R v Rattya
[2008] VSCA 149
•21 August 2008
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 15 of 2007
THE QUEEN
| v |
| PETER RATTYA |
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JUDGES: | BUCHANAN, NETTLE and REDLICH, JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 17 July 2008 | |
DATE OF JUDGMENT: | 21 August 2008 | |
MEDIUM NEUTRAL CITATION: | [2008] VSCA 149 | 1st Revision 28 August 2008 para 14 |
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Criminal law – Sentencing – Offender’s mental state – Paranoid schizophrenia – General deterrence insufficiently moderated – Murder.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J D McArdle QC | Mr S Ward, Acting Solicitor for Public Prosecutions |
| For the Applicant | Mr P F Tehan QC | Ronald V Tait & Co |
BUCHANAN JA:
On a summer evening in 2005 the appellant killed Amer Alihromic with a bow and arrow. The appellant and his victim had taken part in an informal gathering of friends and acquaintances in the back yard of the boarding house where the appellant lived, listening to loud music, some of those present drinking and smoking marijuana.
Late in the afternoon, the majority of those in the back yard departed, leaving the appellant and Alihromic alone. The pair argued about religion and the appellant later said that Alihromic started making noises, which the appellant resented. The appellant threatened to get his bow if Alihromic did not stop. Alihromic did not respond to the threat. The appellant went into the house and later returned carrying his bow and an arrow. Alihromic was lying on the ground, leaning on his elbow. The appellant approached and, when he was five or six feet from Alihromic, drew the bow and shot an arrow directly at Alihromic, who was pleading with him not to shoot. The arrow entered Alihromic’s chest, pierced his lung, and came out his back. Alihromic staggered towards the house and collapsed.
Although he realised that Alihromic was seriously injured, the appellant took no steps to obtain assistance for him, but went into the house, obtained a knife and demanded that one of those present stab him in the leg so that it would appear to the police that he had acted in self defence. The appellant forbade anyone to call an ambulance until he had been stabbed. Frightened of him, one of those present did stab the appellant in the leg. The appellant directed the person who stabbed him to take the knife and place it in Alihromic’s right hand. Only then did the appellant permit an ambulance to be called. The emergency operator was told that one person had been stabbed. No mention was made of anyone being shot with an arrow. When the ambulance arrived, Alihromic was dead.
When he was interviewed by the police, the appellant said that he had acted in self defence.
The appellant was arraigned in the Supreme Court on a presentment containing a count of murder. He pleaded not guilty. The appellant advanced the defence that the arrow was shot as a result of an accident, maintaining that Alihromic kicked the bow and thereby dislodged the arrow. That defence was rejected by the jury, who found him guilty of murder.
After a plea, the appellant was sentenced to be imprisoned for a term of 21 years and it was directed that he serve a period of 16 years’ imprisonment before he was to be eligible for parole.
The appellant was granted leave to appeal against the sentence by a single judge of this Court. The sole ground of the appeal is that the sentencing judge failed to give sufficient weight to the appellant’s mental state as a factor in mitigation, with the result that this sentence is manifestly excessive.
The appellant is 42 years’ old. His parents separated when he was six years’ old and the appellant lived with his mother in Western Australia and his father in Victoria. He left school after completing his second year of secondary education, and variously worked as a landscape gardener, meat worker and builder’s labourer. In 1997 the appellant sustained serious head injuries, and has not worked since.
The appellant has an extensive criminal record. Between 1982 and 2004 he was convicted of 84 offences at 29 separate court appearances. The offences included drug offences and offences of violence.
The appellant has a 21 year old son, and siblings, but does not have any contact with any member of his family save his mother, who remains supportive of him. The sentencing judge described him as a ‘socially isolated person, living in a series of rented flats or boarding houses with no hobbies or interests and suffering from various mental health problems and drug and alcohol addiction.’
The sentencing judge said that she had seen no real evidence of remorse. The finding is not challenged, which is hardly surprising in the light of the conduct of the appellant immediately after he shot the deceased.
The appellant has been abusing alcohol and drugs since his mid-teens, principally marijuana and amphetamines. A psychiatrist, Dr Walton, reported to the Court that the appellant’s intelligence was low, and that his memory, concentration, attention and planning and organisational capacities were markedly impaired. Those observations were consistent with an acquired brain injury. In addition, the psychiatrist reported that the appellant showed evidence of a cognitive defect independent of an acquired brain injury, being disoriented in time and having underdeveloped literacy and numeracy skills. In addition, the appellant suffered from depression and chronic paranoid schizophrenia. After he was taken into custody, the appellant spent periods in the prison psychiatric unit suffering from paranoia and auditory hallucinations. Although the appellant’s mental condition did not lead the psychiatrist to conclude that his mental illness prevented him from forming the intent to support the charge of murder, the psychiatrist said that he believed that the appellant’s mental illness contributed to the commission of the offence.
