Mune v The Queen

[2011] VSCA 231

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0386

GUSTAVO MUNE	Appellant
	v
THE QUEEN	Respondent

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JUDGES	HARPER and HANSEN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	4 August 2011
DATE OF JUDGMENT	18 August 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 231
JUDGMENT APPEALED FROM	R v Mune (Unreported, County Court of Victoria, Judge Hampel, 22 October 2010)

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CRIMINAL LAW - Sentence - Intentionally causing injury, trafficking in a drug of dependence and possession of cannabis - Plea of guilty - Total effective sentence of five years’ imprisonment and non-parole period of three years - Whether lack of remorse an aggravating feature - Whether violence was calculated - Whether principles enunciated in R v Verdins (2007) 16 VR 269 applicable - Manifest excess - Appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr C T Carr	Victoria Legal Aid
For the Crown	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions

HARPER JA:

1. The appellant pleaded guilty in the County Court to two charges of trafficking in a drug of dependence (methylamphetamine), one charge of possession of cannabis, and one charge of intentionally causing injury.  On 22 October 2010 he received a total effective sentence of five years’ imprisonment.  The sentencing judge ordered that he serve three years before becoming eligible for parole.  Two presentments and one indictment were involved, as shown in the table below.

Count/ Charge on Presentment/ Indictment	Offence	Maximum	Sentence	Cumulation
1 (Presentment X02688353)	Trafficking in a drug of dependence	15y	2y	Base
2 (Presentment X02688353)	Possession of cannabis	5PU	Fine - $100
1 (Presentment X02645171)	Intentionally causing injury	10y	2y	1y 6m
1  (Indictment Y03323776)	Trafficking in a drug of dependence	15y	2y 6m	1y 6m
Total Effective Sentence:		5y
Non-Parole Period:		3y
6AAA Statement:		TES 7y NPP 5y

1. On 26 June 2008 the appellant violently attacked a friend who was visiting the appellant’s home.  The friend immediately reported the incident to the police, and was taken to hospital.

1. The appellant not only admitted the attack, but gave a bizarre description of it.  He said that, because he was administering a just punishment, he did nothing wrong.  He nevertheless pleaded guilty to intentionally causing injury.

1. As shown in the table above, the judge sentenced the appellant to two years’ imprisonment on this charge.  The maximum penalty was ten years’ imprisonment.

1. On 16 September 2008, the police executed a search warrant on the appellant’s home.  On this occasion, they were investigating not violence but drugs.  They found

instruments for the manufacture of methylamphetamine, and the equipment with which to effect that purpose.  The appellant admitted the manufacture, but said that he did it for his own consumption.  The police did not believe him.  He has since pleaded guilty to trafficking in a drug of dependence.  The maximum penalty for that offence is 15 years’ imprisonment.  Her Honour imposed a sentence of two years’ imprisonment.

1. A small quantity of cannabis was also found during the execution of the warrant.  This, too, resulted in a plea of guilty.  The appellant was fined $100.

1. Following the execution of the warrant and the discovery of the drug manufacturing equipment, the appellant was bailed.  During the period of that bail, the police (on 11 November 2009) executed a second search warrant at the appellant’s home.  They again found equipment with which methylamphetamine could be manufactured, and instructions about how to do so. 

1. The appellant again pleaded guilty, after an initial denial, to a charge of trafficking in a drug of dependence.  On this occasion, the sentence was two years and six months’ imprisonment.

1. The result of the imposition of the sentences described above was a total effective sentence of five years’ imprisonment.  This was after her Honour made the first trafficking sentence the base sentence, and cumulated 18 months of the sentence for intentionally causing injury.  She also cumulated 18 months of the second trafficking offence.

1. There are four grounds of appeal.  The first is that the judge erred in finding that the appellant’s lack of remorse was an aggravating feature of his offending.  The second is that the judge erred by finding that the violence constituting the charge of intentionally causing injury was ‘calculated’.  The third is that the judge erred by failing to apply any of the principles in R v Verdins.[1]  The final ground is that the individual sentences, orders for cumulation and non-parole period are each manifestly excessive.

   [1](2007) 16 VR 269.

1. The first ground has its basis in a paragraph in her Honour’s sentencing remarks.  She said:

It is also in my view an aggravating feature that you still express no remorse and still say that you believe your conduct was justified.  Therefore in respect to both of the two trafficking counts and the intentionally cause injury count the need for denunciation and punishment is very high.  Similarly the need for deterrence, both specific and general, having regard to the matters that I have already referred to is high.

1. If, by this, her Honour intended to say that the absence of remorse is an aggravating factor, and thus one which was to be reflected in an increase in what would otherwise be an appropriate sentence, then she was wrong.[2]  It is probable, however, that this was not her intention.  It is, I think, likely that she regarded the lack of remorse as ‘aggravating’ only in that it meant that the need for denunciation and deterrence was not diminished – as they would have been had remorse been present.  On the other hand, her Honour’s comment might be taken by the appellant as meaning that he was to be additionally punished for his lack of remorse; and this might in turn generate a justified sense of grievance.  

