Seddon v The Queen
[2011] VSCA 375
•22 November 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2011 0102 | |
| MARIA STELLA SEDDON | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | BONGIORNO JA and ROSS AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 10 November 2011 |
| DATE OF JUDGMENT | 22 November 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 375 |
| JUDGMENT APPEALED FROM | DPP v Seddon (Unreported, County Court of Victoria, Judge Murphy, 18 April 2011) |
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CRIMINAL LAW – Sentence appeal – Aggravated burglary – Causing injury intentionally – Armed robbery – Mental health issues – Polysubstance abuse – R v Verdins (2007) 16 VR 269 – Prospects of rehabilitation – Mercy – Appeal allowed – Appellant re-sentenced to four years’ imprisonment with non-parole period of 18 months – No point of principle.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr B Lindner | Theo Magazis & Associates |
| For the Crown | Mr G J C Silbert SC | Mr C Hyland, Solicitor for Public Prosecutions |
BONGIORNO JA:
I agree with the orders proposed by Ross AJA for the reasons his Honour gives.
ROSS AJA:
On 6 September 2010, the appellant pleaded guilty to one charge of aggravated burglary, one charge of intentionally causing injury and one charge of armed robbery.
After a partly contested plea in mitigation,[1] the appellant was sentenced in the County Court on 18 April 2011 as follows:
[1]DPP v Seddon (Plea proceedings, County Court of Victoria, Judge Murphy, 8 November 2010, 3 February 2011, 4 February 2011, 9 March 2011, 17 March 2011, 18 March 2011) (Plea).
Charge on Indictment
Offence
Maximum
Sentence
Cumulation
1
Aggravated burglary
25 years’ imprisonment (s77(2) Crimes Act 1958 (Vic))
3 years’ imprisonment
1 year
2
Intentionally cause injury
10 years’ imprisonment (s 18 Crimes Act 1958 (Vic))
1 year’ imprisonment
3 months
3
Armed robbery
25 years’ imprisonment (s75A(2) Crimes Act 1958 (Vic))
4 years and 6 months’ imprisonment
Base
The cumulation orders produced a total effective sentence of five years and nine months’ imprisonment. The sentencing judge fixed a non-parole period of three years and six months’. The judge also stated that had the appellant not pleaded guilty he would have imposed a total effective sentence of seven years and three months’ imprisonment with a non-parole period of five years’.
On 5 August 2011, Nettle JA granted the appellant leave to appeal against sentence on the following grounds:
(1) In view of the impaired mental condition of the appellant at the time of the offending, the judge failed to give adequate weight to the six principles essayed in R v Verdins (Verdins).[2]
[2](2007) 16 VR 269 (Verdins) 276 (Maxwell P, Buchanan and Vincent JJA).
(2) The judge failed to give adequate weight to the remorse expressed by the appellant.
(3) The judge failed to give adequate weight to the delay of four years and four months between the time of the offending and the time of sentencing.
(4) The judge failed to accord mercy any weight in the sentencing process.
(5) The judge erred in finding that there were no exceptional circumstances which warranted the imposition of a suspended sentence.
During the course of the appeal hearing it became apparent that the grounds of appeal were essentially particulars of the real ground of appeal, namely that the sentence imposed was manifestly excessive. The appellant was given leave to amend the grounds of appeal by deleting the existing grounds and replacing them with a single ground – that the sentence imposed was manifestly excessive. The previous grounds then became particulars to this ground of appeal.
Before turning to the ground of appeal I will briefly set out the circumstances of the offending.
The appellant was one of four people who entered the house of the victim between 4am and 5am on 15 December 2006 by forcibly breaking down the front door. All co-offenders were wearing balaclavas and carrying guns (Charge 1 – aggravated burglary).
The first offender jumped onto the victim’s bed, grabbed the victim’s neck, pointed a gun at her and demanded money (Charge 3 – armed Robbery). The victim replied she had no money. She was punched in the face and asked where the diamonds were. The victim took four rings off her fingers and gave three of them to the first offender before throwing the fourth on the floor. The first offender punched the victim in the throat and cheek, in the presence of the other co-offenders, and again asked where the money was.
The victim then told the first offender she had $1,400 in another room. She was grabbed by the hair and again asked where the money was. The offenders restrained the victim on the bed before dragging the victim into the sunroom where she took the money from where it was hidden. The victim gave to the first offender while she was still being restrained by the appellant and another offender.
The appellant and the second offender next restrained the victim while the first offender pointed a gun at the victim’s chest and pulled the trigger about five times. The victim heard a clicking sound and thought she was going to die. She was also kicked in the head by the first offender and fell to the ground, feeling dizzy and in pain, bleeding profusely (Charge 2 – intentionally causing injury).
The offenders then left the victim in the sunroom, where she remained for some time before moving to the laundry. She could hear rummaging in the other rooms. The rummaging died down until the victim could hear only one person. She escaped through the laundry window and sought refuge with the neighbours who called the emergency services.
The police attended and found the appellant in the third bedroom of the house. Items belonging to the victim were founding the appellant’s car parked 50 metres from the victim’s house.
