Phillip Archibald Dow v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0179

PHILLIP ARCHIBALD DOW	Applicant
v
THE QUEEN	Respondent

---

JUDGES:	NIALL and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	27 June 2022
DATE OF JUDGMENT:	12 July 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 135
JUDGMENT APPEALED FROM:	[2021] VCC 1800 (Judge Hannebery)

---

CRIMINAL LAW – Appeal – Sentence – Aggravated burglary, common assault, intentionally cause injury and intentionally damage property – Sentence of 5 years, 4 months’ imprisonment with 4 years non-parole – Offending of limited duration – Deprived upbringing and mental impairments causally connected to offending – Manifest excess established – Appeal allowed – Resentenced to 4 years and 1 month’s imprisonment with 2 years, 9 months non-parole.

R v Verdins (2007) 16 VR 269; [2007] VSCA 102 applied.

---

Counsel
Applicant:		Mr C Mandy SC with Mr J Connolly
Respondent:		Mr P Bourke QC
Solicitors
Applicant:	Kurnai Legal Practice
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA
T FORREST JA:

The applicant was convicted by a jury of two charges of aggravated burglary, common assault, causing injury intentionally and damaging property.
He was sentenced in the County Court at Latrobe Valley on 11 November 2021 as set out in the table below.

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Aggravated burglary[1]	25 years	3 years	Base
2	Common assault[2]	5 years	15 months	6 months
3	Aggravated burglary	25 years	3 years	1 year
4	Intentionally cause injury[3]	10 years	27 months	9 months
7	Intentionally damage property[4]	10 years	3 months	1 month
Total Effective Sentence:		5 years, 4 months’ imprisonment
Non-Parole Period:		4 years
Pre-sentence Detention Declared:		275 days
Other Relevant Orders: 1. Forfeiture order.

[1]Crimes Act 1958, s 77.

[2]Crimes Act 1958, s 320.

[3]Crimes Act 1958, s 18.

[4]Crimes Act 1958, s 197(1).

The applicant seeks leave to appeal on seven grounds of appeal.
Ground 1: The learned sentencing judge: (a) came to a conclusion regarding the applicant’s moral culpability that was not reasonably open; and (b) erred in principle in his approach to assessing the applicant’s moral culpability.
Ground 2: The learned sentencing judge erred in his application of limb 3 of Verdins by only ‘somewhat’ moderating general deterrence.
Ground 3: The learned sentencing judge erred by finding that specific deterrence should not be moderated.
Ground 4: The learned sentencing judge erred by finding that limb 6 of Verdins did not apply.
Ground 5: The learned sentencing judge erred by failing to moderate the need for just punishment and denunciation in light of the applicant’s cognitive and psychological impairments, and his deprived background.
Ground 6: The orders for cumulation (and, consequentially, the total effective sentence) and the non-parole period were manifestly excessive.
Ground 7: The pre-sentence detention declaration was incorrect.

