Maryan Dang v The Queen
[2017] VSCA 280
•3 October 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0142
| MARYAN DANG | Applicant |
| V | |
| THE QUEEN | Respondent |
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| JUDGE: | SANTAMARIA JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | On the papers |
| DATE OF JUDGMENT: | 3 October 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 280 First Revision: 3 October 2017 |
| JUDGMENT APPEALED FROM: | [2017] VCC 116 (Judge Dyer) |
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)
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CRIMINAL LAW – Application for leave to appeal against sentence – Recklessly causing serious injury – Sentence of 1 year and 6 months’ imprisonment with community corrections order – No non-parole period – Fresh evidence – Evidence as to mental health of applicant at time of offending and sentence – Where evidence in form of psychologist reports – Leave to appeal granted.
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| APPEARANCES: | Counsel | Solicitors |
| On the papers |
SANTAMARIA JA:
The applicant, now aged 27, pleaded guilty to one charge of recklessly causing serious injury. On 21 February 2017, she was sentenced in the County Court as follows:
Charge on indictment Offence Maximum penalty Sentence 3 Recklessly cause serious injury
[Crimes Act 1958
s 17]15 years’ imprisonment 1 year and 6 months’ imprisonment and 1 year and 6 month community corrections order (150 hours community work, supervision, treatment and rehabilitation) Total effective sentence: 1 year and 6 months’ imprisonment and 1 year and 6 month community corrections order (150 hours community work, supervision, treatment and rehabilitation) Non-parole period: N/A Pre-sentence detention declaration 1 day Section 6AAA Statement 5 years’ imprisonment with a non-parole period of 3 years and 6 months’ imprisonment Other relevant orders Forensic sample order
The applicant now seeks leave to appeal her sentence.
Circumstances of the offending
On the evening of 30 April 2016, the applicant attended a bar on Little Collins Street, Melbourne, with a number of other females.
Shortly after midnight, on 1 May 2017, the applicant was sitting with a group of friends in the smoking area of the bar. The victim, who was unknown to the applicant, entered that area with two friends. As they entered, some of the applicant’s friends left the area. The victim and his friends walked over to where the applicant and her friends were sitting.
A friend of the victim overheard a female saying to a male, ‘It’s a just a drink’. The victim’s friend asked the male where his drink was, to which the male replied, ‘the drunk girl just spilt it all over me’.
At this time, the applicant re-entered the bar and picked up a champagne bottle from a nearby table. She returned to the smoking area, where the victim was sitting with his back to the wall. She walked up to the victim and struck him directly to the left side of his face with the bottle, causing him to collapse and grab his face. The applicant left the bar shortly after the incident, which was captured on CCTV.
The victim was taken to hospital by his friends. He was treated at the hospital for two days as an in-patient. He sustained a broken eye-socket and a broken cheekbone. He also had cuts to the left side of his face. For some time, he was unable to open his mouth or eat properly. He underwent surgery on 10 May 2016, where plates and screws were inserted into his cheekbone.
On 17 August 2016, the applicant was arrested by police. During her police interview, the applicant declined to comment on the incident.
Personal circumstances of the applicant
The applicant was 26 at the time of the offending. She had been employed by AGL Energy for three or four years. She had also participated in volunteer work for various organisations.
The applicant had a prior criminal history involving a single offence of recklessly causing injury. On that occasion, she had thrown a glass which struck a fellow patron in a licensed venue. The matter was heard in the Magistrates’ Court on 26 March 2013. The Court ordered, without conviction, that the applicant pay $300 to the Court Fund and complete a positive lifestyle program with the Salvation Army within six months.
In October 2016, some six months after the offending, the applicant had been referred to a psychologist, Mr Tony Pirotta of Reflections Psychological Services Pty Ltd, to address an alcohol use disorder and an adjustment disorder. She had consulted Mr Pirotta on three occasions after the offending. During the plea, a letter from Mr Pirotta was tendered on behalf of the applicant. The contents of this letter, which assumes some importance in the present application for leave to appeal, are set out below.
Sentencing remarks
The sentencing judge described the applicant as having a good work record and being well regarded in her volunteering activities.[1] The judge considered in detail two character references that were tendered on behalf of the applicant.
[1]DPP v Dang [2017] VCC 116 [21] (‘Sentencing remarks’).
The first character reference was prepared by the applicant’s former direct supervisor at AGL Energy. It attested to the applicant’s strong work performance and noted that her offending appeared to be out of character.[2]
[2]Ibid [12]–[13].
The second character reference was prepared by a corrections officer at the Department of Justice. It spoke highly of the applicant’s personal qualities and said that the charge will ruin her reputation among her friends, family and work colleagues.[3]
[3]Ibid [15].