The appellant was arrested at the scene and participated in a record of interview in which she denied any involvement in the incident. The appellant stated that she had been driving past when she heard a woman scream and went into the house. She said that she became scared and hid behind the door in the child’s bedroom. Her car key was later located in the child’s bedroom.
The appellant was charged on 16 December 2006. On 6 September 2007 she was committed to stand trial in the County Court. On 25 August 2008 the trial was adjourned so that the Office of Public Prosecutions could obtain a report in relation to the applicant’s fitness to stand trial. On 17 November 2008 the applicant was interviewed at the Victorian Institute of Forensic Mental Health (‘Forensicare’) by Dr Cidoni. He found that the appellant was unfit to stand trial and that her fitness was unlikely to change within the next 12 months.[3] On 20 February 2009, applicant was re-interviewed by Dr Sullivan. He found her still to be unfit to be tried.[4] On 9 October 2009, Dr Sullivan interviewed the applicant again and, on that occasion, found her fit to be tried.[5]
[3]Exhibit 1 – Report of Dr Cidoni, 25 November 2008.
[4]Exhibit 3 – Report of Dr Sullivan, 2 March 2009.
[5]Exhibit 4 – Report of Dr Sullivan, 9 October 2009.
On the 6 September 2010, the appellant pleaded guilty to three counts with which she was charged. On 3 February 2011 evidence was called in relation to disputed facts. On the plea the appellant sought to minimise her physical involvement in the offences – her position being that she had merely driven four male offenders to the premises where they intended to rob the victim of money and jewellery. The appellant’s position was that she had not been one of the offenders who held the victim in the bedroom, nor did she drag the victim down the hallway.
After a disputed facts hearing, at which both the victim and the appellant gave evidence, the sentencing judge made a finding that the appellant was one of the four co-offenders who were wearing balaclavas and carrying firearms. The appellant was identified as the third co-offender who was wearing a jacket with ‘CK’ on it. The sentencing judge found the appellant was an active and willing participant in the offending.[6]
[6]Plea, 3 February 2011.
A substantial portion of the plea hearing related to the appellant’s psychiatric condition at the time of the offending and subsequently.
On 4 February 2011 Dr Kiang (treating psychiatrist) gave evidence.[7] On 9 March 2011 Dr Sullivan gave evidence.[8] After submissions on 17 and 18 March 2011 the applicant was sentenced on 18 April 2011.
[7]Plea 129–153.
[8]Plea, 9 March 2011, 177–199.
The appellant has a chronic mental illness, paranoid schizophrenia and opiod dependence.[9] Due to the chronicity and fluctuation of her illness and her cognitive impairment she will require treatment for the rest of her life.[10] Since February 2008 she has received treatment from a team at North Western Mental Health. Dr Kiang is her treating psychiatrist. Dr Kiang provided a report dated 22 August 2008[11] and gave oral evidence at the plea hearing.[12]
[9]Plea, 4 February 2011, 132 and 148-149.
[10]Ibid 137.
[11]Exhibit 2 - report of Dr Kiang, 22 August 2008.
[12]Plea, 4 February 2011, 129-153.
On two occasions in 2009 (11 April and 9 August) the appellant was admitted as an involuntary inpatient due to an acute exacerbation of her psychotic symptoms.
In the 12 months prior to the plea hearing in February 2011 the appellant had been attending for treatment with North Western Mental Health. She has fortnightly appointments with her case manager and six weekly appointments with Dr Kiang.[13]
[13]Plea, 4 February 2011, 148.
In the six months prior to the plea hearing the appellant had been volunteering in an old age home with her partner and is well regarded by that organisation.[14]
[14]Plea, 4 February 2011, 137, lines 12-32; 138, lines 1-26.
In her evidence Dr Kiang said that the appellant’s mental condition had been stable for the past 12 months.[15] Dr Kiang also said that over that 12 month period the appellant had been well engaged with her treatment team;[16] regularly attended her appointments[17] and has acquired greater insight into her illness. As to the last issue Dr Kiang said:
… her insight into her illness has improved. She can monitor when her illness is getting worse and what needs and extra support she requires.[18]
[15]Ibid 145.
[16]Ibid 141.
[17]Ibid 137 and 144.
[18]Ibid 141, lines 21-24.
In relation to the appellant’s insight Dr Kiang also referred to the supportive role played the appellant’s partner:
… [the appellant] lives in a relationship with her partner who is very supportive and monitors her. Therefore whenever she is declining they come for urgent assessment whenever it’s needed. They are actually responsible, they took responsibility for the (indistinct) insight has improved. Therefore she understands when her symptoms get worse, she seeks help.[19]
[19]Ibid 143, lines 27 – 31 and 144, lines 1-2; further see 153, lines 4-9.
