Sean Christian Price v The Queen
[2019] VSCA 8
•24 January 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0117
| SEAN CHRISTIAN PRICE | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WHELAN, McLEISH and T FORREST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 24 January 2019 |
| DATE OF JUDGMENT: | 24 January 2019 |
| DATE OF REASONS: | 1 February 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 8 |
| JUDGMENT APPEALED FROM: | [2016] VSC 105 (Lasry J) |
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CRIMINAL LAW – Application for extension of time to seek leave to appeal sentence – Protracted delay – Applicable principles – Proposed ground of appeal concerning impaired mental functioning – Merits of proposed appeal do not have sufficient prospects of success to warrant extension of time – Explanation for delay not satisfactory – Application dismissed – Efandis v The Queen (2014) 41 VR 456 applied; R v Verdins (2007) 16 VR 269 considered.
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| APPEARANCES: | Counsel | Solicitors |
| Applicant | Mr Price in person | |
| Respondent | Ms D Piekusis SC with Ms K Argiropoulos | Mr J Cain, Solicitor for Public Prosecutions |
WHELAN JA
McLEISH JA
T FORREST JA:
On 15 June 2018 Dr Michael FitzGerald, a solicitor then acting on behalf of the applicant, filed two notices of application for leave to appeal against sentence. One application sought leave in relation to a sentence of imprisonment for life with a non-parole period of 38 years imposed by Lasry J in the Trial Division of this Court on 18 March 2016.[1] The other application sought leave in relation to a sentence of imprisonment of 4 years 11 months and a new single non-parole period totalling, in effect, 41 years imposed by Judge Sexton in the County Court on 2 November 2017.
[1][2016] VSC 105 (‘Reasons’).
Each of the applications for leave to appeal sentence was well out of time. Section 279 of the Criminal Procedure Act 2009 provides that, in the absence of an extension under s 313, an application for leave to appeal against sentence is to be commenced within 28 days after the day on which the person was sentenced. Thus, the application in relation to Lasry J’s sentence was over two years out of time. The application in relation to Judge Sexton’s sentence was over six months out of time.
By applications filed 19 June 2018, extensions of time were sought in relation to both of the applications for leave to appeal against sentence. Each application relied upon an affidavit of the solicitor, Dr FitzGerald, sworn 15 June 2018.
The affidavit of Dr FitzGerald set out the circumstances relied upon in support of the applications for extension of time in relation to each of the sentences. Dr FitzGerald also filed a detailed written case addressing the proposed grounds of appeal in relation to each of the sentences. The Director of Public Prosecutions filed a response addressing both the applications to extend time and the proposed grounds of appeal, again in relation to both of the sentences.
On 6 December 2018 Dr FitzGerald filed a Notice of Practitioner Ceasing to Act, and leave to cease to act was granted on 7 December 2018. Since then the applicant has represented himself.
On 24 January 2019 the applications for extension of time were heard.
At the conclusion of the hearing directions were made in relation to the application concerning the sentence of Judge Sexton and judgment on that application was reserved.
The application concerning the sentence of Lasry J was dismissed. An outline of the reasons was delivered orally and the Court advised that detailed reasons would be delivered subsequently. These are those detailed reasons.
The explanation for delay
The plea hearing before Lasry J commenced on 14 December 2015. The applicant was then represented by Ms M Fox of counsel. Ms Fox was in the course of developing a submission that the principles concerning impaired mental functioning articulated by this Court in R v Verdins[2] were applicable to the applicant when the applicant terminated her instructions. He thereafter continued the plea representing himself. He asked the trial judge to disregard the submissions which had been made by Ms Fox. We will return to consider how the plea was conducted in more detail later. Dr FitzGerald’s affidavit indicates that the solicitors then acting on behalf of the applicant also had their instructions withdrawn (para 7).
[2](2007) 16 VR 269 (‘Verdins’).
The affidavit of Dr FitzGerald asserts, on the basis of the applicant’s instructions, that after he dismissed his counsel and solicitors in December 2015 the applicant received ‘occasional contact’ from representatives of Victoria Legal Aid (para 11(a)).[3]
[3]Paragraph 11(a) refers to December 2016 but that seems to be a typographical error.