   [2]R v Duncan [1998] 3 VR 208, 215.

1. In these circumstances, the doubt about the proper construction of the paragraph in question must be resolved in favour of the appellant.  I must accordingly, albeit with some hesitation (and with an acknowledgment that I may be proceeding upon an incorrect construction of her Honour’s sentencing reasons) hold that the first ground is made out.

1. It follows that the sentencing discretion is reopened, and this Court must re-sentence the appellant.  In doing so, we must consider the relevance, if any, of the principles in R v Verdins.

1. The appellant submits that he was at relevant times suffering from impaired mental functioning.  This, he submits, reduced his moral culpability, reduced the relevance of denunciation as a sentencing objective in his case, moderated the elements of specific and of general deterrence as a sentencing consideration, and would have the effect that imprisonment would weigh more heavily upon him than it would upon a person in normal health.

1. There can be no doubt that the appellant’s behaviour on 26 June 2008 was bizarre.  Indeed, it was so bizarre that three eminent forensic psychiatrists (Drs Walton, Carroll and Sullivan) were asked to provide a total of seven reports about whether the appellant was or was not fit to plead.

1. Those reports are in evidence in this case.  Dr Lester Walton examined the appellant in April 2005, on 23 November 2006 and in February 2009.  The first two of those examinations therefore took place before the assault of 26 June 2008.  The third consultation with Dr Walton was held before the cancellation of the appellant’s bail after the search of his premises on 11 November 2009.  It is only since being incarcerated that the appellant has been drug free.  Dr Walton never had the advantage of seeing the appellant when it could with some confidence be said that his mental health was not affected by the ingestion of drugs.

1. Dr Andrew Carroll examined the appellant in December 2005 and again on 6 November 2006, about two weeks before Dr Walton’s second consultation.  He too, therefore, did not see the appellant at a time when it could be confidently said that he was not taking drugs.

1. Dr Danny Sullivan also examined the appellant twice.  By contrast to the circumstances in which the consultations with Drs Walton and Carroll were held, however, the appellant was by then in custody, and drug free.  Dr Sullivan’s consultations took place in March 2010 and June 2010.

1. In his first report (of April 2005), Dr Walton described the appellant as suffering ‘at a minimum from an untreated delusional disorder’.  He lacked any insight.  Schizophrenia was a possibility.  He was using alcohol, cannabis and amphetamines, but denied addiction. 

1. The next examination was carried out by Dr Carroll in December 2005.  He found the appellant to be suffering from an unusual psychiatric condition known as ‘delusional disorder grandiose type’ possibly (but probably not) maintained by amphetamine use.  In Dr Carroll’s opinion, the appellant was unable to reason with a moderate degree of sense and composure about issues of right and wrong.

1. By 6 November 2006, the occasion of Dr Carroll’s second consultation, the appellant had significantly reduced his illegal drug consumption.  This, together with the passage of time and other changes in the appellant’s living conditions, led Dr Carroll to change his opinion.  The doctor now thought that the appellant did not suffer from a persistent mental illness or impairment, but rather exhibited a personality disorder. 

1. Dr Walton saw the appellant for the second time on 22 November 2006.  Despite being aware of Dr Carroll’s change of opinion, Dr Walton’s preferred diagnosis remained that of delusional disorder.

1. In his final report (made in February 2009), Dr Walton restated his opinion that the appellant was suffering from ‘circumscribed delusional disorder’, although he remained ‘cognitively intact’.

1. On both of the two occasions in 2010 on which Dr Sullivan saw the appellant, the doctor had each of Dr Walton’s three reports, and the December 2005 (but not the November 2006) report of Dr Carroll.  Dr Sullivan’s diagnosis, as set out in his first report (dated 5 March 2010) was that the appellant displayed a ‘mixed personality disorder’, but did not ‘require any psychiatric treatment or follow up in the community; nor has he ever, by my understanding.’  In his second report (dated 4 June 2010) he reiterated that ‘[t]here is no indication for psychiatric or psychological treatment.’  It is also to be recorded that, in both his reports, Dr Sullivan said:

I suspect that Mr Mune’s presentation now reflects his personality;  and that earlier assessments were influenced by the supervening influence of substance abuse, as they occurred in the community when Mr Mune was likely using methylamphetamine and cannabis.  The descriptions of his presentation at earlier assessments suggest that he may have been at that time chronically intoxicated with low doses of stimulants;  or at least that his belief had been accentuated by substance use and that he subsequently presented as in the realm of delusion rather than eccentricity.  As to my assessments in prison, when Mr Mune had presumably been abstinent over the preceding months, he presented as far more temperate in his opinions.

1. I agree with the sentencing judge that, of all the psychiatric reports in evidence on the plea, those of Dr Sullivan must be accorded the greater weight.  They were the most recent, and they were the result of consultations which occurred when the appellant was free of drugs.