As to the extent of the appellant’s cognitive impairment Dr Kiang said:
The illness, schizophrenia; one of the significant long-term problems which is hardest to manage is the cognitive impairment, meaning that ability to think clearly, ability to learn from previous experiences, ability to manage the affairs, ability to control the impulses and urges, and ability to focus and concentrate and return information that she can learn from; all these faculties have been significantly impaired in Maria’s case.[20]
[20]Ibid 135 lines 21-28
Dr Kiang also said that the appellant was not an assertive personality and was easily led.[21] In response to a question about the appellant’s ability to make rational judgments in circumstances where a number of men were asking her to participate in an aggravated burglary Dr Kiang responded:
… Maria obviously had a comorbid substance use which would further affect her ability to use her remaining cognitive faculties. Given that she was sexually abused from a young age – she had a number of partners who sexually and physically violated her – I don’t think she has the capacity to resist to any small coercion or suggestion from anyone by that fact.[22]
[21]Ibid 136.
[22]Ibid 136, lines 3-9.
During cross-examination Dr Kiang acknowledged that she could not guarantee that the appellant would not re-offend or fall back into substance abuse. In relation to the last matter Dr Kiang also said:
There is no guarantee, but … what the evidence shows and my clinical experience is, that people with poorly-treated mental illness, especially psychotic illness, they use substances as a form of sub-medication. Therefore, what I believe – provided she is in a supported and caring environment, her medication dose is adjusted as required to her mental, symptoms are monitored – the chances of her going to active use of illicit substances is small.[23]
[23]Ibid 142, lines 25-31; 143, lines 1-3.
Dr Kiang’s evidence was that imprisonment would have a significantly detrimental effect on the appellant’s mental state. The stress of imprisonment would worsen her chronic condition and the separation from her daughter would be a significant stressor which would contribute to the decline in her mental state. In that context Dr Kiang noted that from her assessment the treatment the appellant had received in custody had not been adequate and she was extremely psychotic when released from gaol.[24]
[24]Ibid 139-140.
Dr Cidoni’s report of 25 November 2008 is also relevant in this regard. The report was prepared pursuant to a request from the Office of Public Prosecutions for an opinion in relation to the appellant’s fitness to stand trial. Dr Cidoni concluded that the appellant was unfit to stand trial and given the chronic nature of her symptoms he did not anticipate that her fitness would change in the next 12 months. Dr Cidoni also dealt with the likely impact of imprisonment on the appellant’s mental state, at paragraph 6 of his findings and recommendations:
Given that Ms Seddon is being community treated at present, and the likelihood, given her past history of incarceration, that her mental state could deteriorate in a custodial setting, it would be appropriate to consider a Non Custodial Supervision Order should a finding of unfitness result.
Dr Sullivan provided four reports (dated 2 March 2009, 9 October 2009, 4 September 2010 and 1 November 2010)[25] and gave oral evidence in the plea hearing.[26]
[25]Plea, 9 March 2011, 177.
[26]Ibid 177 – 199.
Dr Sullivan described the appellant’s background as ‘horrific’ and as ‘a very traumatic and damaging upbringing’.[27] In many respects his evidence was entirely consistent with Dr Kiang’s evidence.
[27]Ibid178, lines 12-14.
Dr Sullivan agreed that the appellant had paranoid schizophrenia[28] and that the appellant’s admissions to the Rosanna Forensic Psychiatry Centre (the precursor to Thomas Embling Hospital) in 1999 were likely due to schizophrenia.[29] Dr Sullivan characterised paranoid schizophrenia as a long term diagnosis and that would have been present at the time of the offending in December 2006, but he was unable to comment on whether or not the appellant was symptomatic at that time.[30] While Dr Sullivan has not tested the appellant’s intellect, his clinical impression was that she is in a ‘borderline range of functioning’.[31]
[28]Ibid 179, lines 9-14.
[29]Ibid 180, lines 7-24.
[30]Ibid 182, lines 20-27.
[31]Ibid 183, lines 1-3.
Dr Sullivan also commented upon the appellant’s progress over the 12 months prior to the plea. He noted that the appellant’s longstanding issues with substance abuse appear now to be well controlled[32] and that her current management plan has been effective in addressing the risk factors for further offending.[33]
[32]Ibid 181, lines 3-5.
[33]Ibid 197, lines 17-31.
Dr Sullivan also remarked favourably on the support provided by the appellant’s partner:
My impression at all times along the course of this, Your Honour, quite unusually, has been that I believe that Rob, despite his history, has actually been a stabilising influence upon Ms Seddon. I’ve been impressed by what I see to be genuine concern for her welfare and I see that he’s been there during difficult times as well. So I have to say that compared to people who aren’t in a relationship or who are in a poor quality relationship I’ve been impressed by the partnership that the two provide here.[34]
[34]Ibid 189, lines 7-16.
As to the appellant’s state of mind at the time of the offending, Dr Sullivan’s evidence was:
… obviously I didn’t see her at the time, but the witness accounts and in particular the police accounts of her hunting for her car keys and hanging around the scene of the offence for some period of time afterward, is consistent with the disorganised behaviour of someone who is grossly intoxicated and whose judgment is severely impaired.[35]
[35]Ibid 198, lines 26-30; 199, lines 1-2.
