Peers v The Queen
[2021] VSCA 264
•17 September 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0028
| AMBER PEERS | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | NIALL and SIFRIS JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 31 August 2021 |
| DATE OF JUDGMENT: | 17 September 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 264 |
| JUDGMENT APPEALED FROM: | [2021] VCC 178 (Judge Chambers) |
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CRIMINAL LAW – Appeal – Sentence – Dangerous driving causing death – Applicant sentenced to 2 years and 6 months’ imprisonment with a non-parole period of 12 months’ imprisonment – Whether applicant had impaired mental functioning that would result in her being subject to substantially and materially greater than the ordinary burden or risks of imprisonment for purpose of Sentencing Act 1991 sub-s 5(2H)(c)(ii) – Whether there were substantial and compelling circumstances that are exceptional and rare for purpose of sub-s 5(2H)(e) Sentencing Act 1991 – Application for leave to appeal granted – Appeal allowed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M Habib | Kate Freshwater |
| For the Respondent | Ms D Piekusis QC | Ms A Hogan, Solicitor for Public Prosecutions |
NIALL JA
SIFRIS JA:
On her plea of guilty to a single charge of dangerous driving causing death,[1] the applicant was sentenced by a judge in the County Court to 30 months’ imprisonment. The judge set a non-parole period of 12 months.
[1]Crimes Act1958 s 319(1). The maximum penalty is 10 years’ imprisonment.
Dangerous driving causing death is a category 2 offence, with the consequence provided for by s 5(2H) of the Sentencing Act1991, that unless one or other of certain prescribed circumstances apply, a judge must impose a term of imprisonment. A term of imprisonment combined with a community correction order (‘CCO’), as contemplated by s 44 of the Sentencing Act, is not permitted.
The circumstances that allow for a non-custodial or combination order include where the offender satisfies the court on the balance of probabilities that he or she has impaired mental functioning that would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment,[2] and where there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order of imprisonment.[3]
[2]Sentencing Act 1991 sub-s 5(2H)(c)(ii).
[3]Sentencing Act sub-s 5(2H)(e).
On her plea, the applicant contended that either or both of those circumstances were satisfied and that the judge should impose a CCO. Those contentions were rejected and the sentence of imprisonment just described was imposed.
The applicant seeks leave to appeal on two proposed grounds directed to whether the judge was wrong to find that neither of the circumstances applied.
The facts
On the day of the accident, being a Sunday afternoon in July 2019, the applicant was driving a Holden VT SS (V8) Commodore sedan. Her de facto partner, Rowan Penberthy, was in the front passenger seat.
At approximately 4:05 pm, the applicant was travelling in a westerly direction along River Road Kialla, in North Central Victoria. In front of her car and going in the same direction was a B-double truck, comprising a prime mover and trailer with a combined length of 26 metres, followed by a Nissan Skyline sedan. The three vehicles turned left onto the Goulburn Valley Highway heading south. Before the applicant’s car turned onto the highway, the applicant gave way to two south bound cars which were already on the highway, and which ended up between her and the Nissan skyline.
As described in the prosecution opening, the Goulburn Valley Highway, between Mitchell Road and Union Road, was a two-way, two-lane bitumen road which ran in a north-south direction. There was provision for one lane of traffic in each direction, with a combination of double dividing lines, or one solid and one broken dividing line separating the running lanes. Overtaking lanes at various locations along the highway allowed faster moving vehicles to overtake. Outer fog lines and a bitumen edge on both sides of the roadway ran into a heavily grassed shoulder and spoon drain.
With the truck in front, the five vehicles drove south for about five kilometres along a single lane. At that point, the southbound carriageway opened into two lanes to allow for overtaking. The overtaking lane continued for approximately 500 metres. Posted warning signs alerted drivers to the commencement and conclusion of the overtaking lane. The truck was travelling at a speed of between 100 and 104 kilometres per hour.
The Nissan skyline overtook the truck at a speed which was not specified on the plea but accepted as being faster than the posted 100 kilometre speed limit.
At this point, the applicant’s vehicle was in the right hand lane and she had already overtaken two vehicles. She then attempted to overtake the truck. As already noted, the overtaking lane was approximately 500 metres long. On the side of the road there were two warning signs which advised that the lane was ending: the first read ‘Left lane ends’ and the second ‘Form 1 Lane’. At a point between these signs, the truck commenced merging into the right lane. By this stage, the applicant’s vehicle was in the right lane and near the rear of the trailer. The evidence did not reveal any contact between the applicant’s car and the trailer.
