Maryan Dang v The Queen
[2018] VSCA 43
•20 February 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0142
| MARYAN DANG | Appellant |
| v | |
| THE QUEEN | Respondent |
---
| JUDGES: | MAXWELL P and PRIEST JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 20 February 2018 |
| DATE OF JUDGMENT: | 20 February 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 43 |
| JUDGMENT APPEALED FROM: | DPP v Dang (unreported, County Court of Victoria, Judge Dyer, 21 February 2017) |
---
CRIMINAL LAW – Appeal – Sentence – Fresh evidence on appeal – Recklessly cause serious injury – Glassing – Unprovoked attack on stranger in nightclub – Plea of guilty – Sentenced to 18 months’ imprisonment with 18 month community correction order – Offender heavily intoxicated – Prior offence of violence when intoxicated – Drinking problem conceded on plea – No suggestion of causative psychological factors – Post-sentence psychologist’s report – Diagnosis of borderline personality disorder – Whether admissible as fresh evidence – Not open to conduct different plea on appeal – Whether non-admission of evidence would cause miscarriage of justice – Sentence moderate in the circumstances – Appeal dismissed.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr S J Tovey | Malkoun and Co Lawyers |
| For the Respondent | Mr B L Sonnet | Mr J Cain, Solicitor for Public Prosecutions |
MAXWELL P:
Summary
The appellant pleaded guilty to one charge of recklessly causing serious injury and was sentenced to 18 months’ imprisonment, with an 18-month community correction order (‘CCO’) (with conditions attached). She was granted leave to appeal on one ground, namely, that the Court should receive as fresh evidence an expert report which, it is said, goes to the state of her mental health, both at the time of the offending and at the time of sentence, and which should lead the Court to conclude that a lower sentence should be imposed.[1]
[1]Dang v The Queen [2017] VSCA 280.
For reasons which follow, I consider that the evidence should not be received. As will appear, the appellant’s violent conduct on this evening was the product of her gross intoxication on the night in question. Her counsel, on the plea, agreed with the judge that she had a ‘binge drinking problem’.
There was no suggestion made to the sentencing judge that this offending was in any way attributable to any psychological, behavioural or personality issue. In my opinion, this was hardly surprising, given that the appellant’s heavy intoxication was the obvious explanation for her conduct, just as it was admitted to have been the explanation for a previous, similar offence. The association of intoxication with disinhibited behaviour and unprovoked violence is notorious, and occupies a great deal of time in the criminal courts of this State.
The application to lead fresh evidence is, in effect, an attempt to run an entirely different plea in mitigation, to advance a quite different explanation for the offending conduct. That course is simply not open on appeal. The appeal must therefore be dismissed.
The circumstances of the offending
The appellant was aged 26 at the time of the offence. She was, as her counsel properly acknowledged in this Court, a reliable and hard-working person, who had held down a steady, responsible job for four years. That speaks for itself in affirming her capacity, despite the personality disorder from which she is said to suffer, to conduct an orderly, law-abiding, purposeful, productive life. It serves, equally, to emphasise just how significant her intoxication was in producing such different behaviour on this night.
On the plea, her counsel informed the sentencing judge that the appellant had started drinking spirits at the age of 13. By the time she turned 18, she was drinking on a regular basis every weekend at nightclubs at different places in the city. Her counsel said, ‘it was common for her to be drunk and to be exposed to cocaine and other drugs’. Her counsel continued:
So going out on a Saturday night and effectively having an excess amount of alcohol and some drugs was commonplace for young Maryan. It’s in that context that she found herself at the Little Red Pocket Bar.
There can, of course, be no criticism of defence counsel for having disclosed those matters on the plea. On the contrary, it was absolutely proper and necessary that they be disclosed. The sentencing court needs to be informed frankly and candidly about matters relevant to the offending. These were uncomfortable truths but they were properly ventilated.
Counsel then told the judge that Ms Dang had been drinking spirits on that Saturday night before going out. According to counsel:
This particular evening was predominantly a birthday celebration by Ms Dang with one of her friends, and the evening commenced with early drinks … starting at 8pm …
At that stage, counsel said, the appellant had about six shots of spirits, being vodka and cognac.