Dr Sullivan’s impression of the appellant was that she was not a leader but rather someone who follows.[36]
[36]Ibid 199, lines 11-16.
Dr Sullivan was also questioned about the appellant’s state of mind at the time of the offending and about her ability to make rational decisions. He replied in these terms:
Well, again, I’m inferring from what I’ve read in the brief of evidence, but I would certainly indicate that I would have expected some impairment of her capacity to make rational judgments.[37]
[37]Ibid 199, lines 17-22.
As to the impact of a term of imprisonment upon the appellant Dr Sullivan’s evidence was that while the services exist in prison to allow the appellant to continue with her current treatment, imprisonment would:
… cause a significant decompensation in her mental health. I think, firstly, because of separation from her daughter. Secondly, I think that Ms Seddon’s coping abilities have diminished significantly since her younger years. I think she would now find prison very onerous indeed and I suspect that given her vulnerability to exploitation and given her mental health, that it’s possible she would even require placement in the protection stream of the women’s prison.[38]
[38]Ibid 183, line 31; 184, lines 1-8.
Later in his oral evidence Dr Sullivan states: ‘I think she would struggle in prison and it would certainly weigh more heavily upon her’.[39]
[39]Ibid 186, lines 25-27.
In his report of 1 November 2010 Dr Sullivan also deals with this issue and states, at paragraph 8:
In the event that Ms Seddon is incarcerated she is likely to decompensate spectacularly. Incarceration would clearly be more burdensome to Ms Seddon due to her fragile mental health. She would require intensive psychiatric input through Marrmak Unit or transfer to Thomas Embling Hospital. Although her mental health problems are currently well controlled it has taken some effort to achieve this. If not in contact with her daughter, mother and rob, she would be at significant risk of psychotic relapse.
I now turn to his Honour’s reasons for sentence.
His Honour characterised the offending as serious, and in relation to the armed robbery, very serious. He also noted that the offending was attended by aggravating factors. At paragraphs 18 to 20 his Honour said:
[18]… All the counts carry the aggravating feature that you were acting in company. In relation to the count of aggravated burglary, this was clearly a serious example of what is regarded by the legislature as a very serious offence. A defenceless woman was the subject of a targeted, violent home invasion in the early hours of the morning by you and three other assailants disguised in balaclavas and carrying handguns.
[19]The other counts occurred in the privacy of the complainant’s home. The count of intentionally causing injury is also serious, in that one of the assailants struck the complainant forcibly, causing a laceration, and then she was grabbed around the neck and kicked. She required hospitalisation.
[20]The count of armed robbery is also very serious. This was not a random robbery. It was undertaken in a violent manner where the complainant was manhandled by four people, including yourself. It was accompanied by the pointing of the firearm at her, where one offender pulled the trigger, she said, five times. On the plea, the complainant said that she could not remember accurately some of the details because ‘I was so shocked and frightened, that I was so terrified’.
His Honour also had regard to the victim impact statement, in relation to which he finds that the ‘offending has had a significant continuing impact on the complainant’,[40] and to the appellant’s prior convictions and antecedents.[41]
[40]DPP v Seddon (Unreported, County Court of Victoria, Judge Murphy, 18 April 2011) (Reasons for sentence) [21].
[41]Ibid [22]-[32].
The appellant has a criminal history going back to March 1979 when she was sentenced to 52 weeks probation on a count of theft. Most of her subsequent offending has been of a similar character. Once exception to this observation relates to a conviction for murder in which the appellant was sentenced, on 12 February 1988, to a term of imprisonment of 18 years’ with a non-parole period of 12 years’. The victim was the appellant’s then husband. The sentencing remarks of Justice Hampel said that prior to the offending the appellant had suffered from severe depression and a psychological disorder. In those circumstances his Honour found that the principle of general deterrence had less application than in other cases. His Honour also had regard to the fact that the appellant had been subjected to repeated acts of violence and abuse by the victim; was under great stress and her own background of violence and sexual abuse by her father rendered her less able to cope.
The appellant’s subsequent convictions were also put before his Honour, as being relevant to the appellant’s prospects for rehabilitation and in relation to the protection of the community. These included offences that were committed prior to this offending, but sentenced subsequently.
On 28 June 2007, on a count of being in possession of an imitation pistol, the appellant was sentenced to one months’ imprisonment, wholly suspended for 12 months. On 8 March 2007, for offences committed on 6 May 2006, the appellant was sentenced to an aggregate sentence of nine months’ imprisonment to be served by way of an intensive correction order, on counts of burglary, theft, failure to answer bail, obtain property by deception, attempting to obtain property by deception, and handling or receiving stolen goods. On 13 November 2009 the appellant was brought up for breach of that sentence, and the original order was confirmed. The breaching offences were shop theft, theft from a motor vehicle, burglary, theft, theft of a motor vehicle, possessing a controlled weapon without excuse, cultivating a narcotic plant, cannabis and possessing cannabis, and dealing with the proceeds of crime.