Realising she was unable to overtake safely, the applicant braked heavily and skidded for approximately 50 metres. The applicant lost control of her vehicle and it veered across the north-bound lane and off the road to the west. The car clipped a formed concrete drain at the edge of a driveway and the passenger side of the vehicle impacted a large tree. The vehicle rolled before coming to rest against wire fencing, facing west. Tragically, Mr Penberthy sustained fatal injuries. The applicant suffered minor injuries.
Subsequent investigation and reconstruction established the speed of the applicant’s car. That evidence showed that at the commencement of the yaw marks, the applicant’s car was travelling at a minimum speed of 95.77 kilometres per hour. The minimum speed of the applicant’s car at the commencement of the tyre marks, that is when she braked heavily, was estimated to be 128.7 kilometres per hour. The driver of one of the cars that the applicant had overtaken before attempting to overtake the truck said that, ‘[t]he orange car appeared to my right suddenly in the overtaking lane and accelerated away. I had my cruise control set on 100 kilometres per hour and the orange care just flew past.’
At the time of the collision the weather was fine. On testing, there was no alcohol or drugs detected in the applicant’s blood.
Evidence concerning the applicant
The applicant was born on 28 December 1992. The judge accepted that the applicant had a very difficult and traumatic childhood. Her biological father left her mother when the applicant was an infant. The applicant’s step father was an extremely violent man, who was violent towards her mother and had physically and sexually abused the applicant. The applicant witnessed her step father hold a gun to her mother’s head and he had pushed the applicant out of a moving truck. When the applicant was 16, she and her mother fled that relationship. The applicant remains close to her mother and her mother’s current partner.
The applicant left school after completing year 10. She struggled academically and was bullied at school. The applicant completed a certificate 4 in hairdressing, a certificate 3 in childcare, and a certificate 3 in driving operations (heavy rigid licence). From 2013 to 2015, she worked in a hairdresser’s salon in Echuca, until that business closed. She has not worked since 2015 and receives a disability support pension. She suffers from asthma, sleep apnoea and chronic obstructive pulmonary disease.
A number of psychological and medical reports were tendered on behalf of the applicant in support of the plea.
The first in time is a report dated 11 December 2019[4] authored by Brett Mortensen, provisional psychologist, and Dr Cara Tucker, psychologist, and was prepared in support of the applicant’s application for a disability support pension. The report recorded diagnoses of Borderline Personality Disorder (‘BPD’) and Complex Post Traumatic Stress Disorder (‘PTSD’). The authors noted that the applicant had engaged in psychological intervention since August 2015, undergoing various forms of treatment including both individual and group sessions. At the time of the report, the applicant’s condition was considered to be stable as she had not experienced a reduction in symptom intensity despite consistent engagement in psychological intervention. They said that the applicant’s symptoms had a persistent impact on her day-to-day functioning and represented a significant barrier to employment, as intrusive thoughts and flashbacks can lead to an increase in dissociative states which limit the type and amount of work the applicant could perform.
[4]The report also refers to the last date of assessment as being ‘10th January 2020, 31st July 2020’ (emphasis in original).
In that context, it was said that the applicant could be ‘considered fully treated’ as she had been engaged in psychological treatment for five years and her symptoms were fairly stable and consistent. It was observed that without ongoing intervention, the applicant’s condition was likely to deteriorate, though her prognosis was fair with continued support. Her condition was said to have a moderate functional impact on activities involving mental health function.
A short report provided by the applicant’s treating general practitioner dated 28 August 2020, noted that the applicant reported feeling flat, depressed, anxious, with lack of motivation, poor self-esteem, and poor sleep and appetite. He recorded a history of deliberate self-harm and suicide attempts when extremely stressed. The applicant described finding social interaction and driving in the car as particular settings which trigger her anxiety symptoms. Dr Wong noted the applicant was frequently accompanied by her assistance dog to help her mental health. He noted that the applicant had previously been admitted as an inpatient at Youth Prevention and Recovery Care at Bendigo Health.
The applicant also relied on a report dated 22 January 2021, of psychologist Gina Cidoni, who saw the applicant on two occasions for the purpose of a psychological assessment in the context of the plea. One of the consultations was in person and the other conducted remotely. The applicant had been accompanied by her support dog. Ms Cidoni expressed the opinion that the applicant presented with concerning mental health symptoms indicative of high situational stress, poor judgement, disorganisation, and chronic mental illness.
