Sanyasi v The Queen
[2019] VSCA 227
•15 October 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0159
| NATASHA KARISHMA SANYASI | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P, PRIEST and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 8 October 2019 |
| DATE OF JUDGMENT: | 15 October 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 227 |
| JUDGMENT APPEALED FROM: | [2018] VCC 1061 (Judge Gucciardo) |
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CRIMINAL LAW – Appeal – Sentence – Culpable driving – Gross negligence – Sentence of 7 years, non-parole period 4 years 6 months – Whether manifestly excessive – Offender psychotic at time of collision – Whether drug-induced psychosis – Whether offender aware of risk of psychotic episode – Whether aggravating feature – Verdins principles otherwise applicable – Sentence moderate – Leave to appeal refused – R v Martin (2007) 20 VR 14 applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms C M Randazzo SC | Rainer Martini & Associates |
| For the Respondent | Mr P V Bourke | Mr J Cain, Solicitor for Public Prosecutions |
MAXWELL P
PRIEST JA
BEACH JA:
In the early hours of 16 July 2016, the applicant drove her motor vehicle into the intersection of Sydney Road and Lorne Street, Fawkner and collided with a taxi then being driven by Dilawer Muhy Ud Din Shah. Mr Shah died at the scene of the collision.
The applicant, who had a small amount of cannabis in her system at the time, drove into the intersection against traffic lights which had been red for a minimum of seven seconds. The speed limit along the road upon which the applicant was travelling was 70 kilometres per hour. At the time of the collision, the applicant’s vehicle was travelling at approximately 137 kilometres per hour.
Subsequently, the applicant pleaded guilty to one charge of culpable driving, one charge of possessing a drug of dependence (cannabis) and one charge of driving an unregistered motor vehicle.
On 11 July 2018, following a four day plea hearing in the County Court, the applicant was sentenced to a term of 7 years’ imprisonment on the charge of culpable driving, and fined $50 on the possession charge and $150 on the unregistered motor vehicle charge. A non-parole period of 4 years and 6 months was fixed. The applicant’s licence to drive a motor vehicle was cancelled and she was disqualified from obtaining a licence for 5 years.[1]
[1]DPP v Sanyasi [2018] VCC 1061 (‘Reasons’).
The applicant now seeks leave to appeal against the sentence imposed upon her for culpable driving.
In her application for leave to appeal, the applicant relied upon a single ground of appeal in which she asserted that the sentence of 7 years’ imprisonment with a non-parole period was manifestly excessive. At the commencement of the hearing before us, however, the applicant applied for leave to add two further grounds of appeal. Under the proposed additional grounds, the applicant sought to argue that two of the errors she contended had led to a manifestly excessive sentence were also specific errors that vitiated the judge’s sentence.
As the arguments sought to be advanced under the new grounds had already been foreshadowed in the applicant’s written case on the complaint of manifest excess, and as the Crown accepted that it was not taken by surprise, we permitted the applicant to advance argument on all three of the grounds upon which she now wished to rely. For the reasons that follow, however, leave to appeal must be refused on all grounds.
Applicant’s background
The applicant was born in 1983. She was 33 at the time of offending and 35 at the time of sentencing. She came from a supportive family and had no prior convictions.
Reports tendered on the plea disclosed a history of sexual abuse perpetrated on the applicant when she was a child, and repeated assaults and domestic violence perpetrated on her by adult partners. The reports also disclosed a complex psychiatric history, one feature of which was that the applicant had made various attempts to commit suicide: the first of these occurring when she was 14 years of age, and the last (prior to sentencing) when she was 34.
Notwithstanding this history, however, the applicant had been able to complete VCE and go on to complete a number of certificate courses, before engaging in various occupations, including employment as a receptionist, executive assistant, program administrator and mental health community worker.
In addition to her psychiatric issues, the applicant suffers from rhabdomyolysis — a serious disease affecting skeletal muscle which, as it is in the applicant’s case, is associated with episodes of acute renal failure. Rhabdomyolysis has, in the past, caused the applicant to suffer from significant ‘all over body pain’ and has also affected her ability to walk.
Prior to being remanded into custody pending sentence, and when she was not the subject of an in-patient admission to hospital in respect of either physical or psychiatric issues, the applicant lived with her parents who, along with her adult sister, were very supportive of her at and prior to sentencing.
Circumstances of the offending
On the afternoon of 15 July, the applicant and one Vishal Prakesh, a person with whom the applicant was in a relationship for a short period of time, checked into a motor inn in Sydney Road, Fawkner. During the evening of 15 July and the early hours of 16 July, Prakesh observed the applicant to be ‘behaving erratically’. According to Prakesh, the applicant was ‘constantly smoking, and at times he could smell cannabis’.[2]
[2]Reasons [6].
