R v McIntosh
[2008] VSCA 242
•5 December 2008
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 530 of 2008
THE QUEEN
v
DESMOND MCINTOSH
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| JUDGES: | KELLAM and DODDS-STREETON JJA and HARGRAVE AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 30 October 2008 |
| DATE OF JUDGMENT: | 5 December 2008 |
| MEDIUM NEUTRAL CITATION: | [2008] VSCA 242 |
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CRIMINAL LAW – Intellectually disabled applicant convicted of attempted armed robbery – Escalation of applicant's offending – Applicant's remorse – Whether sentencing considerations of R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269 applicable and, if so, taken into account – Whether community protection required incarceration – Admission of new evidence relevant to appropriate disposition.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C Ryan SC | Mr S Ward, Acting Solicitor for Public Prosecutions |
| For the Applicant | Ms S Leighfield | Victoria Legal Aid |
| KELLAM JA: |
For the reasons expressed by her, I agree with Dodds-Streeton JA that this appeal should be upheld. Furthermore I agree with the disposition of the appeal as proposed by her.
DODDS-STREETON JA:
The applicant, Desmond McIntosh, who suffers from an intellectual disability, pleaded guilty in the County Court to one count of armed robbery. On 1 February 2008, he was sentenced to 2½ years imprisonment and directed to serve seven months imprisonment before becoming eligible for parole. It was declared that the applicant had spent 83 days in custody by way of pre-sentence detention.
Pursuant to s 75A(2) of the Crimes Act 1958, the maximum sentence for the offence of armed robbery is 25 years’ imprisonment.
The applicant filed a Notice of Application to appeal against sentence on 1 February 2008. On 8 February 2008, the applicant was granted bail pending the hearing of his application for leave to appeal.
Grounds of appeal
The applicant seeks leave to appeal against sentence on the following
grounds:
1. The learned sentencing judge erred in her findings as to remorse and consequently had insufficient regard, or attached insufficient weight, to the applicant’s:
(a) remorse; (b) plea of guilty; and (c) prospects of rehabilitation 2. The learned sentencing judge erred in failing to accept that the principles in R v Verdins (2007) 16 VR 269 applied to the applicant’s situation (Reasons for Sentence, para 63) and consequently failed to have regard, or failed to have sufficient regard, to the impact of the applicant’s intellectual disability on:
| R | v | McIntosh | 1 | JA DODDS-STREETON | KELLAM | JA |
(a) the applicant’s moral culpability – and thereby the sentencing objectives of denunciation and just punishment;
(b) the kind of sentence to be imposed and the conditions in which it should be served; and
(c) the weight that a term of imprisonment would have on the applicant.
3. The learned sentencing judge erred in her approach to the principle of protection of the community, in particular by:
(a) according too much weight to the protection of the community in the circumstances; and (b) failing to consider adequately the means by which protection of the community could be achieved in this case. 4. The learned sentencing judge erred in her findings as to the applicant’s rehabilitation prospects.
5. The learned sentencing judge erred in finding that there was no alternative to the imposition of a custodial sentence in the applicant’s case.
6. The sentence imposed was manifestly excessive in all of the circumstances.
The circumstances of the offending
The circumstances of the offending were as follows. On 3 June 2007, the applicant boarded a Geelong-bound V-Line train at Southern Cross Station. The train departed at approximately 8:25 am. On entering the carriage, the applicant, who was wearing a white hospital gown, approached the victim, Hannah Webb, a 20 year old student. He engaged her in general conversation and learnt her name. He then asked, ‘Hannah, have you got any coins I can have?’ She replied that she did not have any coins. The applicant then appeared angry, stared at the victim and stated, ‘So you don't have any coins I could have?’
The victim, who felt awkward, stared out of the train window. She tried to avoid the applicant. The applicant then removed a pair of scissors, 16cm in length, from his bag which was in the overhead baggage rack. He leant towards the victim with the blades of the scissors pointed towards her. His demeanour changed drastically. It became very aggressive. He glared at the victim and stated in a demanding and serious tone, ‘Hannah, do you have any change that I can have?’
The victim, who was extremely fearful of being stabbed, gave the applicant a two dollar coin, which was the only money in her purse at the time. She shook as she struggled to retrieve the coin from her purse.
On taking the money, the applicant pointed the scissors away from the victim and thanked her. He stated that it was all he was after and said, ‘Sorry I scared you. I’m not going to hurt you now.’ He placed the coin in his bag and the victim could hear other coins jangling inside it.
The applicant then repeatedly asked the victim if she were okay. He said that he was sorry for scaring her. For a time, the victim was too frightened to move. Although in an extremely upset state, she ultimately informed the train conductor of what had occurred. The police were notified and arrested the applicant at Newport railway station.
The applicant was then interviewed by police with an independent person in attendance. He had approximately seven dollars in cash at the time. In the interview, he made full admissions. He stated that he had not meant to offend the victim and was sorry for doing what he had done. He acknowledged that the victim could have fainted or ‘anything could have happened’, and it would have been his fault. He stated that therefore he had kept asking the victim whether she were okay. He explained that he required the money for something to eat with his coffee. He observed that, although the victim originally denied that she had any money, when he brandished the scissors, she very quickly produced the two dollar coin and gave it to him.
The applicant stated:
[U]sually, I spit the dummy when I – when a person says, ‘I've got no change didn't you hear me the first time?’ And that, sort of, gets up my nose. A – and what – and because I was not on my tablets, I - I went the … way.
He further stated:
I - I usually just try and – and, sort of make them – make her – make her think, well, have they got change or not? And luckily, she pulled out $2. So, in – in other words, she did have $2 but she didn’t produce it until the scissors come out, and …
The applicant admitted that he knew that the victim would be scared when she saw the scissors. He said that if she had not given him any money, he would have put the scissors away. He stated that he did not know why he brandished the scissors, but said:
I don’t know, I was aggro … I didn’t accept her first answer, and I didn’t accept her second answer, until I produced the scissors, and she produced $2.