On intellectual testing, the applicant presented below average verbal comprehension and borderline working memory. Ms Cidoni noted pre-existing diagnoses of BPD and PTSD, and found that the applicant presented with significant symptomology with endorsement of re-experiencing, avoidance, and arousal symptoms. Ms Cidoni said that features of BPD include impulsivity and emotional dyscontrol, which can lead to self-damaging or reckless behaviours, and difficulties in self-regulation. Ms Cidoni noted that it is likely that the applicant’s symptoms impact her ability to exercise appropriate judgement, make calm and rational choices, and think clearly. Ms Cidoni also said that it was ‘likely that her symptoms impacted upon her decision making and actions’ on the day of the accident and given that her mental impairment was already severe, it was likely her symptoms impaired her ability to exercise appropriate judgement.
She concluded:
She presents with major functional difficulties. She is isolated, unable to work and her conditions would affect her ability to cope with imprisonment. With her conditions that include marked alterations in arousal, reactivity, intrusion, and impulsivity symptoms, would produce overwhelming challenges that would weigh more heavily upon her. The concern with incarceration is that it would place Miss Peers at increased risk of further mental deterioration in view of her low coping resources resulting in her being subject to a substantially and materially greater than ordinary burden. Further, she is unlikely to receive the specific treatment she requires in custody.
Ms Cidoni noted that the applicant was receiving pharmacological treatment, but was concerned about the applicant self-medicating with alcohol. In that context, the report earlier recorded that the applicant was drinking alcohol to excess, which had reportedly increased following the accident to the point where the applicant would consume three quarters to a whole bottle of rum in one session.
Ms Cidoni also gave oral evidence on the plea. When the applicant attended on Ms Cidoni in person, she was described by Ms Cidoni as being very confused, anxious, quietly spoken, emotional, quite shy and withdrawn. Her appearance was dishevelled and Ms Cidoni considered her functional capacity to be very low.
Ms Cidoni was asked a number of questions about how the applicant would cope in a prison environment. Ms Cidoni said she was able to address these matters based on her experience of over 25 years talking to many prisoners and that more recently she knew that services were particularly restricted because of the pandemic. Ms Cidoni said she was not entirely sure of the level of counselling that would be available.
Ms Cidoni said that the applicant’s condition would deteriorate in prison, including because she would be separated from her dog on which she was very dependent. She said that the applicant would experience an exacerbation of her symptoms, and that if these presented a management problem because of self-harm or aggression, the reaction by authorities would be to isolate her, leading to a further exacerbation of her symptoms. She thought the applicant would not have a high level of engagement with treatment in prison because she would not be in a safe and comfortable environment and would probably be distracted in a potentially hostile environment, with lots of rules that she would have difficulty following.
When it was put to her in cross examination that there are programs and residential health units in prison that could cater to the applicant’s needs, Ms Cidoni said that there were units available but whether they engage in the sort of treatment the applicant requires and the level of treatment she requires ‘is the question’. She went on to say that the applicant presents as someone who almost[5] needs to be admitted into hospital on account of her compromised mental health. In prison, the applicant would need to choose to participate in therapy and Ms Cidoni was concerned that, with all the stressors, the applicant would not participate. When it was put to her that appropriate services would be made available to the applicant in prison if the applicant wished to avail herself of them, Ms Cidoni replied ‘in a limited sense’.
[5]The transcript records Ms Cidoni as saying the applicant ‘always’ needed to be admitted, but in context and having regard to her later answers, it is tolerably clear she said ‘almost’.
The final report was dated 15 February 2021 from Angela Davidson, provisional psychologist, and Dr Tucker. That report recorded that on testing, the applicant had results which indicated extremely severe levels of depression. Ms Davidson had treated the applicant under the supervision of Dr Tucker for 13 sessions since May 2020 in relation to the applicant’s anxiety and grief which she said ‘sometimes manifests in impulsivity, excessive alcohol intake, avoidance, social isolation and withdrawal.’ Ms Davidson noted that the applicant had benefitted from and relied on the support of her assistance dog, which she had had for a period of over five years. It was noted that recent treatment had increased based on the existence of the court proceedings. A likely prison sentence and the thought of not having the support of her assistance dog had meant the applicant had experienced an extreme emotional response resulting in self-harm and suicidal ideation.
The report continued that it was of the ‘highest importance’ that the applicant have psychiatric and psychological follow-up, and that further programs and monitoring were of the highest importance for continued care.
