R v King
[2005] VSCA 39
•3 March 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 72 of 2004
| THE QUEEN |
| v. |
| CRAIG ANDREW KING |
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JUDGES: | CALLAWAY, BUCHANAN and EAMES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 3 March 2005 | |
DATE OF JUDGMENT: | 3 March 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 39 | |
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Criminal law – Sentence – Violent offences in the context of a siege – Mental illness not solely a mitigatory factor – Offender a danger to the community – Plea of guilty – Importance of express acknowledgment by sentencing judge of plea – Sentence of four years and six months with a minimum term of two years and three months not manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr. W.G. Gilbert | Leanne Warren & Associates |
| For the Crown | Ms. G. Cannon | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
CALLAWAY, J.A.:
I shall ask Buchanan J.A. to deliver the first judgment.
BUCHANAN, J.A.:
The appellant was arraigned in the County Court and pleaded guilty to a presentment containing two counts of intentionally destroying property, (counts 1 and 5), two counts of threat to kill (counts 2 and 6), one count of assault and unlawful imprisonment (count 3), one count of recklessly placing a person in danger of death (count 4), and one count of recklessly placing a person in danger of serious injury (count 7).
The appellant pleaded guilty to the presentment. After a plea on his behalf, he was sentenced to be imprisoned to a term of six months count 1, nine months on count 2, three years on count 3, three years on count 4, six months on count 5, 12 months on count 6 and two years on count 7. The appellant had also pleaded guilty to a summary offence of breach of an intervention order and was sentenced to be imprisoned on that count for a period of 12 months. With a measure of cumulation, a total effective sentence of four years and six months’ imprisonment was produced. The sentencing judge directed that the appellant serve a period of two years and three months before he was to become eligible for parole.
The appellant has been granted leave to appeal against his sentence by a single judge of this Court.
The appellant is aged 35 years. He served as a soldier with the Australian Defence Force in Somalia where he was involved in a tragic accident which led to a severe post traumatic stress disorder. The appellant was discharged from the army but continued to suffer from a mental disorder. The disorder was aggravated by heavy drinking and the ingestion of amphetamine. It was common ground at the plea that the offences were committed while the appellant was suffering from the effects of mental disorder. When the offences were committed, the appellant was undergoing specialist psychiatric treatment.
The appellant had prior convictions for breaching the terms of an intervention order and for theft.
The appellant had a young son by a de facto partner from whom he was estranged. The appellant's former partner obtained an intervention order against him which prohibited the appellant from approaching any premises where she lived. On 2 August 2003, the appellant telephoned his former partner and requested that he have access to his young son. She refused, thinking that he was a danger to her. That evening, the appellant went to a house occupied by his former partner, banged on the door and demanded to see his son. He then smashed two windows of her car (count 1). The appellant made a number of phone calls to her in a threatening manner and also left a number of abusive voice mail messages for her. On 3 August 2003, the appellant telephoned his former partner and told her:
"It’s going to get dark soon, I'm coming to get you. I'm going to kill you and take Dyllan off you" (count 2).
Dyllan was the appellant's son.
At that time the appellant was boarding with a young married couple. On the morning of 2 August 2003, the wife of the couple with whom the appellant was boarding was woken by the appellant screaming and yelling, apparently an everyday occurrence. She observed the appellant pacing up and down the dining room with a hammer taped to his right hand. The appellant told the young woman that he was "sick of people playing God with my son, so now I am God." The appellant told her that she was not leaving the house and imprisoned her for approximately three hours (count 3).
Police officers attended at the premises and spoke to the appellant by phone. The appellant made demands to see his son and for food and cigarettes. He held a toy gun pointed at his hostage. At one stage the appellant ran outside the house with the gun in his hands and threatened a female neighbour. The appellant then grabbed the hostage and held a six inch kitchen knife to her throat. She became hysterical and started crying. The appellant made her sit down, cupped her hands with her fingertips touching, placed a large kitchen knife between her hands pointed towards her throat and taped her hands and wrists with duct tape. The hostage was terrified. The appellant pulled the hostage into the street, shouting to police that he if he did not get what he wanted, the hostage would be dead. The knife was either touching or very close to her throat (count 4).
The hostage attempted to break loose from the appellant and run towards the police, but he recaptured her and dragged her back into the house. Conversations between the appellant and the police were tape-recorded. The sentencing judge who heard the tape recordings, described them as "chilling", and said that the police and hostage displayed commendable courage. After the appellant took the hostage back to the house, she pleaded with the appellant to cut the tape as it was cutting off the circulation in her hands, which were turning blue. The appellant complied with the request and apologised to her. The appellant left the house and smashed the windows of a car of a neighbour with a stick or bar (count 5). In the course of the appellant's conversations with the negotiating police, he threatened the police that he would kill the hostage (count 6).
