R v Maccia
[2005] VSCA 20
•17 February 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 319 of 2003
| THE QUEEN |
| v. |
| BENITO MACCIA |
---
JUDGES: | WINNEKE, P., CHARLES and CHERNOV, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 1 February 2005 | |
DATE OF JUDGMENT: | 17 February 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 20 | |
---
Criminal law – Sentencing – Offences of incitement to murder and “stalking” – Total effective sentence of eight years’ imprisonment and non-parole period of five years – Relevance of appellant’s mental condition to penalties imposed –Application of principles discussed in R. v. Tsiaras and R. v. Eliasen considered.
---
APPEARANCES: | Counsel | Solicitors |
For the Crown | Mrs. C.M. Quin | Ms. K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr. O.P. Holdenson, Q.C. | Galbally & O’Bryan |
WINNEKE, P.:
Benito Maccia (hereinafter called “the appellant”) was born on 5 April 1940 and, accordingly, is currently aged 64 years. He is a man of otherwise good character and, relevantly, has no prior convictions. He was born in Italy and came to this country when he was approximately 24 years of age. He has worked assiduously and has built up a significant business of footwear manufacture and sale through his own significant efforts. It is, therefore, disappointing that he should have found himself charged with two very serious offences arising out of events which happened in the years 2000 and 2001. The offences with which he was ultimately charged were the offences of “stalking” contrary to s.21A of the Crimes Act 1958 and incitement to murder, contrary to s.321G of the Crimes Act. Those offences respectively carry maximum terms of imprisonment of 10 years and life imprisonment or such other term of imprisonment as is fixed by the court (s.321I (ba) Crimes Act). Although the appellant initially denied his participation in these offences, it ultimately became apparent to him that the evidence against him was overwhelming and, thus, in April 2003, he pleaded guilty to the two offences.
The appellant ultimately stood for sentence before Gillard, J. in the Supreme Court in April 2003. The hearing of the plea was adjourned on more than one occasion to allow the appellant to be further examined by his psychiatrist and psychologist; namely Professor Mullen and Mr. Jeffrey Cummins respectively. Ultimately, the hearing proper took place in September 2003 and a number of witnesses were called, the majority of whom testified to the appellant’s capacity for hard work and to his trustworthiness. Professor Mullen gave no evidence but his reports were tendered. The forensic Psychologist, Mr. Cummins, gave evidence and the judge had before him three reports from the witness dated 23April, 4 June and 29 August 2003. The conduct in which the appellant had engaged over a substantial period was, on any view, very serious; and was so regarded by his Honour. I will refer to the nature of that conduct hereafter; but it suffices to say for the present that an issue was raised before the judge as to the state of the appellant’s mental well-being at the time when the conduct was engaged upon, and at the time when he stood for sentence. That was an issue which his Honour sought to resolve in the course of giving his reasons for the sentences which he imposed. It can be said that his Honour did not regard the appellant’s mental well-being as a significant mitigating factor influencing the appellant’s conduct. It is that aspect of his Honour’s sentencing remarks which have been attacked in this Court and to which I will hereafter refer. At the end of the day his Honour sentenced the appellant to six years imprisonment on each count and ordered that two years of the sentence imposed on count 2 be cumulated upon the sentence imposed upon count 1; giving a total effective sentence of eight years. His Honour ordered that the applicant serve five years before becoming eligible for parole. On 13 August 2004 a judge of this Court gave leave to appeal pursuant to s.582 of the Crimes Act.
Circumstances of the Offending
The stalking, as his Honour found, had gone on for a period of nearly eight months from late 2000 to June 2001. It was constituted by a series of acts which caused physical, but mainly mental, harm to the victims and aroused apprehension for their safety. The victims of this conduct were the members of the extended family of Elizabeth Gligorieva. In particular, they included Mr. Slav. Tasevski and his wife Ljubica. Ljubica had been employed from time to time in the appellant’s business. Slav. (otherwise known as “Stumpy”) was the intended victim of the second count – namely incitement to murder. Victims also included Borce Vasilevski and Milanco Gligorieva, who were cousins of Slav.