At some time after 4.30 am, the applicant left her motel room and went to her car. A car horn was heard to sound loudly, and the applicant was subsequently observed sitting in the driver’s seat playing loud music.
After a confrontation with the motel manager, in which he said he would call the police, the applicant drove her vehicle (the registration of which expired a few hours earlier on 15 July) out of the motel car park and onto Sydney Road. She then drove through red pedestrian lights, some 83 metres from the intersection where the collision occurred. These lights had been red for approximately 10 seconds when she drove through them.
The applicant was then observed to be travelling at a speed estimated, by another road user, Tony Callea, to be ‘well over one hundred kilometres an hour’, shortly before she entered the intersection of Sydney Road and Lorne Street.[3]
[3]Ibid [10].
As we have already observed, the speed limit applicable to vehicles travelling in the direction of the applicant was 70 kilometres per hour. The applicant entered the intersection against red lights facing her vehicle. Later investigations determined that the lights had been red for a minimum of seven seconds when she entered the intersection. As the applicant entered the intersection, Mr Shah, who had been travelling in the opposite direction, was executing a right turn from Sydney Road into Lorne Street in accordance with a green arrow facing him.
The applicant’s vehicle collided with the passenger side of Mr Shah’s taxi, and then continued for a further 40 metres from the point of impact before coming to rest. The applicant’s vehicle was not observed to brake before the collision. Subsequent investigation revealed that in the 4.5 seconds before impact, the applicant’s vehicle accelerated from 126 to 138 kilometres per hour.
Following the collision, the applicant got out of her vehicle. She was observed to be physically unharmed, but ‘seemed dishevelled and was wearing pyjamas’.[4] She was behaving erratically, and was both demanding and disruptive.[5] Toxicology tests later conducted on samples taken from the applicant showed the applicant to have a blood reading of 3mg/ml of Delta-9-tetrahydrocannabinol (cannabis).
[4]Ibid [15].
[5]Ibid [19].
Attempts made to resuscitate Mr Shah at the scene by a passenger in another vehicle which stopped to assist, and by paramedics who arrived shortly thereafter, were unsuccessful.
The applicant was subsequently assessed and taken to the Royal Melbourne Hospital, where she was further assessed. She was found to have received no physical injuries, but was admitted as an involuntary psychiatric patient. Her handbag was located when she was admitted to hospital. It was found to contain prescription medication and vegetable matter, later determined to be cannabis.[6]
[6]Ibid [20]–[21].
Relevant procedural history
Under ground 2, and in her argument about manifest excess (ground 1), the applicant submitted that the judge erred when he said that, given the chronology, he did not consider the applicant’s plea to be ‘an early plea’, or ‘one given at [the] first opportunity requiring the maximum discount available’.[7] Having regard to these submissions, it is necessary for us to refer to the procedural history in the courts below.
[7]Ibid [41].
At a committal mention held in the Magistrates’ Court in October 2016, the applicant was committed for trial by way of a straight hand-up brief. This, so the applicant submitted, was a relevant matter to be taken into account in the sentencing synthesis, as amounting to a ‘utilitarian benefit’.
In the weeks and months following committal, the applicant’s solicitors investigated the possibility of whether a defence of mental impairment was available to the applicant. Examinations were conducted by, and reports obtained from, various experts in the fields of psychiatry and psychology, including the consultant forensic psychiatrists, Dr Danny Sullivan and Dr Nina Zimmerman. Dr Sullivan provided his report in March 2017, and Dr Zimmerman provided her report in October 2017.
Following her committal for trial, there was an initial directions hearing in the County Court on 21 October 2016. There were further directions hearings on 8 December 2016 and 27 February 2017. On 16 March 2017, the applicant’s bail was varied and, on 27 March 2017, there was a further directions hearing.
As we have already noted, Dr Sullivan provided his report in March 2017. The report was dated 26 March 2017. In his report, Dr Sullivan said that while it was clear that the applicant was psychotic at the time of the collision, it was ‘not so clear whether this was a drug-induced psychosis or a psychotic illness in which substance use was not causative but may have occurred in parallel possibly in a misguided effort to quell symptoms’. Dr Sullivan then expressed his opinion about the availability of a mental impairment defence and the issue of the applicant’s fitness to be tried in the following terms:
I have considered the availability of a mental impairment defence, noting the above uncertainties. At the time of the alleged offence, I consider that Ms Sanyasi was aware of the nature and quality of the conduct. I consider that she was unable to reason with a moderate degree of sense and composure about the wrongfulness of her conduct in that her driving was influenced by her disorganised and delusional state. However, on balance, I consider that her mental impairment was not due to a ‘disease of the mind’ but rather due to a drug-induced psychosis. On that basis, I do not consider that a mental impairment defence as set out in the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 would be available to Ms Sanyasi. Nevertheless I acknowledge that this is by no means a clear cut case.