The group then went into town by hire-car. They went to a bar, where the appellant consumed a further ten shots of spirits, making a total of 16. Just after midnight, the appellant and her friends were sitting in the designated smoking area of the bar. The complainant, a 32-year-old man, entered the smoking area with two of his friends at about the same time.
After a brief interaction between the two groups, the appellant left the smoking area and re-entered the bar. She picked up an empty champagne bottle from the nearby table, and went back to the smoking area. The complainant was sitting down, with his back to the wall, and was smoking a cigarette. He was not known to the appellant. She walked up to him and struck him directly to the left side of his face with the bottle.
The complainant collapsed, holding the left side of his face. His hand and face were covered in blood. He did not know what had hit him but said that it felt very forceful and that he was in a lot of pain.
The complainant sustained a broken eye socket and broken cheekbone. As Priest JA pointed out in argument, this shows what a dangerous blow it was. He also had lacerations to the left side of his face. He had difficulty eating and opening his mouth as a result of the injuries sustained. He underwent reconstructive surgery and spent two days in hospital.[2]
[2]DPP v Dang [2017] VCC 116 [5] (‘Reasons’).
Submissions on the plea
On the plea, defence counsel tendered a letter from a psychologist, Mr Tony Pirotta, which noted that the appellant had been referred to him by her GP (some months after the offending) to assist her to ‘address her Alcohol Use Disorder and Adjustment Disorder’. This showed, as Priest JA pointed out in argument, that the appellant was well aware by then that she had a problem with alcohol use, and that she needed assistance with it.
The report recorded that the appellant had completed two self-report questionnaires designed to measure depression, anxiety and stress. The results indicated that in October 2016 the appellant was in the ‘likely to be well’ group, with normal levels of anxiety and depression. By January 2017, however, the responses to placed her in the ‘severe mental disorder’ group and showed moderate depression, mild anxiety and mild stress. When asked about the apparent deterioration, the appellant told Mr Pirotta that she had been ‘stressed’ because her court case was getting closer. It is, of course, not unusual for those charged with criminal offences to find the experience stressful.
Mr Pirotta’s report included the following statements by the appellant about the incident:
-Maryanne was so blind drunk that she does not even remember
-Maryanne does not remember anything. All she knows from seeing the CCTV footage, is that she was bottling this guy who she did not know on the face. She does not know what bottle it was. The other guy ended up with a broken eye socket. He had to have surgery to insert a cheek plate. The bottle did not break so there were not cuts or anything. There was bruising.
The report concluded with the following statement:
Ms Dang’s level of engagement in my services precludes me from making any comments or providing any opinions.
Counsel submitted that it might be appropriate that the appellant be assessed for a CCO ‘which will provide her punishment as well as some guidance and psychological help with her problems such as the alcohol abuse’. The following exchange took place between counsel and the judge:
His Honour: [T]he essence of your plea is that this young woman has had trouble with, I suppose what we might say is, binge drinking for a while.
Defence counsel: Yes. That’s the classification that I’d be using.
His Honour: Yes. I want to have an opportunity to read that material. You say that this matter can be appropriately dealt with by way of a community correction order?
Defence counsel: I do.
The prosecution subsequently submitted that a CCO without any period of custody would be outside the range. As to the possibility of a combination sentence, the prosecutor submitted that there was not enough material presented to enable a concession to be made that that disposition was within range.
The prosecutor submitted that it was a very serious example of recklessly causing serious injury, an offence which carries a maximum penalty of 15 years’ imprisonment. The prosecutor continued:
The accused has gone back inside the venue to retrieve the weapon she used to attack the complainant with. It’s not simply a case of already having a glass in the hand that has then struck the complainant … it’s a deliberate effort to go and retrieve the weapon. It’s in a public place and an example of alcohol-fuelled violence.