Factual summary

On 21 August 2018 the applicant, a 47-year-old Aboriginal man was staying with a friend, Craig Johnson, in unit 1 of a four-unit complex in Moe. At approximately 11:00 am, Leslie Bassman, the occupant of unit 3, attended at unit 1 and asked Mr Johnson if he could borrow $50.00. Mr Johnson replied in the affirmative although no money changed hands at that stage. The applicant, sometimes known as ‘Charger’, did not speak during this exchange. Bassman returned to unit 3.
At approximately 2:30 pm Johnson and Dow walked to the ANZ bank in Moe. Johnson entered whilst the applicant waited outside. When Johnson left the bank, Dow was nowhere to be seen.
At 3:40 pm Sarah Stace, who occupied unit 4 with her husband, was alone in unit 4. The front wooden door and security screen were closed but unlocked. As she was sitting on her bed she heard the doors being opened, and the applicant entered the unit (charge 1 — aggravated burglary). He walked up to the bed. He held aloft a bottle within a brown paper bag, and continued to ask ‘where is he?’ in a threatening one. Ms Stace told the man he had the wrong unit. The man asked ‘where is he’ one more time and then left the unit. Ms Stace was terrified during this 20-second encounter (charge 2 — common law assault).
Shortly after this the applicant entered unit 3. Mr Bassman was at home and sitting on the couch when he heard a knock on the door. He opened the door and recognised the applicant. The applicant said, ‘I have a message from Craig’. Mr Bassman walked back into his unit and the applicant followed him. The applicant said words similar to ‘You owe Craig $50… you’ve got to pay him up you white dog’. The applicant then punched Mr Bassman at least 4 times to the face. Mr Bassman briefly lost consciousness and suffered multiple facial fractures. (Charge 3 — aggravated burglary, charge 4 — intentionally cause injury, charge 5 — common law assault.)
The applicant went to Mr Bassman’s flat-screen television and kicked it over with his foot.
The applicant was arrested by police that evening and interviewed at Moe Police Station. He denied all allegations. His account was that he had entered Mr Bassman’s unit with Mr Johnson to get a cigarette and discovered the latter was injured and his unit disturbed. He asked Mr Bassman who had attacked him and Mr Bassman replied ‘dunno who done it’. He and Mr Johnson took him to unit 1 to clean him up. When he was looking for Ms Bassman he accidentally went into unit 4. A girl said ‘come in’ and told him to go next door. She was on her bed and he apologised and left.
The judge obviously rejected the entirety of the applicant’s account concerning Mr Bassman and large parts of it concerning Ms Stace.