The breached intensive correction order was not activated, the appellant was sentenced to an aggregate term of six months’ imprisonment, wholly suspended for six months. On 13 November 2009, the appellant was convicted of the breaching offences noted above and they were adjourned for a period of 12 months, on condition that the appellant continued to obtain treatment for her mental health issues. These offences were committed on 21 December 2008. On 12 November 2010 the appellant was discharged, as she had complied with that undertaking.
On 25 November 2010 the appellant was convicted of charges of theft from a motor vehicle, criminal damage, handle or receive stolen goods, and going equipped to steal. The charges were adjourned for a period of 12 months, on condition that the appellant comply with the directions of Dr Kiang or a nominee of the North Western Mental Health Services.
The Crown conceded that the appellant had not committed any further offences since December 2008.
In terms of mitigation his Honour had regard to the following matters:
(i)The appellant’s psychiatric condition and personal circumstances.[42] The appellant has suffered a long history of physical and emotional abuse from her father and her previous husband. She has had significant periods of admission to psychiatric institutions. His Honour dealt with the Verdins considerations at [41] to [64] of his reasons for sentence. Given the importance of this part of his Honour’s judgment to the disposition of the appeal I will set out all of the relevant findings:
[42]Ibid [33]-[64].
On the basis of the evidence of Drs Kiang and Sullivan, I am prepared to accept that your impaired mental functioning does, to this limited degree, reduce your moral culpability for the conduct that evening. I am unable to accept that there is a direct causal nexus between the offending and your psychiatric condition.
Having made this finding, I now turn to the second aspect of Mr Lindner’s plea on your behalf. This was that your impaired mental functioning and condition were such that applying all the principles set out in Verdins, the appropriate sentence should not involve immediate incarceration.
I have indicated my findings on Principle 1 of Verdins. Your counsel relied on Principles 2, 5 and 6 of Verdins in support of the submission that there should be no sentence of immediate imprisonment. He relied on the progress that has occurred in recent times, and in particular, the stabilisation of your condition within the umbrella of the community mental health system, and submitted that it would be unjust for this to be halted by a sentence of imprisonment.
In this respect, he relied on the opinion of Dr [S]idoni, but given your past history of incarceration, your mental state could deteriorate in a custodial setting, and it would be appropriate to consider a non-custodial supervision order were you unfit to plead.
Mr Lindner submitted that the community is now best protected by the continuation of your present regime, where your psychiatric condition is relatively stable, with long acting medication, and your substance abuse is addressed by substitution therapy.
He further argued that a sentence of imprisonment would have a substantial impact on you, duty or condition, and that a given sentence would weigh more heavily on you than on a person of normal health. In support of this, Dr Sullivan stated that the impact of incarceration on you was that you would ’Decompensate spectacularly’.
He gave powerful evidence as to the functioning of your personality disorder, which itself arose from your abusive upbringing and background. Dr Kiang stated that imprisonment would be stressful, and that it would exacerbate your illness. She was also of the view there would unlikely to be suitable treatment available to you.
…your level of deteriorated functioning was such that you would struggle in prison. He was of the view that you would become more suspicious, more paranoid, and possibly experience more auditory hallucinations. All these matters, he said, would be significant stressors.
Next, your counsel submitted that both general and specific deterrents ought be moderated due to your impaired mental functioning in accordance with Principles 3 and 4 of Verdins. Your horrific upbringing, which contributed to the development of your borderline personality disorder, was, he submitted, a basis for a moderate of the principles of general deterrents. Similarly, he submitted he would call for a moderation of specific deterrents.
The Crown, on the contrary, submitted that in the event that the court accepted that any or all of the Verdin principles were applicable, the application of those principles did not, in the circumstances of the present seriousness of the offences, wholly eliminate principles of general and specific deterrents or denunciation, nor lead to a disposition other than a sentence of immediate imprisonment of considerable length.
A particular aspect of the Crown submission was the protection of the community. In this regard, the Crown pointed to your prior convictions, including one in particular for murder, as well as your later offending, as indicating that the protection of the community remains as salient consideration. The Crown referred to Veen’s case, which I note mandates the protection of the community cannot be a basis for a disproportionate sentence.
I am satisfied that in relation to general deterrents, despite your psychiatric condition both at the time of the offending and at present, some sensible moderation only is called for. These are serious offences perpetrated in company, and Dr Sullivan accepts that you knew the difference between right and wrong. Similarly, in relation to general deterrents, this also remains a consideration, given my rejection of your evidence on the plea as to your particular involvement in the offending. Your involvement in further offending, albeit this has not been within the last two years, is also relevant to specific deterrents.[43]
[43]Ibid [53]-[64].
(ii)Delay. His Honour stated that he was prepared to regard the delay from the time of the offending to the date of sentencing as ‘calling for some moderation in sentence, particularly in the light of the progress made in recent times as set out in the psychiatric evidence’.[44]
[44]Ibid [68].