Lasry J sentenced the applicant on 18 March 2016. According to the affidavit of Dr FitzGerald, between March and August 2016 the applicant was in ‘occasional contact’ with a solicitor, Avi Furstenberg, and with a barrister, and that he believed he would receive assistance and representation from them in relation to an application for leave to appeal. In fact no work was done, and the applicant was unable to contact Mr Furstenberg after August 2016 (para 11(d) and (e)).
Dr FitzGerald’s affidavit recounts that at some point prior to September 2016 the applicant believed that his matters had been handed to a solicitor at Victoria Legal Aid named Patrick O’Halloran (para 11(f)). By a letter dated 5 September 2016, which the applicant maintains he did not receive or become aware of until November 2016, Victoria Legal Aid advised that assistance for an appeal against Lasry J’s sentence was refused (para 11(f)).
Also in September 2016, the applicant was indicted for the offence of breaching a supervision order, being the offence in relation to which he was subsequently sentenced by Judge Sexton. According to Dr FitzGerald’s affidavit, the applicant was then seeking legal aid in relation to both that prosecution and an appeal ‘against conviction and sentence’ in relation to offences dealt with by Lasry J (para 11(g)). Dr FitzGerald’s affidavit says that on 28 March 2017 the applicant’s application for legal assistance ‘in relation to an appeal against his conviction of rape’ was refused by Victoria Legal Aid (para 11(j)). Dr FitzGerald’s affidavit says that the applicant then withdrew his instructions from Victoria Legal Aid but that aid was granted to the firm by whom Dr FitzGerald was then employed, namely Dr Martine Marich & Associates.
Dr FitzGerald began acting for the applicant in August 2017 in relation to the County Court prosecution for contravention of the supervision order. He acted for him in relation to that matter between August 2017 and the sentence of Judge Sexton on 2 November 2017 (para 5). Dr FitzGerald deposes that during that period the applicant told him of his desire to appeal the sentence imposed by Lasry J in March 2016 and Dr FitzGerald offered to assist him in relation to that matter on a ‘pro bono’ basis (para 9).
Dr FitzGerald deposes that on 27 September 2017 Victoria Legal Aid withdrew funding for the applicant in the County Court proceeding (para 17). Funding was restored after an order to that effect was made by Judge Sexton (para 18).
Dr FitzGerald deposes that very shortly after Judge Sexton’s sentence he was engaged in a difficult proceeding which did not conclude until 2 February 2018. Any work on the applicant’s matters had to be carried out after hours ‘pro bono’, as there was no realistic prospect of legal aid being approved (paras 22–9). In the circumstances, Dr FitzGerald says he was not in a position to do the work necessary to file a written case until after he ‘resumed contact’ with the applicant on 21 March 2018 (para 27). Dr FitzGerald deposes that he then prepared a written case ‘embracing both sentences’ and delivered them to the applicant by mail on 11 May 2018. After discussing the written case with the applicant and obtaining further instructions he completed the notices of appeal and the application for extension of time (para 29). Dr FitzGerald concludes:
The delay since the sentence of 2 November 2017 is not attributable to Mr Price and is due to my unavailability over the three months following that date, and the fact that work on Mr Price’s appeal had to be done pro bono.
Legal principles governing applications for extension of time in criminal appeals
The legal principles which govern applications for extension of time in criminal appeals were set out by the Court of Criminal Appeal in this State in R v Darby,[4] as specifically approved by the Full Court in R v O’Keefe,[5] and by this Court in Efandis v The Queen.[6] In summary, the relevant principles are as follows:
[4](Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Gowans J, 2 May 1975).
[5][1979] VR 1, 5.
[6](2014) 41 VR 456 [35].
(1)The time limits prescribed by statute are intended to secure finality and compliance with them is required in the ordinary case.
(2)An extension of time is a matter for the discretion of the Court and the applicant must persuade the Court to exercise that discretion in favour of an extension.
(3)Rigid restrictions cannot be imposed on the exercise of the discretion to extend time but in general the Court will require special and substantial reasons for extending time.
(4)The longer the time which has elapsed, and the more changes which have taken place in the meantime, the more exceptional the circumstances will need to be before the Court will extend time.
(5)The Court will not grant any considerable extension of time unless satisfied that there are such merits in the proposed appeal that it would probably succeed.
