Reiri v The King
[2024] VSCA 272
•12 November 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0224 |
| WILSON REIRI | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | PRIEST and T FORREST JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 12 November 2024 |
| DATE OF JUDGMENT: | 12 November 2024 |
| DATE OF REASONS: | 19 November 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 272 |
| JUDGMENT APPEALED FROM: | DPP v Reiri (Unreported, County Court of Victoria, Judge Smallwood, 17 July 2023) |
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CRIMINAL LAW – Appeal – Sentence – Aggravated burglary – Recklessly causing injury – Total effective sentence 4 years and 6 months’ imprisonment – Three years non-parole – Whether serious risk of imprisonment having adverse effect on applicant’s schizophrenia – Whether sentence is manifestly excessive – No evidence of serious risk – Serious violent offending – Prior violent convictions – Sentence not manifestly excessive – Leave to appeal refused.
Bail Act 1977 s 5AAA(6); Control of Weapons Act 1990 s 5AA; Crimes Act 1958 ss 17, 18, 20, 31, 37, 77, 197, 321M; Family Violence Protection Act 2008 s 37.
Azzopardi v The Queen (2011) 35 VR 43; Boulton v The Queen (2014) 46 VR 308; Clarkson vThe Queen (2011) 32 VR 361; Director of Public Prosecutions (DPP) v Patterson [2009] VSCA 222; R v Mills [1998] 4 VR 235; R v Verdins (2007) 16 VR 269; Rohen v The King [2024] VSCA 1; Veen v The Queen [No 2] 1988 164 CLR 465.
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| Counsel | |||
| Applicant: | Mr C Wareham | ||
| Respondent: | Mr RL Gibson KC | ||
Solicitors | |||
| Applicant: | Ann Valos Criminal Law | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
PRIEST JA
T FORREST JA:
On 12 November 2024, Wilson Reiri (the applicant) sought leave for an extension of time in which to file a notice of application for leave to appeal against sentence. We (impliedly) granted the extension of time but refused leave to appeal against sentence. We indicated that our reasons for this refusal would follow. They are below.
The applicant pleaded guilty in the County Court to one charge of aggravated burglary[1] and two charges of recklessly causing injury.[2] He was sentenced as follows:
[1]Contrary to s 77 of the Crimes Act 1958.
[2]Contrary to s 17 of the Crimes Act 1958.
Charge Offence Maximum Sentence Cumulation 1 Aggravated burglary 25 years’ imprisonment 4 years’ imprisonment Nil 2 Recklessly causing injury 5 years’ imprisonment 12 months’ imprisonment 2 months 3 Recklessly causing injury 5 years’ imprisonment 12 months’ imprisonment 4 months Total Effective Sentence: 4 years 6 months’ imprisonment Non-Parole Period: 3 years Pre-sentence detention declared: 362 days Section 6AAA Statement: 6 years’ imprisonment with a non-parole period of 4 years Other relevant orders: Forfeiture and disposal orders
The applicant proposed two grounds of appeal.
Ground 1: The learned sentencing judge erred by failing to take into account the fifth and sixth limbs from R v Verdins (‘Verdins’),[3] namely that:
(a)the applicant’s schizophrenia meant that imprisonment would weigh more heavily on the applicant than it would on a person of normal health; and
(b)there was a serious risk of imprisonment having an adverse effect on the applicant’s schizophrenia.
Ground 4: The sentence imposed on Charge 1 is manifestly excessive.
Grounds two and three were abandoned at the commencement of the hearing. We are grateful to counsel for advising us in advance of this course.
[3]R v Verdins (2007) 16 VR 269.
Factual summary
On 20 July 2022 at approximately 4.00 pm, the applicant attended a residential address in Portland to speak to an acquaintance, ‘DB’.[4] The applicant, who suffers from schizophrenia, believed that DB owed him $20; the debt was allegedly incurred in 2013 or 2014 and related to the purchase of cannabis. DB was not present but the applicant became involved in a verbal dispute with DB’s mother (‘AB’), father (‘CB’) and younger brother (‘MB’). Police were called and the applicant left the address.
[4]To ensure there is no possibility of identification of the victims to the offences, this judgment has been anonymised by the adoption of a pseudonym in place of the names of the acquaintance and the victims.