At one point during the siege, the appellant went out into the rear garden of the house. He saw two uniformed police officers behind the back fence. He ran towards them with a hammer. As they retreated, the appellant threw the hammer forcefully towards one of the policemen, narrowly missing his head (count 7).
The hostage observed that the appellant appeared to be extremely tired, having difficulty keeping his eyes open. She thought that the appellant may have taken too large a dose of prescribed tranquillising medicine. She made a drink for the appellant, into which she mixed three of the tranquilliser tablets. The appellant said, "It's all over, I'm going to bed." The appellant went to sleep and the hostage ran from the house, whereupon police officers entered the house and arrested the appellant.
The grounds of appeal are that the sentencing judge failed to make due allowance for the appellant's mental condition and the plea of guilty, breached the principles of proportionality and totality in imposing the sentences for counts 1 and 2 and the summary offence and cumulating both sentences and imposed a sentence that was manifestly excessive in that he failed to give proper weight to the appellant's psychiatric condition, the failure of the prison authorities to provide him with adequate treatment, his plea of guilty, the circumstances in which counts 1 and 2 and the summary offence were committed, his limited criminal history and his remorse.
The plea was dominated by the opinions of a battery of psychiatrists and psychologists who had examined the appellant.
Mr Joblin, a forensic psychologist, considered that the offences occurred when the appellant was in a disturbed psychological state and that he remained psychologically impaired. Mr Joblin considered the appellant required ongoing psychological and psychiatric assistance and said that he did not think the appellant should be released if he was to be left to his own resources.
Dr Walton, a psychiatrist, considered that the appellant was suffering from a serious mental disorder, requiring ongoing psychiatric treatment. He concluded:
"This man's prognosis is quite guarded in terms of definitive recovery from the post traumatic stress disorder which now seems to be an entrenched condition and has improved minimally only with appropriate psychiatric treatment. Thus it would have to be accepted that there is a further risk for Mr King behaving aggressively, although as I understand it, the actual incidents of violence have been reassuringly few."
Dr Owens, a forensic psychiatrist, said that it was not possible to adequately treat the appellant's underlying condition if he continued to abuse alcohol and amphetamine. He considered the appellant's prognosis to be moderate to poor. He said that the appellant's best prospects of recovery would be in a drug and alcohol free sustained therapeutic relationship outside prison. He thought the appellant's psychiatric needs could be met within a prison setting, but there should be more psychological and psychiatric services provided for the appellant than he was currently receiving.
Miss Pamela Matthews, a forensic psychologist considered that the overall future risk of violence by the appellant was moderate to low, and given a structured rehabilitation plan and monitoring the risk level would be reduced to low.
The sentencing judge considered whether it would be in the interests of the community to make a hospital order pursuant to the provisions of Part 5 of the Sentencing Act 1991. Accordingly the Court sought the opinion of a psychiatrist authorised under the Act, Dr Bell.
Dr Bell said that it was not possible to offer the Court the option of a disposition which would afford the appellant extended psychiatric inpatient treatment and explained in detail his reasons for this conclusion.
Oral evidence was led from Dr Owens as to the treatment options available to the appellant in the community, with particular reference to the psychiatric program conducted by Forensicare. In order for the appellant to be considered for the program, he would have to be released and then assessed. From the evidence it would appear that treatment of the appellant could not be assured prior to his release from prison. Dr Owens said that the appellant presented a risk to the community upon release and assessed his mental state as unstable.
At the forefront of the appellant's case on appeal was the contention that the sentencing judge failed to give due weight to the appellant's mental illness. In R. v. Tsiaras[1], the Court, consisting of Charles and Callaway, JJ.A and Vincent, A.J.A said:
"Serious psychiatric illness not amounting to insanity is relevant to sentencing in at least five ways. First it may reduce the moral culpability of the offence, as distinct from the prisoner's legal responsibility… Second, the prisoner's illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time. Fourth, specific deterrence may be more difficult to achieve and is often not worth pursuing as such. Finally psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would upon a person in normal health."
These five point have been explained and amplified in subsequent cases, but it was common ground that they applied here.
[1][1996] 1 V.R. 398 at 400.
On the other hand, a person suffering mental illness may, on that account, represent a danger to the community. In R. v. Izzard[2] Callaway, J.A. pointed out:
"Mental illness is not solely a mitigatory factor. It may mean that the offender, whilst deserving of compassion, is also a greater danger to the community."