(6)A reasonably satisfactory account of the failure to comply with the statutory time limit needs to be forthcoming.
In this case a considerable extension of time is required for leave to appeal from the sentence imposed by Lasry J. Before considering whether a satisfactory account of the failure to meet the statutory time limit has been provided, it is desirable, in this case, to consider whether the merits of the proposed appeal warrant the extension which is sought.
The proposed ground of appeal
The proposed ground of appeal in the Notice of Application for Leave to Appeal against Sentence is as follows:
Ground 1 ― the Learned Sentencing Judge erred in failing to apply the Verdins principles in sentencing for the offence of murder.
Particulars
(a)the Learned Sentencing Judge erred in not finding that the applicant’s mental functioning was impaired at the time of the offence of murder.
(b)the Learned Sentencing Judge erred in not finding that the applicant’s moral culpability for the offence of murder was reduced.
The relevant offending and the sentence imposed
The sentence imposed by Lasry J on 18 March 2016 was for offences of murder, robbery, attempted theft, and rape. The applicant had pleaded guilty.
The applicant murdered a 17 year old woman, unknown to him and chosen to be killed at random, in a suburban park on 17 March 2015. The applicant had formed an intention to murder a person who he considered to be representative of the more affluent section of the community. He had armed himself with a large kitchen knife and carried a spare shirt in anticipation of the need to change out of his bloodied shirt after stabbing his victim. He saw the young woman in a suburban park. He pushed her into bushes and in a protracted attack he stabbed her repeatedly. He inflicted 49 injuries to the young woman’s head, neck, chest and abdomen. She died at the scene of the attack.
Two days later, the applicant robbed an individual of his mobile phone in a public place, grabbing him around the neck in a headlock and punching him to the head several times. An hour later he attempted to steal a motor vehicle parked outside a suburban library. The owner resisted and the applicant fled.
The applicant then decided to commit a sexual offence in order to obtain gratification before his arrest for the murder, which he viewed as imminent. He initially targeted an employee of a video store but when an opportunity to assault her did not arise he went to a book shop next door. A woman was working alone in the shop. The applicant lured her to the rear of the store where they were not visible from the store front. He then grabbed her from behind and covered her mouth. He forced her to the floor, applied pressure to her throat to stifle her screams, and digitally penetrated her. In the course of the attack he taunted her in relation to her religious beliefs. She suffered bruises, scratches and abrasions to her head, face, neck, shoulders, hip and back. The applicant ceased his offending when interrupted by a member of the public. He fled and later that day surrendered himself at an office of Corrections Victoria. He was interviewed by police that day over approximately five hours and admitted the offences. The interview was recorded.
This brief account of the circumstances of the offending does not do justice to the brutal and callous nature of the murder and the rape. The sentencing judge set out a fuller account of the relevant offending. For present purposes, the account we have given is sufficient.
The applicant pleaded guilty to the charges on 25 August 2015. A plea hearing was conducted on 14 and 15 December 2015.
The sentences imposed by Lasry J on 18 March 2016 were as follows:
Charge on Indictment
Offence
Maximum
Sentence
Cumulation
1 Murder
[Common law]
Life
imprisonment
[s 3 Crimes Act1958]
Life imprisonment - 2 Robbery
[s 75 Crimes Act1958]
15 years’
imprisonment
[s 75(2) Crimes Act1958]
18 months’ imprisonment - 3 Attempted theft
[s 74 and s 321M Crimes Act1958]
5 years’
imprisonment
[s 74 and s 321P Crimes Act1958]
6 months’ imprisonment
- 4 Rape
[s 38(1) Crimes Act1958]
25 years’
imprisonment
[s 38(2) Crimes Act1958]
14 years’
imprisonment
- Total Effective Sentence: Life imprisonment Non-Parole Period: 38 years’ imprisonment (1) of the Sentencing Act 1991Pre-Sentence detention declaration pursuant to s 18: 294 days 6AAA Statement: Life imprisonment with no minimum term Other relevant orders:
1. Sentenced as a serious violent offender on the charge of murder pursuant to s 6F of the Sentencing Act 1991.
2. Disposal order.
The applicant’s personal circumstances and criminal history
The applicant was born in 1984. He had a disrupted and dysfunctional upbringing. His parents separated when he was young. He was the victim of both physical and sexual abuse. He first had contact with mental health services at the age of 12. His schooling was chaotic. He left school at the beginning of Year 11. At that time he had begun using marijuana and amphetamines. He moved backwards and forwards between living with his mother in New South Wales and his father in Melbourne, with periods living with friends and without any fixed abode.