At another point, however, the applicant denied that he had been aggressive. He stated that he brandished the scissors because it would scare the victim into giving him the money. He stated that he had scared other people by that means before and ‘I thought, “Well, if I try it again, I might get some money”.’
Ultimately, the applicant acknowledged that he brandished the scissors because he was angry at the time. He stated that he was very sorry that he had produced them.
The applicant wrote the following undated letter to his victim:
Dear Hana
I am very sorry if I caused you any discomforment on your train ride on that
Sunday.I promise you that it won’t happen again.
Your Truly
D McIntosh
Following his arrest, the applicant was held in custody, but was released on bail in August 2007. His plea was heard in the County Court on 19 December 2007. The sentencing judge ordered that a Justice Plan be prepared and the applicant’s suitability for a community based order assessed. The applicant was released on bail. On 1 February 2008, following sentencing, the applicant filed his Notice of Appeal. On 8 February 2008, he applied to the Court of Appeal for bail, which was granted on condition, inter alia, that he reside in specified supervised accommodation, observe the lawful directions of the staff and his case manager, give notice of any proposed change of address and report weekly to police.
The applicant’s history and circumstance
The applicant was born in Tasmania in August 1953. He suffered from a mild intellectual disability attributable to a birth injury and sustained an additional serious brain injury in an accident when was 11 years of age, which caused peripheral spasticity and an abnormal gait. He attended a special school in Tasmania, where he learnt to read and write.
At the date of the offences, the applicant was aged 53 years and he was aged 54 years at the time of sentence.
For some years he resided in various special accommodation facilities on a fairly stable basis, despite some instances of aggressive behaviour towards fellow residents and staff. He also participated for some time in a disability advocacy group, but was ultimately ejected from the group’s premises following disruptive behaviour.
In about 1998, the applicant formed a relationship with another disabled person. From that point he developed a gambling problem. Although the relationship ended, his behaviour apparently subsequently deteriorated and his life became more disrupted. At some stage in about early 2007, the applicant left his stable accommodation and began to lead a largely itinerant lifestyle, relying on emergency accommodation and frequenting hospital emergency departments in order to obtain showers, food and shelter. Although he maintained contact with his mother and other relatives, they were not in a position to care for him.
Prior convictions and offending
At the date of the offending, the applicant had 13 previous convictions from three previous court appearances.
On 31 August 1994, he was convicted at the Melbourne Magistrates’ Court of assault with a weapon and begging alms. He was sentenced to 14 days’ imprisonment on the first charge and was fined $10 on the second charge.
On 26 April 2002, he was convicted at the County Court of Victoria of attempted armed robbery. He was sentenced to two years’ imprisonment and ordered to serve a minimum of three months before being eligible for parole.
On 1 May 2002, he was convicted at the Melbourne Magistrates’ Court of causing an injury recklessly, begging alms (three charges), indecent assault (two charges), destroying or damaging property, reckless conduct endangering serious injury, theft, and failing to answer bail. He was sentenced to be imprisoned for an aggregate period of one month, such sentence to be served concurrently with the sentence he was undergoing.
After the commission of the present offence, the applicant was also convicted of several offences which he had committed beforehand.
He appeared in the Magistrates’ Court on 4 October 2007 on three charges. Two charges involved assault with a weapon. The other charge involved taxi fare evasion. In the incident from which the charges arose, a female taxi driver followed the applicant into his accommodation unit to obtain payment of a fare and the applicant brandished a bread and butter knife at her and a female carer.
In relation to the two assault charges, the applicant was sentenced to 21 days’ imprisonment, wholly suspended for 12 months. He received a fine for the taxi fare evasion.
The applicant also appeared in the Magistrates’ Court on 7 June 2007 for the offences of begging alms, unlawful assault and possessing the proceeds of crime, committed on 20 April 2007. He was sentenced to seven days’ imprisonment for those offences, declared as time served.
The Reports
A number of reports were prepared in relation to the applicant in 2002, as a result of the charge of attempted armed robbery, arising from an incident that occurred on 9 October 2001.
Dr Lester Walton, a psychiatrist, in his report dated 24 April 2002, stated that he examined the applicant on 23 April 2002.
Dr Walton noted that the applicant’s history and his intellectual disability. He stated that the applicant was not suffering from hallucinations, delusion or any other psychotic phenomenon. Further, he noted that at no stage had the applicant presented as classically depressed. Dr Walton considered that the applicant was fit to plead to the charge in question. However, as an antidepressant medication had improved the applicant’s overall behaviour, Dr Walton stated that he may have been suffering from an atypical depressive illness.
Dr Walton observed that the applicant had well-developed literacy and numeracy skills, but difficulty with accurate recall. He was also halting in conversation. Dr Walton did not consider that a depressive illness was responsible for the deterioration in the applicant's conduct over the past few years. Rather, Dr Walton attributed the general deterioration to the relationship with Ms W, from which point he had developed a gambling problem. Dr Walton stated that the applicant, ‘seems to fully appreciate that he was involved in a wrongful act’. Dr Walton considered that the applicant would represent a challenge for proper management within a prison, although there was a unit for intellectually disabled prisoners at Port Phillip Prison.
The report of Jan Stacey, a clinical neuropsychologist, dated 16 April 2002, was prepared in relation to the applicant’s prior charges of armed robbery and assault.
Ms Stacey noted that the applicant could not give a work history. He reported that after leaving school he was involved with a disability group for a time, but he had ‘ ”played up there and was escorted off the premises by police” a couple of times.’