I have also considered her fitness to be tried as set out in s 6 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. At the time of my assessment, Ms Sanyasi had a clear understanding of her legal situation, and relevant legal processes. I consider that she was, at that time, fit to be tried.
On 11 April 2017, there was a further appearance in the County Court. On that occasion, the matter was listed for trial on 19 February 2018.
On 23 October 2017, there was a further mention of the matter in the County Court — described in the summary of prosecution opening on the plea as a ‘funding mention’.
As we have already noted, Dr Zimmerman provided her report in October 2017. Her report was dated 19 October 2017. She concluded that the applicant did not meet the criteria for a mental impairment defence.
At a directions hearing on 16 November 2017, those representing the applicant stated that, mental impairment investigations having concluded, the applicant would plead guilty. On 8 December 2017, the applicant was arraigned and pleaded guilty. The trial date of 19 February 2018 was vacated, and the matter was listed for a plea hearing in May 2018.
The plea hearing
The plea hearing proceeded over four days. A considerable body of documentary material was tendered, including a summary of the prosecution opening, a map, CCTV footage, video from Mr Shah’s taxi, photographs, medical records and reports, a toxicology report, character references, victim impact statements, other video material and written submissions from the parties.
The prosecution opening summarised the evidence of two important witnesses: a forensic physician, Dr Angela Sungaila; and Dr Sullivan. Dr Sungaila prepared a report based upon a summary of the evidence, toxicology results, ambulance records and a transcript of the applicant’s police interview.
Dr Sungaila’s opinion was summarised as follows:
[The applicant’s] driving behaviour suggests a disinhibition and/or disregard for her own or others’ safety. The level of drugs in her blood were not at a level which would be expected to cause significant impairment, although some impairment is possible.
…
[Dr Sungaila] was unable to conclude that [the applicant] was incapable of proper control of her vehicle.
…
[Dr Sungaila] observed that [the applicant] was psychiatrically unwell at the time of the collision so as to have affected her judgment and insight.
Dr Sullivan’s opinion was summarised as follows:
[The applicant’s] case was a complex one, with multiple diagnoses, in combinations of drug use, personality disorder and mental illness. He considered that she would clearly satisfy a diagnosis of borderline personality disorder. [The applicant] also had an apparent diagnosis of poly-substance abuse or dependence, involving cannabis, opiates and benzodiazepines.
[Dr Sullivan] concluded that a mental impairment defence is not available to [the applicant]. On balance he considered that her mental impairment was not due to a ‘disease of the mind’ but rather due to a ‘drug-induced psychosis’.
On the plea, the following witnesses gave evidence:
·Dr Sullivan;
·Mr Harvey Abbot, a psychologist who had examined the applicant on a number of occasions between 29 July 2017 and 20 April 2018, and who expressed the opinion (among others) that it was likely that the applicant would experience significant adjustment difficulties in prison, and that incarceration was also likely to ‘raise her suicide risk’;
·Dr Vasilija Kojadinovic, a consultant psychiatrist who had treated the applicant on various occasions since February 2015 and who expressed the following opinion:
Ms Sanyasi is very fragile in relation to her physical and mental health. She requires consistent support from the different professionals and her family in order to cope with her everyday life. Taking away this complex support would result in a serious deterioration of her mental state, therefore her prognosis in the case of the imprisonment (sic) is extremely poor.
·Graham Sanyasi, the applicant’s father; and
·Nadia Sanyasi, the applicant’s sister.
On the plea, counsel for the applicant conceded that a term of imprisonment was inevitable. It was submitted, however, that there were a number of complex considerations which reduced the applicant’s moral culpability as well as bearing on deterrence (both specific and general) and ‘the impact of imprisonment generally and specifically on her mental health’.
Counsel for the applicant submitted to the judge that all six limbs of Verdins[8] were engaged. The following factors were also said to be mitigatory:
[8]R v Verdins (2007) 16 VR 269 (‘Verdins’).
·The applicant had pleaded guilty at the earliest possible opportunity, given the mental impairment issues that required investigation.