Between February 2002 and June 2003 he committed a number of serious sexual and violent offences including rape and attempted rape. In October 2004 he was sentenced by a judge in the County Court to a hospital security order of a total effective term of 8 years 2 months in relation to which a non-parole period of 5 years 6 months was fixed. Between 2003 and 2006, whilst in custody, he was admitted to Thomas Embling Hospital on four occasions.
In November 2010 the applicant was granted parole. In July 2011 his parole was cancelled after he committed a violent offence. The offence was an assault on a female forensic psychologist at Forensicare. He was sentenced to 4 months’ imprisonment for that offence in January 2012.
On 4 May 2012 a judge in the County Court made an order that the applicant be subject to a supervision order under the Serious Sex Offenders (Supervision and Detention) Act 2009. One of the conditions imposed was that he reside at a facility known as Corella Place.
In December 2012 the applicant committed a number of offences (criminal damage and assault) at Corella Place. He was eventually sentenced to 10 months’ imprisonment for those offences after a hearing in the Magistrates’ Court and an appeal to the County Court.
In January 2014 he committed further offences (criminal damage and assault) at Corella Place, for which he was sentenced to 9 months’ imprisonment in April 2014.
On 2 October 2014, his sentences having been completed, he was released from prison, and, rather than returning to Corella Place, was accommodated in the community. He remained subject to the supervision order and was required to report regularly to Corrections Victoria. Shortly prior to his release he had made a threat to kill a prisoner officer. He was charged with that offence and released on bail. He was not dealt with on that offence until after he had committed the offences which were the subject of Lasry J’s sentence.
As might be expected given the applicant’s history, he has been the subject of many psychological and psychiatric assessments.
The psychological and psychiatric assessments
For the purpose of the plea hearing before Lasry J the applicant’s then solicitors arranged for assessments by, and obtained detailed reports from, a forensic psychiatrist, Dr Nina Zimmerman; a neuropsychologist, Mr Martin Jackson; and a clinical psychologist, Mr Guy Coffey. These practitioners reviewed in detail earlier psychological reports which had been prepared by a number of highly qualified practitioners. Ms Fox handed to the judge a folder of the prior psychiatric and psychological reports.
Dr Zimmerman spent three hours with Mr Price. The interview circumstances were not ideal, but she nevertheless obtained a detailed psychiatric history from him. She observed that during the period of his life between the ages of 19 and 31 he had spent less than two years not in custody.
Dr Zimmerman recorded that the applicant’s motivation for the murder was a desire to drag those who he saw as ‘rich, privileged and immune from hardship into his own world’. She recorded that themes of hatred against women were evident.
Dr Zimmerman reported a prior diagnosis of paranoid schizophrenia. She found that that diagnosis was supported by the history she took of delusions, thought disorder and behavioural disturbance. She also expressed the opinion that the applicant’s history of impulsivity, extreme mood fluctuations, substance abuse and self-harm were consistent with a diagnosis of borderline personality disorder and that his history of disordered conduct as a child was suggestive of a diagnosis of anti-social personality disorder. She said that he had a history of alcohol and cannabis abuse and of gambling but that there were no indications of clinically significant cognitive impairment.
Dr Zimmerman concluded that the applicant did suffer from a major mental disorder, being paranoid schizophrenia. She said, however, that the evidence did not indicate any signs of psychosis at the time of the offending behaviour. She set out the reasons for her conclusions in that regard. Amongst other things, she relied upon the applicant’s conduct in the police interview conducted on the day of his arrest over a period of five hours. Dr Zimmerman observed:
Mr Price clearly felt wronged by the prison system and by society at large. He had threatened to kill because of some sense that this would harm a society that had harmed him. Mr Price is an individual with a history of violent offending against females that does not appear to have been linked directly to his schizophrenia.
In the absence of evidence of psychosis at the time of the alleged offences, I do not believe that Mr Price has a mental impairment defence available to him.
Dr Zimmerman expressed the opinion that the applicant’s psychiatric condition had deteriorated significantly whilst in the prison system.
