R v Toal
[2011] VSC 631
•16 December 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1470 of 2009
| THE QUEEN |
| v |
| AARON JAMES TOAL |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 December 2011 | |
DATE OF SENTENCE: | 16 December 2011 | |
CASE MAY BE CITED AS: | R v Toal | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 631 | |
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CRIMINAL LAW – Sentencing – Breach of Community-based Order – Manslaughter – Exceptional circumstances explaining breaches – Sentencing Act 1991 (Vic) s 47.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. Rose SC | Office of Public Prosecutions |
| For the Accused | Mr R. Edney | Robert Stary Lawyers |
HIS HONOUR:
Aaron James Toal. On 27 July 2009, you pleaded guilty to the manslaughter of Yuxiong Han on 18 July 2008. On 3 August 2009, in sentencing you, I directed that you be subject to a Community-based Order for two years, subject to certain specified conditions. Two of those conditions were, first, that you perform 500 hours unpaid community work, as directed by the Regional Manager, for the period of two years, and, secondly, that you be under the supervision of a Community Corrections officer. You have breached both of those conditions, and have pleaded guilty to an offence, in respect of those breaches, under s 47 of the Sentencing Act 1991.
In particular, you have admitted to failing to attend upon the Community Corrections Officer, who was your supervisor, on five separate occasions between 9 March 2010 and 13 December 2010, and to failing to attend for community work, as directed, on eight occasions between 30 November 2010 and 29 April 2011.
After the first four occasions, upon which you failed to attend upon your supervisor, a compliance plan was issued to you on 7 October 2010, to assist you to comply with the conditions of your Community-based Order. That plan was designed to address the reasons, which you had given to your supervisor, for your non-attendance upon her on the four previous occasions. However, despite that compliance plan, you committed the further breaches of the Community-based Order, which I have described, on nine further occasions. As a result of your breaches of the Community-based Order, you have committed an offence under s 47(1) of the Sentencing Act. Accordingly, I must now consider whether I should either vary the Community-based Order, or, alternatively, cancel that order, and deal with you for the offence of manslaughter, to which you originally pleaded guilty.
The circumstances of that offence were set out in some detail in the reasons, which I gave for your original sentence on 3 August 2009. For present purposes, it is sufficient if I provide a short summary of them.
On 7 July 2008, you had been in the company of a group of friends, which included XYZ and Sami-Jones Tactay. Late in the evening, your friends and you travelled by bus along Canterbury Road to the intersection of Blackburn Road. There, you alighted from the bus, and commenced to walk along Canterbury Road. Mr Han, who was then 21 years of age, had caught the same bus, having worked at a restaurant that evening. After he left the bus, Mr Han walked past your group and continued along Canterbury Road. Tactay suggested to XYZ and yourself that you “go” Mr Han, who was then walking in front of you. Another member of your group was heard to say words to the effect, “Let’s roll him”. You offered XYZ $10 to do so. Thereupon, both XYZ and you ran towards Mr Han. XYZ was slightly ahead of you. As he reached Mr Han, he swung his arm out towards him. In response, Mr Han took flight, and ran onto Canterbury Road. As he did so, a vehicle, travelling in a westerly direction, came into collision with him. As a consequence, Mr Han sustained massive head injuries, from which he died in the Royal Melbourne Hospital 11 days later.
Immediately after the incident, XYZ and you walked off quickly, without checking the plight of Mr Han, or pausing to assist him. After a short time, XYZ and you returned to the scene, and deliberately created the impression that you had just arrived there. You then left the scene with your friends, before the ambulance and police arrived.
On the evening of 8 July, you attended Nunawading Police Station, where you were interviewed in relation to your involvement in the incident. You told the police that you were walking along and having a normal conversation with your friends, when the man in front of you stepped onto the road and was struck by a vehicle. However, when the police told you that your account of the incident was not consistent with the version given to them by other witnesses, you admitted that XYZ and you had run at Mr Han.
Initially, you had intended to plead not guilty to the charge of manslaughter. The committal proceeding was set down for a contested hearing. However, in the meantime, XYZ pleaded guilty to the manslaughter of Mr Han, and I sentenced him, by imposing on him a Youth Attendance Order pursuant to s 399 of the Children, Youth and Families Act 2005. After I sentenced XYZ, you pleaded guilty before me, on the basis that you were criminally complicit in the unlawful and dangerous act of XYZ in assaulting Mr Han, which had caused his death. As I noted in your original sentence, by your plea of guilty, you thus acknowledged that a reasonable person of your age, in your circumstances, would have realised that XYZ’s assault of Mr Han involved an appreciable risk of serious injury to him.
