Muhittin Guven v The Queen
[2017] VSCA 92
•2 May 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0089
| MUHITTIN GUVEN | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | OSBORN and PRIEST JJA, and KIDD AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 30 March 2017 |
| DATE OF JUDGMENT: | 2 May 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 92 |
| JUDGMENT APPEALED FROM: | DPP v Guven [2016] VCC (Unreported, County Court of Victoria, Judge Douglas, 21 April 2016) |
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CRIMINAL LAW — Appeal — Sentence — Aggravated burglary and associated offences — Victim appellant’s estranged wife — Appellant diagnosed with schizophrenia — Sentenced to Court Secure Treatment Order for 7 years — Whether manifestly excessive — Whether Verdins principles given sufficient weight — Community protection — No error — Appeal dismissed — R v Verdins (2007) 16 VR 269 — Veen v The Queen (No 2) (1988) 164 CLR 465 — Sentencing Act 1991 ss 94A, 94C.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T R Marsh | Victoria Legal Aid |
| For the Crown | Mr C B Boyce SC | Mr J Cain, Solicitor for Public Prosecutions |
OSBORN JA:
I agree with Kidd AJA, for the reasons that his Honour gives, by reference to Veen v The Queen (No 2)[1] and R v Engert[2] that leave to appeal should be granted, but that the appeal should be dismissed.
[1](1988) 164 CLR 465.
[2](1995) 84 A Crim R 67.
I would only add that, given the objective violence and combined impact upon the victim of the offences comprised in the applicant’s conduct, a total effective sentence of seven years’ imprisonment with a non-parole period of five years was well within the sentencing range reasonably open to the sentencing judge, but for the applicant’s delusional mental illness.
In turn, that illness did not require a lesser sentence for the reasons that protection of the community justified a significant period of detention, and, despite moderation of the significance of general and specific deterrence as sentencing factors, those factors also supported this conclusion. Each factor has work to do in respect of persons whose capacity to engage in rational consequential thinking is critically dependent upon maintaining psychotropic medication.[3] In my opinion, the Court Secure Treatment Order imposed by the sentencing judge was not manifestly excessive.
[3]Wrightv The Queen [2015] VSCA 333 [56]–[58], [67].
PRIEST JA:
Substantially for the reasons given by Kidd JA, I agree that leave to appeal should be granted, but the appeal dismissed. I also agree with the further observations made by Osborn JA.
KIDD AJA:
On 11 February 2016, the applicant (born 20 January 1974 and now aged 43) was convicted of a set of offences arising from an incident in May 2015 in which he forced his way into his former partner’s home, attacked her and threatened to kill her. He also threatened to kill himself. He was sentenced, on 21 April 2016, as follows:
Charge
Offence
Maximum
Sentence
1
Aggravated burglary (s 77(1) of the Crimes Act)[4]
25 y
Muhittin Guven be made subject to a Court Secure Treatment Order pursuant to s 94A of the Sentencing Act 1991
2
False imprisonment (common law)
10 y (s 320 of the Crimes Act 1958)
3
Threat to kill (s 20 of the Crimes Act)
10 y
4
Recklessly cause injury (s 18 of the Crimes Act)
5 y
5
Contravene Family Violence Order (s 123(2) of the FVPA)[5]
2 y / 240 PU
Total Effective Sentence (‘TES’):
Muhittin Guven be compulsorily detained and treated at a designated mental health service for a period of 7 years.
Non-Parole Period (‘NPP’):
5 years
Pre-sentence Detention (‘PSD’) Declared:
335 days
6AAA Statement:
-
Other orders: Forfeiture order under s 78(1) of the Confiscation Act 1997.
[4]Crimes Act 1958 (‘Crimes Act’).
[5]Family Violence Protection Act 2008 (‘FVPA’).
Grounds of appeal
There is one ground of appeal, that the sentence imposed was manifestly excessive, given the applicant’s:
(a) pleas of guilty, entered at an early stage;
(b) cooperation;
(c) prior good character; and
(d) mental illness.