An email from the General Manager of the Dame Phyllis Frost Centre advised that the applicant would not be permitted to take her assistance dog into prison. The email was copied to the Assistant Commissioner of sentence management on the stated basis that the Assistant Commissioner often provides advice to the courts regarding prisoner placement and ‘if Corrections Victoria are in a position to provide special needs assistance to clients prior to entering prison custody.’ The email stated that the Assistant Commissioner may be able to provide more information but that the prison had a designated residential mental health unit and, in the event the applicant was sentenced to a custodial term, she ‘would have her mental health needs addressed’. No evidence was given by the Assistant Commissioner.
The statutory provisions
As already observed, the relevant offence is a category 2 offence. Sections 5(2H) and 5(2I) relevantly provide:
(2H)In sentencing an offender for a category 2 offence, a court must make an order under Division 2 of Part 3 (other than a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) unless—
…
(c) the offender proves on the balance of probabilities that—
(ii)the offender has impaired mental functioning that would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment; or
(e)there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44).
…
(2I)In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court must have regard to—
(a)the Parliament’s intention that in sentencing an offender for a category 2 offence only an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) should ordinarily be made; and
(b)whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.
To reiterate, the effect of those provisions is that the court was required to impose a term of imprisonment unless sub-paragraph (c) or (e) was satisfied. It was also not open to the court to impose a sentence of imprisonment combined with a CCO under s 44 of the Sentencing Act.
The judge’s reasons
Gravity of the offending
The judge concluded that the applicant’s driving was dangerous because of the excessive speed and the decision to overtake a 26 metre truck on a 500 metre overtaking lane. The applicant was tailgating the truck and impatient to overtake it, even though the truck was travelling at the speed limit. Driving in that manner, at a time when other users, as expected, were using the road, involved ‘undue risk’.
The judge noted that the applicant had told police that she had not seen the advisory signs warning that the overtaking lane was coming to an end. That appears to have been accepted by the judge who did not make a finding on whether that was because the signs were blocked by the trailer or because of the applicant’s inattention, noting that by attempting to overtake the B-double truck the applicant was not in a position to heed the warnings.
The judge accepted that the dangerous driving took place over a relatively short period of time, in terms of both duration and distance. She accepted that the applicant’s borderline processing speed impacted on her decision making and reduced, to some extent, the applicant’s moral culpability. She concluded that the offending was not at the high end but neither could it be considered as low level.
Section 5(2H)
After setting out with some care the applicant’s personal circumstances, the judge turned to address s 5(2H) of the Sentencing Act. She commenced her analysis by saying:
Dangerous driving causing death is a Category 2 offence under the Sentencing Act [1991]. As a result, s 5(2H) of the Sentencing Act provides that the court must sentence you to an immediate custodial term unless, relevantly, you can establish one of the following exceptions on the balance of probabilities:
·that at the time of the commission of the offence, you had impaired mental functioning that is causally linked to the commission of the offence and substantially and materially reduces your culpability (s 5(2H)(c)(i));
·that you had impaired mental functioning that would result in you being subject to substantially and materially greater than the ordinary burden or risks of imprisonment (s 5(2H)(c)(ii)); or
·that there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order under Division 2 of Part 3 (s 5(2H)(e)).[6]
[6]DPP v Peers [2021] VCC 128 (‘Reasons’).
The judge found that sub-para (c)(i), which requires a causal connection between the offender’s mental state and the commission of the offence, was not satisfied. The judge accepted that the applicant’s pre-existing mental illness had the potential to impact on her decision making in circumstances of stress, however, found that there was no clear evidence that this was the case at the time of the collision. The judge noted the equivocal nature of Ms Cidoni’s oral evidence on this point and the fact that the applicant had said that she had not suffered a change in mood or consciousness when she was driving. She concluded that in the absence of ‘clear evidence’, she was not satisfied the applicant’s BPD or PTSD were causally linked to the commission of the offence so as to substantially and materially reduce the applicant’s moral culpability. She accepted that the applicant’s poor visual processing speed had a role to play, but found there was no basis to find that it substantially and materially reduced the applicant’s moral culpability. There is no challenge in this Court to those findings.
On the question of whether the applicant’s mental health would render prison relatively more burdensome in a way that would fall within sub-section (c)(ii), the judge said:
On the balance of the evidence, I am satisfied that your long-standing mental health conditions, being described as both severe and stable, will make the burden of imprisonment greater for you. I am aware that the loss of your assistance dog Wally will be difficult, and that this will make the transition to prison more onerous for you. Balanced against these factors, however, is the access you will have to mental health treatment in custody through a specialist mental health unit. There was no direct evidence of the operations of that unit being disrupted by COVID-19, although, I anticipate that there may be periods when services do not proceed face-to-face in the current environment.