The sentencing judge accepted that the offending occurred in circumstances where the applicant had used alcohol to excess, labelling it as an instance of ‘alcohol fuelled violence’.[4] He said that alcohol was apparently involved in her prior offending too.[5]
[4]Ibid [22].
[5]Ibid.
The sentencing judge turned to the sentencing guidelines in s 5(1) of the Sentencing Act 1991. He noted that general and specific deterrence were ‘undoubtedly of considerable importance’ in the present case.[6] He also said that the case demanded particular denunciation of the applicant’s conduct, especially given that the Magistrates’ Court had previously provided her with an opportunity to reform her ‘anti-social and unacceptable behaviour’.[7]
[6]Ibid [24].
[7]Ibid.
The sentencing judge said that the applicant’s young age and the material tendered on her behalf provided him with some confidence that rehabilitation may assist her in avoiding further alcohol abuse and reducing the prospect of further offending.[8] The judge concluded that the applicant has good prospects of rehabilitation.[9]
[8]Ibid [25].
[9]Ibid.
The sentencing judge said that, during the plea, counsel for the prosecution provided him with a document prepared by the Sentencing Advisory Council that dealt with sentencing trends for recklessly causing serious injury. That document noted that the median effective sentence for this type of offending is two years and ten months’ imprisonment, with the most common total effective imprisonment length being between two and three years.[10]
[10]Ibid [27].
The sentencing judge also noted that the applicant had been assessed as suitable for a community corrections order.[11] He concluded:
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.[12]
[11]Ibid [29].
[12]Ibid.
The sentencing judge commented that the imposed sentence of 18 months’ imprisonment is less,[13] and more merciful,[14] than he would ordinarily impose for similar offending in the circumstances.
[13]Ibid [31].
[14]Ibid [35].
Proposed ground of appeal
In her written submissions in support of the application for leave to appeal against sentence, the applicant says that, after her incarceration, she engaged new solicitors who instructed Dr Mathew Barth of Central Melbourne Psychology to assess her mental health. Following his assessments of the applicant, Dr Barth produced two reports. The applicant now seeks to rely upon these reports as fresh evidence. She has proposed the following ground of appeal:
That the fresh evidence that goes to the state of the applicant’s mental health at the time of the offending and the time of sentence ought to be admitted.
Before turning to the contents of Dr Barth’s reports, it is appropriate first to revisit the material before the sentencing judge that addressed the applicant’s mental health.
The only material before the sentencing judge that addressed the applicant’s mental health was the letter from Mr Pirotta. Given the way in which the application for leave to appeal is put, it is necessary to set out in full what the sentencing judge said about that letter. After completing a brief review of the character references that were tendered on behalf of the applicant,[15] the sentencing judge said:
[15]See [13]–[14] above.
You were referred to [Mr Pirotta] by your general practitioner in October 2016 to address your alcohol use disorder and what he describes as an adjustment disorder.
The report from Mr Pirotta notes that you consulted him on three occasions, being the 14 and 27 October 2016 [sic] and 12 January 2017. Other appointments arranged were either rescheduled or cancelled by you according to Mr Pirotta’s report.
Mr Pirotta records in the body of the report a history of this incident provided by you during your second consultation on 27 October 2016. This records the incident as follows:
‘[The applicant] was in a nightclub. A friend of a friend came to her and told her that a friend of hers needed help. [The applicant] went and ended up getting involved in a bottle fight. This was at about 00.00-01.00 am. The venue was the Little Red Pocket in the City.
[The applicant] was so blind drunk that she does not even remember.
[The applicant] 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 that there were no cuts or anything. There was bruising.’
Mr Pirotta’s report concludes with the following:
‘[The applicant’s] level of engagement in my services precludes me from making any comment or providing any opinions.’[16]
[16]Sentencing remarks [16]–[19].
For completeness, it is also necessary to set out parts of the letter from Mr Pirotta which concerned the applicant’s mental health but which the sentencing judge did not address in his remarks. Those parts are as follows:
[The applicant], 27, was referred to my services on 13 October 2016 by [the applicant’s general practitioner]. The purpose of the referral was to assist [the applicant] address [sic] her Alcohol use Disorder and Adjustment Disorder.
…
At the time of referral, [the applicant’s general practitioner] asked [the applicant] to undertake the Kessler Psychological Distress Scale (K10). This is a 10-item questionnaire intended to yield a global measure of distress based on questions about anxiety and depressive symptoms that a person has experienced in the most recent 4 week period. People who score:
1) under 20 are likely to be well;
2) between 20 and 24 are likely to have a mild mental disorder;
3) between 25 and 29 are likely to have a moderate mental disorder;
4) 30 and over are likely to have a severe mental disorder.