Approximately one hour later, the applicant returned armed with a hammer. He confronted the family over the $20 debt after entering through the unlocked front door (Charge 1).[5] He walked to the kitchen where AB was standing near the stove. He held the hammer above his head and said, ‘You dogs’. He then approached AB, a middle-aged woman, and struck the left side of her body near the rib cage with the hammer (Charge 2).[6] AB suffered bruising to the left chest wall.
[5]Contrary to s 77 of the Crimes Act 1958.
[6]Contrary to s 18 of the Crimes Act 1958.
MB entered the kitchen. The applicant struck MB in the face with the hammer, causing fractures to his right and left nasal bones and a wound to his upper lip (Charge 3).[7]
[7]Contrary to s 18 of the Crimes Act 1958.
The applicant was subdued by CB and MB, and he suffered minor transient injuries. Police attended, the applicant was taken to Portland police station, his injuries were then treated at Portland District Hospital, and he was cleared to return to the Portland police station. He admitted to the offending in a police interview.
The plea
The applicant pleaded guilty at the committal proceeding stage. It was treated by the sentencing judge as occurring at ‘an early opportunity’. The prosecution tendered a summary of prosecution opening statement and the applicant admitted his prior criminal history through his counsel. The applicant has a relevant and quite serious criminal history, including:
(i)threatening to assault an emergency worker[8] (Children’s Court, 2016);
(ii)intentionally damaging property[9] (Children’s Court, 2016);
(iii)assault by kicking[10] (Portland Magistrates’ Court, 2018);
(iv)unlawful assault,[11] contravening a family violence safety notice,[12] contravening a conduct condition of bail,[13] recklessly causing injury,[14] and making a threat to kill[15] (Portland Magistrates’ Court, 2018); and
(v)attempted aggravated burglary,[16] making a threat to kill,[17] property damage,[18] and possession of a controlled weapon without lawful excuse[19] (County Court, 2020).[20]
[8]Contrary to s 31(b) of the Crimes Act 1958.
[9]Contrary to s 197 of the Crimes Act 1958.
[10]Contrary to s 31(a) of the Crimes Act 1958.
[11]Contrary to s 31(a) of the Crimes Act 1958.
[12]Contrary to s 37 of the Family Violence Protection Act 2008.
[13]Contrary to s 5AAA(6) of the Bail Act 1977.
[14]Contrary to s 17 of the Crimes Act 1958.
[15]Contrary to s 20 of the Crimes Act 1958.
[16]Contrary to ss 77 and 321M of the Crimes Act 1958.
[17]Contrary to s 20 of the Crimes Act 1958.
[18]Contrary to s 197 of the Crimes Act 1958.
[19]Contrary to s 5AA of the Control of Weapons Act 1990.
[20]We refer to these prior convictions in detail in paragraph [17] of these reasons.
An 18-month Community Corrections Order (‘CCO’) was granted in October 2020 which included a condition that he submit to a mental health assessment and treatment:
•the CCO was breached and varied in 2021 to include a justice plan for the remainder of the CCO, and to present when requested for judicial monitoring; and
•the CCO was then successfully completed.
The applicant’s background was set out by his counsel. He identifies as being of Māori background, left school in Year 9 and has used cannabis and methylamphetamines since he was aged 14 or 15 years. The focus of the applicant’s written and oral submissions concerned his mental health.
Mental health condition
The applicant suffers from schizophrenia and has been treated for it since 2014 when he was approximately 14 years old. He has also experienced visual hallucinations since his early childhood. A 2022 report from forensic psychiatrist, Dr Anthony Cidoni, was tendered on the plea to this effect, and was not disputed.[21]
[21]Dr Cidoni’s report, dated 31 January 2022, was adduced as evidence before Judge Smallwood in the 2023 sentence hearing.
He has been the subject of several hospitalisations (both voluntary and involuntary) for his schizophrenia including the following treatment:
Facility
Dates
Type of order(s)
Royal Children’s Hospital 17 October – 10 November 2014 § Assessment order
§ Temporary treatment order
1–2 May 2015 § Assessment order
30 July – 6 August 2015
§ Assessment order
§ Temporary treatment order
22 January – 17 May 2016 (nearly four months) § Temporary treatment order Southern West Health Care 19–21 February 2016 § Assessment order 16 August 2018 – 26 February 2019 (more than six months) § Assessment order
§ Temporary treatment order
The applicant has a recognised intellectual disability.