Ms Stacey stated that the applicant:
again displayed no empathy for his victim or remorse at the distress he would have caused her but rather pride at his own swiftness of thinking in be able to dispose of the evidence before he was apprehended. He was certain that when his case came before the Court he would be given bail and return to supervised accommodation.
Ms Stacey stated that the applicant tended to be ‘facile and glib’ and in some instances, ‘tried to be quite manipulative’. She noted that he tended to ‘be evasive in responding to some questions’. Further, Ms Stacey stated that his insight appeared to be ‘very limited and that he demonstrated poor judgement’.
Ms Stacey concluded that the applicant’s overall level of intellectual ability was in the extremely low range, that is, mild intellectual disability. Although he had reported that he had been prescribed medication for depression, Ms Stacey did not observe any signs of depression.
Dr Bill Glaser, a consultant psychiatrist, provided a report dated 1 April 2002, which stated that the applicant had a mild intellectual disability, but had nevertheless managed to achieve a considerable amount in his life, including membership of an advocacy group. He had, however, deteriorated markedly since the break-up of his relationship with his girlfriend. Dr Glaser noted that the applicant looked quite depressed, was close to tears on occasion and had become socially withdrawn and almost mute. The diagnostic possibilities included a major depressive disorder or the results of the childhood brain injury. Nevertheless, informally, Dr Glaser thought that the applicant was fit to plead and stand trial.
A number of recent reports and assessments were obtained in relation to the applicant’s current offending.
Dr Ruth Vine, a consultant psychiatrist, stated that she examined the applicant at Port Phillip Prison on 19 August 2007. Dr Vine had access to the past reports and other information. She prepared a report dated 21 August 2007. Dr Vine found the applicant reasonably cooperative, although at times he professed limited recall of the details of the alleged offending.
The applicant told Dr Vine that he could not recall why he had requested money from the victim or why he became angry and pulled out a pair of scissors. He stated, however, that he knew it was wrong, that he felt sorry about it and that he would have to learn to be better in the future. Dr Vine stated that the applicant was satisfied with the strong support in the prison unit and acknowledged that he had everything that he needed. He got on well with the prison officers and other occupants and spent his time in various organised activities.
Dr Vine noted the applicant’s history and attributes. She observed that he had apparently developed an interest in gambling and poker machines when he met Ms W and, from that time, his life was more unstable and disrupted. He had left his relatively stable special accommodation some months ago and now relied on hospital emergency departments. He informed Dr Vine that he could spend $50 every few days on poker machines, but was not forthcoming about begging for funds for that purpose.
Dr Vine noted that the applicant was taking Prozac and some other medications, but appeared to have a very limited psychiatric history. She stated that, in the interview, he did not convey a depressed or anxious mood and there was nothing to suggest a psychotic disorder. He did not suffer from any current psychiatric illness requiring further assessment. Dr Vine considered that he was fit to plead and that his current treatment should continue.
In Dr Vine's opinion, the applicant suffered from a mild intellectual disability. His adaptation to community living had become progressively more difficult as he developed patterns of behaviour such as betting, using poker machines and attending hospital emergency departments. Due to unstable living, he increasingly resorted to verbal or threatened physical aggression to satisfy his immediate needs and desires. He appeared to cope well in the structured prison environment, where he benefited from the available support in activities and increased social engagement.
Dr Vine stated that she agreed with the authors of some other reports that, at one level, the applicant’s offending was directly related to his intellectual disability (particularly his lack of empathy for the victim and difficulty in forward planning and weighing up rights and wrongs), but it was clear that he was aware that his actions were wrong. Further, Dr Vine noted that the applicant was aware that his offending was likely to attract a punitive response. He was also convinced that others would look after his needs and find him accommodation. Nevertheless, Dr Vine concluded that the applicant’s history indicated that his placement in accommodation was difficult, due to his behaviour towards his carers and other residents. Dr Vine concluded that it was important that the applicant’s actions should have clear consequences which were adequately explained to him. Further, it was necessary that there be very clear behavioural constraints in relation to the applicant’s supported accommodation and the consequences of his inappropriate behaviour.
Mr Michael Woolard, the Community Care Coordinator and Social Worker of St Vincent’s Hospital Alert Program, in his report dated 6 June 2007, stated that the applicant had been referred to the Alert Program in April 2007 following his frequent presentations to the emergency department of St Vincent’s Hospital. The applicant had attended more than 25 times in the last month and also attended other hospital emergency departments in Melbourne. He typically presented with non- acute medical needs, seeking material aid in the form of food and showers. He generally presented as homeless and hungry. The Alert Program crisis had managed the applicant while he was on a bail diversion program.
The applicant was given a funded bed at Ozanam House, but frequently arrived there in a taxi for which he could not pay the fare. He also threatened the staff. Mr Woolard stated that the applicant did not appear to have played his part in the bail diversion program and must bear some responsibility, but, given his obvious deficits, to some extent, the applicant did not have the means to succeed.
Mr Woolard observed that the applicant was ‘a picture of someone in crisis whose distress and exhaustion is palpable’ and who did not possess the ability to succeed alone. Mr Woolard concluded that the applicant would require appropriate long-term case management, including prearranged support accommodation and a comprehensive assessment of his needs and capacity.
Mr Vincent Alessi, the proprietor of Stewart Lodge Supported Residential Service, in a letter dated 29 January 2008 to the Magistrates Court, stated that the applicant had resided at Stewart Lodge for four months without incident. He was taking medication for depression, epilepsy and minor bipolar disorder and was compliant. He had regular support from his case manager, Mr Jung, and his family. He had adhered to all bail conditions.
At the request of the sentencing judge, a Justice Plan dated 24 January 2008 was prepared in relation to the applicant by Mr Daniel Jung, his case manager with Disability Client Services (‘DCS’) at the Department of Human Services (‘DHS’).
