R v Jose
[2001] VSCA 38
•21 March 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 246 of 2000
| THE QUEEN |
| v. |
| NEIL RAYMOND JOSE |
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JUDGES: | PHILLIPS and BATT, JJ.A. and COLDREY, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 21 March 2001 | |
DATE OF JUDGMENT: | 21 March 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 38 | |
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CRIMINAL LAW – Sentencing – Theft, armed robbery and attempted aggravated burglary – Previous convictions – Plea of guilty – Appellant a heroin addict – Evidence of some psychiatric disturbance – Four years’ imprisonment (minimum three) appropriate.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. C.J. Ryan | Solicitor for Public Prosecutions |
| For the Appellant | Mr. N. Papas and Mr. R. Backwell | Victoria Legal Aid |
PHILLIPS, J.A.:
This is an appeal against sentence brought by leave given by a single Judge of Appeal on 10 November last.
The appellant pleaded guilty in the County Court on 1 September 2000 to a presentment containing four counts arising out of events on 20, 22, 23 and 24 August 1999. Count 1 charged the theft of a motor car; count 2, armed robbery; count 3, an attempted aggravated burglary, as to which see s.77 of the Crimes Act 1958 and s.321M; and count 4, the theft of another motor car. The maximum penalties for these offences are, for theft, 10 years' imprisonment, for armed robbery 25 years and for attempted aggravated burglary 20 years.
The appellant admitted 28 previous convictions from 16 court appearances during the period in and between June 1983 and March 1999. These offences included more than one count of theft, burglary, assault and recklessly causing injury. The last of the previous convictions resulted from an appearance in the Magistrates' Court at Melbourne on 16 March 1999 when, for being in possession of property suspected of being stolen or unlawfully obtained, for theft and for unlawful assault, the appellant was sentenced to be imprisoned for a period of three months on each charge, such sentences to be served concurrently with the sentence which he was then undergoing. In consequence, the appellant was at large for only two months at the time when the present offending began.
A plea in mitigation was made to the sentencing judge on behalf of the appellant by counsel. On that plea, viva voce evidence was called from the brother of the appellant, and indeed from the appellant himself, who offered an apology for his conduct. In addition, a number of documents were tendered, including a report from Dr Walton of 2 December 1999, a report from Mr Healey of 27 November 1999, a bundle of medical reports, and reports from Dr Tuck of 6 December 1999 and 31 August 2000 respectively.
On 1 September 2000 the sentencing judge sentenced the appellant as follows: on count 1, for theft, 12 months' imprisonment; on count 2, for armed robbery, three years' imprisonment; on count 3, for attempted aggravated burglary, two years' imprisonment; and on count 4, for theft, 12 months' imprisonment. Three months of the sentence imposed on count 1, six months of that imposed on count 3 and three months of that imposed on count 4 were ordered to be served cumulatively upon the sentence imposed on count 2. In the result the total effective sentence was four years' imprisonment, and it was ordered that the appellant serve a minimum term of three years before becoming eligible for release on parole. Pre-sentence detention of 283 days was declared to be time already served under the sentence. There was an order for compensation, the appellant's driving licence was cancelled and he was disqualified for four years from obtaining another.
The events giving rise to the charges to which the appellant pleaded guilty can be described in reasonably short compass. On Friday 20 August 1999 the first complainant parked her Ford sedan at the Eastland Shopping Centre. On returning to the car she found it had been stolen, and she reported this to the police. On the afternoon of Sunday 22 August, the appellant, in company with others, was seen in the motor vehicle as it was being driven from the appellant's residence. A little later an off-duty policeman observed the vehicle in a shopping centre in Moonee Ponds with four people in it.
Later still, at about 6.20 p.m. on the same day, the second complainant, a 20-year-old female, was attending at an auto-teller machine in Moonee Ponds. She had just completed the transaction and was walking away from the ATM when she was confronted by the appellant holding a knife and demanding money. She tried to continue walking away from the appellant but was then grabbed in a strong fashion from behind. She screamed and threw her purse and keys to the ground, whereupon the appellant let go of her, picking up the purse and keys before decamping in the stolen vehicle. It was found later that that complainant had been cut on the left hand. Her purse and contents, including personal cards and cash of about $200, was taken. Witnesses noted that the appellant ran to the stolen vehicle, which then drove away. So much for counts 1 and 2.
So far as count 3 is concerned, the third complainant, was in bed at home on Monday 23 August 1999. Just before 10 p.m. she was woken by the appellant, who had climbed in through her bedroom window. On her calling out, the appellant fled through the window. Immediately before this incident he had knocked at a neighbour's door, spoken with the neighbour, and departed. It was this witness who a short time later saw the same person leaving the complainant's house. This witness identified the appellant as the offender.
As to count 4, the stolen motor vehicle which was the subject of count 1 was found abandoned. It was towed away for analysis, and fingerprints relating to the appellant were subsequently located in it. Witnesses who noticed people leaving the vehicle at the time it was abandoned saw them drive away in a Ford station wagon, which was also a stolen vehicle. That vehicle was intercepted by police on Wednesday 25 August, in Kensington. Three people were found in it and all were returned to a nearby police station. They included the appellant, who was then interviewed regarding all four matters. He denied any offending and claimed to have been an innocent passenger in the second of the two stolen vehicles, but a search of his residence located a jacket in the bedroom which fitted the description of the offender's jacket in relation to the armed robbery which is count 2. This jacket was identified by the victim and a witness.