It would seem that the initial target of the appellant’s conduct was Elizabeth Gligorieva, the sister of Borce and Milanco. She apparently commenced to work for the appellant in 1996 and was the full time assistant at his Thomastown shop from 1997. According to her sworn testimony at the committal proceeding, the appellant had made amorous advances to her, leading ultimately – as she said – to “coerced” sexual relations in 1998. She further said that in January 2000 the appellant gave her $100,000 as an inducement to sleep with him. According to her testimony, the appellant pestered her for sex but she was unwilling. She claimed that he became more and more aggressive and upset and, ultimately, she told him to stay away from her and not to intrude into her private life. Thereafter she said that the appellant became obsessive and followed her around, making enquiries from her neighbours as to the identities of those who visited her at her home. His Honour accepted her sworn testimony about the relationship between her and the appellant; particularly in the absence of any statement by the appellant or evidence being given by him as to the state of his relationship with Elizabeth. The most that his Honour had before him reflecting the appellant’s views of that relationship came from the psychological and psychiatric reports from Professor Mullen and Mr. Cummins. The view proffered by the appellant to Professor Mullen was very different from the evidence which Elizabeth had given at committal proceedings. It appears that Professor Mullen was told that there had been a happy relationship from 1997 between the appellant and Elizabeth in which she willingly gave sexual favours to him and he was the willing provider of financial assistance to her. It was his claim that she had broken his trust by having sexual relations with a relative. These claims were denied by Elizabeth at the committal proceedings; and in the absence of any formal testimony or other statement made by the appellant, his Honour preferred the view contained in the sworn testimony of the girl. Whatever the truth about the relationship, it was apparent, and his Honour was prepared to accept, that the appellant became angry with Elizabeth and her relatives to the point where, as his Honour said, the appellant “had an intense sense of rejection and anger” which led him to excessive drinking which, in turn, led to vengeful conduct.
Although his Honour was not prepared to accept the proposition that Elizabeth had had a long-standing and amicable relationship with the appellant, nor that she had had a sexual relationship with one of her relatives, his Honour was prepared to accept that the appellant entertained a “perception” to this effect and that this was the explanation for his long-standing and extraordinary conduct towards Elizabeth and her extended family, the members of which had shown him nothing but kindness.
The stalking which, as I have said, went on for nearly eight months comprised 11 separate instances of criminal conduct which had the necessary ingredients and intent contemplated by s.21A of the Crimes Act and had had the effect contemplated by the section. The conduct was aptly described by his Honour as “appalling” and had produced in its victims a frightening, disturbing and distressing effect. The conduct was achieved, for the most part, by the appellant through a “hired hand” and co-accused, Afrim Medini, a young man aged 26 years who had been sentenced by his Honour for his part in the stalking on 15 February 2002. His Honour had sentenced Medini to four years with a minimum of two years for a series of offences which comprised the individual acts included in count 1 (namely “stalking”) with which the appellant had been charged. In passing sentence on Medini, his Honour had taken into account a number of mitigating factors, which he itemised, and which included his undertaking to give evidence against the appellant. In this respect it should be noted that the appellant, when intercepted by the police, denied any responsibility for his conduct; one of the reasons why there is nothing in any written or oral form from the appellant himself to explain the reasons for that conduct.
Medini was, at the end of the year 2000, in debt to the appellant. The appellant had apparently loaned him $5,000 at an earlier stage to enable Medini to take a holiday. It would seem that the appellant took advantage of this circumstance to impose upon Medini to work his (that is the appellant’s) will in stalking the intended victims of the appellant. As a consequence, Medini (who identified himself only as “Tony”) made a series of telephone calls directed to the households of the intended victims demanding from them money with threats to destroy their property and to kill Tasevski and his family. Tasevski and his wife received at least 16 such calls between November 2000 and June 2001; whilst Vasilevski received 9 calls to similar effect between January and May 2001. Between February 2001 and June 2001 Milanco Gligorieva and his family received at least 25 similar calls; whilst Elizabeth received like calls between March and June 2001.
In this fashion, and at the appellant’s instance, Medini was “working off his debt” to the appellant at a rate of $100 per telephone call. Additionally, he also perpetrated unlawful and dangerous acts to the prejudice of the victims and their families In accordance with the appellant’s instructions, he set fire to Slav’s car with accelerant provided by the appellant. In March 2001 – and again on the instructions of the appellant – he drove a motor vehicle into the rear of the motor vehicle owned by the wife of Milanco. By this time - namely March 2001 – the families were living their lives in fear. They were tending to blame each other, not knowing by whom, or why, these threats were being made.