[2](2003) 7 V.R. 480 at 483-4.
In the present case, the sentencing judge was alive to these inconsistent factors. His Honour said the state of the appellant's mental health was a most important sentencing consideration and said that he had regard to the observations of the Court in R. v. Tsiaras. His Honour’s remark that: "Clearly the issue of public protection must be a most important sentencing consideration in this present case", was justified. His Honour had regard to the factors that were relevant in this case and I can see no error in his synthesis of those factors. In particular, it would appear that the sentencing judge made conscious allowance for a potential improvement in the appellant's mental condition in the non-parole period which he fixed.
Counsel for the appellant contended that the sentencing judge erred in concluding that the primary purpose in sentencing the appellant was the protection of the community and submitted that that was only one of a number of relevant principles. I doubt that the sentencing judge did elevate the consideration of protection of the public above all other factors, for he said only that is was, "a most important sentencing consideration." In any event, in the circumstances of the present case, it was a most important consideration, for the appellant's condition and the part which it played in the offences indicate that he did present a potential danger to other persons and property. I do not think that the sentencing judge treated the protection of the community as a discrete and primary sentencing principle, unaffected by questions of specific and general deterrence, but rather sought, as he was obliged to do, to synthesise the competing considerations.
It was submitted by counsel for the appellant that the sentencing judge did not give any or adequate weight to the appellant's early plea of guilty. In my view it is desirable that sentencing judges expressly acknowledge the benefit to the victims, the community and the system of justice afforded by a plea of guilty.[3] I would not infer, however, merely from a failure by a sentencing judge to state that he had factored in a discount for a plea of guilty, that he had not done so. In the present case, His Honour referred expressly to the appellant's plea of guilty and imposed a sentence which, in my view, adequately reflected the discount which the plea attracted.
[3]See R. v. Duncan [1998] 3 V.R. 208 at 214-15 per Callaway, J.A.
The sentences imposed in respect of counts 1 and 2 and the summary offence, considered individually, may be seen as stern. It is not to be forgotten, however, that the appellant had a prior conviction for breaching the conditions of an intervention order, involving the same victim. In my view, the sentences and the eight months cumulation ensuing from them, did not breach the principle of totality when viewed in the context of a rampage with frightening overtones. As counsel for the appellant has pointed out, there were a number of mitigating factors. The appellant had not been previously charged with a violent offence. The offences occurred during a dispute between the appellant and his former partner and the mother of his child, the relationship between the appellant and his victim had been repaired and the offending occurred over a relatively short period. However, I do not regard those factors as sufficiently significant to produce the result that the sentences imposed by
the sentencing judge were beyond the range available to him.
Counsel for the appellant submitted that the cumulation of eight months of the sentence of count 7 was excessive. I do not agree. The victim of that count was not the victim of the other counts and furthermore was a policeman acting in the course of his duty.
Finally it was submitted that the overall sentence was manifestly excessive in that it failed to give weight to the appellant's serious psychiatric illness and the role which it played in the commission of the offences, failed to give weight to the appellant's plea of guilty and failed to give weight to the factors I have referred to and to the appellant's remorse. As to the last, the sentencing judge said that the appellant appeared "to have demonstrated little remorse," for his offending and said that the appellant had stated that what he did was done in a professional military fashion in a war-time situation. In my view, having observed the appellant, His Honour was entitled to come to that conclusion and was not obliged to accept the opinion of Dr Walton and Ms Matthews that the appellant had displayed appropriate remorse. Overall, I am of the opinion that the total effective sentence and the non-parole period did adequately reflect the mitigating factors which the appellant could pray in aid, and the sentence was not manifestly excessive.
Accordingly, I would dismiss the appeal.
CALLAWAY, J.A.:
I agree.
When the appellant was sentenced on 5 April 2004, the judge said that it was to be hoped and it would be his recommendation to the prison authority that the appellant receive appropriate psychiatric treatment within the prison system. Accordingly his Honour directed that copies of the psychiatric and psychological reports tendered on the plea be forwarded to the prison authority. We were informed that the appellant has still not seen a psychiatrist. I shall ask the Registrar
to ensure that the psychiatric and psychological reports were forwarded as his Honour intended and that the prison authority is provided with a copy of our judgments this morning.
EAMES, J.A.:
For the reasons given by Buchanan, J.A., I agree that the appeal should be dismissed.
CALLAWAY, J.A.:
The order of the Court is –
Appeal dismissed.
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