Radovsky v The Queen

[2013] VSCA 214

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0081

ADAM RADOVSKY

Applicant

V

THE QUEEN

Respondent

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JUDGES	WARREN CJ AND COGHLAN JA
WHERE HELD	MELBOURNE
DATE OF HEARING	7 August 2013
DATE OF JUDGMENT	20 August 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 214
JUDGMENT APPEALED FROM	DPP v Radovsky (Unreported, County Court of Victoria, Judge Tinney, 19 April 2013)

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CRIMINAL LAW — Leave to appeal against sentence – Aggravated Burglary – Common assault – Total effective sentence of 2 years 4 months – Non-parole period of 10 months fixed – No error of general and specific deterrence being given too much weight – Sentence not manifestly excessive – Leave refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A Furstenberg	Lewenberg & Lewenberg
For the Respondent	Mr P B Kidd SC	Mr C Hyland, Solicitor for Public Prosecutions

WARREN CJ:

1. I have had the benefit of reading in draft form the reasons for judgment of Coghlan JA.  I agree with his Honour, for the reasons that he gives, that leave to appeal should be refused.

COGHLAN JA:

1. On 7 August 2013 the Court refused the applicant’s leave to appeal against sentence.  These are the reasons for the decision.

1. On 18 April 2013 the applicant pleaded guilty to the charges set out in the table below. On 19 April 2013 he was sentenced accordingly.

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1.	Aggravated Burglary (Person Present) [Crimes Act 1958 (Vic) s 77]	25 years [Crimes Act 1958 (Vic) s 77(2)]	2 years	Base
2.	Common Assault (Common Law)	5 years [Crimes Act 1958 (Vic) s 320]	6 months	2 months
Total Effective Sentence:		26 months
Non-Parole Period:		10 months
Pre-sentence Detention Declared:		N/A
6AAA Statement:		5 years with non-parole period of 3 and a half years
Other orders: Forensic sample order pursuant to s464ZF(2) of the Crimes Act 1958.

1. I will set out the summary of the facts from the Registrar’s Neutral Summary:

CIRCUMSTANCES OF THE OFFENDING

At 7.55pm on 2 May 2012, the applicant entered the complainant’s first floor apartment through an open balcony door. The complainant did not know the applicant. The complainant stood up and the applicant walked towards him and then punched him approximately 10 times (Charge 1 – Aggravated Burglary).

The complainant began shouting at the applicant asking him how he had entered the apartment and what he wanted. The applicant then kicked the victim at least six times (Charge 2 – Common Law Assault).

The applicant picked up the complainant’s wooden coffee table, raised it up to his shoulders, and dropped it near where the complainant was lying on the ground. After looking around, the applicant left the apartment through the front door.

The complainant suffered pain and discomfort in his hip region. He did not seek medical attention for those injuries.

A fingerprint at the apartment was matched to the applicant. He was also captured on CCTV footage exiting the apartment complex.

ARREST AND COMMITTAL

The applicant was arrested on 14 May 2012 and taken to the Prahran Police Station. A record of interview was conducted and the applicant made a largely no comment interview, however he did confirm that in an earlier conversation with police he had told them that the complainant was a paedophile.[1] 

The applicant stated that at about 8pm on 2 May 2012 he was at his girlfriend’s house, but refused to provide her name.

[1]Crown opening [13]-[14].

1. By Notice dated 21 May 2013 the applicant sought leave to appeal against the sentence imposed on the following grounds:

1. The sentencing discretion miscarried by reason of the learned sentencing Judge sentencing the Applicant on the basis that general and specific deterrence were significant sentencing factors.

2. The individual sentence imposed on Charge 1 and Charge 2, the total effective sentence, and the non-parole period are manifestly excessive.

Ground 1 – Deterrence

1. It is submitted on behalf of the applicant that because his Honour found that all of the principles set out in R v Verdins[2] applied to the applicant and in addition he fell to be treated as a youthful offender, his Honour was in error when he found that both general and specific deterrence were significant factors in sentencing.

   [2](2007) 16 VR 269 (‘Verdins’).

1. In particular it was argued that because the applicant lacked “insight” he was not a vehicle for specific deterrence and his Honour was in error to have found, in particular, that specific deterrence was significant.

1. The relevant principles of Verdins are:[3]

   [3]Ibid, [32].

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.

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.

1. In this case it was accepted by the learned sentencing judge that all the principles applied to the applicant.

1. For the purposes of this application it is principles 3 and 4 which are of importance.  As I have already indicated it was submitted that because the applicant lacked insight he was not a person who could be specifically deterred.

1. The notion of insight was used, in this context, in two distinct ways.  First, does a particular offender have insight into the nature of his offending as a result of his mental illness.  Second, does an offender have insight into his mental illness.