(iii)Plea of guilty. His Honour stated that the plea, albeit late, entitled the appellant to the utilitarian value of avoiding a contested trial: ‘You have taken responsibility for your conduct and facilitated the course of justice.’[45] His Honour noted that the utilitarian value of the plea was less than it would otherwise be as the complainant was required to give evidence on the plea on the contested issue of the degree of the appellant’s involvement in the offending. His Honour also accepted that the plea was evidence of the appellant’s remorse, but added that there was little other evidence of remorse:
[45]Ibid [69].
My finding on the contested facts is that I am unable to accept your evidence on the plea that you would not be involved in hurting another woman.[46]
(iv)Prospects of rehabilitation. His Honour was ‘guarded’ as to the appellant’s prospects for rehabilitation. At paragraphs 73-75 he said:
The evidence of Dr Kiang is that your psychiatric condition has been stable for the past 12 months, which itself is encouraging for your prospects of rehabilitation. Weighed against this, however, is your significant criminal record, which includes a sentence of murder, as well as a number of subsequent appearances and offences.
My assessment of your prospects of rehabilitation must be that they are guarded. You have a significant underlying psychiatric condition as well as having a borderline personality disorder. You require indefinite medication and support from the mental health authorities to remain stable.
You remain at risk of relapsing to drug dependence, which may itself be triggered by everyday stressors in your life. You do, of course, have the support or incentive of a 12 year old daughter, and the support of your friend who you are living with. Although it appears that you have remained offence free for the last couple of years, given your underlying condition, this is early days. Your progress, however, in recent times is encouraging.
[46]Ibid [71].
His Honour also had regard to the relevant sentencing principles[47] noting the seriousness with which this Court regards aggravated burglary and offences which involve violation of the home and personal autonomy. His Honour rejected the submission of defence counsel that the Verdins considerations were such that the total effective sentence should be less than three years and should be wholly suspended for a period of three years.[48]
[47]Ibid [80]-[81].
[48]Ibid [78] and [84].
Before passing sentence his Honour concluded in the following terms:
I regard the seriousness of the offending here as such that a sentence of imprisonment to be immediately served is called for, notwithstanding your psychiatric condition at the time of offending, and at the present time and into the foreseeable future.
I have taken into account all the matters put on your behalf, including the impact of a sentence of imprisonment on you, and on your 12 year old daughter. I note Dr Sullivan’s evidence that the prisoner authorities had the facilitates to continue your current regime, and I will direct that the reports and a transcript of the psychiatric evidence be made available to them.
Although you are not the instigator of this offending, you were actively involved in this offending. Despite your deprived background and fragile psychiatric state, requiring continuing medication and support, considerations of denunciation, general deterrents, and to a lesser extent, specific deterrents must be accorded significant weight, notwithstanding the stabilisation of your condition and your progress. I have also considered principles of parsimony and totality in fixing a sentence.[49]
[49]Ibid [85]-[87].
I now turn to the ground of appeal and the particulars advanced in support of that ground. The individual sentences, the total effective sentence and the non-parole period were challenged on the basis that they were manifestly excessive. I observe at the outset that such complaints are often difficult to sustain. As Maxwell P observed in R v Abbott:[50]
It follows that the ground of manifest excess will only succeed if it can be shown that no reasonable sentencing judge could have imposed this sentence on this offender in these circumstances. That is a stringent requirement, difficult to satisfy.
[50](2007) 170 A Crim R 306, 309.
Despite the stringency of the relevant test I am persuaded that having regard to all of the circumstances the sentence imposed in respect of the charge of armed robbery; the total effective sentence and the non-parole period were manifestly excessive.
I readily accept his Honour’s characterisation of the seriousness of the offending. I have also had regard to the impact on the victim and the appellant’s prior and subsequent criminal history. But this was a case with powerful mitigatory factors, namely:
Ø the appellant’s background, which Dr Sullivan described, accurately, as ‘horrific’ and as ‘a very traumatic and damaging upbringing’;[51]
[51]Plea, 9 March 2011, 178, lines 12-14.
Ø the Verdins’ considerations;
Ø the appellant’s prospects of rehabilitation; and
Ø delay.
I propose to expand briefly on each of these matters.
The appellant’s background has been traumatic and abusive. As a young girl she was the victim of sexual abuse and violence by her father, who committed suicide when facing incest charges. The appellant was 14 years of age at the time. She left school in year 8, spent some time in foster care and married at 17 years of age. Her then husband subjected her to repeated acts of violence and abuse. Ultimately, under great stress, she arranged to have him killed and was subsequently convicted of his murder. She served 12 years in prison as a consequence. During her incarceration she required protracted psychiatric treatment.
Since her release from prison she has, in Dr Sullivan’s opinion, ‘struggled to develop social, occupational and relational stability, with ongoing social marginalisation’.[52]
[52]Dr Sullivan’s report, 2 March 2009 [25].
She has a long history of chronic mental illness, paranoid schizophrenia, and polysubstance abuse.
It is difficult to conceive of a more tragic personal history.