Mr Martin Jackson conducted a neuropsychological assessment of the applicant. On presentation, Mr Jackson observed clear evidence of thought disorder and paranoid delusions. On testing, the vast majority of the applicant’s cognitive abilities were found to be in the average range or better. The results did not indicate the existence of traumatic brain injury or brain injury at birth. Mr Jackson observed:
Therefore, I’m of the opinion that it is highly likely that Mr Price does not have an acquired brain injury (from any source), but demonstrates cognitive impairments related to his ongoing psychiatric condition.
Furthermore, I am of the opinion that it is highly likely that his cognition was significantly worse at the time of the offending given that it is reported that his mental health had deteriorated significantly in the month prior to the offending (from February 2015) however, it is not possible to estimate exactly how he was functioning at that time.
Mr Jackson also said:
On the basis of the current assessment, Mr Price’s cognitive condition does not make him disinhibited or affect his ability to understand the wrongfulness of his actions, to think clearly and make calm reasoned decisions and appropriate judgments to control his emotions or faculties. He did not have a disorder of impulse control either clinically or on assessment. Abstract and logical thinking were strengths, as well as verbal executive skills so that he has the ability to think clearly and make calm reasoned decisions.
It is noted that ongoing mental health problems and personality traits may well affect his ability to understand the wrongfulness of his actions, to think clearly and make calm reasoned decisions and appropriate judgments or to control his emotions or faculties. I refer you to the opinion of a psychiatrist regarding his mental health condition on these abilities.
Mr Coffey spent eleven hours with the applicant over three sessions and prepared a very detailed report. In reviewing the applicant’s psychiatric history he recorded the fact that in the period of his admissions to Thomas Embling Hospital between 2003 and 2006 the applicant had responded well to anti-psychotic medication, and had achieved significant improvement when on that medication, but that subsequently he would deteriorate when he became non-compliant. Mr Coffey referred to the established diagnosis of paranoid schizophrenia and observed that the applicant’s personality functioning had elements of borderline paranoid and anti-social personality disorders. In relation to the applicant’s mental state at the time of the offending, Mr Coffey said:
The evidence available to me indicates that Mr Price formed an intention to kill one or more people; he had held this intent for at least a few weeks and had planned how he could carry it out ― by for example secreting knives and screwdrivers in public places for his later use. The final act of murder may have been impulsive with respect to the particular victim but was not in relation to wanting to kill someone of a particular category, a middle class person; there was prior planning and at least one prior occasion when he was close to enacting his plan.
It was, in my opinion, the working of his disordered personality which lay the emotional foundation for the intent which actuated the murder. It was his long-standing grievances and anger at what he perceived as the abuse the prison system had inflicted upon him which drove him toward the offending.
In my opinion at the time of the offending he was motivated by a desire to protest against his perceived mistreatment by prison authorities through an extreme act of retribution.
Mr Coffey went on to say that he believed it was probable that there was a re-emergence of ‘low grade psychotic symptoms’ in the month prior to the offending and that those symptoms are likely to have amplified his feelings of grievance. Mr Coffey said:
I am therefore of the opinion that the genesis of Mr Price’s intent to kill lay with grievances generated by his disordered personality. The re-emergence of some low grade psychotic symptoms intensified his conviction that the intent should be acted upon and further impaired his ability to think rationally about whether his actions would lead to the desired consequences.
At the time of the offending Mr Price was at the very least subject to intense affect and cognitive distortions regarding the activities of Correctional authorities. However, in my opinion, his mental state at this time did not deprive him of the ability to understand that he had embarked on the murder of an innocent person who had no relationship with the source of his grievances. He possessed the ability to consider whether the situation as he perceived it was a reason to take someone’s life.
In relation to the rape offence, Mr Coffey expressed the opinion that the commission of that offence did not appear to have arisen from the same intentions and psychopathological state which gave rise to the murder. He observed that the motivation was a perception on the applicant’s part that he had nothing to lose and that he decided to sexually gratify himself before being imprisoned again.
Mr Coffey repeated his observation that the applicant had responded well to anti-psychotic medication in the past but he observed that in his interviews with the applicant he had repeated his opposition to anti-psychotic medication.