Circumstances of the offending
In 2011, the victim, who had migrated to Australia from Turkey years ago, travelled to Turkey for a holiday. There she met the applicant, and they commenced a relationship. In 2012, the applicant obtained a partner visa and travelled to Australia. In August of that year, they married. In 2014, their daughter was born.
In mid-2014, the applicant started committing acts of violence against the victim. In September 2014, police applied for an intervention order against the applicant. In October 2014, he assaulted and threatened to kill the victim. In November 2014, they separated. The victim lived with their infant daughter. The applicant lived in various short-term accommodation residences.
On 6 January 2015, a family violence intervention order was made that named the victim and her daughter as protected persons. That included conditions that the applicant not contact them nor attend within 200 metres of the victim’s apartment in Southbank.
On 21 May 2015, the victim was still residing in her Southbank apartment with her daughter. The applicant was living in backpacker accommodation in North Melbourne.
Early in the afternoon on that day, the applicant hired a ‘full body kangaroo costume suit, including a full head cover’. He attended at the victim’s apartment at around 6.10 pm that day, wearing the suit and carrying a cardboard box and bunch of flowers. Around 20 minutes later, the victim and her daughter arrived at the apartment complex, and entered the elevator along with a neighbour. The applicant, fully concealed in the kangaroo suit, followed them into the elevator. They all exited the elevator on the fifth floor. The victim and the neighbour went to their respective apartments. The applicant lingered by the elevator and, after a few minutes, went back downstairs and returned to his backpacker accommodation.
Later that evening, at around 7.30 pm, the applicant offered to pay two persons (whom he approached on Victoria Street in North Melbourne) $40 to help him gain access to his wife’s apartment. They agreed. As they drove by taxi (paid for by the applicant) to Southbank he said one of them should ring the bell and say he was a member of police so that he might gain access to the apartment building.
At 9.24 pm, one of the persons rang the doorbell and said he was ‘Simon’ from Victoria Police and the victim allowed him access in the belief this was true. The applicant entered the building while the two persons waited outside.
The applicant travelled to the fifth floor; removed the head cover, and knocked on the victim’s door. The victim opened the door in the belief it was a member of Victoria Police. The applicant pushed his way past her through the door and into the apartment. As he did so he said: ‘Today is the last day of my life, I’m going to kill you and myself, but my daughter will be fine.’ He then pulled two knives from the kangaroo suit pouch.
The victim tried to calm the applicant down. The applicant emptied the contents of the box he was carrying onto the floor, which included bundles of rope. He then held a knife to her throat and said if he cut a vein in her neck it would only take six minutes until she died. The victim heard her daughter crying in the bedroom and she went to attend to the child and he followed, picking up the victim’s mobile phone in the process.
She comforted the child and they returned to the living room. He bound her hands with a white scarf. The child started crying again. The applicant untied her hands but bound her feet instead before allowing the victim to attend to the child.
The victim returned to the couch. The applicant spoke about previous occasions when he had hurt her and said he no longer wanted to do such things. He went outside on the balcony to smoke. The victim followed him and comforted him, saying she would not run away. They went inside. The applicant demanded the victim tell him the phone’s PIN. She said she would tell him if he promised not to hurt them. He responded angrily, by slapping her three times, and tying her hands again and becoming very aggressive. She told him the PIN. He found her ex-boyfriend’s number and started to push and punch the victim and then choke the victim. After some time she was able to push him off and was then able to run out onto the balcony, where she screamed for help. The neighbours called the police.
The applicant grabbed her and tried to pull her back inside. She was able to free herself and exit the apartment through the front door. Neighbours let her into their apartment and cut the rope tied around her feet (the other end of which was still in her apartment). She was screaming ‘my baby, my baby’. This was at 2.05 am on 22 May 2015.
Police arrived ten minutes later. The applicant was seen on the balcony with a noose round his neck. After negotiation, he went inside the apartment and allowed police to enter. He was then restrained and arrested.
