evidence to be led of matters or events that have occurred since the sentence was imposed to enable this Court to reconsider the sentence in the light of that additional evidence. The following principles apply to the admission of such evidence:
(i)the new evidence must relate to events which have occurred since the sentence was imposed;
(ii)the evidence must demonstrate the true significance of facts in existence at the time of the sentence;
(iii)the evidence will not be admitted if it relates only to events which have occurred after sentence and which show that the sentence has turned out to be excessive;
(iv)the new evidence may be admissible even though the applicant did not refer to the pre-existing state of affairs in the course of the plea;
(v)upon the admission of the new evidence, it is unnecessary to determine whether the original sentence was vitiated by error, or whether it was manifestly excessive; and
(vi)the question is whether, on all of the material now before the Court, any different sentence should be substituted to avoid a miscarriage of justice.
The consistent approach of this Court has been to treat the sentencing discretion as reopened once it has been concluded that the fresh evidence throws significant new light on the pre-existing facts. The Court must determine what is the appropriate sentence on the basis of all of the material then before it.
Many of the cases which support these propositions concerned the admission of new evidence of subsequent events which made imprisonment an even greater burden for the offender and which resulted in the Court varying the sentence imposed.[14]
[14]Ibid 12–13 (citations omitted).
In our view, ground 1, if viewed in isolation, should be rejected. The principles governing parity in sentencing are well-established. It is only ‘marked disparity’, giving rise to a ‘justifiable sense of grievance’, that warrants appellate intervention.
In this case, there was a rational basis for distinguishing between the appellant and her co-offender. Although his criminal record was worse than hers, he pleaded guilty and she did not. The difference of six months between the total effective sentence imposed on each of them, and five months with regard to their respective non-parole periods, cannot be said to have been excessive, still less manifestly or markedly so.
Ground 2, in its amended form, complains of the judge’s application of the parity principle to the facts of this particular case. Under cover of that ground, the appellant sought to rely upon the additional evidence concerning her rape, and the consequences thereof, as a basis for submitting that she ought to have received the same sentence and non-parole period as her co-offender.
In our view, there is substance to this ground. It does not involve any finding by this Court that the sentencing judge fell into error. Rather, and in accordance with Eliasen, the evidence concerning the appellant’s ordeal of having to testify against her attacker whilst incarcerated lends greater force to the submission made on her behalf on the plea that the principle of parity, properly applied, should result in her receiving the same sentence as was imposed upon Mr Sirotich.
Whether that be through the vehicle of Verdins five, or greater weight being given to parity, matters little. Had the sentencing judge been fully apprised of what the appellant would shortly have to endure, the likelihood is that there would have been some modest reduction in her sentence to bring it into line with that of her co-offender. This Court should rectify that matter, and give effect to the submission made on her behalf on the plea.
Ground 4
This ground concerns the manner in which the sentencing judge dealt with a particular aspect of the psychological report of Ms Lechner which was tendered at the appellant’s plea. In her report, Ms Lechner diagnosed the appellant as suffering from, inter alia, Major Depression. The sentencing judge said the following as to that diagnosis:
Ms Lechner considered that your presentation indicated a range of symptoms of depression, and on the BDI self-report inventory for depression you scored at the top of the moderate range for clinical depression. I disregard where she has later expressed in her report that you suffered a Major Depressive disorder as it is not consistent with her earlier findings.[15]
[15]Sentencing Remarks [33].
The inconsistency to which her Honour referred related to an earlier section of Ms Lechner’s report where she discussed the results of certain psychometric testing to which the appellant had been subjected. That testing included a ‘Beck Depression Inventory’ (‘BDI’). The BDI was described as a ‘self-report questionnaire’ which required the appellant to answer a range of questions relating to psychological and physiological symptoms of depression she had experienced over the preceding two-week period. In her report, Ms Lechner had noted that the appellant’s BDI score was at the ‘top end of the moderate range’.
It was submitted on behalf of the appellant that, in suggesting that there was an inconsistency between the results of the BDI and Ms Lechner’s diagnosis of Major Depression, the sentencing judge essentially misunderstood Ms Lechner’s report. Specifically, her Honour failed to appreciate that the BDI was simply a diagnostic tool which formed part of the matrix of factors which fed into Ms Lechner’s ultimate diagnosis of Major Depression.
In support of that submission, the appellant sought to rely upon an addendum report from Ms Lechner dated 26 April 2015. She again invoked the principles regarding fresh evidence to which we have previously referred. In the addendum report, Ms Lechner clarified the nature of the BDI, and confirmed her diagnosis of Major Depression.
The appellant submitted that her Honour’s error in the interpretation of Ms Lechner’s report caused the sentencing discretion to miscarry. In particular, she submitted that her Honour’s error must be seen as having influenced the way in which she assessed the link between the appellant’s offending and her cognitive impairment, the overall credibility of Ms Lechner, and the level of hardship the appellant would experience in prison.
The Crown, on the other hand, submitted that, even assuming her Honour was incorrect in finding that there was an inconsistency in Ms Lechner’s report, the diagnosis of the appellant as having Major Depression (as opposed to ‘moderate’ clinical depression) could not be regarded as having any significant bearing upon the exercise of her Honour’s sentencing discretion. That was because of the significant weight that her Honour had, in any event, given to the appellant’s PTSD, intellectual disability, and personal history in considering her moral culpability, and issues of specific and general deterrence. The Crown also submitted there was no basis for inferring that the inconsistency identified by her Honour led her to assess adversely the credibility of Ms Lechner, or otherwise give less weight to her report than she ought to have.
Finally, the Crown pointed out that, when the matter of the supposed inconsistency was raised by the sentencing judge at the plea, counsel for the appellant did not take any issue with her Honour’s indication that the applicable diagnosis was one of moderate, rather than major, depression.
Had this ground stood alone, it would have been rejected. We accept the Crown’s submission that, in the context of this case, the characterisation of the appellant’s depression as ‘major’, rather than at the top end of moderate, would have made no discernible difference to the outcome.
Re-sentencing
In accordance with the analysis set out above, we would allow this appeal. We would set aside the individual sentences on each of the three indictable charges. In lieu thereof, we would impose a sentence of 30 months on charge 1, 3 years and 6 months on charge 2, and 3 years and 6 months on charge 3. The sentence on charge 3 would be the base sentence. Twelve months of the sentences on charges 1 and 2 would be cumulated upon that sentence. That makes a total effective sentence of 5 years and 6 months. We would fix a non-parole period of 3 years.
We would affirm the sentence of 1 month on the uplifted summary charge, and make that wholly concurrent. We would affirm all other ancillary orders.
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