In April/May 2001, the appellant hired a security firm, ostensibly, to provide protection to Elizabeth and her family. This was a deceit practised, as his Honour found, by the appellant so that he could maintain the allegiance of his victims and at the same time ascertain through them information about police suspicions and activities. Under cover of this guise of “care”, he continued to instruct Medini to pursue the threatening conduct.
In April 2001 the appellant increased the tempo of the fear-inspiring conduct. Medini was instructed to shoot at the house of Milanco in Sunshine. For the purpose, the appellant supplied a rifle and ammunition to Medini and drove Medini to the house where shots were fired into the front and rear windows whilst the 14 year old daughter (Danni) was in the house. Thereafter, in May 2001, the appellant drove Medini to Tasevski’s house in order that Medini would know where it was. Thereafter Medini returned and fired three shots through the kitchen window narrowly missing Tasevski’s wife who was at the kitchen sink.
In May or June 2001 the appellant sought to induce Medini to murder Tasevski for a sum of $15,000. Again., on 11 June 2001, he sought to persuade a man called Emir Illis to burn the car of Milanco’s wife. Thereafter he sought to induce one “Alex Baldwin” to fire shots into the home of Borce Vasilevski. Unbeknown to the appellant Alex Baldwin was the pseudonym adopted by a covert police officer who had been brought “into the picture” at a time when suspicion had commenced to fall upon the appellant.
Medini would not be a party to killing the appellant’s intended victim. As a consequence, the appellant made contact with Alex Baldwin. His Honour carefully considered the evidence of this contact, which had been secretly taped by Baldwin, particularly because of the evidence which was called on the appellant’s behalf to suggest that the appellant’s conduct had been significantly affected by mental deterioration depriving him of his capacity for careful cognitive thinking, for logical thought and for prudential reasoning.
The appellant had first met Baldwin on 13 June 2001 in Sunshine. Thereafter, as his Honour related, numerous meetings took place between the appellant and Baldwin, during the course of which Baldwin was incited to kill Tasevski. His Honour reviewed the evidence of the circumstances in which the appellant told Baldwin that he wanted Tasevski killed and discussed methods by which the killing might be achieved. Baldwin nominated $10,000 as the price of the killing; and on 19 June 2001 the appellant paid Baldwin $5,000 as a “down payment”. On that same day, the appellant was arrested. As I have previously indicated, the appellant was extensively interviewed by the police and, although he admitted knowing the families in question, he denied all allegations that were put to him; denied knowing Medini and denied having had any contact with “Alex Baldwin”.
The Trial Judge’s Attitude to the Gravity of the Offending
His Honour took the view, correctly in my opinion, that this offence of stalking was a serious one. He referred to the fact that the conduct was premeditated, planned and organized, was carried out over a period of nearly eight months and involved the use of an accomplice. His Honour referred to the fact that the threatening conduct was backed up by action in the form of damage to motor vehicles on two occasions and the discharge of a firearm on two occasions resulting in damage to property and putting persons in fear of their lives. As his Honour said, the discharges of a firearm at the victims’ premises were “extremely serious and dangerous acts and fortunately … did not cause any physical injury, but did cause considerable mental injury”. Furthermore, the conduct was deceitful in representing to various members of the family the appellant’s concern for them when his real object was to ascertain information.
Further aspects of the conduct involved in the “stalking” which his Honour was satisfied that the evidence had displayed were:
(i)the fact that the conduct had terrified its victims;
(ii)the fact that, notwithstanding that the appellant knew the effect which the conduct was having upon members of the families, he nevertheless persevered with it causing more distress. To this extent, his Honour said, the conduct “was indeed cruel and callous”.
The circumstances of the offending represented by count 1, led his Honour to the view that the appellant’s conduct over an extended period:
“constitutes one of the worst examples of stalking”.
In his Honour’s view, the level of criminal culpability of the appellant was very high indeed and was further of the view that his conduct “has had an enormous damaging effect upon the emotional well being of all the victims”.
Notwithstanding his view as to the serious nature of the “stalking”, his Honour took into account various matters personal to the appellant and a number of factors which he regarded as “mitigating”. These factors included the appellant’s hardworking and blameless life through 60 years; the fact that he had built up a good reputation as a hardworking and decent person, both as a private individual and as an employer; the fact that the appellant had pleaded guilty and that much time and expense had been saved; the fact that the appellant had been in custody since his date of arrest in June 2001 and that delay had occurred in bringing the matter to conclusion; the fact that the prospects of the appellant’s rehabilitation were “excellent”, and finally the fact that the conviction and denunciation by the court of the conduct had destroyed the otherwise good reputation of the appellant.