·The applicant had demonstrated genuine remorse by her early pleas of guilty and acceptance of culpability.
·The applicant had not sought to cross-examine anyone at committal but had proceeded by way of straight hand-up brief.
·There was a significant utilitarian benefit in the applicant’s early plea, and also in her proceeding by way of straight hand-up brief.
·The applicant was previously of good character, having no criminal history and being sentenced ‘as a first time offender’. Character references were also supportive of her.
·The applicant had a supportive family who were intensively engaged with her on a daily basis, assisting her in all aspects of her day to day life as well as her mental and physical health problems.
·The applicant had abided by all the conditions of her bail and had remained abstinent from illicit drugs.
Judge’s reasons
The judge commenced his reasons for sentence with a description of background matters (including Mr Shah’s background) and a description of the applicant’s offending.[9] He then noted that the maximum term of imprisonment for culpable driving is 20 years, and that it was conceded by the applicant’s counsel that a term of imprisonment was ‘appropriate and inevitable in this case’.[10]
[9]Reasons [1]–[27].
[10]Ibid [28]–[29].
Next, the judge turned to the victim impact statements of Mr Shah’s friends and family in which, among other things, Mr Shah was described as ‘the backbone of his family whose irreparable loss is intolerable’.[11] The judge referred to Mr Shah’s father’s statement about the ‘agony and distress’ caused by the devastating loss of his beloved son.[12]
[11]Ibid [35].
[12]Ibid [36].
The judge then dealt with the applicant’s plea of guilty, saying:
I take into account your plea of guilty. I do not consider that given the chronology that this was an early plea or at first opportunity requiring the maximum discount available. This consideration however must be considerably tempered by the acknowledgment of your rather fragile mental state in 2017, particularly after August, when you made an attempt at suicide, with its significant medical sequelae. Though it is true that the available evidence suggests you did have some gains and positive periods before August, during which your mental and general health were stable allowing a trial date to be set in February 2018, in April 2017, this was undone by the circumstances of August 2017 and thereafter by December 2017 you recognised that a plea was the inevitable course, particularly given the opinions of Dr Zimmerman in October 2017 following upon the opinion of Dr Sullivan in March 2017, both who found that a defence of mental impairment would not be available under the criteria set out in the Crimes Mental Impairment and Unfitness to be Tried Act, and you were therefore fit to be tried.
Your plea, however, has both utilitarian benefit of having avoided a trial, its costs and inconvenience and its trauma, and is accompanied by sincere and deep remorse which I accept you have expressed sincerely on a number of occasions to many different people. Your sentence will be discounted because of your plea.[13]
[13]Ibid [40]–[41].
The judge said that he took account of the applicant’s prior history.[14] He later said that he particularly took into account the applicant’s work record, educational history and achievements which were ‘to her credit’; and also matters that pertained to her early sexual abuse, which he accepted would have had a profoundly negative effect on her mental health.[15]
[14]Ibid [42].
[15]Ibid [114].
The judge referred to some speeding violations that had been dealt with by way of traffic infringement notices, ultimately concluding that evidence of various occasions when the applicant had been detected driving over the speed limit could not be used in any meaningful way in the sentencing synthesis.[16]
[16]Ibid [45].
As to good character, general deterrence and an assessment of the seriousness of the applicant’s offending, the judge said:
Good character attracts a more cautious leniency in such cases as the objective circumstances should not give way to subjective circumstances of the offender. General deterrence must be given considerable weight therefore and the sentence imposed must take into account the variations and the moral culpability of people responsible. In my view, an assessment of the circumstances of the events placed this offence at the mid-level of the medium range of offending.[17]
[17]Ibid [48].
The judge then referred to, and analysed, the expert evidence (and in particular the psychiatric evidence) in considerable detail.[18] In the course of, and following, this discussion and analysis, the judge accepted that all six limbs of Verdins were engaged in the applicant’s case.[19]
[18]Ibid [49]–[113].
[19]Ibid [53], [116], [117], [145].
The judge took into account what he described was the ‘impressive’ evidence of the applicant’s father and sister.[20] He also took into account the applicant’s rhabdomyolysis, saying that, not only would this condition make her vulnerable in gaol but it would also make incarceration weigh more heavily on the applicant than it would on a person of normal health.[21]
[20]Ibid [115].
[21]Ibid [117].
The judge then discussed and analysed in some detail a number of relevant authorities.[22] In the course of this discussion and analysis, the judge referred to this Court’s decision in R v Martin.[23] In her complaint of manifest excess, and now as a complaint of specific error under proposed ground 2, the applicant contends that the judge erred in concluding that the applicant’s case was similar to the circumstances in Martin.