The Client Overview Report and the Justice Plan dated 24 January 2008 recorded that following his assessment in 2001, the applicant was declared eligible to receive services from DCS under the Disability Act 2006.
The Client Overview Report stated that the applicant had a limited understanding of social rules and conventions and required substantial assistance with planning and making complex decisions. The applicant was, it said, capable of some independent personal care, but nevertheless required verbal prompts.
The Justice Plan recited the applicant’s developmental history, including his residence in numerous supported accommodation facilities and his evictions therefrom due to disruptive behaviours. However, it noted that the applicant had resided at one supported services facility (Learmouth) for 3½ years from August 2002, where, although he was initially disruptive, he subsequently settled down and his behaviours were effectively managed by staff support and medication.
The Overview Report noted that in 2005, the applicant moved from the Learmouth facility to the Grovedale facility in order to be near his family, but left it after only six months due to aggressive conduct which resulted in charges.
The Overview Report stated that the DCS files indicated that the applicant’s gambling problem had not resolved and was a ‘major concern’ for his reoffending, as it led to begging and stealing. It referred to the applicant’s expression of remorse for the present offending and stated ‘It is reported that his offending behaviours were compounded by unstable accommodation, inconsistency with administration of medication and the gambling issue’.
The Justice Plan made a number of recommendations, including that the applicant should remain in appropriate accommodation, engage in counselling appointments for his gambling problem, participate in a review of his mental health and prescribed medication, and follow appropriate recommendations.
In his letter dated 18 December 2007 to the presiding County Court judge, Mr Jung stated that the applicant had been allocated to him since 6 July 2007. The applicant was engaging with DCS and had accomplished various tasks. He had cooperated in relation to his pension and financial management, had self- administered his medication and maintained contact with DCS and his general practitioner. He resided at Stewart Lodge and was complying with bail conditions. He was actively looking for day-time activities and would be supported in that by DCS.
Mr Jung concluded that the applicant:
has indicated his willingness to co-operate with DCS in regard to accessing services. [He] appears remorseful and is motivated to make sustained changes in his life to bring about stability in an effort to refrain from re- offending.
The sentence below
The sentencing judge recited the history of the applicant’s offending and referred to his interview with the police. Her Honour found the present offence particularly troubling in the light of the applicant’s prior convictions, coupled with his subsequent appearances in court.
The sentencing judge observed that the applicant’s offending behaviour had escalated. She expressed particular concern that ‘the victims of your most recent offending have been female’ and that he was very aggressive when making his demands. Her Honour noted that, despite the gap between the applicant's prior convictions (which occurred between 1994 and 2002), the attempted armed robbery and injury charges were of great concern, given the present offence.
Her Honour also noted the two additional court appearances which related to offences committed in April 2007 since the date of the current offence.
Her Honour stated that the penalties imposed on the applicant by the courts in the past had been ‘extremely lenient’, doubtless due to the material included in the reports obtained on the applicant's behalf.
Her Honour observed that, following the applicant’s release from custody in August 2007 (when he was bailed for the offence before her), he had resided in supported accommodation at Stewart Lodge under the care of Mr Jung, his case manager. She noted Mr Jung’s letter stating that the applicant was willing to participate and engage well with the others at Stewart Lodge, had not breached bail and was aware of the consequences of such a breach. Mr Jung thought that the applicant was willing to change his lifestyle and to meet the expectations of staff and obey regulations. He believed, however, that the applicant required 24-hour care.
Her Honour also noted that the applicant had been ejected from the premises of the advocacy group following a dispute and that Dr Vine considered it difficult to support him, due to his behaviour towards carers and other residents. Her Honour found the applicant’s ‘persistent aggression’ troubling in relation to his rehabilitation prospects and the need to protect the community from him.
She was concerned by the absence of any restriction on him leaving his current special accommodation and his frequent visits to various coffee shop venues, given the nature of his offending.
Her Honour referred to the reports of Dr Walton, Dr Glaser and Ms Stacey. She concluded that the reports confirmed the applicant's mild intellectual disability, but did not indicate a major or severe depressive condition. Her Honour noted the recent reports of Mr Jung and Dr Vine. Her Honour stated:
…these latest reports in my opinion confirm your mild intellectual disability but do not confirm depression, particularly not severe depression, either now or at the time of your offending involving Ms Webb. You are clearly aware of the wrongness of your actions. In this context I am concerned, as I said before, that your victims had predominantly been female and the increasing aggression displayed in your behaviour towards members of the community with whom you come into contact and, in the case of Ms Webb, who initially refused your demands for money.
She referred to Michael Woolard’s report, and in particular, his statement that the applicant needed ‘firm direction and boundaries’. Her Honour recognised that the applicant required assistance in the community in order to function and to avoid committing offences.
Her Honour stated:
It is quite clear you do require assistance when in the community, in order to function and, more importantly, to not commit offences. However, your offending, in my assessment, over the years has taken on increasing severity and increasing violence. You have issues with anger management, in particular when people refuse you money when you demand it, whether it be for coffee or food or gambling. I also note the number of female victims of your offending. I also cannot ignore the effect of your offending upon the victim Hannah Webb in the case with which I am dealing. Not only, therefore, are there considerations personal to you that are relevant, but there is also the gravity of your offending and the need for specific deterrence and the protection of the community.
The sentencing judge took the applicant’s guilty plea into account in his favour. She was prepared to accept that the plea indicated ‘some remorse’ for his actions. She considered, however, that, based on the material tendered on his behalf during the plea, the remorse was questionable. She observed:
Certainly I accept that you are regretful at being caught. That, however, is not to say that you are remorseful for what you have done. I hasten to add, however, that I do not find you are not remorseful. I am simply unable to say.