After you had pleaded guilty, a plea in mitigation of sentence was made on your behalf. It was submitted that I should not impose a custodial sentence upon you. The Crown prosecutor, on your plea, did not oppose the disposition contended for by your counsel, and he conceded that a Community-based Order was within the range of sentences which were appropriate for your case.
In my reasons for sentence, I identified seven mitigating factors, which I took into account in your favour. I shall return to those factors shortly. Notwithstanding those factors, and the concession by the prosecutor, I stated that I found the question, whether I should impose upon you a custodial sentence, to be difficult. However, I came to the conclusion that the combined weight of the mitigating factors was such that I should accede to the submission, made by your counsel, to impose a Community-based Order. In doing so, in my reasons for sentence, I told you that if you breached any of the conditions of your order, there was a high likelihood that your Community-based Order would be cancelled, and would be replaced by a custodial sentence. After I had pronounced my reasons for sentence, and specified to you the three conditions to which the Community-based Order would be subject, I repeated that warning to you.
In those circumstances, the question which I must address is whether I should cancel your Community-based Order and deal with you for the offence of manslaughter, or whether I should vary the Community-based Order. There are, I consider, two important factors which are particularly relevant to the determination of that question.
First, notwithstanding the number of occasions on which you have breached the Community-based Order, nevertheless, before action was taken against you in relation to your breaches, you had substantially complied with it. Throughout the term of the Community-based Order, and indeed since the date of your offending, you have not come to the attention of the police at all. Further, the instances of non-compliance by you of the Community-based Order must be placed in context. In fact, you attended upon your supervising Community Corrections Officer on 38 occasions between 4 August 2009 and 12 May 2011. Importantly, you only omitted to attend on one out of eight scheduled sessions of supervision between 13 January 2011 and 12 May 2011. In addition, between 18 August 2009 and 4 May 2011, you attended on 46 occasions to undertake unpaid community work. In total, you completed 273 hours of community work in doing so. Six out of eight of the occasions, upon which you failed to attend, for community work, occurred between 8 December 2010 and 4 May 2011. During the same period, you did attend to perform community work on eight occasions. As Ms McPherson, your Community Corrections Officer, explained to me, your attendances during that period became sporadic and inconsistent.
Thus, this is not a case in which an offender has breached a Community-based Order by re-offending during the period of the order. Nor, at any time, have you abandoned your obligations under the order. Rather, as I noted, notwithstanding your breaches of the order, you have, to a reasonably substantial extent, complied with the requirements, both for attendance for supervision, and also for undertaking unpaid community work.
The second important factor, which is relevant to my consideration, concerns the reason why you have breached the Community-based Order. On the evidence, it is clear that, subject to four occasions on which you failed to attend for supervision, you had done quite well in respect of your Community-based Order to the end of 2010. During the same period of time, you had commenced a Certificate 3 Business Course at Box Hill Institute of TAFE. Your examination results for that year were particularly good. Your father, Brendan Toal, and your aunt, Mrs Fiona Cornwall, both told me in evidence that, during that period of time, you had a positive attitude, and you were applying yourself assiduously, both to your studies, and also to your obligations under the Community-based Order.
However, significant problems emerged during 2011. In particular, during the last 12 months, your psychological state has undergone a dramatic deterioration. Your father and aunt gave detailed evidence as to how, during that period, you became particularly withdrawn, your mood became depressed, and you became unconcerned about your physical appearance. Whereas, hitherto, you had happily engaged with other members of the family, you began to isolate yourself from them. You became uncommunicative, and your father’s attempts to assist you and talk to you about your problems were rebuffed by you. Notwithstanding the excellent results, which you had achieved during the previous year, you did not continue with the course at Box Hill TAFE. You told your father that you had lost confidence, and you felt that you could not cope with the studies. Your father observed that you were sleeping poorly, and, on a number of occasions, during the night, you would wake up having had nightmares. Your father described how you became tired and drawn in your appearance, and he said that you became a “shell” of your former self.