Application of the Principles of “General Deterrence”
It was submitted by counsel for the appellant on the plea that there were a number of factors in this case affecting the appellant’s judgment and conduct at the time of the commission of the offences which ought to be taken into account in determining appropriate sentence. In particular, and based on the opinions of Professor Mullen and Mr. Cummins, it was put that the appellant was suffering from a psychiatric condition which affected his ability to reason and make proper judgments. In these circumstances, it was submitted that the sentencing principle of “general deterrence” ought to have been sensibly moderated[1].
[1]R. v. Tsiaras [1996] 1 V.R. 398.
Before the sentencing judge Mr. Cummins gave evidence that he had administered various tests to the appellant and formed the view, as a result of those tests, that the appellant was suffering from a degree of brain damage which was affecting his general memory and intellectual functioning, principally as a result of damage to the frontal lobes of the brain which were influential in the exercise of “judgment forming”. These views were the subject of critical cross-examination by counsel for the Crown who made criticism of the nature of the tests administered, the lack of qualifications of the person administering them and the lack of an interpreter in the administration of the tests.
Despite the criticisms that were made of the tests and testing by Mr. Cummins, his Honour was nevertheless prepared to accept his findings that, at the time of sentence, the appellant was suffering from frontal lobe damage. The degree of such damage was, however, to his Honour’s mind, “doubtful”; and a significant question which his Honour had to determine was whether he was suffering from that damage at the time he was engaging in the criminal activity. His Honour noted that, as a result of tests conducted on a number of occasions in 2003, Mr. Cummins had formed the opinion that those tests:
“… confirm he does have some acquired brain damage which is impacting adversely on his auditory verbal short-term memory, his non-verbal (visual) short-term memory and on his ability to engage in visuo-spatial problem solving and in his ability to maintain a cognitive set.”
Mr. Cummins had gone on to tell his Honour that the appellant’s “cognitive state and memory functioning” would have been compromised at the time of the offending. His Honour accepted that such was the condition of the appellant at the time when he was standing for sentence. In his Honour’s view, however, the opinion formed by Mr. Cummins had to be weighed alongside the conduct of the appellant as attested to by a variety of witnesses in their deposition statements during the period from the beginning of the year 2000 to June 2001. That evidence, his Honour said:
“…, clearly establishes that for many months you were in control of your thinking processes, and quite capable of organizing and planning various activities. In this period you continued to run your business. For all intents and purposes it was a one man business and you performed a hands on role in relation to all facets of [it]. … In addition, you engaged Mr. Medini and put in place the situation whereby you were able to pressure him to do your ‘dirty work’. Your organization and planning of the stalking covered many months. You cunningly ingratiated yourself with the family for a number of ulterior purposes. Your discussions with ’Alex Baldwin’ show a person who was thinking, planning and organizing a series of crimes with a keen understanding of avoiding detection by the police.”
Whilst his Honour accepted that the appellant during this period was “drinking more”, he was not prepared to accept that he was suffering from frontal lobe damage to an extent that he could not function as “a normal person”.
His Honour also went on to note that, following the further testing done by Mr. Cummins, Professor Mullen – in an additional report – had noted that “brain imaging studies did not show any gross shrinking or alteration in the brain”. That, said Professor Mullen, was not “incompatible with functional damage”. Nevertheless his Honour noted that Professor Mullen had indicated that such new information as he had received had not materially changed the opinion which he had expressed in his first report, but reinforced his view that the appellant’s judgment and self-control were compromised at the time of the offending. That led his Honour to note:
“I have little doubt that you lacked self-control and good judgment. You acted impulsively, without thinking through what you were doing. What you did was completely out of character. You indulged in appalling, bizarre, irrational conduct completely foreign to the way you had behaved in the past. But this view of your behaviour which to some extent explains your conduct, nevertheless must be considered in the light of your criminal conduct which has occurred over a long period. You were very aware of the appalling effect of your conduct upon members of the family, but despite that, you persisted in your cruel and callous conduct.”
His Honour went on to say that for the purposes of sentencing, he accepted that the problems which had been noted by Professor Mullen had interfered with the appellant’s judgment and that the appellant had pursued a course of conduct which was out of character. Nevertheless his Honour was also satisfied that the conduct demonstrated a person who planned and organized this “appalling conduct” over a long period of time. His Honour said:
“I do not accept that your mental state, confused to some extent as it was, makes you an inappropriate vehicle for general deterrence. I do not accept that at the relevant time you were suffering from a psychiatric disorder of such a nature or severity that general deterrence has no part to play in the sentencing process. In my opinion it does.”