On 23 May (a day after being arrested), the applicant took part in a record of interview. He made partial admissions. Amongst other things, he admitted he had been planning to kill himself in front of his wife for two months. He wanted her to see him hang himself to hurt her emotionally. He bought rope from Victoria Market and trained himself in how to tie a noose so he could commit suicide at dawn in front of his wife. He had the remaining rope to tie his wife to a chair. However, his version of the events differed from the prosecution’s summary of the offending in other important aspects. For example, he said she held a knife to her own throat and threatened to kill herself.
Defence submission at the plea hearing and the medical evidence
At the plea hearing defence counsel submitted that the ultimate disposition should be a Court Secure Treatment Order. The respondent did not oppose such an order.
The Court received evidence as to the applicant’s treatment at Thomas Embling Hospital,[6] together with the following:
[6]A psychiatric report prepared for the Mental Health Tribunal dated 19 August 2015; two letters from Dr Jan-Paul Kwasik (psychiatry registrar) dated 10 August 2015 and 24 August 2015; and a nursing report dated 15 September 2015.
(e) the report of Dr Lester Walton (forensic psychiatrist) dated 6 October 2015;
(f) the report from Forensicare by Dr Fiona Best (forensic psychiatrist) dated 14 April 2016; and
(g) the Certificate of Available Services dated 15 April 2016.
Both psychiatrists observed that the applicant has an established diagnosis of chronic schizophrenia.
Dr Walton said the following in relation to the applicant’s impairment at the time of the offending:
[The applicant] is suffering from the commonest disease of the mind and it is clear that his breaching of the intervention order and the altercation with his spouse was primarily driven by the deluded notion that if he killed himself in the presence of his former spouse and his child, his soul would linger with them in a manner which he seemed to find comforting, a belief he continues to voice. In my opinion, this man's conduct is entirely explained by his mental illness...
A little later in his report Dr Walton continued:
He has a current appreciation that his behaviour was wrongful and I doubt that he was deprived of that appreciation at the material time. Clearly [the applicant] undertook a good deal of planning before the attack occurred. He was able to delay the final implementation by some hours because he was interrupted by a neighbour of the victim. He enlisted the assistance of passers-by to gain entry to the premises on the second occasion. At times, he used the kangaroo suit to avoid being recognised and he seemed to have retained an appreciation that police would intervene. That said, it is my view that his misconduct was the direct product of acute psychosis.
Dr Walton said the following in relation to the applicant’s prognosis and risk of re-offending:
It is a measure of [the applicant’s] only partial response to treatment thus far that he continues to voice deluded ideas and neither does he acknowledge any wrongdoing. The latter should not be accepted at face value.
It would appear that [the applicant] is suffering from a treatment resistant illness and he has a worrisome accumulating history of aggressivity, most likely when he is acutely unwell. Thus the prognosis at this point both in terms of adequate control of his symptoms and reducing the risk of recidivism could not be said to be very favourable.
…
… unfortunately his ongoing deluded ideas will erode his appreciation of the specific deterrent component of any particular sentence. He has quite limited insight only into the nature of his mental illness and treatment needs.
Dr Walton noted that the applicant remained keen to complete the ‘ritual suicide’ that he had attempted in his wife’s premises (one that, on the applicant’s account, had to take place in the presence of the wife).
As to the applicant’s psychiatric history, Dr Best noted:
[The applicant] has a 14 year history of schizophrenia requiring frequent admissions to psychiatric hospitals both in Turkey and in Melbourne, Australia, these admissions often having been precipitated by non-adherence to psychotropic medication with subsequent relapse and psychotic symptoms.
Dr Best spoke of the applicant’s difficulty in adhering to medication regimes with consequent deterioration in his mental state requiring admission.
Dr Best stated that despite treatment and trials of a variety of anti-psychotic medications, the applicant has remained psychotic. Dr Best said that the applicant’s ‘insight… was very poor in that his current delusional system seems to dominate a great deal of his day to day thinking.’
That delusional thinking included his future plans to end his life in his wife’s presence.
Importantly, Dr Best said that:
Without… treatment… [the applicant]… is likely to remain psychotic and unwell. His current mental state suggests ongoing risks of [the applicant] attempting and/or completing suicide and also risks of harming his ex-wife.
I am supportive of making a court secure treatment order.