1. It is the former which goes to the operation of principle 4.  The latter will be relevant to the question of rehabilitation and may be relevant to the operation of principles 5 and 6 of Verdins.

1. In his reasons for sentence, his Honour made the following references to the question of insight:[4]

You were held from 10 April to 26 April involuntarily. You had initially little if any insight at all into your illness that had caused you to be detained. In the periods leading up to that admission you had been expressing anger and a drive to take violent action against, as you put it, “junkies," and “paedophiles”, your father and doctors…You had been told very clearly of the treatment plan and the need for you to take the anti-psychotic medication but the later report of Dr Inglis and indeed the submissions of your counsel spell out your lack of insight as to your condition and your lack of preparedness at least upon your discharge to comply with the anti-psychotic medication plan and that has continued since that date.

…

Add to that if hopefully you can find a job and you would be in a better position still. The trouble is as I sit here at the moment you have very limited insight and still have declined the medication that has been recommended to you

…

Undoubtedly your illness provides some explanation for your offending but there is no suggestion that you were deprived of insight into the actual illegality of what you were doing. You knew you had no right to enter that unit.

[4]DPP v Radovsky (Unreported, County Court of Victoria, Judge Tinney, 19 April 2013) (‘Sentencing remarks’), [18], [29] and [32].

1. What the learned sentencing judge concluded was:[5]

Your counsel, Ms Nehma, argued that each of the six propositions referred to in the case applied in your case. Well let me say immediately that I agree that they all do apply. Your moral culpability is in my judgment reduced. Your mental health predicament does impact upon the kind of sentence and conditions in which it should be served but I have to nonetheless pass an appropriate sentence in this case. Less weight is to be afforded to specific and general deterrence and I do accept that you would experience an increased burden if gaoled and the likelihood that imprisonment will have a significant adverse effect on your mental health. So I give weight to each of those principles relied upon by your counsel. However the reduction of the need to deter you, to dissuade you and the reduction of the need to dissuade others is just that, it is a reduction or moderation, not the elimination of that purpose of sentencing. It is always a matter of degree and general deterrence is still in my judgment a significant purpose of sentencing in this case. So too is the need for you to be specifically deterred.

[5]Ibid, [24].

1. It was the last two sentences in that paragraph which formed the principle basis for the argument that his Honour had given too much weight to general and specific deterrence.  The question of insight had not been argued below but was argued strenuously in this Court.

1. To assess what his Honour meant by “significant”, the whole of the paragraph has to be read.  A fair reading of the paragraph indicates that his Honour took the view that although both general and specific deterrence had to be moderated in this case, they were still of importance.

1. That paragraph was by no means all that his Honour said on the subject.  He also said:[6]

But as I have indicated, there are other purposes of sentencing and one of those is the need for this court to seek to discourage or deter you from offending in the future. I do moderate or reduce the weight to be given to that purpose given the application of the principles from Verdins. But it is still relevant. You really must understand that you are not free to police other person's conduct. You are not there to punish others for their rumoured acts or misconduct.

Quite aside from the need to deter you, as I have indicated, this court must send a message loud and clear to other individuals in the community who might be minded to commit this sort of violent entry into another person’s premises. Again I moderate or reduce the weight that I give to the notion of general deterrence but it is still relevant to my task. People must understand that this sort of conduct will not be tolerated by the courts. It would almost inevitably be met with significant and immediate terms of actual imprisonment. That is because of the serious nature of the crime of aggravated burglary, the seriousness of which has been spelt out time and time again in our highest court.

[6]Ibid, [39]-[40].

1. Just before imposing sentence, his Honour under the heading ‘Sentence’ said:

The mitigatory matters have served to significantly reduce the individual sentences as well as the non parole period which I have selected. I have imposed what I judge to be quite modest cumulation as between the two sentences to pay further regard still to the principle of totality and your personal circumstances but there must be some cumulation. Not every aggravated burglary moves on to an actual physical attack. Yours did and that physical attack was a serious enough crime in its own right as it was not a single punch or blow but repeated blows by hand and foot . I have taken a last look at the overall effect of the sentences to ensure that they reflect your overall criminality and will not be crushing upon you. There are particular features of your personal background that have led to the outcome that I will soon pronounce. I am very anxious as to your relative youth. I am anxious as to your increased vulnerability and increased custodial burden in a prison setting by virtue of your various conditions. I make plain to you and to any others who happen to read these reasons that in the absence of the Verdins mental health considerations, the sentences would have been far far higher than those I am shortly to pronounce, so too the non parole period.

1. It cannot be demonstrated his Honour gave undue weight to deterrence.  I would refuse leave to appeal.

Ground 2 – Manifest Excess

1. Little separate argument was advanced in relation to this ground.  I am satisfied that his Honour did have regard to all relevant matters in his very careful and detailed reasons and that the sentences were within the range available to him.  I would refuse leave on this ground.

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