Count 2 – “Incitement to Kill”
His Honour then turned his attention to the offence of incitement to kill which was the subject of count 2 on the presentment. He regarded, as an aggravating factor, the fact that the appellant had:
“… considered, planned and organized the crime over a number of days, doing all that was necessary to execute your part of the arrangement and, more importantly, taking precautions to avoid any suspicion of you”.
This offence, his Honour said, was premeditated. He was satisfied that the appellant expected the arrangement to be completed but that, in determining the proper sentence, he would take into account the matters that he had previously referred to, namely the mitigating and personal factors which he had already discussed.
Having determined a sentence of six years in respect of each count, his Honour rejected the submission made by the appellant’s counsel that, because the incitement to kill was simply a continuing step in the conduct which constituted the “stalking”, there should be no cumulation of sentence. His Honour rejected this submission, preferring the one made by the prosecutor that the incitement to kill was an additional step in the appellant’s conduct and represented a quite distinct approach to a different state of affairs. In his Honour’s view it was appropriate to cumulate two years of the sentence on the incitement upon the sentence which had been imposed on the stalking.
The Appeal
The grounds of appeal which have been subsequently amended on 31 August 2004 and 10 November 2004 are four-fold:
Ground 1:The sentence is manifestly excessive.
Ground 2:The sentencing judge erred in the exercise of his discretion in that he gave too much weight to the sentencing principle/objective of general deterrence.
Ground 3:The learned sentencing judge erred in the exercise of his discretion in that, having made a finding of fact that, at the time of sentence, the appellant had some frontal lobe damage to the brain (with certain consequential effects), he failed to “sensibly moderate” the weight that he gave to general deterrence.
Ground 4:There has been a substantial miscarriage of justice (such that a different and lesser sentence should now be imposed upon the appellant), by reason of the deterioration of functioning and the personality deterioration in the appellant subsequent to the imposition of sentence, and the consequences of same, as evidenced in the report prepared by Mr. Jeffrey Cummins … dated 8 November 2004 … .
In support of grounds 2 and 3, Mr. Holdenson, who appeared for the appellant, told the Court that there was no challenge on behalf of the appellant to his Honour’s fact findings. That, as it seems to me, is not surprising because his Honour was meticulous in making his fact findings on the evidence available to him. However, submitted Mr. Holdenson, it was clear from his Honour’s sentencing remarks that – in imposing sentence – he was giving full rein to principles of general deterrence. This, so it was submitted, was apparent from some of the statements which his Honour made in the course of giving his reasons. Thus, his Honour said:
·“In fixing the appropriate sentence the court is obliged to not only apply principles of general deterrence but on behalf of the community clearly denounce your criminal conduct”; and
·“… The sentence must send a clear message to those who are like minded”; and
·“ [Counsel] submitted that at the relevant time you were suffering from some form of mental disability which affected your memory, thought processes and judgment and as a result you are not an appropriate vehicle for general deterrence”.
His Honour went on to note, so it was submitted, that he was “not dealing with a serious psychiatric illness”. His Honour referred to the opinion formed by Mr. Cummins that the appellant was “presently suffering” from a degree of brain damage which is affecting the general memory and intellectual functioning; although those findings were contested by the Crown. Nevertheless his Honour said that:
“Despite those criticisms, I am prepared to accept his (i.e. Cummins’) findings that at present you do suffer from frontal lobe damage. But to what degree is doubtful. The question is were you suffering from frontal lobe damage at the time you indulged in your criminal activity.”
In support of his submissions in relation to grounds 2 and 3 of the appeal, Mr. Holdenson referred to the tests which had been conducted by Cummins in 2001 and in April, May and June 2003. Those tests had led Mr. Cummins, as I have noted, to express the opinion that his results “confirm that he does have some acquired brain damage which is impacting adversely on his auditory verbal short term memory, his non-verbal (visual) short term memory, and on his ability to engage in visual/spatial problem solving, and in his ability to maintain a cognitive set”. Mr. Cummins went on to express the opinion that the appellant’s cognitive state and memory functioning would have been compromised at the time of his offending behaviour. It was Mr. Holdenson’s submission that the Judge had not given any, or any sufficient, weight to these opinions in fixing the sentences which he did.