I also asked [the applicant] to undertake the K10 on two subsequent occasions. Her scores were:
Date Score
14.10.2016 18/50 which places her in the ‘likely to be well’ group.
27.10.2016 19/50 which places her in the ‘likely to be well’ group.
12.01.2017 35/50 which places her in the ‘severe mental disorder’ group.
When I asked her about her significantly elevated score on 12.01.2017 she said that she had been ‘stressed’ because her Court Case was getting closer.
As part of the Intake and Objective Measurement procedures I also asked [the applicant] to undertake the Depression, Anxiety and Stress Scale 21 (DASS 21). The DASS 21 is a 21 item self-report questionnaire designed to measure the severity of a range of symptoms common to both Depression and Anxiety. In completing the DASS, the individual is required to indicate the presence of a symptom over the previous week. Each item is scored from 0 (did not apply to me at all over the last week) to 3 (applied to me very much or most of the time over the past week). The essential function of the DASS is to assess the severity of the core symptoms of Depression, Anxiety and Stress. Accordingly, the DASS allows not only a way to measure the severity of a patient’s symptoms but a means by which a patient’s response to treatment can also be measured.
[The applicant’s] DASS21 scores were:
Date Scores
27.10.2016 Depression = 1 Normal; Anxiety = 2 Normal; Stress = 7 Mild;
12.01.2017 Depression = 8 Mod; Anxiety = 4 Mild; Stress = 9 Mild.
The first two consultations were taken up by the standard intake and Objective Measurement procedures.
It will be observed that, save for a brief mention in the opening paragraph, the letter does not delve into any level of detail about the applicant’s avowed alcohol use disorder and adjustment disorder.
Reports of Dr Barth
Dr Barth assessed the applicant on 30 March 2017 and 12 April 2017. During both assessments, Dr Barth conducted extended clinical interviews of the applicant. The interviews together spanned approximately three hours. Dr Barth produced a report dated 19 April 2017 and a supplementary report dated 13 May 2017.
Report dated 19 April 2017
The report dated 19 April 2017 noted that the applicant presented for both interviews in a distressed state but nonetheless participated effectively in both interviews and answered all the required questions. The report contained the following passage:
[The applicant’s] results to psychological testing indicated a moderate degree of symptom exaggeration. Her test protocols showed that she had presented herself in a pathological manner. An analysis of the validity scales indicated that her scores are consistent with an individual who is experiencing significant emotional distress and has attempted to ensure that the examiner has adequately recognised their suffering by presenting themselves in a more negative light than is accurate. Notwithstanding this, her results were interpretable although the degree of symptom exaggeration was carefully taken into account when reaching clinical conclusions regarding her. In broad terms, [the applicant’s] results were indicative of marked emotional, interpersonal and behavioural problems.
The report set out the applicant’s personal, educational and employment, relationship and substance abuse history. It summarised certain traumatic events from her childhood, which she described as ‘chaotic and abusive’, largely involving her father, whom she described as ‘particularly abusive and violent towards her on a regular basis’. The applicant had reported that she had experienced pervasive social issues, including a history of being bullied at school and ‘very aggressive’ and violent behaviour on her own part towards other students who had bullied her. It also described a history of substance abuse involving alcohol, cannabis, amphetamines, ecstasy, methamphetamines and cocaine.
The report outlined two traumatic incidents involving the applicant. One of those incidents, which the applicant continued to find distressing, occurred approximately two years ago. The report described the incident, and its effect on the applicant, as follows:
[The applicant] told me that this incident occurred when she went to Sydney with a group of her friends for a weekend away. [The applicant] said that she attended a nightclub with her friends where she became intoxicated with a combination of alcohol, cocaine and MDMA. She told me that she was separated from her friends and that her next recollection was ‘waking up in bed naked with a guy on top of me’. [The applicant] said that she fought to get the man off her and after a struggle she was able to free herself. She said that she started screaming and ‘went into shock’. [The applicant] told me that the police and an ambulance attended the residence. She said that she was treated in hospital for bruises and scratches she had suffered from the man. [The applicant] told me that she did not formally report this incident to police and is unsure if she was sexually assaulted. She stated that ‘I just wanted to forget it happened’. Nevertheless, she said that she felt violated and distressed by the experience and continues to have significant difficulty discussing what happened. [The applicant] said that she did not seek counselling for these incidents. She stated that ‘I just block things that upset me’.