The appellant later pleaded guilty to all four counts, as already mentioned. He now relies upon five grounds of appeal: first, that the sentence (sic) was manifestly excessive in all the circumstances; secondly, that the judge failed to give sufficient weight to the medical and psychiatric circumstances as they applied to the appellant and to the nature and extent of his rehabilitation prior to sentence; thirdly, that the judge failed sufficiently to take into account the medical, psychiatric and personal circumstances of the appellant at the time of the commission of the offences; and, fourthly, that the judge failed to give sufficient weight to the appellant's plea of guilty and to the extent of the remorse shown by him. Mr Papas, who appeared before us for the appellant, accepted that grounds 2, 3 and 4 were but particulars of the ground of manifest excess. Ground 5, however, was different, alleging specific error. It read as follows:
"The learned sentencing Judge wrongly concluded that the [appellant] was not suffering a psychiatric condition at the time of the commission of the offences, having regard to the nature and extent of psychiatric and medical evidence placed before him during the course of the presentation of the plea in mitigation of penalty."
Save in this last respect, it is not alleged that the judge made any specific error in his sentencing remarks or that in sentencing his Honour failed to take into account all that had properly been put before him, both in relation to the offending and to the offender. His Honour referred specifically to the material reflecting the appellant's mental condition, tendered by his counsel. He said:
“Mr. Shwartz has tendered materials including the following: Exhibit 1, a report from Dr. Lester Walton, consultant psychiatrist, dated 2 December 1999; 2, a report from Bernard Healey, clinical psychologist, 27 November 1999; various medical reports, namely, Dr. Mazumdar, psychiatrist at Mildura Hospital, 23 August 2000; Associate Professor Julian Davis, psychiatrist, 15 August 2000; Dr. Paul Mestitz, dated 10 July 2000; Ms Anne Gardiner, dated 26 June 2000; Dr. Eugenie Tuck, 6 December 1999; and Ms Barbara Cleary, re medication, 1 September 2000.
It is clear from these reports that the prisoner has had a difficult, traumatic and dislocated life to date. What is also clear is that he has reverted to crime to obtain funds for his living and drug addictions. It is not necessary for me to refer to specific sections of the tendered reports, but I do refer to them all and state that I am satisfied that the opinion of Dr. Walton is to be preferred, and accordingly find that although he was intellectually restricted, he was not schizophrenic and was indeed fully responsible for his actions when these crimes were committed.”
I pause there to set out some portions of the report of Dr. Walton to which the judge was referring. That report was prepared after examination of the appellant in prison on 25 November 1997 and again on 30 November 1999, and in the course of it Dr Walton said:
“MENTAL STATUS EVALUATION
.....
To simple clinical testing this man remains cognitively intact but I am aware that he has undergone psychometric assessment in the past which revealed some evidence of brain damage, attributable to alcohol abuse and also blows to his head.
I have never observed any convincing evidence of this man being psychotic. Alternatively, the current lack of such evidence is consistent with this man’s history that his hallucinations are now largely in abeyance.
.....
OPINION
1.Mr. Jose has now attracted a provisional diagnosis of schizophrenia but I remain far from convinced myself that that diagnosis is correct. I suspect that the principal diagnosis is that of a borderline personality disorder where psychotic-like phenomena may occur as well as recurring depressive episodes and antisocial behaviour.
2.I am aware that Mr. Jose intends to plead to most of his charges but as far as I am concerned he has no mental state defence available in relation to any of the outstanding matters. He does not provide an account that he was acutely psychotic at the material times. His offending is quite typical of a heroin addict. .....”
I should have thought all this more than sufficient to justify the judge's remarks.
The judge then continued his sentencing remarks as follows:
"Since Dr. Walton’s report was prepared, a further report from Dr. Eugenie Tuck, dated 31 August 2000, (Exhibit 6) has been tendered. This report indicates continued psychiatric treatment via intramuscular medication to reduce aggressive impulses. It would appear that whatever psychiatric condition the prisoner suffered, it is now under apparent control via the medication presently being received.“
His Honour proceeded to refer to the appellant's plea of guilty, his stated remorse, the apology tendered in writing and in court and other matters to be brought to account to his credit. After mentioning these more specific considerations, his Honour summed up in this way:
“I have considered all the matters put to me by Mr. Shwartz and have read all the exhibits tendered. The prisoner’s background is indeed traumatic and tragic. The prisoner’s daughter’s present circumstances are also traumatic and potentially tragic. The prisoner’s attempts to rehabilitate himself from his drug and alcohol addiction are indeed significant. I take all these matters into account, and also the other matters raised by Mr. Shwartz to which I have referred.”