Her Honour noted the opinions that the applicant’s current offending was due to his mental health status, inconsistent medication regime and accommodation and gambling problems for which the Justice Plan specified available services.
Her Honour questioned whether the principle in R v Verdins; R v Buckley; R v Vo[1] (‘Verdins’) applied to the applicant, despite his mild intellectual disability because he was aware of the impact and wrongfulness of his conduct and lacked empathy or remorse.
[1] (2007) 16 VR 269.
She considered, however, that due to the applicant’s mild intellectual disability, the principles of R v Mirrim Charles Bux (‘Bux’)[2] applied, and some moderation of the general and specific deterrence considerations was warranted. The need for specific deterrence nevertheless remained, due to the increasing severity and violence of the applicant’s offending, and his problem with anger management, particularly against female victims. General deterrence in relation to ‘armed robberies on soft targets’ was, in her Honour’s view, also an important matter.
[2] (2002) 132 A Crim R 395.
Her Honour did not consider a community-based disposition appropriate, due principally the inter-related issues of the applicant’s pattern of increasingly aggressive offending towards vulnerable female victims, the recognition that (in the absence of appropriate support) his prospects of rehabilitation were limited and the consequent need to protect the community from the real likelihood of his re- offending.
As her Honour’s report to this Court indicated, she found the Justice Plan to be of little assistance. It did not specify or secure adequate support for the applicant. Although it reported that he was willing to cooperate, comply and remain at Stewart Lodge, its recommendations were vague, particularly in relation to his future accommodation and the continuing supervision and support necessary to avert his re-offending.
Ground 1
The applicant submitted that the sentencing judge erred in failing to accord sufficient weight to the applicant’s plea of guilty, remorse and prospects for rehabilitation. In particular, counsel submitted that the sentencing judge erred in questioning the genuineness of the applicant’s remorse.
The applicant conceded that Ms Stacey’s report referred to a lack of remorse, but submitted that it related to his earlier offending while contrastingly, all the current relevant materials supported a finding of genuine remorse and were unchallenged.
In my opinion, her Honour did not err as alleged. She did not find that the applicant lacked remorse, but expressly proceeded on the basis that some remorse was demonstrated.
Her Honour was not bound to accept that the applicant’s expressions of regret or the reiteration of those statements in reports conclusively established genuine remorse. Rather, she was entitled, and indeed required, to evaluate such statements in the total context of the reports and the pattern of the applicant’s conduct.
Ms Stacey’s report, prepared in relation to the applicant’s offending in 2002, indicated that he was then not genuinely remorseful, but was manipulative and proud of the effectiveness of his wrongful conduct. In his police interview in relation to the present offending, the applicant’s apparent satisfaction with the efficacy of his method of extracting money from his victim suggested a persistence of that former attitude, albeit coexisting with regret.
Although the applicant was apologetic to his victim, he did not attempt to return the money he had taken, and his police interview did not indicate a firm intention to renounce such misconduct in the future. In such circumstances, her Honour was entitled to question the quality of the applicant’s remorse.
Her Honour nevertheless noted a number of matters indicative of remorse, including the plea of guilty. In my opinion, she accepted and took those matters, (including the apology and expressions of regret in the police interview and to others) into account in the applicant’s favour to an appropriate degree.
Grounds 2, 3, 4 and 5
The applicant submitted that the sentencing judge erred in failing to find that Verdins applied to the present case and consequently erred by failing to consider the impact of the applicant’s intellectual disability on his moral culpability, the burden of imprisonment and the need to moderate the principles of general and specific deterrence.
Counsel for the applicant argued that Verdins applied, because the applicant’s mild intellectual disability, impoverished reasoning skills and judgment and difficulty in recognising the consequences of his actions were directly related to his offending. Counsel submitted that the sentencing judge did not have sufficient regard to the impact of the applicant’s intellectual disability on his moral culpability and the sentence to be imposed. Rather, she over-emphasised the need to denounce the applicant’s conduct and to protect the community.
The respondent submitted that the authorities cast doubt on the application of
Verdins to cases of intellectual disability.
In my opinion, the authorities do not indicate that the Verdins sentencing considerations are excluded from a case of intellectual disability on the basis of a supposed dichotomy between that condition and ‘psychiatric’ conditions. They establish, however, that intellectual disability will not automatically reduce an offender’s culpability or otherwise favourably modify or eliminate the usual sentencing principles or disposition, any more than would a psychiatric illness or other mental abnormality. Much will depend on how the given condition, whatever its precise nature, affected the offending and how the condition is likely to be affected by the disposition to be imposed.
In R v Tsiaras (‘Tsiaras’),[3] Callaway JA stated:
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.
[3] [1998] 1 VR 398, 400.
In Verdins, the Court of Appeal (Maxwell P, Buchanan and Vincent JJA) held that the sentencing considerations identified in Tsiaras were not applicable only to cases of serious psychiatric illness, but could apply to any case in which an offender, at the date of the offence or, alternatively, sentencing, suffered from a mental disorder, abnormality or impairment of mental function.
The Court of Appeal recognised that it was not possible to be prescriptive or exhaustive in relation to the sentencing discretion, but reformulated the Tsiaras principles as follows:
Impaired mental functioning, whether temporary or permanent (‘the condition’), is relevant to sentencing in at least the following six ways:
1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both. [Citation omitted].
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor
tending to mitigate punishment.[4]
[4] R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269, 276 [32].
Although the Court of Appeal in Verdins did not specifically refer to an intellectual disability, the tenor of the judgment suggests that the sentencing considerations would, in an appropriate case, apply to that condition.