The applicant relied on the principles set out in Verdins particularly limbs 1, 2, 3 and 4.[22] In short, the applicant contended that the offending behaviour was causally connected to his impairments and reduced executive functioning, and thus the assessment of his moral culpability ought be reduced or tempered and he was an unsuitable vehicle for both general and specific deterrence.[23] It was not in dispute on the plea that the applicant suffered from schizophrenia and that it was a causal contributor to his offending.
[22]R v Verdins (2007) 16 VR 269.
[23]Ibid 272 [14] (Maxwell P, Buchanan and Vincent JJA).
The applicant did not specifically contend for the engagement of Verdins’ limbs 5 and 6.[24] It was contended, however, that given his age (22 years at the time of offending) weight should still be given to rehabilitation, he had demonstrated some capacity to comply with community-based dispositions, and that given his prior convictions (to which we shall return) it was in the interests of his regional community that the applicant’s complex needs be supported in the community to assist in rehabilitation which would provide the best protection for the community.
[24]R v Verdins (2007) 16 VR 269.
Counsel also submitted that as a youthful offender, the principles established in cases such as R v Mills[25] and Azzopardi v The Queen[26] ought apply. Injuries that the applicant sustained as a result of his restraint by MB and CB were faintly urged in mitigation.
Protection of the community
[25][1998] 4 VR 235, 241.
[26](2011) 35 VR 43.
At the plea hearing, the judge raised protection of the community as a factor that troubled him considerably:
…the real difficulty here is just straight out community protection.
The judge referred to the applicant’s prior County Court appearance in 2020 in which he pleaded guilty to one charge of attempted aggravated burglary, one charge of making a threat to kill, one charge of property damage and the related summary offence of possession of a controlled weapon without lawful excuse. In short compass, at around 8.00 am in April 2020 in the same regional town, the applicant went to the home of people with whom he had a distant association. He tried to unlawfully enter the house through the back door. He was ‘agitated, abusive (and) threatening to kill the people inside’. He used a chair and a knife to attack a security screen and then a glass door. The people inside were ‘absolutely terrified’. He called them ‘cunts, dog cunts and inbreed [sic] cunts’. The chair broke in the process. The applicant then took a knife from his backpack and threatened to kill the married couple who were located just inside the back door; he said, ‘I’ll cut you, you cunts’, ‘Come out here, I’ll fucking cut ya’, and ‘I’ll kill ya, you cunts’. He then broke a pot plant, stabbed the security screen door with his knife and then left. When he was apprehended, the applicant was unfit to be interviewed. The judge accepted that the applicant’s conduct was motivated by a ‘range of psychotic delusions’.
The sentence imposed in 2020 by Judge Todd was undoubtedly lenient — a total effective sentence of 7 months (time served) with a therapeutic 18-month CCO with a referral to Forensicare for assessment for entry into their Problem Behaviour Program. The applicant breached that CCO and it was reimposed. It expired not long before the offending that is the subject of this application.
At the plea hearing of the offences the subject of this application, the prosecution contended that this was a serious example of aggravated burglary, the causing of injury counts were also serious and that the appropriate disposition was a term of imprisonment with a non-parole period.
Reasons for sentence
The judge noted that the applicant was a young person (then 23 years old), that his plea of guilty indicated a ‘degree of remorse’, and allowed a sentencing benefit for the utilitarian value of the plea. The judge was troubled by the applicant’s prior convictions, particularly, as we have discussed, the offences before her Honour Judge Todd of attempted aggravated burglary and recklessly causing injury. The judge then said this:
[6]The offending that I will describe has to be regarded as serious. It calls for the application of general and specific deterrence, as well as denunciation and appropriate punishment. In your particular situation, bearing in mind the nature of this and also the nature of the offending for which Judge Todd sentenced you back in 2020, community protection has got to play a very significant part.
After reciting the circumstances of the offending, the judge then turned to victim impact statements:
[11]Her victim impact statement outlines pretty clearly the consequences this has had on her family. It is always comforting in one bizarre sense to note that she holds no feelings of vengeance against you and she said at the end:
‘I sincerely hope he gets the help he needs. The boy I met a few times was a nice kid and I'm sad he’s ended up in this situation. I’m also sad for myself and my family that we now carry the weight of his actions’.