Amongst Mr Coffey’s conclusions was the following:
I have concluded that, even allowing for some range of possibility in this regard, he was capable of understanding the nature of his actions and their consequences. His offending sprung from deeply felt anger about his perception of mistreatment by the penal and justice systems; the degree of antipathy and persecution he felt was primarily the product of his personality disorders.
Reliance on Verdins in the plea hearing
As indicated, at the commencement of the plea hearing on 14 December 2015 the applicant was represented by Ms Fox of counsel. Ms Fox took the sentencing judge through the psychiatric and psychological material in some detail. As indicated, she had prepared a folder containing many of the previous psychological and psychiatric reports.
Ms Fox told the judge that this had ‘never been a crimes mental impairment matter’.[7] This was a reference to the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 and the potential for there to be a defence under that Act on the basis that the applicant was suffering from a mental impairment that had the effect that he did not know the nature and quality of his conduct or did not know that it was wrong.[8] In that context Ms Fox referred to the fact that Dr Zimmerman’s report was directed to that specific issue.
[7]Transcript of Proceedings (14 December 2015) 56.
[8]Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic) s 20.
Ms Fox then developed the submission that the Verdins principles applied in relation to the murder offence, although not the other offences. In this respect she relied heavily upon the report of Mr Coffey. She accepted that the applicant’s schizophrenia was not a basis for the application of Verdins principles, given the absence of psychosis at the relevant time, as explained in the reports of both Dr Zimmerman and Mr Coffey. She submitted, however, that the applicant’s personality disorder, combined with the probable re-emergence of low grade psychotic symptoms as referred to by Mr Coffey, had impaired his ability to make calm and rational choices. She endeavoured to distinguish a decision of this Court concerning personality disorders in DPP v O’Neill.[9] Ms Fox referred to Mr Coffey’s opinion concerning the ‘genesis’ of the applicant’s intent to kill, in one of the passages we have previously quoted, and then submitted:
In my submission, your Honour, there is —as I have said, he is not psychotic at the time and it is not said that he is but in my submission, the state he was in when he determined to do this, the thinking process, it was an irrational, illogical thought process as to what he was intending to achieve and what he was intending to do.[10]
[9](2015) 47 VR 395 (‘O’Neill’).
[10]Transcript of Proceedings (14 December 2015) 63.
Ms Fox made it clear that this submission applied only to the murder and not the other offences.
It was at that point that the applicant interrupted Ms Fox’s submission and terminated her instructions.[11]
[11]Ibid 66.
The applicant indicated that he wished to appear for himself on the plea and that he did not want to rely on anything that Ms Fox had submitted. When the sentencing judge asked him whether he wanted him to ignore everything that Ms Fox had said the applicant said that he did.[12] The applicant then told the sentencing judge that he did not wish to rely on anything by way of a ‘defence’, he only wished to apologise and to ‘take full consequences and not ask for any leniency to be shown’.[13]
[12]Ibid 68.
[13]Ibid 68–9.
Later, after the prosecutor had made submissions, the applicant apologised again and then made statements which might be characterised as contesting submissions which had been made by the prosecutor concerning Verdins.[14] Eventually the applicant said:
I just don’t know if they’ve shown that no Verdins principle is applicable and medication may stop my risk of — avail my risk of doing anything bad the future and that’s pretty much it, your Honour.[15]
[14]Ibid 107–22.
[15]Ibid 122.
Sentencing judge’s treatment of the Verdins issue
The Court of Appeal in Verdins set out six ways in which impairment of mental functioning might be relevant to sentencing. They were:
(1)The condition may reduce moral culpability.
(2)The condition may have a bearing on the kind of sentence that is imposed.
(3)The condition may mean that general deterrence should be moderated or eliminated.
(4)The condition may mean that specific deterrence should be moderated or eliminated.
(5)The condition may mean that the sentence imposed will weigh more heavily on the offender than it would on a normal person.
(6)There may be a serious risk that imprisonment would have a significant effect on the offender’s mental health.
Notwithstanding the applicant’s disavowal of the submissions made on his behalf concerning Verdins by Ms Fox, the sentencing judge dealt with the issue in detail and did address Ms Fox’s submissions, giving particular attention to Mr Coffey’s report.[16]
[16]Reasons [73]–[81].