The prosecutor informed the judge that Ms Dang had a prior conviction for recklessly causing injury from 2013, saying:
[T]he circumstances generally were at night in a nightclub with the weapon being either a bottle or a glass to inflict injury on the complainant.
In response, defence counsel did not contest the prosecutor’s characterisation of the offence as an example of ‘alcohol-fuelled violence’. Counsel also acknowledged — quite properly, in my opinion — that the prior offence involved ‘a similar sort of circumstance’, in which alcohol had played a part.
The reasons for sentence
After referring to references filed on the appellant’s behalf, and after setting out extracts from Mr Pirotta’s report, the judge continued:
That in substance is the material that has been put on your behalf by [counsel] on the plea.
I accept that you are a relatively young woman, now only 27 years of age and you have a good work record, and you are well regarded in relation to voluntary activities in which you engage.
I accept that this incident occurred in circumstances where you had used alcohol to excess. It would appear that this factor was also involved in the prior offending which you have admitted.
Nevertheless, the type of offence committed by you involved serious injury to your victim, and is the type of offence commonly described in the community as ‘alcohol-fuelled violence’.[3]
[3]Ibid [20]–[23].
The following passages from the judge’s reasons are also relevant:
Nevertheless, your young age and the material advanced on your behalf does provide me with some confidence that rehabilitation may assist you in avoiding further alcohol abuse and reducing the prospect of further offending. I have concluded that your prospects of rehabilitation are good.
…
I have had you assessed for suitability for a community correction order and I note that you have been assessed as suitable. I take the view that it is in the interest of the community as a whole to ensure that there is some assessment, monitoring and treatment provided to you in the future in relation to your abuse of alcohol, which, in my view, has been a significant factor in your offending on this occasion, and probably on the earlier occasion.[4]
[4]Ibid [25], [29].
The proposed fresh evidence
Following the imposition of sentence, the appellant retained new solicitors, who engaged Dr Mathew Barth, a psychologist, to provide a psychological assessment of Ms Dang. Dr Barth provided a lengthy report, in which he expressed the following opinion:
1)Ms Dang’s current mental status indicated significant emotional distress. She reported the typical symptoms of depression and anxiety which were readily observable during the interviews. The intensity of Ms Dang’s symptoms are partially due to the seriousness of her legal matters and are also representative of her long-standing history of emotional lability.
2)Ms Dang’s current symptoms are sufficiently severe to warrant the diagnosis of an ‘Adjustment Disorder – with Mixed Disturbance of Emotions and Conduct’ by DSM-5 criteria. She is at significant risk of developing more intense symptoms during her period in custody.
3)Ms Dang’s personality adjustment has been markedly dysfunctional since childhood. Her self-esteem is very low, her self-identity is poorly developed and she is prone to intense periods of emotional lability. Hence, her history of intimate relationships has occurred within a dysfunctional context. Compounding matters, the intensity of Ms Dang’s emotional reactions to interpersonal stressors has culminated in a propensity for impulsive and reckless behaviour.
4)Ms Dang’s dysfunctional personality adjustment is sufficiently severe to warrant a diagnosis of ‘Borderline Personality Disorder – with Antisocial Features’ by DSM-5 criteria.
5)Ms Dang’s history of emotional issues and her pathological personality traits have culminated in noteworthy anger management issues. She has a limited awareness into the intensity of her emotional reactions, has a propensity to rapidly escalate to feelings of hostility when she feels challenged and reacts to such situations by becoming aggressive towards others. Treatment which addresses these issues is warranted.
6)Ms Dang reported a lengthy history of alcohol and drug abuse. In recent years, she has used alcohol excessively and has supplemented this with abusing cocaine. Ms Dang’s alcohol use warrants a diagnosis of ‘Alcohol-Use Disorder’ by DSM-5 criteria and would be specified as having been at the ‘Moderate-Severe’ level. Her drug use warrants a diagnosis of ‘Stimulant-Use Disorder’ by DSM-5 criteria and would be specified as having been at the ‘Moderate’ level.