In Verdins, the Court of Appeal made clear that the ameliorating sentencing principles of Tsiaras applied to a wider range of mental conditions than had hitherto been recognised. Maxwell P (with whom Buchanan and Vincent JJA agreed) stated ‘clearly the phrase “mental disorder or abnormality” is apt to cover a wide range of conditions’.[5] His Honour recognised that the precise diagnostic labelling, categorising or identification of the mental condition was not critical. Rather, Maxwell P stated:
What matters is what the evidence shows about the nature, extent and effect of the mental impairment experienced by the offender at the relevant time.
… [T]he sentencing court needs to direct its attention to how the particular condition (is likely to have) affected the mental functioning of the particular offender in the particular circumstances – that is, at the time of the offending
or in the lead up to it – or is likely to affect him/her in the future. [6]
[5] Ibid, 271 [7].
[6] Ibid, 272 [8] and[13].
Bux dealt with the sentencing of an offender who suffered from an intellectual disability. Bux post-dated Tsiaras but predated Verdins. The Court of Appeal in Bux did not suggest that different sentencing considerations applied to cases of intellectual disability, as opposed to other kinds of mental conditions.
To the contrary, Eames JA (with whom Batt JA and O’Bryan AJA agreed) apparently assumed that the principles of Tsiaras could apply equally to cases of psychiatric illness and intellectual disability.
His Honour discussed Tsiaras, R v Champion,[7] R v Letteri,[8] R v Roadley,[9] R v Yaldiz[10] and R v Williams[11] in the same context. In Roadley, the Court of Appeal held that mental illness and intellectual disability were to be equated for sentencing purposes. As Eames JA in Bux observed:
In Williams [at [10]–[12]], Buchanan JA, which whom Ormiston JA and Chernov agreed, followed Champion and Roadley. His Honour concluded that the sentencing considerations set out in Tsiaras could be applied in Williams case (although it was a case of intellectual disability rather than psychiatric illness) and concluded that several, but not all of the considerations identified in the passage of the reasons from Tsiaras, cited above, were applicable.
[7] (1992) 64 A Crim R 244.
[8] (Unreported, Court of Criminal Appeal NSW, 18 March 1993) .
[9] (1990) 51 A Crim R 336.
[10] [1998] 2 VR 376.
[11] [2000] VSCA 174.
Eames JA concluded that:
When an offender suffers a significant intellectual disability the principle of general deterrence is not eliminated altogether, but it must be sensibly moderated. [Champion (1992) 64 A Crim R 244 at 254-255 per Kirby P.] Principles of general and specific deterrence cannot be given the emphasis that they might otherwise have in sentencing an offender. The extent of the amelioration of the factors or general and specific deterrence may depend upon a range of matters, most importantly, the extent of the intellectual
disability.[12]
[12] R v Mirrim Charles Bux (2002) 132 A Crim R 395, 402.
In Bux, the applicant (who had an IQ of 69, the reading skills of a nine year old, a very deficient memory, depression, anxiety and paranoid features) pleaded guilty to manslaughter and armed robbery. He had nevertheless been capable of functioning in stable employment. Eames JA considered that:
the factors of specific and general deterrence had to be moderated in this case,
but nonetheless were relevant in sentencing the applicant.[13][13] Ibid, 404.
In Bux, the Court of Appeal’s approach was thus consistent with the application, as appropriate, of the sentencing considerations in Tsiaras (subsequently reformulated in Verdins) to cases of intellectual disability and psychiatric illness.
More recently, in R v Wise[14] (‘Wise’), Ashley JA (with whom Redlich JA and Curtain AJA agreed) assumed that Verdins considerations would apply to a case of intellectual disability. His Honour stated:
It can be accepted that intellectual disablement may be equated with mental illness [R v Williams [2000] VSCA 174], this enlivening in a particular case considerations mentioned in R v Tsiaras [[1996] 1 VR 398] and in R v Verdins [[2007] VSCA 102]. But the question will always be whether, in the particular case, it has been shown that the accused person's moral culpability, or the significance of general or specific deterrence, is reduced because of
intellectual disablement.[15]
[14] [2007] VSCA 266.
[15] R v Wise [2007] VSCA 266 [16].
Redlich JA also assumed that Verdins considerations would apply, with the caveat that an intellectual disability would not necessarily amount to an ‘impaired mental functioning which should reduce the offender’s culpability’. That would depend, he said, on whether the conditions set out in Verdins[16] had been satisfied.
[16] Ibid, [26].
In R v Howell,[17] Nettle JA stressed that the central consideration in Verdins was whether, and to what extent, a psychiatric condition could be shown to have affected the offender’s mental capacity at the time of the offence or sentence.[18]
[17] (2007) 16 VR 349.
[18] R v Howell (2007) 16 VR 349, [20].
His Honour recognised, consistently with Verdins, that impaired mental functioning could reduce moral culpability by, inter alia, impairing the offender’s ability to exercise appropriate judgment or to make calm and rational choices, and by disinhibiting the offender.
In my opinion, in the present case, the applicant’s intellectual disability, associated deficits and related conditions had those effects and relevant Verdins considerations applied.
A dichotomy between intellectual disability and psychiatric conditions for the purposes of sentencing would not accord with the broad central question identified in Verdins, which appears equally apt for any mental condition, whether it be intellectual disability, psychiatric illness or other mental impairments or abnormalities. Such a distinction would serve no obvious purpose, in the context of the sentencing discretion, where the relevance (or the extent thereof) of the non- exhaustive considerations in Verdins depends on the circumstances of the particular case.
To the extent to which doubt attends the application of the Verdins principles to intellectual disability, the evidence in the present case suggests that, while the applicant was not classically depressed or psychotic, a degree of psychiatric illness was probable. The reports indicated that continuing medication, including Prozac and lithium, was prescribed and there were indications that the applicant may have suffered from an atypical depressive illness. That impression was fortified by the report of Dr Tipirneni, a consultant psychiatrist, in a report dated 23 September 2008, which was admitted without objection on the application for leave to appeal.