[22]Ibid [122]–[140].
[23](2007) 20 VR 14 (‘Martin’).
The judge described Martin as a case that ‘dealt with a sentence for offences committed in a state of drug-induced psychosis’.[24] The judge referred to what the Court in Martin identified as ‘the critical factor’ in determining the significance of drug-induced psychosis for sentencing purposes as being:
what the probable consequences of the ingestion of the particular drug by the offender were and whether the offender foresaw those consequences.[25]
[24]Reasons [129].
[25]Ibid [137].
The judge then observed that the offender in Martin had ‘multiple experiences of drug-induced psychosis and the Court found he was well aware that when he took drugs, he experienced delusions and paranoid hallucinations and would likely lose rational control’.
The judge then said, in a passage with which the applicant takes issue:
This is similar to your situation. In Martin, he had been warned of this danger and could not have failed to appreciate that this was so and there was a high degree of likelihood of behavioural disturbance and risk to himself and to the community. The court therefore agreed that the appellant's drug induced psychosis was an aggravating factor and not a mitigating factor.
His moral culpability was greater therefore because he foresaw the likely consequences of his continued drug taking and it had an important element of deliberateness and premeditation. I should note here that in written submissions, the defence sought to distinguish Martin on the basis primarily that it was a case about foresight of aggressiveness and violence and I do not find such an analysis helpful here.[26]
[26]Ibid [138]–[139].
Following his discussion and analysis of relevant authority, the judge concluded his reasons for sentence as follows:
On the historical medical records and some of the material from the various expert witnesses, I conclude on the required standard that you had sufficient insight from consultations and experience into what using drugs was capable of doing in terms of your behaviour and state of mind. Some of your past admissions, when psychotic, were due to drug induced psychosis. I accept that once in a psychotic state, your forethought and awareness of likely consequences of driving was significantly reduced and your judgment as to how to drive probably undermined.
However, to the extent that you had reached that position by voluntary drug use, of which you had prior experience, your culpability as a result is not as lessened as it would have been, had the main and only cause for your mental state been an exacerbation of your borderline personality disorder brought about by other factors. This cause of event is an aggravation of your culpability. Although this aggravating feature is not conjectural, but based on some evidence, this evidence posits the link to your offending with caution, due to the complexity of properly being able to define and describe the parallel, or dual diagnosis or conclusion, made particularly by Dr Sullivan and Dr Zimmerman.
This is a complex and difficult position. In my view, it should entail in the most practical sense, that with the application of Verdins principles to your case, the reduction or moderation of general deterrence, specific deterrence and denunciation, while remaining applicable, is in turn diminished or rendered slightly less.
Moderation of those principles is still operative and when coupled with your current medical and mental health state, difficult current medical scenarios which involve reduced mobility and pain, your long term good prospects of rehabilitation and family support all mean that a relatively lenient sentence is appropriate.
I appreciate that in expressing the arguments and the findings, these matters remain complicated and perhaps difficult to understand, but although accepting the dual diagnosis or parallel track which have been expressed in this case, it is clear that I have used your foreknowledge and insight as to your drug induced psychosis in the past to diminish the moderation which I do apply in applying the Verdins principles. That is in effect what it means.[27]
[27]Ibid [141]–[145].
Parties’ submissions
Under ground 1, the applicant contended that the sentence of 7 years and non-parole period of 4 years and 6 months was manifestly excessive. In support of that contention, the applicant submitted that the judge failed to give adequate weight to a number of mitigating factors, erred in his assessment of the applicant’s level of moral culpability and imposed a sentence that did not conform with sentences imposed in recent cases. Specifically, the applicant made the following submissions:
(1) The judge erred in finding that the applicant’s plea of guilty was not an ‘early plea or at first opportunity’. The applicant’s intention not to contest the culpable driving charge was demonstrated in October 2016 when she elected to go by way of straight hand-up brief. Moreover, the evidence disclosed a complex case in which it took some time to investigate a mental impairment defence. In all the circumstances, the plea of guilty should have been regarded as a plea at the earliest available opportunity. The judge should also have given greater weight ‘to the utilitarian benefit of the matter proceeding by way of straight hand-up brief and by the plea of guilty’.
(2) Insufficient weight was given by the judge to the applicant’s ‘level of remorse demonstrated from a very early stage’.
(3) The judge failed to acknowledge and give sufficient weight to the significant insight demonstrated by the applicant as evidenced by her seeking out and engaging in treatment, her genuine desire to rehabilitate herself and ‘her ongoing and fervent engagement in that treatment when faced with the certainty of a period of imprisonment’.