The report also set out the applicant’s mental health history in the following terms:
[The applicant] described a history of emotional disturbances which dates back to her reportedly abusive childhood. She recalled experiencing feelings of sadness, anxiety and fear due to her father’s violent behaviour towards her. [The applicant] described feeling ‘scared, lonely and angry all the time’ during childhood. She told me that she felt worthless as a person and noted that her self-esteem issues were further exacerbated by her experiences of ostracism and bullying by her peers in primary school. As noted above, [the applicant] responded to her emotional difficulties by resorting to violent behaviour and also abusing alcohol and drugs in her teenage years. She told me that she also developed behaviours consistent with Bulimia Nervosa at approximately 16 years of age. [The applicant] described herself as having been overweight as a child and that she would regularly binge eat large amounts of junk food. She told me that she began to force herself to vomit and noted that she would starve herself and take laxatives to lose weight. [The applicant] said that this behaviour became particularly compulsive when she started entering beauty pageants (after she had lost a significant amount of weight) when she was 18-years-old and following the relationship breakdown with Jimmy. [The applicant] said that this behaviour has improved in recent years although she noted that she has continued to experience sporadic periods of binge eating and vomiting.
[The applicant] has also experienced emotional difficulties during adulthood; largely due to her poor self-esteem, turbulent relationship history and substance abuse issues. She described experiencing erratic mood changes, which oscillate from feelings of happiness and euphoria, and alternatively, experiencing intense feelings depression and despair culminating in suicidal ideation. The most noteworthy period of emotional distress occurred after her relationship ended with [an ex-partner]. She reported getting highly intoxicated and driving her car into a tree. [The applicant] said that she was also very distressed following the abusive incident she suffered in Sydney 18 months ago. She told me that she experienced suicidal ideation and isolated herself from any social contact for several months.
[The applicant] described experiencing symptoms which are consistent with drug-induced psychosis when she abused a combination of alcohol, cocaine and MDMA in Sydney 18 months ago. She said that she had thoughts that people were going to harm her and described becoming highly anxious, agitated and ‘paranoid’. However, [the applicant] has not experienced such symptoms when sober.
[The applicant] has sought very little intervention from mental-health professionals, largely due to her reluctance to discuss her emotional issues. She attended Mr Tony Pirotta (Psychologist) for three sessions from October 2016–January 2017 under the auspices of a mental-health care plan. [The applicant] said that she enjoyed the support afforded to her by Mr Pirotta; however, she told me that she felt uncomfortable about discussing the sensitive issues from her background. Hence, her emotional issues have remained untreated …
The report also noted that the applicant had told Dr Barth that, in addition to her prior charge of recklessly causing injury in 2013, she had also been convicted of drink driving on several occasions and had previously been required to install an interlock system in her car.
The report also summarised the background to the current offending as follows:
[The applicant] said that she had been out with friends and had been angry after finding out that her boyfriend had slept with another woman. She said that she consumed in excess of twenty alcoholic drinks and had also used ‘four lines’ of cocaine during the course of the night. [The applicant] told me that a female friend approached her at one stage during the night and stated that a man had “touched her on the vagina”. She said that her friend pointed at the man and [the applicant] proceeded to pick up a champagne bottle and strike him to the face.
[The applicant] expressed remorse for her behaviour. She said that:
‘I do feel really bad. I am overprotective and I result (sic) to violence. If I could take it back I would. I am either very happy or very angry. There is no in-between. I need to learn to control my emotions’.
The report described the current status of the applicant’s mental health and her psychological assessment results. Relevantly, the report contained the following passages:
Emotional distress
The most salient features of [the applicant’s] mental status when I evaluated her were significant depressive and anxiety-related symptoms. She reported a pervasive sense of hopelessness about her future and intense feelings of sadness, inadequacy, tenseness and experiencing minimal pleasure in her everyday activities. She told me that she is regularly tearful and was constantly ruminating about her failings as a person. [The applicant] reported that her state of brooding about her failings often culminates in suicidal ideation. However, she currently denied any plans to attempt acts of self-harm.
[The applicant’s] current emotional distress encompasses both ‘reactive’ elements and are also symptomatic of the more chronic factors from her personal background. Firstly, [the applicant] described feeling ‘embarrassed’ and ‘ashamed’ that she was serving a custodial sentence. She expressed shame that her behaviour has culminated in her being in the current situation and felt that it was a stain on her character. However, [the applicant] has suffered with noteworthy emotional issues throughout her life. She has felt a deep sense of inadequacy and worthlessness since her reportedly abusive childhood and has experienced intense periods of depression and suicidal ideation in her adult years due to her chaotic relationships, substance abuse issues and several traumatic incidents.
[The applicant] continues to feel distressed about her abusive experiences. For the most part, she has attempted to ‘shut out’ these memories with alcohol and drug use. However, she became very distressed when discussing her father’s violent behaviour and the abusive incident in Sydney in particular. [The applicant] requires psychological treatment which focuses on assisting her to address the emotional impact of these incidents.