7)Ms Dang is in the very early phases of addressing her substance abuse issues. Her insight into her alcohol and drug abuse is limited and she is yet to develop the required emotional, cognitive and behavioural strategies to achieve abstinence. Substance abuse treatment is unequivocally warranted.[5]
[5]Emphasis in original.
The appellant’s solicitors subsequently asked Dr Barth about the significance of the diagnosis of borderline personality disorder and, in particular, whether there was a connection between that condition and the offending conduct. Dr Barth’s opinion was in these terms:
The diagnosis of Borderline Personality Disorder (BPD) is relevant with regards to understanding Ms Dang’s offending behaviour. The central features of BPD involve intense emotional, cognitive and behavioural dysregulation, features which were characteristic of Ms Dang’s offending conduct. Individuals with BPD frequently experience unstable and changeable moods. These moods oscillate between feelings of dysphoria and anxiety and, conversely, can rapidly escalate to feelings of irritability and hostility. The intensity of these unpredictable mood shifts often lead to reckless, impulsive and self-destructive behaviour. My assessment of Ms Dang found that she exhibits these core features of BPD and they have relevance in providing an understanding of her impulsive act of aggression on the night of the offending.
Due to their propensity for intense emotional volatility and erratic moods, persons with BPD are also poor decision makers. At a cognitive level, they are prone to ‘all-or-nothing’ or ‘black and white’ thinking. This further increases their propensity for impulsive and reckless behaviour. Ms Dang’s cognitive functioning and decision making is consistent with these aspects of BPD. As noted in my original report … Ms Dang’s substance abuse issues and her intoxication on the night of the offending would have further exacerbated her poor decision making skills and propensity for disinhibited behaviour.
In summary, Ms Dang’s diagnosis of BPD does have a connection with the offending behaviour, as her conduct is characteristic of the core features of this personality disorder. Namely, her significant emotional instability, propensity to rapidly escalate to feelings of hostility and her impulsive and unsophisticated decision making skills.
Consideration
The submission by counsel for the appellant is that this expert evidence should be admitted on the basis that it ‘explains much of her criminal conduct’ and goes to an assessment of her moral culpability. Reliance is placed on the decision of this Court in Director of Public Prosecutions v O’Neill.[6] The Court there held that the sentencing considerations identified in R v Tsiaras[7] and R v Verdins[8] were not enlivened by a diagnosis of borderline personality disorder but that such a diagnosis might nevertheless be relevant in the sentencing exercise in enabling the Court to understand how the conduct in question had occurred.[9]
[6](2015) 47 VR 395 (‘O’Neill’).
[7][1996] 1 VR 398.
[8](2007) 16 VR 269.
[9]O’Neill (2015) 47 VR 395, 420 [96]–[97].
The submission is that the Court should conclude, on the basis of the fresh evidence, that what is described as ‘the overall degree of criminality’ is reduced, and a lesser sentence should be imposed. In essence, as counsel confirmed, the submission is that Ms Dang should be viewed, on the basis of this new evidence, as less morally culpable for inflicting serious injury recklessly than someone who did not have borderline personality disorder.
In my opinion, the expert opinion simply does not satisfy the requirements for admission as fresh evidence on appeal. As I have explained, and as the judge’s reasons confirm, the plea was conducted on the basis that the appellant’s violent behaviour was wholly to be explained by her state of severe intoxication.[10] Given the uncontested facts about her alcohol consumption on the night in question, this was hardly surprising. As I have said, the conduct of the plea seems perfectly understandable, given the circumstances of that evening and what, by any standards, was gross alcohol consumption. As noted earlier, there was no opinion evidence before the sentencing judge, and no submission was made, suggesting that the appellant suffered from any relevant psychological condition.
[10]See [21] above.