(4) The judge erred at Reasons [51] when he said that the applicant ‘made decisions’ which were to have catastrophic consequences. The applicant’s complaint in her written case about this paragraph is as follows:
This suggests that his Honour has found that the applicant had the capacity to reason that by smoking a very small amount of cannabis she foresaw that she would behave in the way she did. His Honour continues in the same paragraph and finds, it is submitted, in error, that the moral culpability of the applicant could not ‘be either said to be low or to lead to a relatively low sentence’.
(5)When one properly analysed all of the evidence (including the toxicology and psychiatric evidence) the moral culpability of the applicant should have been found to be low. The sentence imposed (including the non-parole period) was inconsistent with the actual level of moral culpability in this case.
(6) Insufficient weight was given by the judge to the opinion of all of the experts that because of her underlying mental condition, as well as her significant physical conditions, imprisonment would weigh more heavily on her. Additionally, insufficient weight was given to the expert opinion that there was a serious risk that imprisonment would have a significant adverse effect on the applicant’s mental health. The sentence and non-parole period imposed by the judge ‘do not reflect a reduction commensurate with these principles. As a minimum, the application of these principles should produce a lower than normal minimum non-parole period than that which was imposed’.
(7) The reasons for sentence do not reflect adequate weight being given to other mitigating factors such as:
·the applicant’s lack of prior or subsequent criminal history;
·her good character;
·her intensive and dedicated attempts to engage in rehabilitation despite her underlying mental health conditions (borderline personality disorder attenuated with substance use disorder and major depression);
·her past diagnosis of post-traumatic stress disorder, accepted to arise as a victim of childhood sexual abuse and being a victim of domestic violence; and
·the extensive supports available to the applicant in the community, as well as her ‘relatively good’ prospects of rehabilitation in spite of her suffering from a ‘reasonably severe borderline personality disorder’.
(8)The judge erred in his summary of Prakesh’s evidence that the applicant was ‘constantly smoking and at times, he could smell cannabis’;[28] whereas Prakesh’s evidence was, in fact, to the effect that the applicant was on the balcony of their motel room every five minutes for another smoke and, on one of these occasions, he thought he could smell cannabis.
(9)While each case turns on its own facts, the decisions provided to the sentencing judge on the plea showed that sentences for culpable driving in the last 12 years ranged from 3 years to 10 years’ imprisonment. A sentence of 7 years in all of the circumstances of this case was manifestly excessive.
[28]Ibid [6].
Under ground 2, the applicant contended that the judge erred when he concluded that the applicant’s plea was not one made at the first opportunity and was one that did not entitle her to ‘the maximum discount available’. In support of those contentions, the applicant relied upon the submissions referred to in sub-paras (1) to (3) above.
Under ground 3, the applicant contended that the judge erred in treating her case as similar to the facts in Martin.[29] In support of these contentions, the applicant relied upon the submissions referred to in sub-paras (4) and (5) above.
[29](2007) 20 VR 14.
In response to the applicant’s contentions, the respondent submitted that none of the applicant’s grounds of appeal were reasonably arguable.
As to the applicant’s complaints of specific error in grounds 2 and 3, the respondent submitted that the conclusions which the applicant sought to impugn were open on the evidence tendered and called on the plea hearing, and had been made by the judge after careful and detailed consideration.
On the issue of manifest excess, the respondent submitted that, as has repeatedly been said by this Court, this ground will only succeed if it can be shown that the sentence is wholly outside the range of sentencing options available to the sentencing judge. Again, as it was submitted to have been said many times before, this is a stringent requirement which is difficult to satisfy.[30]
[30]Clarkson v The Queen (2011) 32 VR 361, 384 [89].
Further, the respondent submitted that none of the errors contended for by the applicant in support of her manifest excess ground have been made out. Moreover, the applicant’s submission, that insufficient weight was given to various relevant matters in the sentencing synthesis, cannot be sustained when one looks at the term of imprisonment actually imposed by the judge, and the ‘modest’ non-parole period.
Leave to appeal, it was submitted, should be refused.
Consideration
As we have already observed, the complaints made under grounds 2 and 3 are also relied upon by the applicant in her argument that the sentence imposed was manifestly excessive. While the applicant’s arguments are interrelated, it is convenient to start with her complaints of specific error, before turning to her complaint of manifest excess.
Did the judge err in his treatment of the applicant’s plea?