[The applicant’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. Her history of emotional issues means that she is at significant risk of developing more intense symptoms during her period in custody. Ongoing psychological treatment which assists her to cope with her current emotional distress is unequivocally warranted …
Personality adjustment
[The applicant’s] significant exposure to violence has had a pervasive effect on her personality adjustment. She presents with a deep sense of worthlessness that has contributed to her seeking out dysfunctional attachments with others, particularly in regards to her intimate relationships. [The applicant’s] poor self-esteem, emotional lability and limited social skills have prevented her from developing more fulfilling relationships which has contributed to a pattern of turbulent intimate relationships (mainly involving verbal abuse and drug use).
[The applicant’s] history of parental abuse and neglect has meant that her self-identity is poorly developed. She has an unstable sense of her qualities as a person and is prone to intense feelings of emptiness and aimlessness with regards to her direction in life. Hence, she is an immature woman who seeks excessive reassurance and guidance from others. In conflict with these needs, her erratic moods lead to periods of hostility and resentment which prohibit her ability to manage interpersonal conflict effectively. Therefore, she has a propensity to acting out with aggressive behaviour when she feels her needs are not being met.
Compounding matters, [the applicant’s] decision making skills are short-sighted and impulsive. Despite being of sound intelligence, she often fails to consider the entire range of options available and the consequences associated with each decision and behaviour. Thus, she increases her risk of engaging in self-destructive and irresponsible behaviour in a desperate attempt to alleviate her sense of emptiness. Her vulnerability to alcohol and drug abuse has further exacerbated these traits.
[The applicant’s] personality adjustment and the associated traits have caused her considerable difficulty throughout her life. I am of the opinion that these traits are sufficiently severe to warrant a diagnosis of ‘Borderline Personality Disorder – with Antisocial Features’ by DSM-5 criteria.
Anger management issues
[The applicant’s] pathological personality traits have contributed to significant difficulties in regards to managing her emotions. The violence she reportedly endured during her childhood contributed to her viewing the world as a dangerous and mistrustful place. She has felt compelled to present herself as ‘strong’, which she has largely attempted by becoming aggressive to others who may threaten her sense of personal safety. Hence, she has a propensity to rapidly escalate to hostility and aggression whenever she feels she is being challenged. Her ability to manage conflict effectively through verbal means is limited and she places a premium on dealing with issues through overtly aggressive means (i.e. not wanting to appear ‘weak’ or ‘stood over’).
Adding to her difficulties, [the applicant] has a poor level of awareness into her emotions. During instances of conflict, her anger escalates quickly and her lack of insight means that she is prone to impulsive angry outbursts which inhibit appropriate behavioural control. Again, it would be uncontroversial to suggest that her long-standing substance abuse issues have intensified these problems. In short, [the applicant] requires treatment which increases her ability to cope with her intense emotions, contains her propensity for aggressive behaviour and improves her ability to manage instances of conflict with more pro-social behaviours.
Substance abuse issues
[The applicant] is currently in the early phase of a period of enforced remission from alcohol and drug abuse. However, her insight into her substance abuse is at a formative level. While she was able to detail her difficulties coping with her depressed moods and feelings of worthlessness as contributing to her heavy use, her understanding of the broader emotional and interpersonal motivations remains very limited. Furthermore, her heavy abuse of alcohol has been ‘normalised’ for her since her early teenage years, contributing to significant problems in nearly every area of her life. [The applicant] unequivocally requires extensive substance abuse treatment if she is to remain abstinent. [The applicant’s] alcohol and drug use remains a prominent criminogenic factor in her case which requires containment.[17]
[17]Emphases in original.
The report drew the following conclusions:
1.[The applicant’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 [the applicant’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.[The applicant’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.[The applicant’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 [the applicant’s] emotional reactions to interpersonal stressors has culminated in a propensity for impulsive and reckless behaviour.
4.[The applicant’s] dysfunctional personality adjustment is sufficiently severe to warrant a diagnosis of ‘Borderline Personality Disorder – with Antisocial Features’ by DSM-5 criteria.
5.[The applicant’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.[The applicant] reported a lengthy history of alcohol and drug abuse. In recent years, she has used alcohol excessively and has supplemented this with abusing cocaine. [The applicant’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.[The applicant] 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.[18]
[18]Emphases in original.
The report identified the following treatment as being essential to improving the applicant’s prospects of rehabilitation:
Mental-Health Treatment. [The applicant] requires sustained psychological treatment to assist her in processing the abuse and violence she reports from her background. Treatment should include a prominent focus on developing healthier coping and mood management strategies to enhance her ability to deal with her depressive symptoms with more adaptive behaviours. Treatment should include a prominent focus on enhancing her poor self-esteem and addressing her dysfunctional personality traits to enable her to develop healthier relationships.