As discussed with counsel in the course of argument, even if this evidence had been before the sentencing judge, it would have been practically impossible to persuade the judge that, in any relevant explanatory sense, this offending was a product of the personality disorder rather than gross intoxication. The almost inevitable conclusion, in those circumstances, would have been that it was the intoxication which entirely explained the disinhibited conduct. This is well illustrated by other decisions of this Court, where there was evidence of an underlying condition but where the Court was well satisfied that what was relevantly causative of the offending was intoxication, whether with drugs or alcohol.[11]
[11]Cf Wright v The Queen [2015] VSCA 333 [43]–[45]; DPP v Granata [2016] VSCA 190 [158]–[159]; DPP v Davis [2017] VSCA 341 [63]–[65].
Alcohol misuse has many causes, and a vast range of sources of emotional distress can lead a person to drink to excess. Self-evidently, if someone consistently gets very drunk, in order to allay emotional distress, and then on a particular occasion inflicts unprovoked violence, it will be a very difficult argument to make before a sentencing court that it was the distress — being no fault of the person — and not the alcohol, which led to the offending.
As explained in Hasan v The Queen,[12] intoxication itself is never a mitigating circumstance, except where it can be shown that the offending conduct was wholly out of character because the person could not have anticipated the effect of alcohol on them.[13] This case is quite at the other end of the scale. It is clear that the appellant’s prior appearance on a criminal charge was for offending in very similar circumstances, such that she was well aware that her tendency to drink heavily on nights when she went out carried with it the potential for violence.
[12](2010) 31 VR 28.
[13]Ibid 33 [21].
This is also an entirely different case from O’Neill. There, the explosion of anger which resulted in the killing of the deceased occurred when the offender was in a state of complete sobriety. He was otherwise a law-abiding person. It was held that the existence of the personality disorder might provide an appropriate explanation for his ‘outburst of uncontrolled anger’.[14]
[14]O’Neill (2015) 47 VR 395, 420 [97].
Here, the entire explanation lay, as defence counsel conceded on the plea, in the intoxication. To say that the intoxication is itself a reflection of the underlying disorder does not alter that analysis at all, in my opinion.
Finally, there is no basis for a contention that the non-admission of this evidence will cause a miscarriage of justice. This was a very serious instance of recklessly causing serious injury. In our joint judgment in Winch v The Queen,[15] Redlich JA and I explained why the use of a glass or a bottle to strike a blow to the face or head is so serious:
As this court pointed out in Ashe v R, the court’s assessment of the seriousness of a particular instance of RCSI will involve considering both the degree of probability that serious injury will result, and the degree of seriousness of the injury thus foreseen. What makes glassing a serious instance of RCSI — almost by definition — is the obvious dangerousness of a glass or bottle (whether broken or not) when used to strike a blow to the face or head. Hence, the offender who is convicted of this offence of recklessness is to be taken to have foreseen a high probability of serious injury.[16]
[15](2010) 27 VR 658.
[16]Ibid 665 [36] (citations omitted).
In those circumstances, a sentence of 18 months’ imprisonment with an 18-month CCO seems to me to be very moderate, particularly for someone with a prior conviction. Plainly, her previous appearance before the criminal courts had not caused her to desist from heavy drinking.
In my respectful opinion, the submission made by defence counsel that a CCO would be appropriate, and the judge’s decision to impose one, demonstrated an acute appreciation of the advantages of a CCO, as explained in Boulton v The Queen.[17] By imposing both a community work condition and a condition requiring assessment and treatment for alcohol abuse, the judge ensured that the CCO would operate punitively but at the same time — in a way custody could not — would enable the appellant to receive treatment for the very condition which has been causative of her offending.[18] It is greatly in the community’s interest that, once the appellant completes her period of custody, she will be subject to those conditions. We should have every confidence that, if she adheres to the treatment condition, she will not trouble the criminal courts again.
[17](2014) 46 VR 308.
[18]Ibid 335 [113]–[114].
Critically for present purposes, there is nothing in the new expert evidence which could have justified a more lenient disposition than the one which was imposed.[19] I would therefore dismiss the appeal.
[19]Burns (a pseudonym) v The Queen [2016] VSCA 195 [26]–[27]; Darmos v The Queen [2015] VSCA 312 [53].
PRIEST JA:
I agree.
MAXWELL P:
The order of the Court is: appeal dismissed.
3
11
0