R v Sirillas
[2004] VSCA 56
•19 April 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 144 of 2003
| THE QUEEN |
| v. |
| JOHN SIRILLAS |
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JUDGES: | CHERNOV and VINCENT, JJ.A. and BONGIORNO, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 18 March 2004 | |
DATE OF JUDGMENT: | 19 April 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 56 | |
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Criminal Law – Sentence – Two counts of attempted armed robbery – Appellant with history of serious criminal behaviour involving violence – Prior convictions – Appellant with psychiatric, psychological and intellectual disability – Circumstances under which a hospital security order can be made – Whether sentencing judge properly complied with provisions of s.93(1)(e) of the Sentencing Act 1991 in making a hospital security order – Total absence of reasons by sentencing judge in determining period of order or non-parole period – Appeal allowed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. C.W. Beale | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr. D.G. Just | Rainer Mantini Solicitors |
CHERNOV, J.A.:
I agree for the reasons given by Vincent, J.A. that the appeal should be allowed and the appellant be re-sentenced as his Honour proposes.
VINCENT, J.A.:
The appellant, on 24 April 2003, pleaded guilty to two counts of attempted armed robbery committed on the evening of 26 March 2002.
He also admitted a previous finding of guilt from a Magistrates' Court appearance, on 31 July 1986, and 85 prior convictions arising from 20 court appearances between 24 September 1986 and 10 August 1998. They relate to numerous offences of dishonesty, and include nine convictions for armed robbery and six for attempted armed robbery in addition to convictions for false imprisonment, intentionally causing serious injury and intentionally or recklessly causing injury.
After hearing a plea in mitigation of penalty, the sentencing judge, on 16 May 2003, ordered that he be admitted to the Thomas Embling Hospital, an approved mental health service, as a security patient for a period of seven years under s.93(1)(e) of the Sentencing Act 1991. His Honour fixed a non-parole period of five years.[1]
[1]The fixing of a non-parole period was required under s.93(4).
The appellant was granted leave to appeal against this order on a number of grounds. However, as the members of the Court indicated at the outset of the hearing, we consider that the sentencing judge has fallen into error in a significant respect, and, accordingly, that the appeal should be allowed. More specifically, a serious question was seen to arise as to whether his Honour had properly complied with the provisions under which the hospital security order was made. It is to that aspect that I now turn.
Although imposed “by way of sentence”[2], a hospital security order does not constitute a sentence of imprisonment[3] within the meaning of s.18(1) of the Sentencing Act. An order of this kind can, however, only be made in circumstances in which, but for the mental illness of the offender, a sentence of imprisonment would have been imposed.[4] In this context, it is important to bear in mind that a person subject to a hospital security order is not regarded as excused from responsibility under the criminal law, and therefore subject to different processes, by reason of mental impairment or intellectual disability. Indeed, no relationship whatever need exist between the mental illness and the commission of the offence before this form of detention can be directed. The individual is not detained under s.93(1)(e) because he or she is mentally ill but by reason of the commission of a serious offence. Nor does an order made under s.93(1)(e) involve the total diversion of the individual from the operation of the criminal justice system as is the case for those who are dealt with under s.93(1)(d). The provision can be seen to be designed to address a very difficult problem - what to do in the case of a seriously disturbed offender who, although legally responsible and otherwise would be imprisoned, nevertheless is recognized as requiring appropriate hospital treatment. An offender subject to a hospital security order cannot be released from custody prior to the expiration of the non-parole period and could be detained in a mental health service for the total period of the order, or even be required to serve some or virtually all of the period in prison as a consequence of the action of the Mental Health Review Board or the chief psychiatrist.[5]
[2]Section 93(1)(e).
[3]R. v. Jolly [1994] 1 V.R. 446; R. v. Tognolini, unreported, Court of Appeal, 21 October 1996.
[4]Section 93(2).
[5]Section 93(5) enables the transfer of the person to prison to be effected.
Unsurprisingly, when regard is had to the purposes of the scheme, s.93(3) states that a hospital security order cannot be made for a period longer than that which the person would have been required to serve had he or she been imprisoned. Consideration must accordingly be given by a sentencing judge contemplating the adoption of this course to the question: what would otherwise have been the appropriate period of incarceration in the given case.
Where, as in the present situation, more than one offence is involved, it was considered by the Court in Jolly[6] that only a single order need be made. But if this were done, it would follow that its duration would necessarily be limited to what would otherwise have been the appropriate total effective sentence in the circumstances. A sentencing judge when dealing with multiple offences must therefore address the issues relevant to the determination of the total effective period that the offender would have been required to serve had a sentence of imprisonment been imposed. Attention would need to be given to the otherwise appropriate dispositions for the separate offences, any directions that would have been required with respect to cumulation and the application of the principle of totality. This approach would apply to both the period of operation of the order and the non-parole period fixed.