1. Dr Sullivan described the appellant’s stimulant dependence as ‘chronic’.  He also differentiated between the appellant’s presentation when drug free and that when he was ‘chronically intoxicated with low doses of stimulants’.  According to Dr Sullivan, drugs affected his behaviour to the point that under their influence  ‘he  …  presented as in the realm of delusion rather than eccentricity.’

1. It is to be expected that someone who has been using drugs for as long as has the appellant would be aware of the effect they can have on his behaviour.  The subject was touched upon during the course of the plea, when her Honour indicated that, as she understood Dr Sullivan’s reports, the appellant’s ‘underlying condition without amphetamines is manageable, not a problem.  It’s the amphetamines  …   on top of the underlying condition that put him into a position where he appears to be quite amoral in the way he reasons.’  To this the appellant’s counsel responded:  ‘Yes, that’s accurate.’

1. The prosecutor addressed this issue in his submissions to her Honour during the plea.  He said:

In terms of the Verdins principles, your Honour … I would respectfully agree with my friend that there are issues of diminished moral culpability because of what … is diagnosed as a mental illness of some form … .  So, in some ways I would submit it is appropriate that issues of deterrence be modified but only to a small extent … and I would respectfully adopt your Honour’s comments about self-induced drugs.

1. Her Honour did not act upon this concession by the Crown.  In her reasons for sentence, she addressed the appellant, and the principles in Verdins, with these words:

It follows from my findings based on the opinion of Dr Sullivan and Dr Carroll’s revised opinion that I am not satisfied that you suffer from a delusional disorder and that your mixed personality disorder as described by Dr Sullivan does not provide a causal connection with the commission of any of the offences such as to reduce your moral culpability or to operate to reduce or moderate the weight to be given to either general or specific deterrence.

1. I agree with Her Honour’s approach.  Verdins must not become that which it was never intended to be: a refuge for those who seek to deny the import of the words which Shakespeare put in the mouth of Cassius:  ‘The fault, dear Brutus, is not in our stars, but in ourselves’.  It has been held by this Court that the principles of Verdins should be applied only after careful scrutiny and assessment, based on cogent evidence, of the relationship between the mental disorder and the offending and other matters.[3]  As Ashley and Weinberg JJA said in their judgment in R v Vuadreu:[4]

It must be emphasised that Verdins has no application in respect of a condition postulated to have existed at the time of offending unless the condition relied upon can be seen to have some realistic connection with the offending.  The Verdins principles are, and should be regarded as, exceptional.

[3]R v Zander [2009] VSCA 10.

[4][2009] VSCA 262, [37].

1. According to Dr Sullivan, the appellant did not suffer from a mental disorder, but was merely eccentric; and to the extent that his offending went beyond those eccentricities, they were the result of the ingestion of drugs.  If the appellant wished the Court to find that this was not something for which he should accept responsibility, it was for him to persuade her Honour that he did not know, and could not have anticipated, what the effect of that ingestion might be.  After all, it is not as if he was not experienced in the taking of drugs; he was a chronic user, albeit at a low level.  He, more than anyone else, was in a position to tell the judge what effect drugs had on him, and what at the relevant time he knew of that effect.  It is not necessarily enough on a plea such as this for counsel to make assertions from the bar table without proper evidence to support them.  Even in the absence of prosecution acquiescence, a judge is not bound to accept that the burden of proof has been discharged where, as here, the evidence leaves much in doubt.  It follows, in my opinion, that her Honour was justified in coming to the conclusion she did.  Her  conclusion is one in which I fully concur.  The Verdins principles are inapplicable in the circumstances of this case.

1. Her Honour found that the attack of 28 June 2008 was calculated.  I agree with that assessment.  When questioned by police, the appellant maintained that the victim had to be punished, and admitted that he discarded the first pole with which he attacked the victim and resorted to a larger one because the victim continued to deny the accusations about his association with the appellant’s girlfriend.  The appellant described instructing the victim in effect not to defend himself, telling him that he was going to be hit in the leg and that if he blocked the blow, the appellant would maintain the attack until he made contact. 

1. In my opinion, this was calculated behaviour.  In these circumstances, the sentence imposed by her Honour of two years’ imprisonment, with one year and six months to be served cumulatively with the sentence imposed for the first of the trafficking offences, was in my opinion justified.  I would not change it.

1. Nor would I differ from her Honour in the imposition of the remaining sentences. Trafficking in drugs, even at the low level in which the appellant engaged in that activity, is a serious offence. When it is repeated after once being caught, it is especially so. In those circumstances, the sentences imposed by her Honour were appropriate. No different sentences are warranted. I would also adopt her Honour’s statement pursuant to s 6AAA of the Sentencing Act 1991.

1. This appeal was brought under s 278 of the Criminal Procedure Act 2009.  Such an appeal must be dismissed unless the appellant satisfies this Court of two things:

first, that there is an error in the sentence first imposed; and, secondly, that a different sentence should be imposed.  Even if there was an error in her Honour’s consideration of the relevance of lack of remorse, I do not think that the second condition for a successful appeal has been made out.  I would not impose any different sentence.  In my opinion, the appeal must therefore be dismissed.

HANSEN JA:

1. I agree with Harper JA.

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