Nonetheless, I am not satisfied that the mental health treatment available would be insufficient to ameliorate the risk of your mental health declining in custody. I have given weight to the report of your treating psychologist Dr Tucker that your mental condition remains stable after five years of treatment and that, provided you receive continuing support, your prognosis is fair. On the evidence before me, I am not satisfied that your impaired mental functioning will substantially and materially impose a greater burden of imprisonment than would otherwise be the case.[7]
[7]Reasons [54]–[55].
On sub-section (2H)(e), the judge noted the stringency of the test. After referring to the matters relied on by the applicant, including a troubled and dysfunctional childhood, PTSD which was severe but stable, depression, anxiety, and reliance on her assistance dog, the judge said these were all significant matters in mitigation but were not, even in combination, substantial and compelling factors that are exceptional and rare that justify a non-custodial sentence. The judge did not accept that the applicant’s mental health conditions operated to significantly reduce her moral culpability for the offence of dangerous driving so as to markedly reduce or moderate the need for general deterrence or denunciation.
Matters in mitigation
The judge accepted that the applicant was genuinely remorseful for the offending, that she had lost a much loved partner, and that her grief and sense of responsibility was, at times, an overwhelming burden.
The judge recorded that the applicant’s plea of guilty had substantial utilitarian and practical value, particularly given the increased backlog of trials in the wake of the current pandemic. She noted that the plea was further evidence of remorse. The judge noted that these matters all pointed towards positive prospects of rehabilitation but that it was nonetheless important for the applicant to continue to access counselling, treatment, and support for long-standing mental health issues and alcohol dependency.
The judge accepted that the applicant’s background of disadvantage and trauma was a matter in mitigation and that her complex PTSD and personality traits associated with her diagnosed BPD would make her time in custody more burdensome. She accepted that there was also a risk of deterioration in the applicant’s mental health due to her poor coping skills over the longer term. On that basis, Verdins[8] principles 5 and 6 were enlivened.
[8]R v Verdins (2007) 16 VR 269; [2007] VSCA 102 (Maxwell P, Buchanan and Vincent JJA).
The judge also accepted that current restrictions associated with the COVID-19 pandemic would mean that the hardship of imprisonment would be greater than usual.
Based on the personal circumstances of the applicant, the judge said she did not attach ‘much weight’ to the need for specific deterrence. On the other hand, she noted that for offending of this kind, general deterrence was important and that higher courts have repeatedly stated dangerous driving causing death will be dealt with by a significant term of imprisonment in all cases, other than where an offender’s culpability is low. The judge said she did not regard the case as falling within that category. The judge also said that even if s 5(2H) had no application, the offending was too serious for a CCO. She said that in making this observation, she did not discount the significant matters in mitigation and that ‘this is best achieved by the imposition of an appropriate non-parole period.’[9]
[9]Reasons [68].
Proposed grounds
The applicant seeks leave to appeal on the following grounds:
1The sentencing judge fell into error by not finding that the applicant had impaired mental functioning that would result in the applicant being subject to substantially and materially greater than the ordinary burden or risks of imprisonment pursuant to s 5(2H)(c)(ii) of the Sentencing Act.
2The sentencing judge fell into error by not finding that substantial and compelling circumstances that are exceptional and rare arose and justified not imposing a sentence that was composed solely of a term of imprisonment pursuant to s 5(2H)(e) of the Sentencing Act.
Ground 1
Submissions
The applicant submitted that in light of her established impaired mental functioning and her engagement in multiple medical services within the community, the sentencing judge should have found, on the balance of probabilities, that the applicant’s impaired mental functioning would substantially and materially impose a greater burden of imprisonment than would otherwise be the case.
The applicant submitted that the judge gave undue weight to the comments of Dr Tucker, referred to above, that the condition of the applicant was stable after five years of treatment and that with continued support her prognosis was fair. She noted that her ongoing engagement with services includes the constant and continual use of her support dog.
The respondent submitted that it was reasonably open to the judge to not be satisfied that the applicant’s impaired mental functioning would substantially and materially impose a greater burden of imprisonment than would otherwise be the case. The respondent said that the evidence of Ms Cidoni, as to how the applicant would function in a prison environment, was speculative. The respondent also said that treatment was available to the applicant in custody, and that Ms Cidoni accepted that treatment would be made available to the applicant, albeit in a limited sense.