As part of his consideration of the applicant’s plea of guilty, the judge said that he did not consider that the plea was an early plea or one made at the first opportunity.[31] Plainly, having been made after eight listings of the matter in the County Court, the plea was open to be described as one that was neither early nor made at the first possible opportunity.
[31]Reasons [41].
While there can be no cavilling with the description of the plea as not being made early or at the first opportunity, the judge’s statement that the plea did not require ‘the maximum discount available’ is more problematic. Two points may, however, be made.
First, in saying that the circumstances of the applicant’s plea did not require ‘the maximum discount available’, it may be that the judge was saying no more than in an otherwise identical case where the applicant chose to plead guilty following the receipt of Dr Sullivan’s report, or even without investigating the possibility of a mental impairment defence, an even greater discount may have been available for that earlier plea.
Secondly, the issue for the judge, and in this Court, is not whether some theoretical ‘maximum discount’ might have been available in other circumstances, but whether the judge correctly took into account the applicant’s plea of guilty, in all of the circumstances, and gave it proper weight in the sentencing synthesis. And the issue of whether proper weight was given to a sentencing factor can only be decided by looking at the sentence arrived at.[32]
[32]DPP v Terrick (2009) 24 VR 457, 459–60 [5].
It is clear from his reasons that the judge gave both detailed consideration and substantial weight to the applicant’s plea of guilty, when he described its utilitarian benefit and the applicant’s accompanying ‘sincere and deep remorse’.[33] We are not persuaded that there is any basis for finding that the judge did not give full weight to the applicant’s plea of guilty in all of the circumstances of the case (including the reasonableness of the mental impairment investigations undertaken, and the applicant’s health issues and associated hospitalisations during 2016 and 2017).
[33]Reasons [41].
Moreover, the very sentence imposed by the judge (7 years’ imprisonment, with a non-parole period of 4 years and 6 months) suggests that he must have given very substantial weight to the applicant’s plea of guilty.
Did the judge err in concluding that this case was similar to the facts in Martin?
In her oral application to add a ground of appeal in relation to the judge’s reliance upon Martin, the applicant’s counsel submitted that the judge erred in finding that the position of the offender in Martin was similar to the applicant’s position. The initial submission in this Court was that the applicant’s case was ‘not at all similar to Martin’. Later in argument, however, the applicant’s counsel accepted that there were some similarities between the offender’s case in Martin and the applicant’s case. Nevertheless, she maintained that the facts in Martin were distinguishable because in Martin the offender’s foreknowledge of possible consequences of his drug ingestion was far more specific than the applicant’s, and came from a greater number of prior occasions.
Ultimately, the applicant’s argument appeared to be that the judge was wrong to find that the applicant had a capacity to reason that by smoking a very small amount of cannabis ‘she foresaw that she would behave in the way she did’. The applicant’s attack on the judge’s finding that she had the capacity to reason that by smoking a very small amount of cannabis she foresaw that she would behave in the way she did was put on two bases.
First, it was submitted that the evidence was not sufficient to ground a conclusion that the applicant’s psychosis at the time of the collision was drug induced. In support of this part of her argument, the applicant placed reliance upon the evidence of Dr Sullivan as follows (and to which we have already referred):
[A]lthough it is clear that she was psychotic at the time of the alleged offence, it is not so clear whether this was drug-induced psychosis or a psychotic illness in which substance use was not causative but may have occurred in parallel possibly in a misguided effort to quell symptoms.
Secondly, it was submitted that the evidence tendered and given on the plea was insufficient to permit a conclusion that the applicant would have known that her use of cannabis in the hours before the collision might lead to a psychotic episode.
There is little substance in either of the applicant’s contentions.
As to the first basis, the reasons why the applicant drove in the way she did at the time of the collision were required to be examined by reference to the whole of the evidence, and not merely by reference to the opinions of the medical experts.
Dr Sullivan was not able to give a clear answer about whether the applicant’s psychosis at the time of driving was drug induced because, as he put it, the applicant ‘was not in regular contact with a psychiatrist’ at the relevant time and such information as was available about her symptoms and treatment was insufficient. That did not absolve the judge, however, from making such conclusion as he could that was open on the evidence. Moreover, the judge was entitled to rely upon Dr Sullivan’s ultimate conclusion that the applicant’s mental impairment at the time of her offending was due to a drug-induced psychosis.
As to the second basis, there was ample evidence to support his Honour’s conclusion about the applicant’s foreknowledge of the effects of using cannabis. The uncontested expert evidence established that the applicant had previously experienced episodes of drug-induced psychosis in the context of cannabis use. The real complaint was that, although she had previously had psychotic episodes, the applicant had never behaved in a dangerous or aggressive manner when psychotic. She could not have anticipated, it was said, that she would drive in a way which threatened public safety.