[6]R. v. Jolly [1994] 1 V.R. 446 at 451 per Brooking, J.
Unfortunately, it is by no means clear that his Honour addressed these matters as he has provided no indication of the reasoning employed by him with respect to the manner in which either the period of the order or the non-parole period were determined in this case. In his sentencing remarks, he stated only:
“[Counsel] on your behalf submitted that a hospital order or security order was an appropriate disposition in view of the material available and that such an order would be to the benefit of the community as you would be unlikely to re-offend if you received appropriate treatment and medication and a medication regime.
The learned Crown prosecutor, on behalf of the Director of Public Prosecutions submitted that a security order was the appropriate order, warranted in these circumstances and he stressed the concern that the community needs to be protected from you.
Having considered all the material available, I have concluded that whilst your needs are important in considering an appropriate disposition, the community must be protected from you as clearly, without medical treatment and management on a long-term basis, you will continue to re-offend once you are released back into the community.[7]
…
I am satisfied that you should be admitted and detained as an involuntary patient for your health and safety and the protection of members of the public.[8]
…
On the two counts of attempted armed robbery, you are to be admitted and detained, pursuant to a hospital security order in an approved mental health service, that is the Thomas Embling Hospital as a security patient for a period of seven years. Having considered all the appropriate matters, I fix a non-parole period of five years.[9]”
This has left this Court in the position that it is possible only to speculate concerning his Honour’s view as to what would otherwise have been the appropriate disposition for each of the offences and as to what, if any, cumulation of the periods of detention considered appropriate for the separate offences would have been required. I would also add that, generally speaking and certainly in the circumstances of the present case, it is simply not a sufficient indication of a judge’s reasons to state, as his Honour did, that he had “considered all the appropriate matters” when fixing the non-parole period.
[7]T21.
[8]T22.
[9]T23.
The failure to provide reasons in the circumstances presently under consideration where they cannot be discerned from the sentencing judge’s remarks during the plea, or when imposing sentence, or by reference to the disposition itself, constitutes error of law.[10]
[10]Fletcher Construction v. Lines Macfarlane and Marshall [2001] 4 V.R. 28 at [18] and cases there cited.
It now falls upon this Court to determine the appropriate disposition of the matter.
The Background
Count 1
At about 7.25 p.m. on 26 March 2002, Mr Assaf Yizak was on duty at the Liberty Service Station in High Street, Lalor. He was checking stock in a storeroom behind the counter area when he heard someone call out “Give me the money.” He looked out and saw the appellant wearing a stocking pulled down over his head. In response Mr Yizak moved to the storeroom door where he was confronted by the appellant who was holding a 15 centimetre long hunting knife. He picked up a rubbish bin and threw it towards the appellant who continued to approach him. Mr Yizak then retreated into the storeroom and attempted to close the door. As it would not close properly, he had to hold the door-handle in an endeavour to secure it. Through a gap, he saw the appellant attempting to break open the cash register and heard the blade of his knife snap. The appellant continued in his attempt to open the register. Mr Yizak opened the storeroom door slightly and shouted “Police are on the way. Police will be about two minutes.” He then unsuccessfully tried to secure the door again. The appellant who still had the knife in his right hand, pushed it open and grabbed him by the shoulders. As they struggled the appellant demanded that he open the till, but Mr Yizak shouted that he could not as it was broken. During the course of this struggle he pushed the appellant who lost his balance and then fled the scene.
Two psychiatric nurses who were acquainted with the appellant as a former patient, drove past the service station shortly afterwards. They observed that there were police in attendance. About a kilometre further along High Street, they saw the appellant hiding in bushes near the Shell Service Station where the offence in count 2 was committed. They drove back to advise the police of this sighting, but they had left by this stage.
Count 2
Approximately 20 minutes after the commission of this offence, Henry Cvik was on duty at a Shell service station in High Street, Thomastown, when the appellant entered, again wearing a stocking pulled down over his head and carrying a knife. As on the previous occasion, the appellant made a demand for money. However, Mr Cvik activated the security system in the premises, causing protective screens to rise, isolating him from the appellant who then fled.
The appellant was at the time of the commission of these offences a 33-year-old single man who had suffered for many years under what Dr Lester Walton described in a medical report tendered in the Court below as “the quadruple jeopardy of intellectual disability, paranoid psychosis, substance abuse and significant anti-social tendencies that seem to have emerged prior to his drug abuse and psychosis.”
He has a history of violence in prison, in the Thomas Embling Hospital and in the community. Dr Zimmerman encapsulated the situation in his report in the sentence; “He provides major challenges to all systems, custodial and hospital, that attempt to manage him.”
