R v Tresize
[2008] VSCA 8
•30 January 2008
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 20 of 2007
| THE QUEEN |
| v. |
| EILEEN LYNETTE TRESIZE |
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JUDGES: | VINCENT, NEAVE and REDLICH JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 30 January 2008 | |
DATE OF JUDGMENT: | 30 January 2008 | |
MEDIUM NEUTRAL CITATION: | [2008] VSCA 8 | |
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Criminal law – Sentencing – 55 year old female appellant pleaded guilty to one count of causing serious injury intentionally after stabbing a male acquaintance – Sentenced to four years’ imprisonment, with a non-parole period of two years – Crown conceded that the sentencing judge erred by sentencing the appellant as a serious violent offender – Appeal allowed – Re-sentencing – Various mitigating factors examined, including history of serious mental illness and effect of a violent home invasion two weeks prior to offence – Re-sentenced to three years’ imprisonment with a non-parole period of 18 months.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R A Elston SC | Ms A Cannon, Solicitor for Public Prosecutions |
| For the Appellant | Mr R F Edney | Doogue & O’Brien |
VINCENT JA:
I will invite Neave JA to deliver the first judgment.
NEAVE JA:
The appellant, Eileen Lynette Tresize, who was aged 55 at the time of the offending, pleaded guilty to one count of causing serious injury intentionally. She was sentenced by a judge of the County Court to four years' imprisonment with a non-parole period of two years. This is an appeal, with leave,[1] against that sentence.
[1]On 12 October 2007 the appellant was granted leave to appeal against the sentence pursuant to section 582 of the Crimes Act 1958 by Vincent JA.
Background
The appellant, the victim and the other witnesses gave varying accounts of the circumstances of the offending. The uncertainty about the circumstances of the offence can to some extent be explained by the alcohol and cannabis consumed by everyone present when the events leading to the offence occurred. Neither party to the appeal relied on matters arising from those different accounts.
I set out the learned sentencing judges’ helpful summary of the agreed facts:[2]
[2]Reasons [3]–[5].
On 22 September 2005 [the appellant was at her] home... There were other people at the premises with [the appellant]. One of them was Dean Wilson, a 35 year old man who described himself as being on a Disability Pension for a psychiatric disability and as suffering from a drug induced psychosis. He was a friend or acquaintance of [the appellant] who had been at [the appellant’s] unit on previous occasions. He said that he came to [the appellant’s] unit with another man, Raymond Johnson, at about 11 a.m., although other accounts suggest that it was later than that. Mr Johnson was also on a Disability Pension. There were other people at the premises including Sue Haisman, a 42 year old woman, two 17 year old young men, Kade Norden-May and Matthew McKenzie, and others.
It was a social occasion of sorts. People were drinking alcohol and smoking cannabis. It appears that in the course of the afternoon Mr Wilson’s behaviour became unpleasant and difficult. It seems to have been a matter of perspective as to how it was viewed. Wilson and Johnson said that there were no fights, or arguments. Haisman has said that Wilson became nasty and abusive. Norden-May said Wilson was drunk and tried to get him to go
outside for a fight. He described him as being loud and annoying, but not frightening. McKenzie gave a similar description of what might be called objectionable behaviour.
The result was that there was an argument between [the appellant] and Wilson. It seems to have been about [their] relationship and about his persistent and pestering conduct. It was close to 4 p.m. when Wilson left the premises. [The appellant] followed him. [She] followed him for at least the distance of a single house frontage. The argument continued. By then [the appellant was] carrying a knife that [she] had taken from [her] kitchen. Subsequently, police took possession of the knife and described it as “a wooden handled knife with a blade approximately 15 centimetres long”. A neighbour observed [the appellant] walk from [her] unit and follow Wilson. He was four or five feet in front of [the appellant]. It is, as I have said, accepted by [the appellant] that [she] followed him for the distance of a house block. He turned and faced [her]. [The appellant was] yelling at him and [she] stabbed him with the knife in the area of the left shoulder. [The appellant] then walked back to [her] unit where [she] washed the knife.
His Honour noted that when police arrived at the premises the appellant claimed that she was just protecting herself against Mr Wilson, but she did not persist with this claim. In a police interview later in the day she denied she had stabbed Mr Wilson. The appellant gave various explanations for the argument which had led to the stabbing, including that she had been drinking alcohol and smoking cannabis, that she had been affected by being held hostage in her home some time earlier, and that she was tired of Mr Wilson causing trouble. His Honour found that the stabbing was:
…an unplanned act of violence that occurred in the context of tension, annoyance, anger, thoughtlessness, perhaps, a haphazard act with little thought about the consequences.[3]
[3]Reasons [10].