This argument must be rejected. All that is required for the Martin analysis to apply is demonstrated foreknowledge that use of the relevant substance(s) was likely to produce a delusional state. As the Court made clear in Martin, it is immaterial that the nature or severity of the delusions experienced at the time of the offending is different from what the offender has experienced previously. It is enough that the offender has taken the drug(s) knowing that there is a real risk that she will lose rational control over her actions.[34] In the present case, the applicant’s prior experience was of ‘bizarre delusions and disordered behaviour’.
[34]Martin (2007) 20 VR 14, 28 [49].
There was much debate in oral argument about the precise way in which the judge took into account the foreknowledge he concluded the applicant possessed. At one point in his reasons, the judge appeared to refer to the applicant’s cannabis use and her foreknowledge as an aggravation.[35] In his ultimate conclusion, however, we think it is tolerably clear that the judge used his findings on these issues so as to ‘diminish the moderation’ of the sentence which he might otherwise have imposed in conformity with the principles in Verdins.[36] While the orthodoxy of such an approach may be debated, in the circumstances of the present case we are unpersuaded that this involved any relevant error about which the applicant can now complain.
[35]Reasons [142].
[36]Ibid [145].
Having reviewed all of the evidence for ourselves, we are satisfied that the judge’s conclusions about the relevance of the applicant’s cannabis use in the hours before the collision were well open.
Was the sentence manifestly excessive?
The remaining question for determination in this application is whether the sentence imposed by the judge on the culpable driving charge (being the term of imprisonment of 7 years, with a non-parole period of 4 years and 6 months) was wholly outside the permissible range available to the sentencing judge.
Notwithstanding the complexity of the evidence concerning the applicant’s personal circumstances and all of the matters put in mitigation on her behalf on the plea and in this Court, as we have already observed, that question must be answered in the negative. While there were powerful mitigating factors that were required to be taken into account in the sentencing synthesis, the objective seriousness of the applicant’s offending was very high, involving, as it did, appalling driving and gross departures from the standards expected of drivers of motor vehicles.
The applicant’s moral culpability was, as the judge accepted, capable of being reduced by reference to her pre-existing psychiatric conditions. This did not mean, however, that her overall moral culpability was (as the applicant submitted) to be regarded as low. It was well open to his Honour, in our view, to conclude that the applicant’s moral culpability, while being reduced, could not be described either as low or of a level that would lead to a relatively low sentence.[37]
[37]Ibid [51].
The applicant submitted that the judge failed to acknowledge and give sufficient weight to the significant insight she demonstrated by seeking out and engaging in treatment knowing that she faced the certainty of a term of imprisonment. The fact that the judge failed to give sufficient weight to this matter was said to be demonstrated by the lack of any reference to it in the judge’s reasons for sentence. This complaint must be rejected.
While the judge did not make detailed reference to the insight said to be demonstrated by the applicant seeking out and engaging in treatment in a genuine desire to rehabilitate herself, he did refer to the evidence that suggested that the applicant had ‘some gains and positive periods’ prior to sentencing,[38] and to her ‘good prospects’ of rehabilitation.[39] Clearly, with the volume of material tendered on the applicant’s plea, the judge was not required to set out in minute detail all of the matters and arguments relied upon by the applicant’s counsel. Reading the reasons as a whole, we are satisfied that his Honour paid proper attention to the matters personal to the applicant, including her insight and her level of desire to rehabilitate herself prior to sentencing.
[38]Ibid [40].
[39]Ibid [144].
The applicant’s other complaints that the judge failed to give adequate weight to the various mitigating factors the applicant relied upon are also without substance. Each of the matters relied upon by the applicant was addressed by the judge in his reasons for sentence. Moreover, as we have already observed, the level of the sentence actually imposed by the judge suggests that each mitigating factor was given real and significant weight.
Finally, the applicant’s complaint that the judge misstated the substance of Prakesh’s evidence is totally without merit.
The judge gave a very careful and detailed consideration to all of the matters relied upon by the applicant. In the end, he arrived at a sentence which we think was, if anything, moderate. Indeed, the moderate level of the sentence imposed by the judge can only be explained by reference to the judge giving significant attention to the matters personal to the applicant that mitigated what otherwise may have been a substantially more severe sentence.
Conclusion
None of the errors contended for by the applicant have been made out. Far from the sentence being manifestly excessive, the sentence was, if anything, moderate. Leave to appeal must be refused.
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