In support of his claim that a hospital security order should be made but one of significantly shorter length than imposed in the Court below was the appropriate disposition in the circumstances, reliance has been placed by appellant’s counsel upon the following considerations:
(a)His client’s plea of guilty.
(b)The circumstances of the offences which, it was claimed, were at a lower level of attempted armed robbery.
(c)The conduct of the appellant both in the past and at the time of the commission of the offences was obviously heavily influenced by the serious disabilities under which he suffered. Accordingly the significance of both general and specific deterrence should be regarded as substantially reduced.
(d)It is, the argument was advanced, in the interests of both the community and the appellant himself for a hospital security order to be made in this case.
With respect to the first of the considerations, obviously the appellant’s plea of guilty must be taken into account and practical effect must be seen to have been given to it.[11]
[11]R. v. Duncan [1998] 3 V.R. 208 at 215 per Callaway, J.A.. Save for the fact that his Honour referred to the entry of pleas of guilty in the first sentence of his remarks, this consideration appears to have received no attention whatever from either counsel or his Honour at any stage of the hearing.
I reject counsel’s submission that the offences committed by the appellant should be viewed as being at the “lower level of attempted armed robbery” and doubt that that view was formed by Mr Yizak when he was first confronted by a physically large, determined man with a stocking over his head and a hunting knife in his hand, or by Mr Cvik, approximately 20 minutes later. Crimes of that kind, often perpetrated against isolated and vulnerable individuals, as many victim impact statements that come before this Court attest, can be terrifying experiences with devastating long-term consequences to victims. Whether it is viewed from personal, broader social or economic perspectives, this form of offending is extremely serious. It is certainly not to be regarded as less significant because the offending occurs in a milk bar or service station rather than a bank or because only small amounts of money are involved or that, as in Mr Cvik’s case, the attempt was foiled because there were protective screens in the premises. However, the sustained employment of force and the aggression employed against Mr Yizak constitute significant factors of aggravation of the offence committed against him.
I agree with the view of his Honour in the Court below that, by reason of the presence of various disorders under which the appellant has laboured over his life, the principle of general deterrence can have no real part to play in the determination of appropriate sentences in his case.[12] The existence of a relationship between the various disabilities from which the appellant suffered over the years and his history of offending can, I think, be safely assumed. Nevertheless, he is to be regarded as responsible under the criminal law for his actions and whilst his level of moral culpability must in the circumstances be treated as reduced, it is not to be forgotten that the appellant had been engaging in serious criminal behaviour involving violence for approximately 15 years before the commission of the offences with which we are concerned. I also accept his Honour’s assessment that the protection of the public and the specific deterrence of the appellant, however, assume considerable significance in a case such as this. The task of deciding upon an appropriate disposition in a situation of the kind presently under consideration is, as the sentencing judge well appreciated, clearly very difficult. As the High Court stated in Veen (No. 2)[13].
“The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions. And so a mental abnormality which makes an offender a danger to society when he is at large but which diminishes his moral culpability for a particular crime is a factor which has two countervailing effects: one which tends towards a longer custodial sentence, the other towards a shorter. These effects may balance out, but consideration of the danger to society cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality.”[14]
[12]R. v. Tsiaras [1996] 1 V.R. 398 at 400 per Charles and Callaway, JJ.A. and Vincent, A.J.A.
[13]Veen v. R. (No. 2) (1987-88) 164 C.L.R. 465 at 476 per Mason, C.J., Brennan, Dawson and Toohey, JJ.
[14]His Honour’s failure to provide adequate reasons for his decision and some of his remarks with respect to the need to protect the public against the appellant have left me in a state of uncertainty as to whether he may not have fallen into error in this regard.
Were it not for the provision to the sentencing judge and to this Court of a certificate and supporting report under s.93(1)(b) to the effect that the appellant appeared and continues to appear to be mentally ill and in need of treatment available at the Thomas Embling Hospital, an order for his immediate incarceration in prison for a substantial period would clearly be required.
In the circumstances, however, I consider that an order should be made under s.93(1)(e). As earlier indicated, the period of that order is limited by the length of imprisonment which would otherwise have been imposed. In my opinion the otherwise appropriate sentence for the offence encompassed by count 1 would have
four years and six months’ imprisonment, and that for the offence in count 2 - three years' imprisonment. An order for partial cumulation to reflect the commission of quite separate offences, at different locations and against separate victims, although proximate in both distance and time, would have been required. I consider that this would have been appropriately addressed by making the service of 18 months of the sentence on count 2 cumulative upon that imposed on count 1. The effective period of incarceration if imprisonment had been imposed would, accordingly, have been six years. That, I consider, should be the operative period of the order under s.93(1)(e). I would then fix a non-parole period of four years.
BONGIORNO, A.J.A.:
I agree with the orders proposed by Vincent J.A. for the reasons his Honour has expressed.
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