Mr Guven has a mental illness which needs immediate treatment to prevent worsening in his mental health and to prevent serious harm to himself or another.
The relevant sentencing remarks
In the sentencing remarks the judge:
(h) Made extensive reference to the Victim Impact Statement.[7]
[7]DPP v Guven (Unreported, County Court of Victoria, Judge Douglas, 21 April 2016) [4] (‘Reasons for Sentence’).
(i) Noted that the defence submitted that a Court Secure Treatment Order was appropriate and then addressed the requirements for such an order to be made under the relevant legislative provisions.[8]
[8]Ibid [15]–[24].
(j) Set out the content of the report of Dr Walton, including the observations referred to above.[9] The judge considered the report of Dr Best, who supported the making of a Court Secure Treatment Order.[10]
[9]Ibid [10]–[14].
[10]Ibid [26]–[29].
(k) Said these offences were serious; they were planned and carried out with patience.[11]
[11]Ibid [30].
(l) Dealt with the issues in Verdins[12] and the need for protection of the community. I will return to these issues in detail below.[13]
(m) Said the applicant would be sentenced on the basis that it was likely his visa would be cancelled and the prospect of deportation was an additional punishment.[14]
(n) Accepted, in the applicant’s favour, that he had taken responsibility for the offending and entered an early guilty plea (the matter resolved at a committal case conference).[15]
[12]R v Verdins (2007) 16 VR 269 (‘Verdins’).
[13]Reasons for Sentence [31].
[14]Ibid [32]–[40].
[15]Ibid [40].
The applicant’s arguments
The applicant argues that, while the principles of Verdins were applied by the sentencing judge, they were not given enough weight, in particular in relation to the finding that the offending was a consequence of psychosis.
The applicant argued that while the sentencing judge found that the most important sentencing factor was the protection of the community, this did not entitle the judge to increase the sentence imposed beyond what was proportionate to the crime. He says this is effectively what her Honour impermissibly did, contrary to the principles stated in Veen v The Queen (No 2).[16]
[16]Veen v The Queen (No 2) (1988) 164 CLR 465 (‘Veen (No 2)’).
Finally, the applicant argues that the sentences imposed were incompatible with current sentencing practices. I will return to this argument below.
The respondent’s arguments
While accepting that the sentence imposed could be viewed as stern, and conceding that leave should be granted, the respondent nevertheless argued:
(o) When an order of this nature is imposed, the judge must consider what would otherwise have been the appropriate period of incarceration.[17]
[17]R v Sirillas (2004) 8 VR 138, 140 [7] (Vincent JA) (‘Sirillas’).
(p) In a ‘post-Hogarth’[18] sentencing environment (and absent the issue of mental illness), a sentence of five years’ imprisonment for the aggravated burglary might be imposed. When one adds partial cumulation of the other sentences, this could lead to a total effective sentence of seven years.
(q) Relying upon Veen (No 2),[19] it was reasonably open to a judge in the learned sentencing judge’s position to hold that any evidence of a danger to society presented by the applicant on account of the applicant’s mental illness ‘balanced out’ the mitigatory effects of that illness so as to leave it open to impose the present sentence.
(r) In the circumstances it cannot be concluded that her Honour’s approach was unreasonable or not open to her in all the circumstances.
[18]Hogarth v The Queen (2012) 37 VR 658 (‘Hogarth’).
[19]Veen (No 2) (1988) 164 CLR 465, 476–7.
Analysis
Before analysing the merits of this appeal it is helpful to briefly summarise the legislative framework in relation to the making of a Court Secure Treatment Order.
In imposing a Court Secure Treatment Order a court must specify the duration of the Order which must not exceed the period of imprisonment to which the person would have been sentenced had the Order not been made.[20] A court must also fix a non-parole period in accordance with s 11 of the Act as if the Order was a term of imprisonment.[21] A court may impose a single Court Secure Treatment Order in respect to multiple offences.[22]
[20]Sentencing Act 1991 s 94C(3).
[21]Ibid s 94C(4).
[22]R v Jolly [1994] 1 VR 446, 450 (‘Jolly’).