Mental illness is potentially relevant to sentencing in a number of different ways.[1] In the present case it was submitted on behalf of the appellant that his condition warranted significant moderation of the need for general deterrence in the light of the effect it had on the appellant’s moral culpability and also reduced the need for specific deterrence. On the other hand, in my view the nature of the appellant’s condition was also relevant to the need to protect the community from the appellant.
[1]See R v Tsiaras [1996] 1 VR 398; R v Verdins (2007) 16 VR 269.
The sentencing judge did not address the question whether the appellant’s mental condition meant that imprisonment would or might weigh more heavily upon the appellant than it would upon a person in normal health. In the course of the plea, the sentencing judge said:
[T]here’s no suggestion in this case … that he’s going to serve a sentence that will weigh more heavily or that his illness may have a bearing on the kind of sentence … this isn’t a case where there is any suggestion he can’t be treated with medication in the custodial facilities.
Counsel for the appellant responded:
That’s right, yes.
No evidence was led to suggest that the appellant’s mental state might render his imprisonment more difficult. Although, without evidence, the sentencing judge could have concluded that a prisoner with mental problems is likely to suffer at the hands of his fellow prisoners, I do not consider her Honour’s failure to advert to the matter betokens error having regard to counsel’s concession.
When Dr Walton’s report was tendered, the sentencing judge asked counsel:
Can I act on the report and the truth of its contents and just hear from each of you as to how far that goes by way of reducing either moral culpability and/or the need for general deterrence et cetera?
The prosecutor replied: ‘Yes’.
In her sentencing remarks her Honour said:
However, Dr Walton believes that your mental illness may have contributed to your aggression as it is well recognized that chronic schizophrenia erodes a person’s capacity to consistently exercise proper social judgement.
Her Honour’s use of the word ‘may’ diluted the force of Dr Walton’s report. He had said:
[I]t certainly is my opinion that this man’s chronic mental illness has made some contribution to the aggression, it being well recognized that chronic schizophrenia erodes a person’s capacity to consistently exercise proper social judgement. The probability is that Mr Rattya would have been more than usually noise intolerant and he has over reacted in an effort to achieve silence.
In my opinion the sentencing judge does appear to have down played the appellant’s mental condition upon his moral culpability and this shortcoming was reflected in the sentence imposed upon the appellant.
Further, the sentencing judge appeared to confine her attention to the role that the appellant’s mental condition played in the commission of the offence. In R v
Tsiaras, the Court said:
[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.
There were aspects of the commission of the offence that were chilling: the defenceless victim was murdered in cold blood by a man who cynically denied help while he organized a false explanation and displayed no remorse. On the other hand, these aspects of the crime were to some extent attributable to the appellant’s mental state. In the end, I think that the sentencing judge did not give appropriate weight to the appellant’s mental condition.
I would allow the appeal, set aside the sentence passed below, and in lieu thereof sentence the appellant to be imprisoned for a term of 18 years. I would direct that the appellant serve a term of 15 years before he is to be eligible for parole.
NETTLE JA
REDLICH JA:
We agree with Buchanan, JA that the appeal should be allowed and that the appellant should be re-sentenced as his Honour proposes.
It was not in controversy on the appeal that the appellant’s acquired brain injury, cognitive defects, chronic paranoid schizophrenia and depression contributed to the commission of the crime thereby reducing his moral culpability. These factors also bore upon the appropriateness of the appellant as a vehicle for general deterrence. His chronic mental illness was more likely to make his period of incarceration more burdensome.
We wish to add, however, that the sentence the subject of this appeal was passed before publication of the decision in R v Verdins[2] and that, although Verdins purported to restate the law[3] – not extend it – it did attribute a greater degree of
significance to a prisoner’s mental condition at the time of sentencing, and likely mental condition throughout the period of sentence, than until then had generally been appreciated.[4]
[2](2007) 16 VR 269.
[3]Ibid, 276[31].
[4]Ibid, 275[27]-[30].
Obviously, her Honour could not have been expected to anticipate, and she was not at fault in failing to anticipate, the changes that Verdins has brought. Nor is it surprising that on the plea in mitigation counsel did not give some of these factors the attention they now require. But it remains that, in light of Verdins, the appellant’s past and present mental condition and prognosis ought to have weighed more heavily in the sentencing judge’s instinctive synthesis.
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