[12]That is the sign of a pretty good human being, in my view, and I expect her family is the same, but prior to that she had said that the crime had taken a huge toll on her and her family. The family suffered shock and anger and disbelief that it occurred that lasted for weeks. Her daughter was not sleeping, was constantly checking the front door. Also, her son who has had ongoing health issues with the broken nose and the associated injuries, and has been referred to see a specialist and is awaiting further intervention. She suffered unsightly bruising. It turned into a haematoma and took weeks to resolve.
[13]Her children or certainly her daughter appears to still be frightened of you. I understand upon your ultimate release it would be your intention to go back at least to [your regional town], if not to Portland, where this offending occurred. In very clear terms she describes the criminality of what you did. I make it clear from the outset that if you did not have the mental conditions that you do have, I would have regarded this crime as a very serious example of aggravated burglary indeed.
The judge rejected the defence submissions that a composite sentence of a gaol sentence of less than 12 months together with a CCO was appropriate — his Honour said:
[14]Your counsel put that a gaol sentence with a CCO was within range. The Crown submit that the appropriate sentence is a head sentence with a minimum term. Having considered the material overnight — and I am thankful to counsel for their very helpful submissions — and considered again today, I think that the Crown submission has to be correct. Community protection has got to play a significant part in all this. You went armed with a hammer. You hit a defenceless woman with a hammer. You hit a young man, who was simply trying — a young boy who was simply trying to protect his mother, in the face. The risks involved were dreadful and, in some sense, it is very fortunate for you that they were not far more serious than actually occurred.
The judge observed that the earlier offending before Judge Todd were ‘frighteningly similar to this’. The judge accepted the 2020 opinions of Dr Cidoni, a forensic psychiatrist,[27] and the 2018 opinion of Ms Pamela Matthews, a forensic psychologist. He accepted that the applicant was diagnosed with schizophrenia at about the age of 15 years and has experienced visual hallucinations since childhood. The judge then said:
[21]It is clear that the principles in Verdins relating to moral culpability, specific and general deterrence play a part. Denunciation and appropriate punishment also have to play a part in all this and you also get the benefit of the decision of Muldrock and, again, the same sort of principles, general deterrence and specific deterrence and just difficulty in interpreting what occurs around you, but it has to be said that this has just unfortunately gone too far.
[27]Two reports from Dr Anthony Cidoni, dated 14 June and 2 September 2020, were adduced as evidence in the hearing before Judge Todd.
The judge referred to Ms Matthews’ opinion in 2018 that the applicant:
…presents as a high risk of violent reoffending in a similar manner. In the writer’s view he requires management in an involuntary supervised treatment environment until such time as he’s stabilised. This will be best managed by a dual diagnosis treatment team.
The judge noted that the applicant had actually improved (according to Dr Cidoni) during his 2020 imprisonment and expressed hope that the applicant’s behavioural misconduct ‘can be turned around’. The judge concluded by saying:
I am very reluctant to give significant sentences or very significant sentences to people as young as yourself and particularly where they have matters over which when they are unwell, they have very little control, but I think in your circumstance the prospects of your rehabilitation are very guarded and the risk of your reoffending has got to be regarded as high. Pamela Matthews back in 2018 said it was and I do not think anything has changed.
The judge observed that this, of course, had to be balanced against the applicant’s youth and the other mitigatory matters to which he, and defence counsel, had referred.
This appeal
Ground 1
The applicant contended that the judge failed to take into account the fifth and sixth limbs of Verdins.[28] Thus, so the submissions went, the judge failed to take into account that the applicant’s schizophrenia meant that imprisonment would weigh more heavily on the applicant than it would on a person of normal health; and the judge also failed to take into account that there was a serious risk of imprisonment having an adverse effect on the applicant’s schizophrenia.
[28]R v Verdins (2007) 16 VR 269.
The short answer to this ground is that, upon close scrutiny, counsel for the applicant on the plea in most helpful written and oral submissions did not urge Verdins limbs 5 and 6 upon the judge because there was simply no evidence to support either proposition in either Dr Cidoni’s 2022 report or Ms Matthew’s 2018 report.[29] Indeed, as the judge remarked, it seems that the applicant had improved to some degree after living in a structured environment for 7 months.
[29]Ibid.
As we observed in discussion with counsel, there is an onus assumed by the applicant when raising a proposed ground of appeal to establish that ground. It cannot be established from thin air or inspired guesswork. We refused leave to appeal on this ground.