The plea

Written submissions were filed by the prosecution and defence counsel. The oral plea occurred on 17 September 2021. The applicant’s counsel submitted:
•The applicant was 50 at the time of the plea hearing (17 September 2021).
•He was raised in the Gippsland area and has lived there all his life.
•He is the 17^th of 18 siblings. His father was a violent alcoholic. His mother, an Aboriginal woman and member of the ‘Stolen Generation’ commenced motherhood at 15 and was a victim of significant domestic violence.
•The applicant was racially abused and bullied at school in Year 7.
•The family was impoverished.
•He was the victim of sexual abuse by a family relation between the ages of five to nine years old.
•The applicant has very limited experience in the work force and has been in receipt of a Disability Support Pension for all of his adult life.
•The applicant is schizophrenic, suffers from post-traumatic stress disorder (‘PTSD’), depression, anxiety and drug and alcohol addictions.
•The applicant is intellectually disabled.
•Two mental health reports were provided to the Court from Dr Kevin Ong, dated 2 September 2014, and Dr Evrim March, dated 14 July 2021. We shall return to them later in these reasons for judgment.
•The applicant has suffered from throat cancer in the past.
•The applicant’s counsel conceded the offending was serious and explained the applicant’s decision to run a contested trial as a result of the applicant ‘not [being] in a position to recall the offending and didn’t feel able to enter a plea to the case’.
•It was submitted that Bugmy v The Queen[5] principles were engaged, as were R v Verdins[6] principles.
•The applicant is not an appropriate vehicle for a sentence focussed on deterrence, both general and specific. Further that imprisonment would be more burdensome for the applicant as a consequence of separation from his family and difficulties getting appropriate mental health treatment.
•A longer than usual parole period was urged.
[5](2013) 249 CLR 571; [2013] HCA 37 (‘Bugmy’).
[6](2007) 16 VR 269; [2007] VSCA 102 (‘Verdins’).
In oral submissions, the applicant’s then-counsel largely rehearsed these submissions and amplified various aspects of them. The applicant has suffered from chronic schizophrenia for 10 years and has been intermittently medicated with anti-psychotic medication. The PTSD relates to his abuse as a child. The applicant is illiterate and finds it difficult to watch television which makes his imprisonment more onerous.
Counsel urged Bugmy principles upon his Honour who agreed that these principles were engaged. The judge then stated:
… I can accept that because of intellectual disability in combination with the psychiatric and psychological issues that I think there’s a reasonable case to say that his moral culpability is somewhat reduced, but he also knew what he was doing in the sense that he targeted, he had a thought in his mind that he was going to enter the premises for a particular purpose, when he realised it was the wrong premises with Ms Stace’s, he’s reacted to that.
And shortly thereafter:
He formed a view which seems to be wrong, and I’m prepared to say that there seems to be a lot of confusion, but he certainly has understood that he wants money from him; he’s taken actions to get that money from him. When he’s gone into the wrong unit first up he’s realised that, and has left. He’s then persisted with his actions and gone to the other unit. His reaction has been way more violent than he probably needed to do, to achieve the end of getting the money, or trying to get the money.
So what I would say is there is some reduction in moral culpability, but there’s still quite a bit there, if I can put it that way. I think it’s an offence that starts with high moral culpability, which gets tempered somewhat because of the, what we now know about the circumstances. That’s the way I’d view it.
Later, but in the same exchange, the judge said:
… I mean if you were completely cynical you would say he’s said that out of some sort of, you know, way to trick him out of the money or convince this person that it’s money, or somehow justify why he was there, but I think in all the circumstance, when you look at the background I think there’s every chance he probably had some misconception about that. But no doubt, he was there to get money for himself. So it wasn’t, it was never actually money sort of owed to him. So, you know as I said, there’s a high amount of moral culpability there in making a choice to enter the premises; being prepared to use violence, if necessary; and wanting to do it to get money off someone.
Insofar as specific deterrence is concerned the judge stated that it was ‘still a factor… because clearly he’s indicated he is capable of reacting to the circumstances around him… I don’t think specific deterrence is eliminated’.
It was put on the applicant’s behalf, and accepted by the judge, that although the offending was committed whilst the applicant was affected by alcohol and while he was not compliant with his anti-psychotic medication, he had kept out of trouble and led a reasonably settled life for some years before this offending. Ultimately the judge expressed the view that Verdins considerations 1 (somewhat), 3 and 5 were engaged.
As we have observed, the applicant’s counsel tendered a medico-legal neuropsychological assessment conducted by Dr Evrim March on 8 July 2021 over a 3-hour box visit. It is unnecessary to set out the applicant’s background. Dr March noted that the applicant had been diagnosed with PTSD, dysthymic disorder and in 2014 a provisional diagnosis was made of chronic paranoid schizophrenia. The applicant responds to anti-psychotic medication when compliant, however auditory hallucinations and persecutory delusions persist despite abstinence from alcohol and drug use.
Dr March conducted various cognitive tests. Premorbid intellect was estimated to be within the very low end of the applicant’s age group. Speed of processing was significantly slowed, verbal skills were highly limited, visual abstract reasoning was at borderline levels, verbal memory was inefficient and varied and executive thinking skills were concrete and rigid.
Dr March was of the view that the applicant’s cognitive status is within the intellectual disability range. Current active psychological diagnoses are:
•Chronic substance use and alcohol use disorder (currently in remission).
•Chronic paranoid schizophrenia.
•Major depressive disorder (mild episode); anxiety symptoms.
•PTSD in relation to childhood trauma.
Dr March noted that being imprisoned appeared to have a negative effect on the applicant’s mental state. She stated that the applicant’s mental health (depressive and psychotic symptoms) contributes to and interacts with his current personality style, poor emotional dysregulation and anger control. She noted that medication non-compliance and substance abuse ‘potentially further reduces his ability to regulate himself’. She concluded, ‘in a general sense, the likely impact of mental state on offending behaviour is difficult to exclude, particularly if he were non-compliant with his medication for schizophrenia treatment in the period leading to incident’.
Dr March opined that the applicant’s prospects for rehabilitation were ‘reasonably poor’ and relied upon close monitoring of his mental health (with adherence to medication and trauma counselling) along with drug and alcohol counselling and support.
Dr March’s opinions were not challenged by the prosecutor.
Dr Kevin Ong, consultant psychiatrist at the Victorian Institute of Forensic Mental Health, prepared a report for unrelated offending in 2014. In short Dr Ong noted that the applicant had a markedly impoverished developmental history, was a victim of physical and emotional abuse, a victim of childhood sexual abuse, had little educational attainment and no employment history to speak of. Dr Ong, on the basis of persisting ‘low grade psychotic symptoms’, made a provisional diagnosis of chronic paranoid schizophrenia, likely to be exacerbated by alcohol and polysubstance abuse.
The prosecutor tendered the Victim Impact Statement (‘VIS’) of Ms Stace who appeared to remain impacted by what she described as her ‘violation’, and experiencing ‘gripping and crippling panic attacks’. No VIS was supplied by Mr Bassman.
The prosecutor in his written submissions referred to Director of Public Prosecutions v Meyers[7] and submitted that the objective seriousness of charges 1 and 3 was at mid-level. He submitted that charge 4 (intentionally causing injury) was not a ‘low-level example of its kind’ given that:
(a)Multiple punches were thrown at the offender;
(b)The victim was punched in the head/face area;
(c)Injuries, including facial fractures, were caused; and
(d)The victim was assaulted in his own home.
[7](2014) 44 VR 486; [2014] VSCA 314.
The prosecutor noted the following significant prior convictions, among many others:
•1997: Recklessly causing serious injury.
•1999: Criminal damage and unlawful assault.
•2001: Aggravated burglary and recklessly causing serious injury.
•2002: Recklessly causing injury (2 charges), criminal damage and assault with weapon (4 charges).
•2003: Unlawful assault (2 charges), assault police (2 charges).
•2004: Armed robbery.
•2006: Recklessly causing injury, assault with weapon, unlawful assault.
•2007: Recklessly causing injury and intentionally causing injury.
•2008: Recklessly causing serious injury (2 charges) and recklessly causing injury.
•2009: Recklessly causing serious injury.
•2011: Unlawful assault.
•2013: Unlawful assault, assault police and assault with instrument.
•2015: Recklessly causing injury (2 charges) and criminal damage (2 charges).
The prosecution accepted that Bugmy principles were engaged, and that principle 6 of Verdins was also engaged. He submitted that notwithstanding these factors, substantial weight must be given to specific deterrence and protection of the community given the applicant’s lengthy history of serious and violence-related prior offences, which have ‘often attracted custodial sentences’. He also submitted that general deterrence, punishment and denunciation had work to do, and that the applicant’s prospects of rehabilitation were poor.