Substance Abuse Treatment. Treatment should include a lengthy period of intensive and closely structured/supervised detoxification program with regular urine screen testing to enforce prolonged abstinence from illicit substances. There should be clear consequences for any non-compliance on [the applicant’s] part. Alcohol-related counselling and education should form a core focus of treatment as well as improving her insight into the emotional and interpersonal factors which underpin her use. Advanced relapse prevention training should be included to allow [the applicant] to develop solid cognitive and behavioural strategies to reduce her risk of further substance-related issues.
Anger Management Treatment. [The applicant] requires specialised anger management treatment to reduce her risk of recidivism in the community. In particular, a focus on enhancing her insight into the emotional and cognitive cues to her anger and challenging her overly assertive and confrontational stance to conflict resolution. Treatment should also focus on improving [the applicant’s] ‘consequential reasoning skills’ to enhance her ability to recognise and evaluate the consequences of her behaviour on herself and others.
Finally, the report concluded:
As noted above, [the applicant’s] emotional response to her ongoing legal matters and imprisonment has been intense. When also considering her pre-existing emotional problems, poor self-esteem dysfunctional personality adjustment and limited coping skills, she is likely to continue to have difficulty adjusting to the prison environment and is at risk of developing a more serious mood disturbance while in custody. Although medical treatment is available in custody to assist with stabilising [the applicant’s] depressive symptoms, it is very unlikely that she will have access to the more personalised treatment that is central to her needs and improving her mental-health in the medium to long-term.
Supplementary report dated 13 May 2017
After the first report had been issued, counsel for the applicant requested that Dr Barth address the following four questions in a supplementary report:
1.In [Dr Barth’s] view, was [the applicant’s] behavior on the night connected to the diagnosis of Borderline Personality Disorder? If so, what impact did the condition have on [the applicant]?
a.For clarity, the Court would be assisted to know whether the condition impacted her cognitive functioning, decision making or ability to understand the consequences of her actions.
2.Do any of the conditions diagnosed impact [the applicant’s] mental capacity either at the time of the offending or at the time of sentence?
3.Does the existence of the condition at the date of sentencing mean that imprisonment will weigh more heavily on [the applicant] than it would on a person in normal health?
4.Is there a serious risk of imprisonment having a significant adverse effect on [the applicant’s] mental health?
A supplementary report dated 13 May 2017 responded to the first question as follows:
The diagnosis of Borderline Personality Disorder (BPD) is relevant with regards to understanding [the applicant’s] offending behaviour. The central features of BPD involve intense emotional, cognitive and behavioural dysregulation, features which were characteristic of [the applicant’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 [the applicant] 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. [The applicant’s] cognitive functioning and decision making is consistent with these aspects of BPD. As noted in my original report (paragraphs 40-41) [the applicant’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, [the applicant’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. While many individuals in the community also experience such issues, for a person who suffers with BPD, these traits are more pervasive, inflexible and impairing across the person’s lifespan. In [the applicant’s] case, these traits have been present since childhood and have contributed to significant emotional, interpersonal and behavioural problems throughout her life. Notwithstanding the severity of these issues and the impact on her decision making, there was no indication from my assessment that they impaired her functioning to the degree that she was incapable of understanding the wrongfulness or consequences of her behaviour on the night of the offending.
The report responded to the second question as follows:
In relation to the diagnosis of BPD and [the applicant’s] mental capacity, the severity of her dysfunctional personality traits are likely to have made it more difficult for her to exercise appropriate judgement. As noted above, the intensity of her emotional volatility and impulsive decision making are likely to have some impact on her ability to think through the situation she faced on the night of the offending in a more clear and rational manner. The problematic traits associated with BPD (e.g. emotional lability, impulsivity) mean that [the applicant] has more difficulty generating alternative solutions to manage problematic situations and tends to react to such situations by selecting the most salient option at the time. Again, these effects are exacerbated by intoxication.
Research also indicates that individuals with BPD are prone to experiencing brief psychotic episodes when under extreme stress. This is predominantly manifested in the form of transient paranoid ideation and dissociative symptoms. However, from my direct discussions of the offending with [the applicant], there is no indication that she was experiencing such symptoms on the night of the offending.
Hence, while suffering from BPD is very likely to have adversely impacted [the applicant’s] judgement and ability for rational decision making on the night of the offending, there was no indication from my assessment that these effects reached the portion that she was completely incapable of making a decision for herself or that she was unable to understand the nature and gravity of her offending conduct.