Analysis
The judge accepted that the burden of imprisonment would be greater for the applicant than for persons without her long standing mental health conditions and that the loss of her assistance dog would make the transition to prison more onerous. The judge also accepted that the applicant was at risk of a deterioration in her mental health and that she would require ‘intense professional support, particularly during the initial period.’[10] Those matters can be gleaned from the judge’s reasons both in the passage set out above at para [39] and from her conclusion that Verdins principles 5 and 6 were engaged.
[10]Ibid [64].
Given the nature of an appeal against sentence, being an appeal in the strict sense, it is necessary for the applicant to establish error on the part of the sentencing judge. Although the question whether one or more of the exceptions in s 5(2H) of the Sentencing Act applied was not discretionary, it was evaluative and minds might legitimately and reasonably come to a different conclusion. On that basis, the applicant must show that it was not open to the judge to come to the conclusion that she did, or that it involved some error of fact or law. In our respectful opinion, the following propositions emerge from the reasoning adopted by the judge on the applicability of sub-s (2H)(c)(ii) of the Sentencing Act.
First, the judge did not make a positive finding that the treatment available to the applicant in custody would ameliorate, let alone remove, the risk of her mental health declining. Indeed, she later accepted that the applicant was ‘at a risk of a deterioration’ in her mental health.[11] It must be accepted immediately that the hurdle set by sub-s (2H)(c)(ii) is higher than that which attracts the principles in Verdins. It is necessary for the applicant to establish that she would, because of her mental health, be subject to a substantially and materially greater burden than a person who does not share the affliction. As we read the judge’s reasons, the applicant did not fail to meet the high threshold because, left untreated, she would not suffer a substantially and materially greater burden, but because she had failed to prove on the balance of probabilities that she would not have access to adequate treatment in custody. In that respect, the judge said she was ‘not satisfied that the mental health treatment available would be insufficient to ameliorate the risk of [the applicant’s] mental health declining in custody.’[12] This is a critical aspect of the judge’s reasoning.
[11]Ibid [64].
[12]Ibid [55].
Second, the framing of her conclusions in the negative, is best understood as a reflection of the judge’s understanding that the applicant was required to satisfy the court on the balance of probabilities that the circumstances existed. The applicant plainly had that obligation of establishing the facts. However, in circumstances in which she had established long standing and severe mental health conditions, it was extremely difficult for the applicant to prove a negative (that the mental health treatment she would receive in prison would be inadequate), particularly where Corrections Victoria were in possession of all of the relevant information concerning the availability of treatment in prison. The evidence of the respondent identified the Assistant Commissioner of sentencing management as best placed to give evidence on the topic, yet there was no evidence adduced by the respondent from that person. The evidence that was adduced was extremely general and went little further than to establish that there is a mental health unit. No evidence was adduced as to the type of treatment the applicant would receive in prison, how her self-harming behaviours would be addressed, how the loss of her support dog would be dealt with, and how any disruption to the treatment that may be available because of COVID-19, which was certainly at least a possibility, would be overcome.
It is difficult to see how the existence of a unit of itself, and without more, would ameliorate the risk of the applicant’s mental health declining in custody. No evidence was provided in this regard. To be clear, we do not consider that in each case where a person may receive a custodial term, Corrections Victoria is required to produce evidence as to the availability of treatment in custody for that person. However, in this case, where the applicant had complex mental health needs, had provided several reports outlining her needs, and had submitted that her impaired mental functioning would result in her being subject to substantially and materially greater than the ordinary burden or risks of imprisonment, the respondent was best placed to adduce evidence that those needs could be met in custody.
Third, the judge referred to the evidence given by Ms Cidoni as to the level of care that the applicant would receive in prison and appears to have regarded it as vague or insufficient. However, Ms Cidoni said that the applicant would struggle to engage with treatment, that the applicant may not be able to access the dialectical behaviour therapy she had recommended, and that she was not sure whether medication taken by the applicant would be available in custody. Ms Cidoni also noted her concerns that the applicant’s support dog played a role in reducing self-harming behaviour.
The judge made no findings on that evidence. In her oral evidence, Ms Cidoni said that her understanding of the treatment the applicant would likely receive in custody was based on her experience, and talking to many prisoners over the course of 25 years. The evidence of Ms Cidoni, on the whole, expressed significant concerns as to the applicant’s ability to cope in prison and whether she would receive adequate care and treatment. This evidence could not be rejected merely because the respondent had established the existence of a mental health unit and Ms Cidoni had accepted that the applicant would receive the benefit of treatment ‘in a limited sense’.