As to the Verdins’ considerations, with respect, I agree with his Honour’s conclusion that the appellant’s impaired mental functioning, to a limited degree, reduced her moral culpability for the offending (at paragraph 53 of the reasons for sentence). Like his Honour, I am not persuaded that there is a direct causal nexus between the offending and the appellant’s mental illness. As to the other Verdin’s considerations his Honour concluded that in respect of general deterrence ‘some sensible moderation only is called for’ (at paragraph 64). His Honour also stated that he had had regard to the impact of imprisonment upon the appellant, but this issue wasn’t the subject of any elaboration.
For my part I would moderate the sentence imposed on the appellant on the basis of principles five and six from Verdins, that is:
Impaired mental functioning, whether temporary or permanent (‘the condition’), is relevant to sentencing in at least the following six ways:
…
5.The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6.Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.[53]
[53]Verdins [32] (Maxwell P, Buchanan and Vincent JJA).
These considerations are relevant in the circumstances of this case and are significant. Dr Sullivan’s evidence was that if the appellant were incarcerated ‘she is likely to decompensate spectacularly. Incarceration would clearly be more burdensome to Ms Seddon due to her fragile mental health … she would be a significant risk of psychotic relapse’.[54]
[54]Dr Sullivan’s report, 1 November 2010 [8].
Further, the Crown conceded on the plea that imprisonment will probably result in a deterioration of the appellant’s already significant compromised mental health and the burden of imprisonment will be greater for her than a prisoner of normal mental health.[55]
[55]Plea, 18 March 2011, 253 lines 12-16.
In relation to the prospects for rehabilitation his Honour assessed the appellant’s prospects as ‘guarded’.[56] With respect, I take a different view. In my opinion the evidence gives rise to a higher level of optimism than his Honour’s assessment.
[56]Reasons for sentence [74].
In the 12 months prior to the plea the appellant’s mental condition had been stable, her longstanding issues with substance abuse were well controlled and her current management plan had been effective in addressing the risk factors for further offending.[57] Dr Kiang’s evidence was that over that 12 month period the appellant had been well engaged with her treatment team; regularly attended her appointments and had acquired greater insight into her illness (above at paragraph 24). Drs Kiang and Sullivan both commented favourable on the support provided by the appellant’s partner.
[57]Plea, 9 March 2011, 181, lines 3-5.
The Crown conceded that the appellant had not committed any further offences in the two and a half years prior to being sentenced in April this year.
I would not go so far as to suggest that the appellant’s prospects of rehabilitation could be described as reasonable as there is clearly a risk of relapsing into illicit drug use which would exacerbate her mental illness. But I would describe the appellant’s prospects of rehabilitation as fair.
In relation to the issue of delay, I note that on the plea the Crown submitted that this was not a mitigating factor. The Crown’s position is apparent from the following extract from the plea transcript:
His Honour: What do you say Mr Lincoln about the issue of delay? Mr Linder referred to that the other day.
Mr Lincoln:The delay can’t be sheeted home at all to anybody other than the fact that it was caused by the fact that she was imbibing drugs – she was imbibing drugs which caused her …
His Honour: So it doesn’t call for any moderation, just …
Mr Lincoln:No, its just a fact that happened but it was caused by her really, I mean she was imbibing these drugs and she caused – when it was possible to get her off the drugs and then of course she was better and then after a short period of time the matter was called on but it was simply due to her own – I could use the word fault or her own – the cause was her own, it wasn’t the fault of anybody else.
His Honour: Yes?
Mr Lincoln:I mean she just has to bear it if I may put it that way.[58]
[58]Plea, 18 March 2011, 258 , lines 15-31 and 259 line 1.
In short the Crown’s position was that the delay was caused by the appellant’s drug talking and she would just have to bear it. The Crown’s submission on this issue is relevant because it appeared to be given some weight by his Honour who, at paragraph [68] of his reasons for sentence, said ‘there was something in the Crown submission on this point’.
With respect, I disagree with his Honour’s assessment of the Crown’s submission. In my view the Crown’s submission was inconsistent with the evidence and devoid of merit, for the following reasons.
The delay was largely a consequence of the appellant’s fitness to be tried. The Crown asserts that the unfitness was caused by the appellant’s drug taking. This assertion is not supported by the evidence.
In his report of 25 November 2008 Dr Cidoni found that the appellant was unfit to be tried. It is apparent from his report that the appellant’s unfitness to be tried was directly related to her mental illness, schizophrenia. Dr Cidoni’s opinion is expressed in the following terms:
1.Mrs Seddon’s history and presentation is consistent with a history of schizophrenia and that she has a significant ongoing symptoms including persecutory delusions and auditory hallucinations. She also has a diagnosis of Opioid Dependence.
2.It is clear that her current anti-psychotic treatment is not causing resolution of symptoms and I believe that a trial of Clozapine which is used in treatment resistant cases should be considered. It would require either a more prolonged hospitalisation or intensive home based treatment such as that given by the mobile support treatment service to ensure Mrs Seddon’s compliance.
3.Consideration should also be given to cognitive behavioural strategies to help manage her treatment resistant symptoms.
4.Specialist substance abuse treatment would be prudent.