The judge’s reasons for sentence

The judge set out a summary of offending in similar terms to that in [4] to [8] above of these reasons. He referred to the VIS, and correctly, noted that whilst he must have regard to the impact to the victims, he must not let those factors overwhelm other relevant sentencing considerations.
As to the objective gravity of the offending itself, his Honour stated:
In relation to the offence of aggravated burglary, the fact of its maximum penalty of 25 years’ imprisonment indicates that it is an offence of inherent seriousness.
These are both serious examples of the offence, and there is in my view no reason to distinguish either Charge 1 or Charge 3 as being more serious than the other.
Both offences involved you entering premises with an intention to assault the occupant who you believed to be Mr Bassman. In relation to Charge 1, that you were mistaken about this, does not make your intention upon entry any different.
The entry on both occasions was through unlocked doors. The offences occurred in mid-afternoon and you acted alone.
The offence is aggravated, however, by the fact that you were armed with a bottle and threatened the use of it in the course of Charge 1.[8]
[8]DPP v Dow [2021] VCC 1800, [11]–[15] (emphasis added) (‘Reasons’).
It was accepted by the respondent that the emphasised passage constituted judicial error. It is clear that the threat to use the bottle was part of the common assault charge (charge 2) occurring, as it did, after charge 1 was complete, and could not constitute a circumstance of aggravation.
The judge qualified his statement that these were serious examples of the offence of aggravated burglary by stating that, ‘[o]verall I agree with the prosecution submission that the offences are mid-range examples of the offence.’[9] We agree with this characterisation.
[9]Ibid [16].
The judge considered charge 2 to be ‘a significant example of common assault’,[10] and charge 3 to be above a mid-level example of the offence of causing injury intentionally. The judge said:
You had absolutely no grievance with Mr Bassman to justify your violence towards him. He posed you no threat. He was in his own home when he endured multiple injuries caused by you including facial fractures. The injuries are at the upper end for an offence that still comes within s 18 Crimes Act 1958.[11]
[10]Ibid [17].
[11]Ibid [19].
His Honour stated that the property damage offence, while objectively a lesser offence than the other offences for which the applicant fell to be sentenced was nonetheless ‘a gratuitous act of vandalism’.[12]
[12]Ibid [2].
The judge reviewed the applicant’s personal circumstances.[13] In short compass the judge noted:
•The applicant, at the time of sentence, was a 50 year old of Aboriginal heritage.
•The applicant was the 17^th of 18 siblings.
•The applicant was exposed to significant family violence. He reported being the victim of sexual abuse from a family member through the ages of five to nine, and his violent father left the family home when the applicant was 12 years old.
•The applicant completed Year 6 but left school due to being racially bullied. He has no literary skills and his employment history was limited. He has been on a disability support pension since he was 20 years old as a result of a cognitive impairment.
•The applicant has used cannabis daily since he was 13 years old and was a daily user of heroin from 18 to 20.
•From 2015 to 2017 the applicant was diagnosed and surgically treated for mouth cancer and throat cancer.
•While the applicant asserted that he had been diagnosed with pancreatic cancer in 2021, at the time of sentence, and at the time of the hearing of this application, this diagnosis was not supported by medical evidence.
[13]Ibid [21]–[27].