A person who is discharged from a Court Secure Treatment Order must serve the unexpired portion of the Order as a sentence of imprisonment in a prison.[23] This means that potentially a person who is subject to a Court Secure Treatment Order may be required to serve some or virtually all of the period in prison as a consequence of the action of the Mental Health Tribunal.[24]
[23]Sentencing Act 1991 s 94C(5).
[24]Sirillas (2004) 8 VR 138, 139 [6].
As to duration or length, consideration must be given by a sentencing judge to the question: ‘what would otherwise have been the appropriate period of incarceration in the given case’?[25] Here, that means the total effective term of imprisonment and non-parole period that might otherwise have been imposed (taking into account the terms of the individual sentences and any orders for cumulation).[26] The principle of totality applies to both the operational period of the Order and non-parole period.[27] In substance, in addressing the question of whether the duration of the Court Secure Treatment Order imposed was manifestly excessive this Court must consider whether the same period of detention if served as a period of incarceration would have been within the available sentencing range.
[25]Ibid 140 [7].
[26]Ibid 140 [8].
[27]Jolly [1994] 1 VR 446, 451.
A useful starting point in this case is the observation of Mason CJ, Brennan, Dawson and Toohey JJ in Veen (No 2):
And so a mental abnormality which makes an offender a danger to society when he is at large but which diminishes his moral culpability for a particular crime is a factor which has two countervailing effects: one which tends towards a longer custodial sentence, the other towards a shorter. These effects may balance out, but consideration of the danger to society cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality.[28]
[28]Veen (No 2) (1998) 164 CLR 465, 476–7 (emphasis added).
When confronted with sentencing persons with mental illness, Gleeson CJ in R v Engert[29] spoke of the need for judges to make a ‘sensitive discretionary decision’, where the interplay between the sentencing considerations can be complex, even intricate.[30] This is the difficult task which confronted the learned sentencing judge in this case.
[29]R v Engert (1995) 84 A Crim R 67 (‘Engert’).
[30]Ibid 68.
This was one of those cases where Verdins[31] applied with considerable force, which her Honour recognised:
[Defence counsel] submitted that the decision of The Queen v Verdins, Buckley and Vo [(2007) 16 VR 269] applies. In the circumstances, I agree, in particular, I accept I do not take into account moral culpability. I have substantially reduced the weight to deterrence, both general and specific deterrence, and I accept as I stated the factors set out in Verdins apply. I accept that because of the mental state of the accused at the time that he was suffering from a mental illness.[32]
[31]At least principles 1, 2, 3, 4, and 5.
[32]Reasons for Sentence [31].
However, her Honour immediately continued:
In this case, the sentencing factor which is most important is protection of the community, in particular his wife. I refer to the opinions of Drs Lester Walton and Fiona Best that the prognosis at this stage is, at the very least, pessimistic.[33]
[33]Ibid.
Later in her sentencing remarks her Honour returned to the significance of the protection of society:
I have taken into account, as I said, the seriousness of the offence, matters put on your behalf and the main sentencing factor I consider is the protection of the community.[34]
[34]Ibid [41].
Even though the applicant’s mental illness substantially reduced the importance of factors such as moral culpability and deterrence, the need to protect the community assumed correspondingly greater importance.[35]
[35]R v Bux (2002) 132 A Crim R 395, 395 [1].
While the applicant (41 years of age at sentence) had no prior convictions, the unchallenged medical evidence of the two forensic psychiatrists established that the degree of likelihood of the risk of the applicant re-offending against the victim, while in a delusional state, was very high. The consequences of any such re-offending (of the same kind which occurred here) were potentially catastrophic, indeed life-threatening.
The applicant’s insight into the nature of his illness, his need for treatment and the wrongfulness of his offending were poor. There were indications that his illness is treatment-resistant. Assuming it can be successfully treated, he also has a history of non-adherence to taking medication.
Most concerning of all is that he had a ‘worrisome accumulating history of aggressivity’.[36] The prognosis in terms of adequate control of his symptoms and reducing the risk of re-offending ‘could not be said to be very favourable’.[37] He remains motivated to engage in the same kind of offending against the victim. Both psychiatrists agreed that the applicant represented a danger to the community, in particular the victim.