5.In terms of fitness to be tried, in my opinion, Mrs Seddon meets criteria (d) and (f) and is thus unfit to stand trial. Given the chronic nature of her symptoms I would not anticipate that her fitness would change in the next 12 months, particularly if clozapine is not conducted.
It is clear from paragraph five of Dr Cidoni’s opinion that the appellant’s fitness to be tried related to the chronic nature of the symptoms associated with her schizophrenia.
In a subsequent report of 2 March 2009 Dr Sullivan also concluded that the appellant was unfit to be tried. At paragraph 31 of his report Dr Sullivan says:
The likely basis of her current unfitness to be tried is her substance abuse. Thus I would regard her unfitness as potentially reversible in some months.
At first impression this statement may be said to support the Crown’s submission. But on further analysis it does not. Four points are relevant in this regard:
(i) The observation at paragraph 31 of Dr Sullivan’s report must be seen in the context of the report as a whole. In particular, at paragraph 29 Dr Sullivan says:
Her recent disorganisation and distress is consistent with chronic low-grade psychotic symptoms related to amphetamine use. While she may have a chronic psychotic illness such as paranoid schizophrenia, this cannot be determined while there is ongoing substance use with amphetamines.
(ii) Some seven months later Dr Sullivan reported his opinion that the appellant showed no sign of substance abuse and she was fit to be tried. This is relevant as it demonstrates that the only part of the four and a half year delay in this case that may be said to be plausibly linked to the appellant’s substance abuse is the seven months from 2 March to October 2009. But for the reasons given at (iii) and (iv) below there is no reasonable basis for concluding that even this seven month delay was the appellant’s ‘fault’ as suggested by the Crown submission.
(iii) Dr Sullivan’s observation at paragraph 29 of his report of 2 March 2009 assumes even greater significance when viewed in light of his subsequent report of November 2010. At paragraph 7 of that report he says:
I had previously been uncertain whether Ms Seddon’s diagnosis was of paranoid schizophrenia or of drug induced psychotic disorder. Given the persistence of her symptoms despite cessation of substance use, it appears more likely that she has schizophrenia. Ms Seddon is clearly prone to psychotic relapse: the risk of this is increased with drug use and reduced by ongoing anti-psychotic medication.
(iv) The appellant’s drug abuse cannot be separated from her mental illness. The illicit drug use is a consequence of the appellant’s illness, not the cause of her illness. The appellant’s illness impairs her capacity to control her impulses and urges.[59] Further, Dr Kiang said:
…what the evidence shows and my clinical experience is, that people with poorly treated mental illness, especially psychotic illness, they use substances as a form of sub-medication.[60]
[59] Plea, 4 February 2011, 135 lines 21-28.
[60] Ibid 142 lines 26-29.
It follows from the above analysis that I would place more weight on the factor of delay than the sentencing judge.
Despite the strength of these mitigatory factors I agree with his Honour’s assessment that a term of immediate imprisonment is warranted. The seriousness of the offending and the need for denunciation, general and specific deterrence, and to protect the community all mandate such a course. Contrary to the submission of the appellant’s counsel I am not persuaded to impose a total effective sentence of less than three years. As such the option of a wholly suspended sentence does not arise.
I would sentence the appellant as follows: on the charge of aggravated burglary, two years and six months’ imprisonment; on the charge of intentionally cause injury, one years’ imprisonment; and on the charge of armed robbery, three years imprisonment. The sentence in respect of the armed robbery would be the base sentence and I would order nine months cumulation in respect of the sentence for aggravated burglary and three months cumulation in respect of the sentence for intentionally cause injury.
The cumulation orders produce a total effective sentence of four years’ imprisonment.
I now turn to the non-parole period.
The appellant’s progress in the management of her illness in the 12 months prior to the plea and the fact that she has not offended for over two years has been remarkable in the context of her troubled personal history and prior criminality. The appellant has used the delay in bringing this matter to trial wisely, to substantially advance her rehabilitation.
The appellant’s progress and commitment to managing her illness and getting her life on track are commendable and ought to be recognised by the imposition of a shorter than usual non-parole period. It is in the interests of the community that the appellant is able to continue her rehabilitation under conditional supervision.
This is also a case in which it is appropriate to extend mercy to the appellant in relation to the determination of the non-parole period. There must always be a place in sentencing for the exercise of mercy ‘where a judge’s sympathies are excited by the circumstances of the case’.[61] This is such a case. By dint of circumstance the appellant has been afforded few chances in life. Leaving school at year 8, after a violent and sexually abusive childhood, she spent time in foster care, fell pregnant as a teenager, married at 17 and has moved from one abusive relationship to another. Since her early teens she has suffered from a serious mental illness which was, but for the last few years, inadequately treated. She has now gained insight into her illness and has not reoffended. She deserves an opportunity to put her life on track and re-engage with the community.
[61]R v Osenkowski (1982) 30 SASR 212 at 212-213 (King CJ).
I would fix a non-parole period of eighteen months.
Had the appellant not pleaded guilty, I would have imposed a total effective sentence of four years and nine months’ imprisonment, with a non parole-period of two years’ imprisonment.
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