Dr Tipirneni stated that the applicant appeared to suffer from antisocial personality disorder, mild to moderate mental tardation, possible underlying dysthymia and bipolar affective disorder with suggestions of frontal lobe deficit and an antisocial personality. (Dr Tipirneni’s report was not, of course, available to the sentencing judge.)
Counsel for the applicant conceded that the sentencing judge, in reliance on Bux, had moderated the factors of general and specific deterrence. She contended, however, that due to the failure to apply Verdins, her Honour erroneously considered only those matters, and failed to take account of other necessary factors, such as the reduction of moral culpability and the need for denunciation.
In my opinion, her Honour did not err as alleged. She questioned whether Verdins applied, rather than holding that it did not. She took into account, implicitly, if not expressly, all the Verdins considerations to an appropriate degree, weighing them with other relevant circumstances. Her Honour did not ignore the reduction of the applicant’s moral culpability by reason of his disability. Recognition of the applicant’s reduced culpability due to his disability underpinned her Honour’s moderation of general and specific deterrence, permeated her discussion and analysis of the reports and was unambiguously confirmed by the very moderate sentence passed on the applicant, which (absent a consideration of the Verdins sentencing factors, including allowance for the intellectually disability and associated deficits) would have been manifestly inadequate.
This was not, however, a case in which moral culpability, although reduced, was eliminated. The applicant was aware that what he was doing was wrong and likely to invite punishment. Nor was the need for general and specific deterrence eliminated. The applicant required clear boundaries and indications of consequences. As her Honour observed, the offence was an element in a pattern of escalating violent offending focussed on female victims, which fully justified her concern about the applicant’s prospects for rehabilitation and the need to protect the community.
The principles in Verdins do not constitute a rigid code and it is unnecessary to apply them to each of the considerations as if completing a check list. It suffices that, as in the present case, all relevant factors were taken into account, whether explicitly or implicitly, and appropriately weighed.
Ground 3
Counsel for the applicant submitted that the sentencing judge erred by over emphasising the need to protect the community, instead placing too much weight on the gravity of the applicant’s ‘unsophisticated’ offence and on the escalation of his offending. Counsel further contended that the sentencing judge erred in concluding that imprisonment was the only means of achieving community protection.
In my opinion, her Honour did not err as alleged. The relatively unsophisticated nature of the applicant’s offence did not negate the impact of his armed and aggressive threat of violence to a vulnerable young woman or reduce the victim’s terror. The offending was a far from trivial example of a very serious crime. The fact that it was at the ‘lower end’ of the scale was appropriately reflected in the sentence. Further, as the sentencing judge correctly recognised, the escalating frequency, gravity and violence in offending against females rendered community protection a compelling consideration.
Counsel for the applicant submitted that the sentencing judge erred in failing to recognise that his offending was caused by the lack of stable support structures, including appropriate accommodation, and had not occurred when they were in place. Counsel submitted that it was counter-productive to imprison the applicant when, as Dr Vine recognised, it would not assist his longer term accommodation and support needs.
Further, the applicant submitted that, contrary to the principles of Verdins, the sentencing judge did not adequately consider the impact of imprisonment, given the applicant’s disability.
In my view, on the basis of the material before her, the sentencing judge did
not err as alleged.
The evidence does not, in my opinion, establish that the applicant’s offending was principally initiated or caused by the lack of available special accommodation and associated support. The applicant offended in 2002, when residing in stable supported accommodation at the Learmouth facility. He subsequently left his supported accommodation at Grovedale, due to offending conduct. The reports indicated that the causes of the applicant’s offending were more complex than the loss of stable, supported accommodation, which may, more accurately, have been an effect of his misconduct. His gambling problem, a disastrous relationship and a failure to take medication also contributed to the applicant’s offence.
The relevant reports also made clear that the applicant required firm direction and boundaries in order to avoid re-offending and would fail unless adequate controls, supervision, monitoring and care were put in place. Her Honour was concerned that the applicant could leave his accommodation at will during the day and (absent any bail conditions to the contrary), permanently. Equally, her Honour was aware that satisfactory arrangements for the applicant were neither in place nor assured pursuant to the Justice Plan.
Her Honour also considered, implicitly at least, the impact of imprisonment on the applicant given his disability. She referred to Dr Vine’s report, which stated that the applicant coped well with imprisonment in a specialised unit and appreciated the associated structure and support.
Given the absence of any guaranteed, satisfactory accommodation and supervisory arrangements, the probability that the applicant’s offending would escalate without them, his clear need for firm boundaries and the compelling need to protect the community, her Honour understandably imposed a term of imprisonment with a short non-parole period and provision for a relatively lengthy period of parole, in order to avert the applicant’s re-offending and to secure the protection of the community.
It follows from the forgoing that, in my opinion, her Honour did not err. She did not underestimate or misconceive the applicant’s prospects for rehabilitation and did not impose a manifestly excessive sentence.
New Evidence
By the date of the hearing of the present application, the applicant had been on bail, living in supported accommodation for approximately eight months.
Counsel for the applicant sought to tender additional evidence relevant to the sentence. The additional evidence comprised the report of Dr Tipirneni referred to above and an updated case management plan prepared by Mr Jung of DHS. The Crown did not oppose the tender of the new evidence. This Court permitted its receipt on the basis of the principle enunciated in Eliasen v R,[19] where Crockett J stated:
This Court accedes very sparingly to applications of this kind. Applications for leave to appeal are dealt with on the basis that, unless the sentencing judge has been shown to have erred in the exercise of his sentencing discretion, this Court will not intervene in the matter. The question as to whether error has occurred is to be determined by a reference to the matters available to be considered by the judge at the time that he determines upon the sentence.