Ground 2
The applicant contended that the sentence imposed was wholly beyond the range of sentences available to his Honour in the reasonable exercise of his sentencing discretion. The applicant’s moral culpability was significantly lowered as a consequence of his causative schizophrenia, as was the need for general and specific deterrence. In written submissions, the applicant flirted with a ‘double punishment’ argument but sensibly did not pursue it in the hearing before us. There is no evidence of double punishment in the judge’s reasons, and he specifically noted the need to avoid this. The applicant contended that the sentence demonstrates by its length that there is underlying error — and that it can be inferred that his Honour placed too much weight on (particularly) community protection, denunciation, just punishment and deterrence, and insufficient weight on the applicant’s youth, his serious mental illness, his early guilty pleas and the timing of those pleas while the court lists suffered a substantial backlog arising from the COVID-19 pandemic.[30]
[30]Worboyes v The Queen (2021) 96 MVR 344, 356–7 [39] (Priest, Kaye and T Forrest JJA).
The respondent on the application contended this was a serious example of a serious offence and protection of the community, particularly the applicant’s regional community, was a very weighty sentencing consideration.
Analysis
In order to establish a ground of manifest excess, an applicant must demonstrate that the impugned sentence is wholly beyond the range of sentences available to the judge in the reasonable exercise of his sentencing discretion. In the absence of an identifiable error, the sentence itself must bespeak some underlying non-identifiable error. It must be shown that something in the sentencing process has gone ‘obviously, plainly or badly wrong’.[31] It is a stringent ground and difficult to satisfy.[32]
[31]See, e.g., Rohen v The King [2024] VSCA 1 [123] (Priest, Taylor and Boyce JJA).
[32]Clarkson v The Queen (2011) 32 VR 361.
This was a very difficult sentencing exercise. The transcript demonstrates with clarity that the judge agonised over very powerful considerations pulling in opposite directions. It may be accepted (as it was in argument) that, absent the applicant’s mental illness, this was a serious example of a serious offence, carrying as it does a maximum sentence of 25 years.[33] The sentence imposed, when compared to objectively similar cases, is unremarkable — perhaps somewhat lenient. In our view, the analysis of this ground comes down to our evaluation of Verdins limbs 1, 3 and 4 which operate to moderate moral culpability and the need for general and specific deterrence on the one hand;[34] on the other, the need to protect society from the criminal activities of the applicant.
[33]Crimes Act 1958 s 77(2).
[34]R v Verdins (2007) 16 VR 269.
This classical dichotomy was famously addressed by the High Court in the seminal case of Veen v The Queen [No 2] (‘Veen [No 2]’).[35] A sentence should not be increased beyond what is proportionate to a crime in order to extend the period of protection of the community from the risk of recidivism.[36] The court said:
It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible.[37]
[35]Veen v The Queen [No 2] 1988 164 CLR 465, 473 (Mason CJ, Brennan, Dawson and Toohey JJ).
[36]Ibid.
[37]Ibid.
The court went on to say that the resolution of this dichotomy called for a judgement of experience and discernment.[38] 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 sentence, the other towards a shorter sentence.[39] These effects may balance out, but consideration of the danger to society cannot lead to a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality.[40]
[38]Ibid 474.
[39]Ibid 476–7.
[40]Ibid.
In our view the sentences imposed on each count, the orders for cumulation and the consequent total effective sentence were well within the range of reasonable sentencing discretion. Absent mental illness, the sentences are, if anything, lenient for a serious confrontational aggravated burglary with subsequent violent further offending committed against a background of similar offending. The sentences are not disproportionate to the objective seriousness of the overall offending and there is no evidence of preventative detention. It appears to us, as contemplated by the High Court in Veen [No 2] that the countervailing considerations of mental illness and community protection may well have ‘balanced each other out’.[41] We consider that his Honour’s conscientious sentencing remarks were indeed a product of ‘experience and discernment’, and we agree with them.[42]
[41]Ibid. See also Director of Public Prosecutions (DPP) v Patterson [2009] VSCA 222 [50]–[51] (Maxwell P, Redlich JA and Vickery AJA); Boulton v The Queen (2014) 46 VR 308, 326 [67]–[72] (Maxwell P, Nettle, Neave, Redlich and Osborn JJA).
[42]Veen v The Queen [No 2] 1988 164 CLR 465, 474 (Mason CJ, Brennan, Dawson and Toohey JJ).
Conclusion
It was for these reasons that we refused leave to appeal on proposed Grounds 1 and 4.
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