Fourth, the judge appears to have placed great weight on the evidence of Dr Tucker that the applicant was ‘fully treated’ and stable. The judge referred to that evidence in the context of her finding that she was not satisfied that the mental health treatment available would be insufficient to ameliorate the risk of the applicant’s mental health declining in custody. In our opinion, that was not a fair reading of the report having regard to the whole of the report and the context in which it was given. The report described the applicant’s condition as ‘stable’ because her symptoms had not reduced in intensity despite engagement with psychological intervention for five years. However, the report was not prepared in the context of the accident and did not address the impact of imprisonment. The applicant’s symptoms were said to ‘have a persistent impact on her day-to-day functioning and represent a significant barrier to employment’. Dr Tucker also noted that the applicant’s condition was likely to deteriorate without ongoing intervention. That evidence was consistent with the evidence of Ms Davidson and Ms Cidoni.
In our view, the underlying medical conditions of the applicant, in the context of her grief and inability to access her support dog, meant that imprisonment would result in the applicant being subject to substantially and materially greater than the ordinary burden. The judge’s conclusion that she was not satisfied that the mental health treatment available would be insufficient to ameliorate the risk of the applicant’s mental health declining in custody was not open given the dearth of evidence as to what the treatment might be and that the positive evidence of Ms Cidoni was that the applicant would struggle to access it. In our view, the clear evidence of entrenched, long-standing, and severe mental illness would render the burden of incarceration substantially and materially greater than the ordinary burden and that could not be discounted having regard to the state of the evidence on treatment.
The judge’s conclusion that sub-s 5(2H)(c)(ii) was not made out was in error. In our view, that paragraph was, in the particular circumstances of this case, satisfied.
Ground 2
Submissions
In her written case, the applicant relied on the decision of Farmer v The Queen,[13] in which this Court found that an accumulation of detail could be exceptional and compel the conclusion that the mandatory detention provision should not apply.[14] The applicant submitted that a number of factors, including her dysfunctional and abusive childhood, her serious mental illness, the fact that her condition would substantially deteriorate in custody, and that she would not receive the level of mental health treatment required, established that her circumstances fell within the ambit of sub-s 5(2H)(e) of the Sentencing Act.
[13][2020] VSCA 140 (‘Farmer’).
[14]Ibid [55] (Maxwell P, Kaye and Niall JJA).
The applicant also submitted that the principles of Bugmy[15] applied, and she noted that the judge made no reference to these principles.
[15]Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ).
The applicant also relied on the recent decision of this Court in Fariah v The Queen.[16] In that case, the Court held that that sub-s 5(2H)(e) does not impose a burden on an offender to prove on the balance of probabilities the existence of substantial and compelling circumstances that are exceptional and rare. That is an evaluative judgment for the judge to make once the relevant underlying facts have been established in accordance with settled principle.[17] In this case, the applicant said that in the passage reproduced at para [37] above the judge had clearly stated that the applicant bore an onus to show that sub-paragraph 2H(e) was established.
[16][2021] VSCA 213.
[17]Ibid [24] (Priest and Beach JJA).
The respondent conceded that matters, when accumulated, can give rise to exceptional and compelling circumstances, however, submitted that this is not such a case. The respondent noted that the matters raised by the applicant are all too common, and are often features of persons who present for sentencing.
The respondent submitted that the sentencing judge took into account the applicant’s disadvantaged childhood, that she had lost her partner as a consequence of the offending, and the impact of COVID-19 on the provision of services in custody.
The respondent also submitted that the failure to specifically mention the case of Bugmy did not indicate error, particularly when it was clear that the sentencing judge gave the applicant’s disadvantaged upbringing significant weight.
On the onus point, the respondent submitted that, read fairly, the judge had not imposed an onus on the applicant and had considered whether the paragraph was satisfied on the material.
Analysis
As this Court emphasised in Farmer:
Within the context of s 5(2H), paragraph (e) is a residual category of limited scope. On any view, it is a very high hurdle that will not often be surmounted. The legislative norm is that category 2 offences will attract an immediate term of imprisonment, drug treatment order or detention in a Youth Justice Centre or youth residential care. Importantly CCOs or a combined CCO and term of imprisonment under s 44 are not available.