I am unable to accept the thrust of these submissions. His Honour’s reasons make it clear that he accepted that the appellant was suffering frontal lobe damage to the brain, although not to the extent that he was not functioning “as a normal person”. Indeed, as I have already said, his Honour stated that:
“For the purposes of sentencing I accept that these were problems which interfered with your judgment and that you did pursue a course of conduct out of character, but nevertheless I am also satisfied that your conduct demonstrated a person who planned and organized your appalling conduct over a long period of time.”
It was these factors which had led his Honour to conclude[2] that he was not able to accept that – at relevant times – the appellant was suffering from a psychiatric disorder of such nature and severity that general deterrence had no part to play in the sentencing process (my emphasis). His Honour referred to R. v. Tsiaras[3]; and R. v. Yaldiz[4].
[2]See para [21] above.
[3][1996] 1 V.R. 398.
[4][1998] 2 V.R. 376 at 383.
His Honour’s factual findings in this regard were not the subject of challenge, but it was submitted by Mr. Holdenson that his Honour was in error in not ameliorating the effect of general deterrence in his sentencing process. In this regard he referred to a passage in Tsiaras’s case at page 400 where this Court 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. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. 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 on a person in normal health.” (my emphasis).
Mr. Holdenson placed specific emphasis upon the third of these propositions.
In the other case to which his Honour referred, namely Yaldiz (supra), the Director of Public Prosecutions had appealed against a sentence imposed by the trial judge for attempted murder. In opposing the application, respondent’s counsel had argued that the trial judge had erred by confining the principles expounded in R.v. Anderson[5] to cases of insanity and contended that the judge should have ameliorated the effect of the principles of both general and specific deterrence as a consequence of the respondent’s psychiatric condition of “post traumatic stress disorder” which the evidence suggested was influencing the respondent’s conduct at the time of the commission of the offence. Batt, J.A.[6] said:
“That the respondent was suffering from a mental illness was established by the medical evidence and indeed accepted by her Honour. But there was no evidence drawn to our attention, and Mr. Tehan made no submission, to the effect that the illness contributed to the offence or that the offence was committed under its influence. Further, I have already referred to her Honour’s unchallenged finding as to the respondent’s comprehension and awareness concerning his acts. Mr. Tehan’s submission, so far as it related to deterrence as opposed to mitigating factors generally, derive, as it seems to me, no assistance from Anderson (that is R. v. Anderson [1981] V.R. 155) and certainly none from any of the judgments in R. v. Hatherley (Unreported, Court of Criminal Appeal, 6 February 1986), from which the critical passage in the principal judgment, that of Young, C.J., was quoted by the sentencing judge. I therefore need not repeat it. Mr. Tehan’s submission does, however, derive support from the third proposition in the joint judgment in R. v. Tsiaras (supra at 400). But, as is shown by the judgment of Kirby, P. … in R. v. Champion (1992) 64 A.Crim.R. 244 at 254-5, which was cited with approval by the President of this Court … in R. v. Richards & Gregory [1998] 2 V.R. 1 at 10, general deterrence is not eliminated but still operates, sensibly moderated, in the case of an offender suffering from a mental disorder or severe intellectual handicap.”
[5][1981] V.R. 155.
[6][1998] 2 V.R. at 380-381.
I think that it is true to say that all of the cases to which reference has been made involved circumstances where the offender had been suffering from the contended serious psychiatric illness at the time when the offences had been committed.
Notwithstanding what I have said, it seems to me that, in advancing the submissions which he did, Mr. Holdenson was misinterpreting the comments of the trial judge in this case to which I have previously referred. When his Honour said that he did not accept that at the relevant time the appellant was “suffering from a psychiatric disorder of such a nature or severity that general deterrence has no part to play in the sentencing process” he was not suggesting that deterrence was to apply “unabated” or “unameliorated”, as Mr. Holdenson was contending; rather, in my view, he was indicating that general deterrence would apply but with limits. Otherwise I can see no reason why he should have referred both to Tsiaras and Yaldiz. The submissions made by Mr. Holdenson in support of grounds 2 and 3 seem to me to be based, therefore, on a false premise. Mr. Holdenson conceded that, if indeed his Honour’s remarks were to be construed as having given some weight to the principles of general deterrence, then his grounds 2 and 3 “fell away”. Alternatively he said that if his Honour was intending to “temper the weight” to be given to principles of general deterrence, he had not done enough. In my view there is nothing to be found in his Honour’s sentences, or the remarks in accordance with which he arrived at them, which suggests to me that his Honour has fallen into any error of the manner suggested or that, on account of such an error, his sentencing discretion ought to be reopened by this Court warranting a re-exercise of the sentencing discretion in accordance with the latest report of Mr. Cummins which was put before us.