Mr Wilson sustained a wound to his left clavicle region. Shortly after the stabbing an ambulance was called by a neighbour. By the time the ambulance arrived, the 25-millimetre wound was haemorrhaging and the ambulance officer estimated that Mr Wilson had already lost close to a litre of blood. The ambulance officer considered the stab wound to be a life-threatening injury and Mr Wilson was taken immediately to Bendigo Hospital accident emergency department. Once there, he was rushed into theatre. The surgery involved his clavicle being divided and lacerations to his veins being identified and stitched. The surgeon reported that the stab wound extended seven to eight centimetres from the point of entry towards the centre of the body and that it divided several large veins. Mr Wilson required a blood transfusion. After surgery, the victim was transferred to intensive care for observation. He was discharged from hospital three days later, on 25 September. When he returned for review, he complained that he had continued to suffer from significant discomfort from his divided clavicle, but no victim impact statement was tendered.
The grounds of appeal
The appellant relied on three grounds of appeal. The second ground was that the learned sentencing judge erred by failing to give sufficient weight to the mental illness of the appellant and the third ground was that his Honour erred by imposing a sentence which was manifestly excessive. Because the Crown has conceded that the first ground of appeal is made out, it is unnecessary to consider grounds 2 and 3.
Ground 1
Following the agreement of counsel for the Crown and counsel for Ms Tresize, the learned sentencing judge sentenced the appellant on the basis that she was a serious violent offender under Part 5A of the Sentencing Act1991. Section 6B of the Act defines a serious violent offender as a person who has been convicted of a serious violent offence for which he or she has been sentenced to a term of imprisonment or detention in a youth justice centre. A serious violent offence is defined as an offence to which Clause 3 of Schedule 1 applies.
Although the appellant has previously been convicted of intentionally or recklessly causing injury on two separate occasions (see para [16]), these are not serious violent offences within Schedule 1. Accordingly, the first ground of appeal is made out so that the Court's re-sentencing discretion applies.[4]
[4]R v Dooley [2006] VSCA 269, [3]–[6] (Redlich JA).
Matters relevant to re-sentencing
The maximum penalty for the offence of causing serious injury is 20 years' imprisonment. The nature and circumstances of the offence have been described above. Although it does not appear that the appellant intended to place the victim's life at risk, that was the effect of what she did. The appellant is fortunate that the victim received prompt medical attention, including a blood transfusion. The victim continues to suffer some pain from the injury.
A psychological report prepared by Ms Sarah Miller, a forensic and clinical psychologist, notes that the appellant ‘presented with remorse and regret for her involvement in the incident and empathy for the victim.’ This was not challenged by counsel for the Crown. The appellant's remorse and the fact that she saved the expense of a trial by pleading guilty to the offence must be taken into account as mitigating factors. The appellant's personal circumstances and her history of mental illness must also be given some weight in re-sentencing her.
The appellant had an appallingly deprived childhood characterised by 'transience, neglect and extreme violence'.[5] Her parents separated when she was five. Ms Tresize's mother re-married five times and each of the appellant's stepfathers was abusive and had problems with alcohol. Her mother failed to protect the appellant from abuse, including attempted sexual abuse, and state welfare services were frequently involved. The appellant was made a ward of state when she was 14 and spent time in Winlaton Girls Home. Her mother's constant relocations required the appellant to attend almost 20 different schools. The psychological report prepared by Ms Miller notes that it is likely that the appellant's transience reduced her opportunities for study. The appellant left school at the end of year 9.
[5]Reasons [11].
As an adult, the appellant has also been the victim of violence. On 5 September 2005, about two-and-a-half weeks prior to these offences, she was threatened and assaulted by one man, and in March 2006 she was the victim of offences of recklessly causing serious injury and unlawful imprisonment committed by another man. The appellant's social circumstances and the people with whom she associates expose her to maltreatment by others, as his Honour noted.
Given the appellant's deprived and abusive childhood, it is not surprising that she has suffered a number of episodes of serious depressive illness. When she was 24 she was admitted to Larundel Psychiatric Hospital and she has had several hospital admissions for self-harming behaviour between the ages of 17 and 45. Since 1971, when she had a breakdown, she has had extended psychiatric hospital stays. She had four sessions of electroconvulsive therapy in 2003. She began smoking cannabis when she was 16 and continues to do so. She was an intravenous heroin user until she was 43 but ceased when she undertook a methadone program. Ms Miller notes in her report that:
Ms Tresize's history of depressive symptoms has included low mood, anxiety, lack of concentration and diminished energy. Her previous diagnosis has included chronic depression since 1999 and borderline personality features. There have been issues about weight and passive suicidality such as wasting away. Ms Tresize has tried several types of medication; however, reports suggest she has poor compliance and limited insight into the benefits of medication.
Ms Miller notes that although the appellant had had a period of 12 months without hospital admission prior to the time the report was provided and was functioning somewhat better than in 2001, she has little support in the community to assist her and has not been regularly treated by a psychologist or psychiatrist.
The appellant admitted 68 prior convictions from 31 previous court appearances, although her most recent prior conviction was over five years prior to this offence. The majority of the appellant's prior convictions were for drug or dishonesty or property offences, although she has previously been convicted of intentionally or recklessly causing injury on two separate occasions. On the first occasion, on 21 June 1993, the appellant was sentenced to three months' imprisonment to be served by way of an intensive correction order. On the second occasion, on 13 July 1995, the appellant was convicted of two counts of that offence and sentenced to a period of six months' imprisonment on each count, such sentences to be served concurrently and wholly suspended for 12 months. On 10 June 1994 the appellant also appeared on four charges of unlawful assault, but those proceedings were adjourned without conviction.