The report responded to the third question as follows:
Paragraph 48 of my original report addresses this question to an extent; however, I am pleased to specify the particular factors which relate to a diagnosis of BPD and imprisonment weighing more heavily on [the applicant] if this is of assistance to the Court. As noted above, persons with BPD suffer with intense periods of emotional instability, including suicidal ideation and behaviour, particularly when faced with significant personal stressors. [The applicant] is vulnerable to periods of severe depression and anxiety which put her long-term mental health at risk without appropriate psychological treatment. To this extent, the effect of a term of imprisonment is likely to be more burdensome on [the applicant] than a person of normal health.
Finally, the report responded to the fourth question as follows:
Paragraph’s 36 and 48 of my original report detail my concerns regarding imprisonment adversely impacting [the applicant’s] mental health. Her emotional volatility, poor coping skills and impulsivity are cause for concern and she is at risk of more regular and severe episodes of emotional distress. [The applicant] has also been diagnosed with an ‘Adjustment Disorder - with Mixed Disturbance of Emotions and Conduct’ and is at risk of acquiring a fully-developed mood disorder without sustained psychological intervention.[19]
[19]Emphasis in original.
Alleged inappropriate touching of applicant’s friend
Before summarising the applicant’s submissions on fresh evidence, it is convenient first to address a matter that was mentioned in an affidavit affirmed by the police informant, and later raised by counsel for the applicant during the plea hearing, concerning an allegation that, immediately before the offending, a friend of the applicant had been touched inappropriately by the victim. The relevance of this matter becomes apparent when one examines the applicant’s submissions, set out below, on the effect of her Borderline Personality Disorder (‘BPD’) diagnosis.
During the plea hearing, counsel for the applicant provided the sentencing judge with a copy of an affidavit affirmed by the police informant on 7 September 2016. The affidavit, which was not formally tendered, was eventually returned to counsel for the applicant.
In the affidavit, the informant deposes to the circumstances of the offending and a subsequent police investigation that was apparently set in train after police had received information from Crime-Stoppers about the incident between the applicant and the victim. Relevantly, the affidavit contains the following statement:
On the 16th of August, 2016, police received information via Crimestoppers stating that [the applicant] was respoisnsible [sic] for the assault against [the victim], due to inappropriate touching of her associate Rachel.[20]
[20]Emphasis added.
During the plea hearing, counsel for the applicant read out this part of the affidavit and confirmed that he had also received instructions from the applicant that her friend, Rachel, had been touched inappropriately.[21] Counsel continued:
As it turns out and as also I spoke to Rachel and Rachel’s in court here today as a friend of [the applicant’s], it seems that she may have been the victim of an indecent assault on that night from the victim prior to the incident and it seems that when [the applicant] discovered this particular piece of information … she has proceeded as she did.[22]
[21]Transcript of Plea, DPP v Dang (County Court of Victoria, Judge Dyer, 20 February 2017) 6–7.
[22]Ibid 7.
Counsel for the applicant then explained that the applicant had consumed a large amount of alcohol before and after her attendance at the venue in which the offending had occurred. He continued:
It was in that particular context of her drinking that she receives the information from her friend, and it is that particular – you can’t say it’s a reason or even an excuse but a form of explanation as to how this matter occurred.
That particular aspect in the affidavit has been pointed out to the Crown this morning and the interesting part about that is that when I questioned Rachel myself and also my client, they do not know how the police may have discovered this information, because certainly there have been no complaints made to the police about that particular aspect of this incident.[23]
[23]Ibid 8.
The sentencing judge referred to the record of the applicant’s interview with police on 17 August 2017. He observed that the only question in that interview that dealt with the allegation that Rachel had been touched inappropriately was met with no audible reply.[24] The judge said:
[D]uring the interview that was conducted on 17 August, this is only a few weeks before the affidavit was sworn by the informant … Question 47, ‘So you understand I’m giving you the opportunity to tell your side of the story. If there was some inappropriate behaviour or things that we don’t know, this is your chance to tell your side of the story, you understand that?’ There’s no audible reply. Now, you say well, within a couple of weeks of that, there’s an affidavit … that says well, I’ve made a note of it … There was inappropriate touching of the friend Rachel …[25]
[24]Ibid 14.
[25]Ibid 14.
Counsel for the prosecution did not object to the affidavit being provided to the sentencing judge. She drew the judge’s attention to CCTV footage of the incident, and the following exchange took place:
Counsel:Your Honour would see the accused walking from one side of the room to the other to then assault the complainant with the bottle. That particular of the CCTV [sic] you can’t see any – the complainant doing any inappropriate behaviour.
Judge: All right.