[36]Report of Dr Lester Walton dated 6 October 2015.
[37]Ibid.
The offending was deeply disturbing. In her sentencing remarks the sentencing judge said this of the gravity of offences:
As to these offences, each of the offences is serious and the manner in which they were conducted, and I refer to the circumstances set out in the prosecution opening, bears out that the circumstances are serious. In particular, I refer to the fact that the offences were carried out in [the victim’s] home, as every member of our community is, she is entitled to feel safe in her home. Further, the offences were carried out where a small child was present. I accept the child was not awake at the time. However, there was a small child, his daughter, in the premises. He was armed with weapons, knives. The manner in which the offences were carried out was over a reasonably lengthy period involving planning and not only a number of steps were taken, but [the applicant] did not act spontaneously. It was planned and carried out with patience. [38]
[38]Reasons for Sentence [30].
If not explicitly, her Honour implicitly concluded that the sentencing factors which were reduced in importance by the applicant’s mental illness (general and specific deterrence and moral culpability) were very substantially balanced out by the consideration of protection of the community.
It was open to her Honour to approach the sentencing discretion in this case in that manner. The task which confronted her Honour squarely attracted the application of the principles in Veen (No 2)[39] and Engert[40]. The words of this Court in Wright v The Queen[41] are entirely apt to this case:
As this case illustrates, a condition which attracts one or more of the principles restated in R v Verdins may also suggest a heightened risk of reoffending and hence direct attention to the need to protect the community. In other words, the same impairment of mental functioning will be productive of countervailing sentencing considerations, one tending to favour a shorter sentence, the other a longer sentence.[42]
[39](1988) 164 CLR 465.
[40](1995) 84 A Crim R 67.
[41][2015] VSCA 333.
[42]Ibid [6] (footnotes omitted).
It is wrong to assume that even where mental illness contributes to the offending that this automatically results in a reduction in sentence, still less a substantial reduction.[43]
[43]Engert (1995) 84 A Crim R 67, 68.
Once this is understood, this explains why the Court Secure Treatment Order imposed was of the length in question (seven years).
I accept the respondent’s argument that in the post-Hogarth sentencing environment, a sentence in the order of five years for an intimate relationship confrontation aggravated burglary would be entirely orthodox, absent a substantial reduction due to the issue of mental illness.
The other offences were also serious and each would have attracted substantial periods of imprisonment. The false imprisonment involved physically restraining the victim in a terrifying and life-threatening atmosphere. The threat to kill was made in circumstances where the applicant was apparently willing and able to immediately carry it out, and the victim must have known this. The recklessly cause injury was alarming — slapping, punching and choking a defenceless woman, at least partly out of jealousy.
Allowing for some cumulation, a total effective sentence of seven years would have been somewhat unremarkable for someone without the ameliorating influence of mental illness and Verdins. This offending was also committed in breach of a court order, which reinforces that such a sentence could be entirely justified.
Importantly, it was open to the sentencing judge in the circumstances of this case to conclude that the ameliorating influence of mental illness was removed completely, or otherwise very substantially neutralised, in favour of the need to protect the community. Thus, this is one of those cases where the applicant’s mental illness did not result in a significant reduction in the sentence. That being the case, the sentence imposed — unremarkable as it otherwise was — was within the permissible range.
Analysed in that way, it is my opinion that the sentence does not bespeak of the judge increasing the sentence beyond what was proportionate to the crime.
Of course, it is the nature of the sentencing discretion that views will differ as to the precise result of balancing these different and conflicting features. The sentence imposed by her Honour might be described as high, for someone who offended while under the heavy influence of a significant mental illness. It would have been open to her Honour to have imposed a shorter sentence. Specifically, it would have been open to impose a shorter non-parole period to allow for the possibility of the applicant’s earlier release under supervision in the event that his mental condition and prognosis improved. That of course is not the test for manifest excess. It does not matter that the sentencing discretion might have been exercised in a manner different from the manner in which the sentencing judge exercised the discretion.[44] Appellate intervention is only warranted where the sentence imposed is clearly outside the appropriate range.[45] I am not convinced that is the case here, bearing in mind that this sentence involved a particularly ‘sensitive discretionary decision’.[46]
[44]Lowndes v The Queen (1999) 195 CLR 655, 671–2 [15].