The sentencing judge said that he had read and considered Mr Coffey’s report and the other reports and briefly summarised what Ms Fox’s submission had been. The judge observed that the applicant’s schizophrenia ‘had no causative link’ to the murder.[17]
[17]Reasons [74].
The judge then referred to Ms Fox’s submission that the offending had been motivated by an irrational belief which was ‘causatively connected’ to the applicant’s personality disorder. The judge referred to the termination of Ms Fox’s retainer but said that he felt he had some obligation to consider the Verdins issue notwithstanding the submissions which the applicant had made once he had represented himself. The judge referred to Mr Coffey’s conclusion that the applicant had not been psychotic at the time of the murder and to Mr Coffey’s conclusion that his intent to kill had been connected to the applicant’s disordered personality.[18]
[18]Reasons [75]–[76].
The judge was not persuaded that at the time of the murder the applicant was suffering from an impairment of his mental functioning ‘so as to justify moderation in the application of the sentencing principles of specific and general deterrence’.[19]
[19]Reasons [77].
The judge observed that the personality disorder was relevant as part of the circumstances and ‘may bear upon the assessment of your moral culpability by explaining why you behaved as you did,’ but repeated that in his view, in this case, that did not reduce the significance of specific or general deterrence. In that respect he cited this Court’s decision in O’Neill.[20]
[20]Reasons [78].
The judge then observed that there were other sentencing considerations which were particularly significant, one being protection of the community.[21]
[21]Reasons [79].
The judge repeated that the applicant’s mental condition did provide a ‘context’ for his conduct, but said that it did not engage the particular considerations identified in Verdins ‘so as to affect the significance of specific and general deterrence’.[22]
[22]Reasons [80].
As to principles 5 and 6 of Verdins, the judge said that although no submission had been made in relation to them he considered that the sentence he would impose would weigh more heavily on the applicant than on a person in normal health and that in all likelihood the applicant’s condition would deteriorate in custody. He said that he had taken those matters into account.[23]
[23]Reasons [81].
Submissions
In the written case filed by Dr FitzGerald the submissions in support of the proposed ground of appeal largely reproduced the submissions made by Ms Fox prior to the termination of her engagement.
The Director of Public Prosecutions in the respondent’s written case submitted that the findings made by the sentencing judge, particularly having regard to Mr Coffey’s report, were ‘well open’ to him. It was submitted that the learned judge was not satisfied on the balance of probabilities that at the time of the murder the applicant was suffering from impaired mental functioning within the principles explained in Verdins and O’Neill.
At the hearing the applicant, who appeared in person, made submissions which were not specifically directed to either of the particular sentences or to particular issues. He suggested, at times at least, that he should not have pleaded guilty because he had a mental impairment defence, and that it was very clear that he was ‘crazy’ at the time of the offences. Much of the applicant’s oral submissions were directed at what he considers to be wrongful conduct by solicitors and barristers who had acted for him, or who had had contact with him from time to time.
Merits of the proposed Verdins ground
This Court’s decision in O’Neill also concerned an offender with what was described as a personality disorder. In that context the Court emphasised the following relevant matters:
(1)The Verdins principles are enlivened only where the offender suffers from an impaired mental functioning, and whether there should be any moderation of general deterrence, and if so its degree, will depend upon the nature and severity of the impairment of mental functioning.[24]
(2)In order for the principles in Verdins concerning moral culpability and general and specific deterrence to have application, there must be a connection between the impairment and the offender’s moral culpability or the need for general and specific deterrence.[25]
(3)In order to show the necessary connection it must be established that the mental impairment affected the offender’s ability to appreciate the wrongfulness of his conduct, or obscured the offender’s intent to commit the offence, or impaired the offender’s ability to make calm and rational choices or to think clearly at the time of the offence.[26]
[24]O’Neill (2015) 47 VR 395 [71].
[25]Ibid [74].
[26]Ibid [75].
The Court emphasised that ‘cogent evidence’ is necessary to establish mental impairment having the effect upon sentencing referred to in Verdins and that the analysis in this respect was to be undertaken with ‘rigour’.[27]
[27]Ibid [77]–[78].