Conclusion
Although Ms Tresize's mental condition had improved to some extent since 2001, her long history of serious depression must be taken into account in re‑sentencing her. The ways in which a psychiatric condition may be relevant for sentencing purposes have now been identified in cases such as R v Tsiaras,[6] R v Sebalj[7] and R v Verdins,[8] and it is unnecessary to re-state them. As the learned sentencing judge recognised, it is a difficult task to determine the extent to which the appellant's depressive illness and personality disorder should be taken into account in sentencing her for this serious offence.
[6][1996] 1 VR 398.
[7][2006] VSCA 106.
[8](2007) 169 A Crim R 581.
During the plea hearing, the appellant's counsel said:
I do not say to your Honour that the particular illness [the appellant] suffers from is one that reduces her moral culpability, but rather that the factors that were playing at the time of the offence and the trauma she suffered subsequent to the offence[9] as a victim are such that you should consider general and specific deterrence are lessened in this case.
[9]In any case, events occurring after the offence would not normally be relevant to general deterrence or specific deterrence.
This submission is somewhat ambiguous. If counsel meant that the appellant's depression did not affect her moral culpability at all, it does not seem to me that that submission was well founded, having regard to the principles laid down in this Court’s subsequent decision in R v Verdins.
In R v Verdins, Maxwell P said:[10]
[10](2007) 169 A Crim R 581, 588–589 (citations omitted).
Impaired mental functioning at the time of the offending may reduce the offender’s moral culpability if it had the effect of —
(a) impairing the offender’s ability to exercise appropriate judgment;
(b)impairing the offender’s ability to make calm and rational choices, or to think clearly;
(c) making the offender disinhibited;
(d)impairing the offender’s ability to appreciate the wrongfulness of the conduct;
(e) obscuring the intent to commit the offence; or
(f)contributing (causally) to the commission of the offence.
The offence occurred some two-and-a-half weeks after the appellant was assaulted and held hostage in her own home. Two days after the incident, the appellant was assessed by Psychiatric Services as quite unstable. Ms Miller's psychological report says:
…a false imprisonment incident had occurred just prior to the altercation and it is likely that this incident impacted on her mental state on the day of the incident. Ms Tresize stated that a neighbour had held her hostage in her home for a period of 24 hours, in which he dragged her by the hair and slashed himself in her presence. She described that he threatened to stab her and was clearly in a psychotic state.
Ms Miller concluded that the appellant's unresolved trauma exacerbated her paranoia and distress on the day when the offence occurred. In my view, therefore, the appellant's depressive illness, when taken in combination with the violent events occurring only two-and-a-half weeks before she committed the offence, affected her ability to make calm and rational choices[11] and think clearly.[12] As I have said, at the time of sentencing the learned sentencing judge did not have the benefit of a submission to this effect or the decision in R v Verdins. Thus, the sentencing judge’s task was made more difficult.
[11]Compare R v Chambers (2005) 152 A Crim R 164, 173.
[12]For example, see R v Tran [2003] VSC 165, [14].
As the learned sentencing judge acknowledged in his reasons, it is also probable that the sentence of imprisonment imposed on the appellant will weigh more heavily upon her because of her depressive illness. Since her imprisonment the appellant has had four consultations in relation to her psychiatric condition and now appears to be stable. She suffers from disc degeneration and her physical condition combined with her age make her vulnerable in prison. All of these are factors which will make her imprisonment more difficult.
The sentence imposed on Ms Tresize must take account of the mitigating factors to which I have referred, including the reduction in her moral culpability arising from her depression, the events which occurred shortly before the incident, her guilty plea and remorse and her difficult childhood. However, the sentence must also recognise the seriousness of the offence, which involved stabbing Mr Wilson with a large kitchen knife because of his annoying behaviour.
Like the learned sentencing judge, I do not consider that Ms Tresize's mental condition significantly reduces the weight which should be given to general and specific deterrence. The appellant has previously been convicted of offences involving assaults, although these occurred some years ago. I agree with his Honour that the appellant needs to understand the potentially serious consequences of attacking another person with a knife and must be deterred from committing similar offences.
Having regard to all the matters mentioned above, I would re-sentence the appellant to a term of imprisonment of three years with a non-parole period of 18 months.
VINCENT JA:
I agree.
REDLICH JA:
I also agree.
VINCENT JA:
The order of the Court is that the appeal is allowed.
The sentence imposed in the court below is set aside and in lieu thereof the appellant is sentenced to a term of imprisonment of three years, with a non-parole period of 18 months.
It is declared that the period of 364 days has been served under this sentence and it is directed that this declaration be entered in the records of the Court.
The other orders made in the court below are confirmed.
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