[45]Hili v The Queen (2010) 242 CLR 520, 538–9 [58]–[59].
[46]Engert (1995) 84 A Crim R 67, 68.
In reaching this conclusion, I have considered two points raised by the applicant’s counsel at the appeal hearing.
The first point related to the nature of a Court Secure Treatment Order. The Court was reminded by the applicant’s counsel that the practical effect of the statutory regime applicable to a Court Secure Treatment Order[47] is that the applicant may be moved back and forth between Thomas Embling Hospital and prison during the currency of the Order. Indeed, we were informed at the hearing that the applicant was about to be discharged to the Acute Assessment Unit at the Melbourne Assessment Prison. He would remain there until his release, unless he relapsed (in which case he would be returned to Thomas Embling Hospital, subject to bed availability).[48] This information was not advanced as fresh evidence, there being no fresh evidence ground. Rather it was simply put forward by way of contextual information to support the applicant’s point that in assessing whether the sentencing order is manifestly excessive we should proceed upon the basis that a significant portion of the order, or virtually all of it, may have to be served as an orthodox sentence of imprisonment.
[47]Sentencing Act 1991 ss 94B(1)(c), 94C(4), 94C(5); Mental Health Act 2014 s 274.
[48]An updated Forensicare report dated 17 March 2017 from a Consultant Psychiatrist in relation to the applicant was produced to the Court.
I have borne this in mind but, for the reasons outlined above, I have concluded that the sentence imposed was nevertheless within the sound exercise of her Honour’s sentencing discretion. I should say that the sentencing judge was very much alive to s 94C(5) of the Sentencing Act. Having referred to it, her Honour said the following during the course of the first day of the plea:
So, in other words, I should say, if there’s a decision made by the psychiatrists in the Mental Health Tribunal – I don’t know who but one or the other – that your client is discharged from the mental health facility, and the order I’ve made under sub-s (3) has not expired, he then goes to prison.[49]
[49]Indeed, her Honour made a similar statement on the second day of the plea hearing.
That leaves the second matter raised in argument, which needs addressing. The applicant argued that the higher post-Hogarth sentencing practices in relation to (intimate relationship) confrontational aggravated burglaries should not be applied in this case. This is because those sentencing practices are underpinned by the need to deter people from invading a home to commit violence against their partners or ex-partners. The applicant’s counsel argued that such deterrence was not aimed at people like the applicant (and could not work in his case) because his offending was explained by his mental illness.
I reject this argument.
While the applicant was motivated by his delusions, his admission of legal responsibility and other evidence in the case establish that his entry into the apartment was prompted, to some degree, by hostility towards his former partner:
(s) He pleaded guilty upon the basis that his entry was accompanied by an intention to assault his former wife.
(t) The applicant’s stated intention was to hang himself, yet he entered the apartment with knives, in addition to rope. He used a knife to threaten the victim once inside. At one point he insisted on checking the victim’s mobile phone. Upon discovering her ex-boyfriend’s number, he became enraged and began assaulting the victim. This evidence sheds light upon his hostility towards his former partner upon entry.
(u) While Dr Walton did say in his report that the applicant’s offending was entirely explained by his mental illness, immediately before this he said that the applicant was primarily (i.e. not exclusively) driven by his delusion.
(v) He had an appreciation that his behaviour was wrongful. Of course none of this conduct was spontaneous.
The applicant’s argument seems to assume that because of his mental illness it is unjust for those current sentencing practices to apply to him. There is no unfairness. The mitigating benefits of his mental illness are fully weighed in the individualised sentencing synthesis in favour of a shorter sentence. It just so happens that in this case these benefits are nullified – at least to a very large degree – by the conflicting consideration of the need to protect society.
I would grant leave to appeal but dismiss the appeal.
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