The judge then reviewed the psychological evidence that we have set out at [16] to [22] of these reasons. He noted:
•The applicant has a chronic substance use and alcohol use disorder, chronic paranoid schizophrenia, manic depressive disorder, PTSD and a cognitive impairment that placed the applicant in the ‘intellectual disability range’.
•Dr March’s unchallenged opinion was that the applicant’s mental health ‘contributes to and interacts with his vulnerable personality style, poor emotion dysregulation and anger control’.
The judge then set out his conclusions:
•Limbs 1, 3 and 5 of Verdins ‘have some application in this case’.[14]
•The applicant’s moral culpability is ‘somewhat reduced by reason of [his] impaired mental functioning’.[15]
•It was ‘also appropriate to somewhat moderate, although not eliminate, the weight given to general deterrence’ albeit it ‘remains a significant sentencing consideration’.[16]
•Imprisonment will be more burdensome for the applicant than someone not suffering from his mental health conditions.[17]
•The applicant’s ‘substantial’ prior criminal history meant that his prospects for rehabilitation were poor.[18]
•The applicant’s moral culpability for his offending was reduced by his background of trauma and abuse in the sense referred to by the High Court in Bugmy.[19]
•Protection of the community is an important sentencing consideration.[20]
•Specific deterrence is also necessary in this case.[21]
•Denunciation must also be reflected in the sentence.[22]
[14]Ibid [31].
[15]Ibid [32].
[16]Ibid [33], [45].
[17]Ibid [34].
[18]Ibid [35]–[36].
[19]Ibid [38].
[20]Ibid [45].
[21]Ibid.
[22]Ibid.
The judge accepted that the COVID-19 pandemic meant that the time spent by the applicant on remand and into the foreseeable future would cause deprivations including restrictions on prison visits and reduced access to programs.[23]
[23]Ibid [41]–[42].
Finally, the judge stated:
I must impose a sentence for each offence that is appropriate for its individual circumstances. I must also make such orders for cumulation as is necessary to appropriately reflect the totality of the criminality reflected by the charges on the indictment, and results in a total effective sentence that is just in all the circumstances.
In this case, the offending occurred within a relatively short period of time and within a confined area. It does, however, remain necessary that there be some cumulation of the common assault, intentionally causing injury and criminal damage charges on the aggravated burglary charges, and also that there be some cumulation between the two incidents to reflect the fact that you offended against two separate people.[24]
[24]Ibid [46]–[47].