Counsel:He’s merely just sitting there. The other parts of the CCTV – I must say, when I looked at it, I wasn’t particularly looking for any inappropriate touching because it wasn’t – it wasn’t known to me at the time. But it is – it’s difficult to see who’s who given that it’s dark. They’re all wearing similar clothing, mingling around. I’m not sure if Your Honour would be in a position to identify
Judge:No. I don’t want to go making my own investigations. I thought if there is an area of some inconsistency between what’s been put by [counsel for the applicant] and what’s the Crown's position, I’d like as far as possible for that to be resolved between counsel. But if it's clear that I’m just going to be left guessing, then there’s no point in me seeing that.[26]
[26]Ibid 16–7.
At this stage, the judge handed back the informant’s affidavit and said that he will note what counsel for the applicant had said in relation to this matter.[27]
[27]Ibid 17.
Later in the plea hearing, counsel for the applicant again raised with the sentencing judge the matter involving Rachel. The following exchange took place:
Counsel:The other point I make, at no stage did she ever blame the complainant for the reason, or as the excuse, for this to occur. It was a reason that cannot be seen as being a complete excuse to her behaviour.
Judge:Look, hypothetically, it might be a reason but you’re not putting it any higher than that.
Counsel:Not putting it any higher than that, that’s right.
Judge:Even if it was a valid reason – – –
Counsel:Exactly.
Judge:Even if it was a valid reason, it doesn’t justify the level of violence that occurred.
Counsel: Yes, that was explained to my client categorically.[28]
[28]Ibid 23.
The applicant’s submissions
As a starting point, the applicant contends that the sentencing judge did not regard the applicant’s mental health as playing any role in the offending or having any relevance to the sentencing. The applicant notes that the letter from Mr Pirotta ‘did not make any finding or give any opinion about the mental health of the applicant at the time of the offending or sentence’. She concludes that the sentencing judge ‘did not (nor could he) draw any conclusions or make any findings with respect to the mental health of the applicant.’ According to the applicant, this is reinforced by the fact that no mental health conditions were attached to the community corrections order imposed on her.
Relying upon the principles set out by Redlich JA in Nguyen v The Queen[29] as to when fresh evidence may be admitted on appeal, the applicant contends that the matters contained in the reports prepared by Dr Barth show the true significance of the facts that were in existence at the time of sentence. In particular, the applicant argues that the diagnosis of Borderline Personality Disorder (‘BPD’) ‘in retrospect explains much of her conduct’. She says that, in assessing the applicant’s personal circumstances or moral culpability, the sentencing judge did not have the benefit or assistance of the matters set out by Dr Barth.
[29][2006] VSCA 184.
The applicant concedes that the BPD diagnosis does not enliven the principles in R v Verdins.[30] However, the applicant contends that the BPD diagnosis is of ‘central importance’ in this Court making an informed assessment of the applicant’s moral culpability for the offending. According to the applicant, the fresh evidence goes to show that the matter ‘is far more complex and nuanced’ than one that simply involved, as the sentencing judge described it, ‘alcohol fuelled violence’.[31] The applicant submits that the BPD impaired her decision-making and clarity of thought, while also making her more prone to reckless and self-destructive behaviour, ‘especially in circumstances of perceived challenge or threat’. In this regard, the applicant points to the perceived assault on her friend, Rachel.
[30](2007) 16 VR 269 (‘Verdins’). The applicant’s concession accords with this Court’s statement in DPP v O’Neill (2015) 47 VR 395, 418 [85] (Warren CJ, Redlich and Kaye JJA) that the principles in Verdins do not extend to certain personality disorders.
[31]See Sentencing remarks [22].
The applicant also contends that the fresh evidence reduces the overall degree of her criminality. She also argues that, if she were to receive treatment for her BPD (in combination with treatment for drug and alcohol issues), then her ‘risk of reoffending is reduced’. In sum, the applicant submits that, if the fresh evidence were admitted and properly weighed, it would follow that ‘a different, lesser sentence’ would be imposed.
Analysis
In R v Nguyen,[32] Redlich JA (with whom Maxwell P and Neave JA agreed) set out the relevant guiding principles on the admission of fresh evidence:
[32][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.[33]
[33]Ibid [36] (citations omitted). See also George v The Queen [2017] VSCA 152 [98] (Priest JA, with whom Ashley JA and Croucher AJA agreed).
The ultimate question is whether, on all of the material now before the Court, any different sentence should be substituted to avoid a miscarriage of justice.[34]
[34]See also R v Maniadis (1997) 1 Qd R 593, 597 (Davies JA and Helman J, with whom Fitzgerald P agreed).
In my opinion, it is reasonably arguable that there may have been a miscarriage of justice in so far as the sentencing judge had not been made aware of the facts and circumstances concerning the applicant that are described in the reports of Dr Barth. It seems to me that it is also reasonably arguable that, had the sentencing judge known of those facts and circumstances at the time of sentence, he may have passed a different sentence.
Conclusion
I would grant leave to appeal.
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