At my suggestion, you gave evidence before me on your plea. You told me that, after I had previously sentenced you, you continued to feel significant grief that your thoughtless actions had caused the death of someone else’s son. You continually ruminated about the matter. However, you did not feel that you could talk to your father, or to anyone else, about it, and you bottled up your emotions. By the end of 2010, you commenced to experience nightmares in which you re-lived the accident, in which Mr Han died. The incident continually replayed itself in your mind, and kept you awake at night. In the end, the recurring images of the incident, and your grief as to your role in it, got the better of you, and you could no longer cope. In particular, you found that when you attended upon your supervisor, and when you attended to perform unpaid community work, you were reminded constantly of the incident involving Mr Han’s unfortunate death. As a result, you struggled to comply with the terms of the Community-based Order.
In answer to a question by me, you explained that, at that time, you felt that you were unable to speak to anyone about your problems. You did not know how to explain your situation to your father or to describe to him how you were feeling.
Ultimately, in October, your father persuaded you to consult your general practitioner. He referred you to the Crisis Assessment Team at Box Hill, who, in turn, organised for you to be admitted as an inpatient at Pine Lodge Clinic. There, you came under the care of Dr Vinay Kumar, a consultant psychiatrist. Dr Kumar first saw you on 24 October. He diagnosed that you were suffering from a post-traumatic stress disorder and an adjustment disorder with depressed mood. Dr Kumar commenced you on a course of medication. You were discharged from Pine Lodge Clinic after one fortnight. Dr Kumar stated in his report, which was tendered on the plea, that by the time of your discharge, you had ceased to suffer from nightmares and flashbacks, that you no longer ruminated about the accident, and that you were not entertaining suicidal thoughts.
Dr Kumar has seen you twice since your discharge from Pine Lodge Clinic. In his report, he stated that you do not suffer any symptoms of depression or post-traumatic stress disorder. However, you will be required to continue to take medication, and to consult Dr Kumar every fortnight, for at least one year. Dr Kumar believes that, if you continue with your course of treatment, your prognosis is good.
In his report, Dr Kumar states that he considers that there is a strong causal relationship between your involvement in the offence, in which Mr Han died, and the development by you of your symptoms of depression and post-traumatic stress disorder. That opinion is shared by Dr Lester Walton, consultant psychiatrist, who examined you on 17 October 2011. Dr Walton’s view is that you have succumbed to a post-traumatic stress disorder with a parallel major depressive disorder. He also expressed the view that your psychiatric condition played a significant role in causing you to fail to comply with the terms of the Community-based Order. Dr Walton shares the view of Dr Kumar that your condition is treatable and reversible, and that your longer term prognosis should be reasonably favourable.
Based on that evidence, I am satisfied that, as a result of the incident, in respect of which you pleaded guilty to manslaughter, you have suffered a significant psychiatric reaction. Mr Rose SC, who appeared for the prosecution, supported that conclusion. I am also satisfied that your psychiatric condition contributed substantially to the breaches by you of the Community-based Order. The pattern of non-compliance, by you with the order, matches the evidence of your father and your aunt as to the deterioration of your psychiatric state. Notwithstanding your difficulties, you did continue to try to comply with the terms of the Community-based Order, albeit that your compliance with it was intermittent and inconsistent. However, it is important to note that, at no stage, have you abandoned your obligations under the Community-based Order, and that, indeed, you have performed more than one half of the unpaid community work, which was prescribed as a condition of the order.
Mr Edney, who made a very thorough and helpful plea on your behalf, submitted that I should not cancel the Community-based Order, but, rather, that I should vary it, so as to enable you to complete your obligations under the original Order. It was also suggested that the varied Order should contain a condition, under s 38(1)(d) of the Sentencing Act, that you submit to psychiatric assessment and treatment as directed by the Regional Manager. Mr Rose SC, on behalf of the prosecution, supported the disposition advanced by Mr Edney. Importantly, Ms McPherson, your supervising Community Corrections Officer, told me, in evidence, that she supports a disposition by the Court, that would enable you to complete the Community-based Order, which I imposed on you. She told me that when she took action to breach your Order, the issues relating to your mental health had not been brought to her attention. If you had told her of your difficulties, she would have taken action to address those issues, and thus, in those circumstances, she might not have taken action, at that stage, concerning the breaches by you of the Order.
I accept that the Court has the power to make such an order under s 47(3A) of the Sentencing Act, notwithstanding that the original period of the Community-based Order has expired. That view is supported by the unreported decision of Mandie J in Dimitrovski v Jones.[1] However, the original term of the Order was two years, which is the maximum term which can be prescribed under s 36(2) of the Sentencing Act. If I were to adopt the position, contended for by your counsel, and supported by the prosecution, I should deal with you under s 47(3A)(c), by making a further Community-based Order for an additional period, as from today’s date.