On behalf of the appellant Mr Papas has earnestly submitted that the sentences imposed were manifestly excessive. As is often said, that ground does not bear much elaboration. A sentence of imprisonment either is or is not manifestly excessive. The sentencing judge took into account all that was put to him, and if the only argument put to us were that of manifest excess, I have no doubt but that the appeal should be dismissed. To my mind, the sentences were well within the range reasonably open to the sentencing judge in the proper exercise of his sentencing discretion, given the circumstances of the offending and the circumstances of the offender. These sentences were not excessive; they were moderate, and therefore there is, in my view, nothing in grounds 1, 2, 3 or 4.
That leaves, then, ground 5. In this regard Mr. Papas seized upon what Dr. Walton said in the last paragraph of his report and upon what the sentencing judge said immediately before passing sentence. Dr. Walton said this:
"Regardless of the precise psychiatric diagnosis, I believe that Mr. Jose is properly described as significantly psychiatrically disabled and I remain of the opinion that he ought to at least partially escape general deterrent aspects of sentencing. Otherwise I have no comments as a psychiatric expert in relation to disposition.”
The judge properly regarded the expression of opinion about general deterrence as rather a matter for him than the psychiatrist, and Mr. Papas focussed accordingly more upon the judge’s own remarks in sentencing. After referring to the fact that “crimes of this nature are depressingly common” and the need for the court to "take a stand that indicates to the community that condign punishment will follow for those involved with such crimes", which however could operate only within the framework of proper sentencing principles, his Honour said:
"I am of the firm conclusion, however, in this case, notwithstanding the prisoner's mental condition and drug and alcohol addictions, that principles of specific and general deterrence are of paramount importance in the sentencing processes. It must also be stated at this stage that the crimes occurred some two months only after the prisoner's last release from imprisonment, which in turn demonstrates no regard for the law and militates significantly against the course of sentencing submitted by Mr Shwartz."
Mr Papas submitted that in saying that principles of specific and general deterrence were in this instance of paramount importance, the judge fell into specific error because, despite the evidence, his Honour was saying in effect that there was no need to moderate considerations of general or specific deterrence by reason of the appellant's mental condition.
I must say that I am not at all sure that that was what the judge said or intended to say in the passage relied upon, the more especially as I am far from clear that there was no sensible moderation, as it is often described, in the sentencing judge’s consideration of both specific and general deterrence. Be that as it may, in argument today Mr Papas was apt to emphasise what he said was a supervening illness, that is, an illness arising after the offending and before the sentencing, and, as Mr Ryan properly pointed out, if that was the gravamen of this complaint it was scarcely identified as such for the sentencing judge. It may be doubted that it was even isolated as a factor on the plea in mitigation. Indeed, as I think Mr Papas had to concede, there was in the evidence on the plea nothing much to identify the nature or extent of the psychiatric condition upon which counsel was now seeking to rely or, importantly, any specific consequences of it.
In the end, however, I need not rule upon the complaint in ground 5; for, to my mind, it is academic. That is because, if I were called upon to sentence on this occasion, I would myself impose the sentences that were imposed below. They seem to me to be both appropriate and proper in all the circumstances including the evidence of the appellant’s mental condition. As I have said, in my opinion they were moderate. Accordingly, even if there were the specific error which Mr Papas sought to establish, the result would be no different for the appellant: the same sentences would be imposed. Indeed, as I followed the course of argument, Mr Papas accepted that he was in some difficulty in this regard.
For these reasons, I would dismiss this appeal.
BATT, J.A.:
I agree.
COLDREY, A.J.A.:
I also agree.
PHILLIPS, J.A.:
The appeal will therefore be dismissed. But before we leave this matter, I want to draw attention to the state of the record and I ask that these observations be recorded. As I have said, the judge ordered that three months of the sentence imposed on count 1 be served cumulatively upon other sentences imposed. Yet that is not how the presentment was endorsed by the Associate and once again, I am afraid, it falls to this Court to draw attention to such an error.
The Associate noted on the presentment not that three months, but that only one month, of the sentence imposed on count 1 should be served cumulatively. On the County Court file, the quadruplicate, which was signed by the judge and sealed by the County Court, copied that mistake. It too refers to only one month of the sentence imposed on count 1 having to be served cumulatively with other sentences (although strangely it reads “1 months”).
On further enquiry at lunchtime today, it turns out that there is another version of the quadruplicate on the County Court file, and that version (which is found in four colours on the County Court file) faithfully copies the judge's sentencing as pronounced on 1 September 2000. In this version, the quadruplicate appears to have been signed by the judge, although not sealed by the County Court. Whether the signature of the judge is real or a facsimile it is hard to tell.
It is troubling, I think, that the presentment was wrongly endorsed. It is troubling again that there appear to be two versions of the quadruplicate. What the prison authorities, or indeed the prisoner, are to make of all this I do not know.
I strongly urge the respondent to take some steps to correct the record in the County Court now that the error has been identified, both in the endorsement on the presentment and in the quadruplicate. There should, of course, be but one version, and it should accord with the judge's sentencing remarks. Fortunately, in this instance there is no doubt about the judge's sentencing intention; it is clearly set out in his Honour’s sentencing remarks. It is only the record that has to be brought into line.
The order of the Court is: Appeal dismissed.
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