In the circumstances we have outlined, and particularly given the contents of the reports of Dr Zimmerman, Mr Jackson and Mr Coffey, to which we have referred, in our view the conclusions reached by the sentencing judge were clearly open to him, and we do not consider that the proposed ground of appeal has sufficient prospects of success to warrant an extension of time after the considerable delay which has occurred in this case. The sentencing judge did consider that the applicant’s personality disorder bore upon the assessment of his moral culpability, but he rejected the proposition that it reduced the significance of specific or general deterrence in this case. He observed that these considerations also had to be counterbalanced, in this case, with the need to protect the community. Notwithstanding the absence of any submission to that effect, the sentencing judge took into account principles 5 and 6 of Verdins, concerning the burden and effect of imprisonment. We do not consider that the sentencing judge made any arguable error in this approach.
In addition, in our opinion an extension of time must be refused because there is no realistic possibility that a less severe sentence, or a reduction in the total effective sentence, would be ordered by the Court of Appeal, even if an error in the sentencing judge’s treatment of Verdins were established.
When dealing with the seriousness of the offending, Lasry J set out factors he considered to be significant:
(a)You have a significant and violent criminal history from which, in my opinion, you have not progressed;
(b)The crimes you committed were planned with some care and you ruminated on the prospect of murdering a person to be chosen at random for some days;
(c)The victim you chose was entirely innocent and chosen at random by you in pursuit of some narcissistic cause relating to your own grievances;
(d)The victim you chose was young at age 17 with a positive, productive and happy life in front of her;
(e)Your act of killing her was at the extremity of brutality;
(f)You have no appreciable remorse or regret for your act of murder and the enthusiasm with which you described the killing of Masa Vukotic highlights the need for community protection;
(g)The only consequence of the murder of Masa Vukotic you considered was the consequence for yourself, as a result of which you committed other offences, including the rape of BC.
(h)You then committed two other offences which are charges 2 and 3 involving violence. Whilst less serious than the conduct for charges 1 and 4, they also were committed at random because you wanted money and you wanted a motor vehicle. The victims were put in fear but both had the courage to resist you.
(i)The rape of BC was a very serious offence – violent and callous. It emulated offences you had committed 10 years earlier and demonstrates that you have made no progress in that time;
(j)You are without any form of remorse for any of these crimes;
(k)Your immediate prospects for any form of rehabilitation are bleak at best if not non-existent;
(l)In the absence of appropriate treatment, you are now and will remain a significant danger to the community for the immediate future.[28]
[28]Reasons [93].
The applicant contested the sentencing judge’s conclusions on remorse in his oral submissions before us. But putting them to one side, in our view the sentencing judge’s conclusions were otherwise clearly correct, and no lesser sentence would be imposed in these circumstances by this Court.
This is a case where what the High Court said in Veen v The Queen [No 2][29] is applicable. Mason CJ, Brennan, Dawson and Toohey JJ said:
And so 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 custodial sentence, the other towards a shorter.[30]
[29](1988) 164 CLR 465.
[30]Ibid 476–7.
As we have indicated, where there is considerable delay, as there is in this case, an extension of time will not be granted unless the merits of the proposed appeal are assessed as being such that it would probably succeed. That is not the case here.
Explanation for delay
We do not consider that the explanation for delay is satisfactory in the circumstances. The applicant had competent counsel and solicitors acting for him on the plea. He chose to terminate their engagement. Thereafter, he had considerable difficulty in persuading either Victoria Legal Aid or other lawyers to act for him. Notwithstanding that difficulty, Dr FitzGerald’s affidavit indicates that nothing effective in terms of pursuing a possible appeal was done until Dr FitzGerald became involved in the prosecution for breach of the supervision order in August 2017, well over a year after Lasry J’s sentence. What the applicant contends was wrongful conduct by lawyers who he attempted to engage may be part of the explanation for that delay, as may be the applicant’s psychological condition. The attitude which the applicant expressed when he conducted his plea in person before Lasry J, where he disavowed any desire to rely upon matters in mitigation, may also be part of the explanation. In the circumstances, given the length of the delay, we do not consider that Dr FitzGerald’s affidavit, or the submissions put to us by Mr Price in person during the hearing, constitute a sufficient explanation for the very long delay which has occurred.
Conclusion
It was for these reasons that at the conclusion of the hearing we announced that the application for an extension of time would be dismissed, giving a brief outline of the reasons, and that we then ordered that the application be dismissed.
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