[1](Unreported 23 August 1994; BC 9400956, at p 17).
The question, which I must decide, is whether I should accede to the proposition, which was advanced on your behalf and supported by the prosecution. The offence, for which I sentenced you, is a serious offence. As I told you at the time, the decision to make a Community-based Order, rather than imposing a sentence of imprisonment, was a difficult decision. I also warned you, in clear terms, that if you breached the Community-based Order, I would impose a sentence of imprisonment on you. In those circumstances, I would only be justified in acceding to the proposition advanced by your counsel, if I consider that the circumstances of this case were exceptional.
Having given this matter careful consideration, I am persuaded that the factors, which have been brought to my attention in this case, are exceptional. That conclusion is the product of a combination of factors. First, as I have already stated, you have complied with the Community-based Order to a quite substantial extent. In particular, you have not re-offended, you have attended for supervision and community based work on a large number of occasions, and you have undertaken more than one half of the prescribed work required of you. Secondly, I accept that there was a genuine psychiatric reason why you breached the order. In particular, I do not consider that your non-compliance was the product of a wilful determination to neglect your obligations under the Order. Rather, I am satisfied that your serious psychiatric condition genuinely interfered with your capacity to properly attend to the requirements of the Order. Thirdly, if I were to sentence you to a term of imprisonment, I would have to take into account the mitigating circumstances, which I considered in relation to your original offending, together with the extent of your compliance with the Community-based Order, and your present psychiatric condition. The evidence of Dr Walton persuades me that a term of imprisonment would be particularly difficult for you to endure, and that it may occasion you significant psychiatric harm. Thus, the proper application of sentencing principles would have the effect that any term of imprisonment, which I would impose upon you, would be quite short. Such a term of imprisonment would be of little or no benefit to the community, or to you. On the other hand, I consider that it would be to the benefit, not only to yourself, but, more importantly, to the community, if you were required to perform the balance of the obligations required of you under the original Community-based Order.
That conclusion is reinforced by the seven mitigating factors, which persuaded me, originally, to impose a Community-based Order on you. Each of those factors is still relevant. In short, they were: first, your offending was very much at the lower end of the scale of manslaughter cases; second, your offending was entirely out of character for you; third, your plea of guilty was of substantial weight, particularly, because the case was one in which you might well have decided to contest your guilt before a jury; fourth, you are and have been genuinely remorseful, and, having observed you in the witness box, I am well satisfied that you continue to suffer significant grief and remorse as a result of your original offending; fifth, your youth, both at the time of the offending, and now, is relevant. It is in the interests of the community that you be rehabilitated, rather than that you suffer the psychiatric harm which, I am satisfied, a term of imprisonment may well cause you; sixth, notwithstanding your psychological difficulties, I still consider that you have good prospects of rehabilitation; and, seventh, your conviction for the crime of manslaughter, and your continued feelings of shame and remorse, constitute in themselves a not insignificant penalty for your offending.
I am also satisfied that, notwithstanding your psychological difficulties, you will be able to undertake the residue of the unpaid community work, which you have not completed under the original Community-based Order. As I explained to you when originally sentencing you, the performance by you of that work is important, to enable you to make reparation to the community, and to reinforce to you the wrongfulness of your actions which led to the death of Mr Han. Thus, the imposition of that work, and the requirement that you complete the 500 hours unpaid community work, is, I believe, a constructive way of punishing you by depriving you of a substantial part of your spare time, while requiring you to put something back into the community.
In those circumstances, I am persuaded that this is an exceptional case in which, notwithstanding the explicit warning which I originally gave to you, I should re-sentence you to a further Community-based Order for a period of 12 months, to enable you to complete your obligations under the original Order.
As a condition of the Order, I shall require you to perform the remaining 227 hours unpaid community work, which you have not completed under the original Order. I shall also impose a condition, under s 38(1)(d) of the Sentencing Act, that you submit to medical, psychological or psychiatric assessment and treatment as directed by the Regional Manager.
Accordingly, and subject to hearing from counsel, I make the following Orders:
(1)That you be re-sentenced, for the offence of manslaughter, to a further Community-based order for a period of 12 months from today’s date to 16 December 2012.
(2)That during that period:
(a)you perform 227 hours unpaid community work as directed by the Regional Manager;
(b)you be under the supervision of a Community Corrections Officer;
(c)you submit to medical, psychological or psychiatric assessment and treatment as directed by the Regional Manager.
(3)In respect of your offence under s 47 of the Sentencing Act, I shall impose a fine of $100.
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