This application

It is convenient to consider ground 6 (the manifest excess ground) first. As the respondent correctly noted in her written case, in order to succeed on appeal, a ground of manifest excess must demonstrate that the sentence imposed was ‘wholly outside’ the range of sentencing options available to the sentencing judge.[25] No specific error need be identified however the impugned sentence must be of such a magnitude as to bespeak error.[26]
[25]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.
[26]Dinsdale v The Queen (2000) 202 CLR 321, 325 [6] (Gleeson CJ and Hayne J); [2000] HCA 54.
This was a difficult sentencing exercise, and in reaching the conclusion that the applicant has established manifest excess, we do not seek to diminish in any way his Honour’s conscientious and careful approach to sentence. After anxious consideration however we have concluded that the sentence imposed on charge 2 is manifestly excessive and whilst the sentences on charges 1, 3, 4 and 7 are within range of sentences reasonably available to the judge, the orders for cumulation operate to produce a sentence that, in our view, offends the principles of totality and proportionality.[27]
[27]R v Tasker and Tasker (2003) 7 VR 128, 135 [33] (Eames JA, Winneke P and Charles JA agreeing); [2003] VSCA 190; R v Lomax [1998] 1 VR 551, 554 (Winneke P).
First, as we have observed, we consider that the sentence of 15 months’ imprisonment on charge 2, common law assault, is wholly beyond the range of sentences available for that offence given the offence’s limited duration, the fact that no physical battery or even touching occurred, and the powerful factors that operated to mitigate the overall offending. We accept that this was a distressing incident for the victim of that offence and that a term of imprisonment is appropriate. We are fortified in our conclusion of manifest excess by the concession made by Senior Counsel for the respondent to this effect.
Second, the orders for cumulation, particularly on the two aggravated burglary charges are, in our view, stern. Charge 1 was committed within seconds of charge 3. The object of both was to assault Mr Bassman. Whilst we agree with the judge that there was nothing to distinguish the respective objective gravity of the offences, this is largely because they were part of a single ongoing course of conduct. It is correct that charge 1 had a different victim to charge 3 and this fact needs some reflection by way of cumulation, however, in our view, cumulating a full year of the sentence on charge 3 onto the three year sentence imposed on charge 1 is stern indeed, if not manifestly excessive. When considered with the other orders for cumulation, we are compelled to the view that a head sentence of five years and four months fails to properly account for the factors that operated in the applicant’s favour, and as a consequence results in a sentence that offends the principle of totality and is disproportionate to the applicant’s overall criminality.
Notwithstanding the applicant’s depressing prior criminal history this was a case where his moral culpability or blameworthiness ought to have been significantly moderated by the combined interaction of his deprived, traumatic upbringing and the judge’s finding that the applicant’s mental impairments were causally connected to the offending and thus engaged Verdins limb 1. The applicant at the time of offending was cognitively impaired, schizophrenic, and suffering from manic depression and PTSD arising from childhood sexual abuse. The irrational, inexplicable nature of the offending together with the unchallenged evidence of Dr March provides a solid connection between the applicant’s various mental impairments and the offending.
Certainly there were factors that pulled in the other direction including protection of the community, although we doubt that the applicant, given his limitations, is a particularly suitable vehicle for specific or general deterrence.
We shall grant leave to appeal under ground 6 and allow the appeal.
It is unnecessary to consider the other grounds of appeal.

Resentence

In the circumstances that we have outlined we propose to resentence the applicant as follows:

Charge on Indictment	Offence	Sentence	Cumulation
1	Aggravated burglary	3 years	3 months
2	Common assault	6 months	1 month
3	Aggravated burglary	3 years	Base
4	Intentionally cause injury	27 months	9 months
7	Intentionally damage property	3 months	-
Total Effective Sentence:		4 years, 1 month
Non-Parole Period:		2 years, 9 months
Pre-sentence Detention Declared:		521 days
Other Relevant Orders: 1. All other orders of the County Court are confirmed.

---

[2022] VSCA 135

12 July 2022