In many cases, given the type of offences within category 2, a term of imprisonment will be inevitable. In some cases, the operation of s 5(2H) will be harsh. In other cases a term of imprisonment or youth detention would be entirely unjustified, counterproductive from the view point of rehabilitation and work a serious injustice. That may be particularly so for young offenders. To a degree paragraph (2H)(e) guards against the risk of injustice. But the stringency of the test cannot be avoided.
Within the bounds of reasonableness, whether in combination the applicant’s circumstances amounted to ‘substantial and compelling circumstances’ that are ‘exceptional and rare’ was for the judge to determine. [18]
[18]Farmer [2020] VSCA 140, [51]–[53] (Maxwell P, Kaye and Niall JJA).
Fariah was decided after the sentence imposed in this case. The applicant had accepted below that she had an onus to establish the exception, including that set out in sub-paragraph (e). The judge’s reasons must be seen in that context. Nevertheless, in our view the judge treated the applicant as having an onus and that was an error. We are not able to say that the error had no impact on the judge’s decision that sub-paragraph (e) was not satisfied.
Conclusion
In our view, the judge’s erroneous conclusion that she was bound to impose a term of imprisonment and that she could not consider whether, for example, a combined sentence was appropriate, means that the sentence must be set aside. We recognise that the judge said that even had s 5(2H) had no application, the offending was too serious for a CCO. In that context, the respondent submitted that any error on s 5(2H) would not have made a difference because the judge would have imposed a sentence of imprisonment in any case. We do not accept that submission. Read in context, the observation addressed a submission that the judge would not have imposed a CCO without any term of imprisonment. That would not mean, for example, that she would not have considered a combination sentence.
Further, the errors we have discerned in relation to s 5(2H) are sufficient to constitute vitiating error in the sentence, and the question for this Court is whether a different sentence should be imposed. In our view it should.
This was a very difficult sentencing exercise. The applicant was a relatively youthful offender of previously impeccable character whose behaviour up to the time of offending was exemplary. She also had significant mental health issues. On the other hand, the applicant committed a serious offence with devastating consequences for the victim and his family. The applicant’s dangerous driving resulted in the tragic death of Mr Penberthy. His parents and sister have been burdened and shocked by his death and the loss for them has been profound. The judge described the victim impact statements of his parents and sister that speak eloquently of the impact of the tragic loss of life. We have had regard to them. We are conscious of the terrible consequences of the applicant’s conduct for Mr Penberthy’s family.
This Court has previously noted that the offence of dangerous driving causing death is a serious one, and ‘it is difficult to see how any sentence other than one of immediate imprisonment could possibly meet the needs of general deterrence, adequate punishment, and denunciation’.[19] This Court has previously upheld sentences of imprisonment comparable to that received by the applicant,[20] and found in the case of Borg, that the imposition of a five year CCO without any period of incarceration was a wholly inadequate sentence.[21]
[19]DPP v Borg [2016] VSCA 53, [74] (Maxwell P, Weinberg and Priest JJA) (‘Borg’). See also, DPP v Sismanoglou [2016] VSCA 87.
[20]Board v The Queen [2013] VSCA 190. See also, Sharma v The Queen [2017] VSCA 63 noting that the applicant fell to be sentenced for two charges of dangerous driving causing death.
[21][2016] VSCA 53, [74] (Maxwell P, Weinberg and Priest JJA). This Court did exercise its residual discretion to dismiss the appeal.
However, each case must be considered having regard to its own facts. In our view, a term of imprisonment is required. The speed at which the applicant drove and the overtaking manoeuvre plainly rendered the driving dangerous and general deterrence is important. However, in our view, a term of imprisonment of shorter duration is sufficient in this case to meet the demands of general deterrence, which must be moderated having regard to the applicant’s particular mental health conditions and the extra burden she would suffer in prison. In our view, these factors deserve very great weight. They mean that in the particular circumstances of the case there is less room for general deterrence. It is the necessary reality for offending of this kind that people with unblemished records, undoubted remorse, and with little or no prospect of re-offending, will receive an immediate term of imprisonment That is the effect of making the charge a category 2 offence and a consequence of the need for general deterrence. However, other sentencing principles which serve to moderate a sentence are not to be put aside as irrelevant.
For these reasons, we would grant leave to appeal, allow the appeal, set aside the sentence and resentence the applicant to a term of imprisonment of 20 months. We fix a non-parole period of 8 months’ imprisonment. For the purpose of s 6AAA of the Sentencing Act, had the applicant been convicted after a trial, we would have sentenced the applicant to a term of 3 years’ imprisonment with a non-parole period of 2 years.
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