However, it is plain that authority now establishes that this Court may, if it considers the case an appropriate one so to do, permit evidence of matters or events that have occurred since the date of the passing of the sentence upon an applicant to be placed before this Court with a view to this Court's reconsidering the matter in the light of that additional evidence. It must follow that, if the Court does think that the additional evidence should lead to the imposition of a sentence different from that imposed by the judge, then even where the judge's sentencing discretion has not miscarried the case must be treated as one calling for appellate intervention.
It has been said by this Court that if, on the material placed before it for the hearing of an application for leave to appeal against sentence, it considers that the sentence imposed was not an appropriate sentence, then the application may be allowed and a different sentence passed in lieu of that imposed below: see Prior [1966] VR 459; Tutchell [1979] VR 248; Martin (unreported, Court of Criminal Appeal, Vic, 19 March 1990).
[19] (1991) 53 A Crim R. 391, 394.
The case management plan recited the background, history, attributes and mental health problems of the applicant.
It relevantly stated:
…
Issues
It appears that Mr McIntosh’s more recent charges may be related to several compounding issues, which include his mental health status, inconsistent medication regime, accommodation and gambling issues.
Case management intervention
DCS case management service commenced on 06 July 2007. Case management service co-ordinates following services;
• Access the crisis accommodation (Furlong House Statewide Crisis
accommodation).
• Access the Stewart Lodge Supported Residential Service (SRS). • Medication arrangement. • State Trustee’s financial administration arrangement. • Re-activating Centrelink payment and Medicare arrangement. • Organise the mental health and medication review assessment • Monitoring accommodation & attendance to the Office-in-Charge of
the Police Station in Brunswick• Organise the gambling assessment with Salvation Army and
providing information
• Consult with G.P regarding medication …
Summary
…
DCS will organise Mr McIntosh has on-going medication review with G.P which enables him stabilised his behaviours. Current case manager is linking Mr McIntosh with Ozanam Community Centre for review Lithium and Valproate level under Dr Tipirneni’s recommendation.
Mr McIntosh’s situation is much more managed and monitored as he currently resides at Stewart Lodge SRS Brunswick, which provides 24 hours support and medication management. Mr McIntosh is willing to continue living at Stewart Lodge at this time and he is abiding by his bail conditions and often goes into the city to meet with friends. During DCS’ current involvement Mr McIntosh has presented in a respectful manner and he had not shown any signs of being unwilling to comply with recommendations made by case management.
In the light of the new evidence, which indicated that the applicant was benefiting from stable, satisfactory accommodation, 24-hour support with medication management and DHS organisation and co-ordination; and was conducting himself well and had not re-offended for a period of eight months, this Court considered that incarceration, and the consequent termination of the beneficial arrangement currently in place, were inappropriate.
Therefore, although her Honour’s sentencing discretion did not miscarry, we determined to reconsider the applicant’s sentence in the light of the new evidence, supplemented by appropriate reports.
On 30 October 2008, this Court ordered:
1. That pursuant to Part 6, Div 2, s 96 of the Sentencing Act 1991, a pre-sentence report be prepared concerning the suitability of a community based order, including conditions that the applicant reside in supervised accommodation and comply with his prescribed medication regime, to be filed and served on or before 1 December 2008.
2. That the Secretary of the Department of Human Services provide a statement that the applicant is a person who has an intellectual disability within the meaning of the Disability Act 2006, if such be the case, and a plan of available services, to be filed and served on or before 1 December 2008.[20]
3. The applicant’s bail is extended on the same conditions as at present until further orders.
[20] This order was made pursuant to s 80(1) of the Sentencing Act 1991.
A Pre-Sentence Report dated 27 November 2008 was filed with the Court on 28 November 2008. On 1 December 2008, the Statement of Eligibility dated 4 October 2001, Client Overview Report dated 24 November 2008 and Justice Plan dated 25 November 2008 was provided to the Court on behalf of the Secretary to the Department of Human Services pursuant to s 80(1)(d) and (e) of the Sentencing Act 1991. Copies of these reports have been forwarded to the parties.
The Pre-Sentence Report provides that the applicant is suitable to undertake a Community Based Order. The Justice Plan notes that it is proposed that the applicant will continue to reside at Stewart Lodge which will provide 24 hour care and medication management. It observes that, since his release on bail in January 2008, the applicant has cooperated with the Department of Community Services in addressing his offending and his mental health issues and that this will continue under the Justice Plan.
In all the circumstances which are now before the Court, I conclude that the following orders should be made.
1. The application for leave to appeal against sentence is granted.
2. The appeal is treated as instituted and heard instanter and is allowed.
3. The sentence imposed below is quashed and, in lieu thereof, the appellant is sentenced as follows.
a. The appellant is to be placed on a Community Based Order to commence on 5 December 2008 and to end on 4 December 2010.
b. The program conditions of the Community Based Order that are to apply are as follows.
i. That the appellant is to be under the supervision of a community corrections officer.
ii. That the appellant is to undergo assessment and treatment for alcohol or drug addiction and submit to medical, psychological or psychiatric assessment and treatment as directed by the Regional Manager.
iii. That, subject to Div 6 of Part 3 of the Sentencing Act 1991, the appellant is to participate in the services specified in his Justice Plan.
HARGRAVE AJA:
I have read the reasons for judgment of Dodds-Streeton JA and agree that, for the reasons which she gives, the appeal should be allowed and the applicant re- sentenced as her Honour proposes. In particular, I agree that the sentencing judge did not err as contended for on behalf of the applicant and that it is only the new evidence, which of course was not before the sentencing judge, which justifies the appeal being allowed.
| R | v | McIntosh | 30 | DODDS-STREETON | JA HARGRAVE | AJA |
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