Ground 4
In the light of my conclusion in respect of grounds 2 and 3, there seems to me to be no basis left for an argument on ground 4, which Mr. Holdenson described as his “Eliasen point”[7]. The principle expounded in the case of Eliasen is that the Court on appeal may, if it considers the case an appropriate one to do so, permit evidence of matters or events occurring since the date of passing of the sentence upon an applicant to be placed before the appellate court with a view to the Court’s reconsidering the matter in the light of the additional evidence[8].
[7]Cf. R. v. Eliasen (1991) 53 A.Crim.R. 391.
[8]Cf. R. v. Rostom [1996] 2 V.R. 97.
For my own part I do not see the principles in Eliasen’s case having any application to the circumstances which were before his Honour in this case. His Honour was well aware, from the evidence before him, of the appellant’s deteriorating condition occasioned by the frontal lobe damage. Those matters he took into account by adjusting the sentence which he imposed by moderating the principles of general deterrence. Although the proffered report by Mr. Cummins dated 8 November 2004 concluded that there had been “a further personality deterioration” in the appellant’s condition since he had last been seen in 2003, there was nothing in that report which indicates circumstances which would not have been capable of being inferred by the judge at the time when he imposed sentence. Indeed, Mr. Cummins said that the appellant “continue[d] to present as being somewhat vague”, that “there is not a normal level of integration between his thoughts, behaviour and feelings” and that “he still displays … compromised insight”. He concluded that “base[d] on this assessment of [the appellant] and my previous assessments of [him], I remain of the opinion that he should not be regarded as functioning in a cognitive and memory sense as ‘a normal person’.”
In these circumstances, it is my view that no basis has been demonstrated for the application of the principles expounded in Eliasen’s case. The circumstances in which the Court will entertain new evidence relating to events alleged to have supervened after sentence are rare and exceptional. In normal circumstances, if it is suggested that subsequent events have rendered a sentence, appropriate when passed, manifestly excessive, then that is a matter for the consideration of the Executive in the exercise of its prerogative and not a matter for an appellate court[9]. The Court will only receive evidence of events occurring after sentence – and then only in appropriate circumstances – if the events can be said to be relevant because they throw a different light on circumstances, or the true significance of facts, existing at the time of sentence[10]. That is not this case; there are many cases like this one where the trial judge is aware that the person being sentenced is subject to conditions which are of a deteriorating kind. This judge was well aware of that condition and the course which it was likely to follow. The report of Mr. Cummins which is now sought to be tendered itself reveals nothing which would not have been expected by the trial judge. Indeed, that report rather indicates that its author has formed the view that what he had previously prognosticated remains the same.
[9]See R. v. Babic [1998] 2 V.R. 79 per Brooking, J.A. at 80-81; R. v. W.E.F. [1998] 2 V.R. 385 at 388.
[10]Cf. R. v. Magner [2004] VSCA 202.
In my view, there is nothing in this ground of appeal.
Ground 1 – Manifest Excess
This ground was based upon the proposition that the sentencing judge had
failed to exercise his discretion on the basis that lesser weight should have been given to the sentencing principle of general deterrence as a consequence of the damage to the appellant’s brain. That is an argument that I have already rejected and, accordingly, it seems to me that this ground cannot be made out. I have already indicated that it is my view that the offending in count 1 was a very bad example of the crime of “stalking”; and that the offending which constitutes the
“incitement to kill” described in count 2 was also a serious example of that crime. In my view, the sentences imposed by the sentencing judge were well within the range of sentences available to him as was the degree of cumulation which he ordered. I would, accordingly, reject the assertion made in ground 1 that the individual sentences and the total effective sentence are manifestly excessive.
The appeal must, therefore, be dismissed. I would also decline the tender of the report by Mr. Cummins of November 2004.
CHARLES, J.A.:
I agree with the President.
CHERNOV, J.A.:
I also agree that, for the reasons given by the learned President, the appeal should be disposed of as he proposes.
---
3