Shrubshall v The King
[2022] VSCA 221
•20 October 2022
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
S EAPCR 2022 0121
| AUSTIN SHRUBSHALL | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | PRIEST AP and MACAULAY JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 14 October 2022 |
| DATE OF JUDGMENT: | 20 October 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 221 |
| JUDGMENT APPEALED FROM: | DPP v Shrubshall [2022] VCC 1261 (Judge Dawes) |
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CRIMINAL LAW – Appeal – Sentence – Plea of guilty to attempted armed robbery and intentionally cause injury – Imprisonment for four months with 18 month community correction order – Victim a ‘soft target’ – Applicant aged 25 years with schizotypal personality disorder suffered psychotic episode in custody – Whether fresh evidence – Whether sentence manifestly excessive – Leave to appeal refused.
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| Counsel | |||
| Applicant: | Mr J O’Connor and Ms R Lew | ||
| Respondent: | Ms M Mahady | ||
Solicitors | |||
| Applicant: | Victoria Legal Aid | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
PRIEST AP
MACAULAY JA:
Introduction
An indictment filed in the County Court charged the applicant with attempted armed robbery[1] and intentionally causing injury.[2] He pleaded guilty, and, following a plea in mitigation conducted over three separate days, the judge sentenced him on 10 August 2022 to be imprisoned for four months, to be followed by a conditioned community correction order (‘CCO’) of 18 months’ duration.[3]
[1]Crimes Act 1958, ss 75A and 321M. The maximum penalty is 20 years’ imprisonment.
[2]Crimes Act 1958, s 18. The maximum penalty is 10 years’ imprisonment.
[3]Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the plea of guilty, she would have imposed a sentence of eight months’ duration and a CCO.
The applicant initially sought leave to appeal against his sentence on two grounds. On the hearing in this Court, however, the applicant’s counsel abandoned one of those grounds (proposed ground 2), but sought to rely on a new ground (proposed ground 3). We permitted counsel to call evidence, and make submissions, in support of the proposed new ground, and indicated that we would subsequently decide whether we would grant leave to rely upon it. In the result, counsel for the applicant argued the following proposed grounds:[4]
[4]Ground 2 contended that the sentencing judge ‘erred in imposing an aggregate sentence’.
1 Imposing a term of imprisonment was manifestly excessive when combined with a community correction order when regard is had to the following:
(a) The applicant’s lack of prior convictions
(b) The applicant’s cooperation, early plea and genuine remorse
(c) The applicant’s prospects of rehabilitation
(d) The extra-curial punishment occasioned by the strict bail conditions adhered to by the applicant for more than 12 months
(e) The extra-curial punishment occasioned by the multiple adjournments of his sentencing by the learned sentencing judge, without warning and for no discernible reason
(f) The principle of parsimony
3 Fresh evidence demonstrates the true significance of the applicant’s mental impairment, and requires that the applicant be resentenced.
For the reasons that follow, we would refuse leave to amend the notice of application for leave to appeal by adding proposed ground 3, and would refuse leave to appeal against sentence on proposed ground 1.
The applicant’s offending
It is necessary to briefly describe the applicant’s offending.
On Monday, 14 June 2021, at about 8.55 pm, Xiamin Bao — a 28 year old Chinese student who has since returned to China — was seated alone in the carriage of a Sandringham bound train that was stationary at Flinders Street Station. The applicant — who was carrying a brown paper bag containing an empty wine bottle — boarded the same carriage and sat down in the row behind Mr Bao, who was using a mobile phone.
Shortly afterwards, the applicant approached Mr Bao. He said he was armed with a weapon and told Mr Bao to surrender his phone. When Mr Bao refused, the applicant struck him to the face with the bottle. The applicant repeatedly struck Mr Bao to the face and to the body with the bottle, demanding that he give up his phone and trying to take it from him.
Mr Bao offered to deposit money into the applicant’s bank account if he would stop hitting him. When the applicant asked Mr Bao for his bankcard and his mobile phone, Mr Bao said that he did not have his bankcard with him. Thereafter, the applicant continued to hit Mr Bao to his face, body and hands as he tried to take his phone. Mr Bao ran towards a doorway on the train, but the applicant followed him and continued to hit him with the bottle. As Mr Bao waited for the doors to open, the applicant attempted to pull him back to stop him from leaving the carriage.
Mr Bao managed to get away, however, and ran up the stairs at the station towards two service staff, who directed him to police. The applicant chased Mr Bao until he reached the top of the stairs, then returned to a platform and hid the wine bottle (still in the paper bag). Mr Bao told the police that he had been assaulted. They observed large cuts on his face and head. Later, they reviewed CCTV footage and located the wine bottle, which was still intact.
Mr Bao was taken by ambulance to St Vincent’s Hospital. He was admitted, but discharged the following morning. He sustained a one centimetre deep laceration of his right eyebrow; bruising to his right cheek; a laceration of his left eyebrow, half a centimetre deep and two centimetres in length; and a superficial laceration and bruising to the left side of his head. His eyebrow lacerations required stitches.
The applicant was arrested on Elizabeth Street a short time after the assault. He was interviewed and made full admissions. The applicant identified himself in the relevant CCTV footage. He told police that he carried the bottle in a bag, in an attempt to rob ‘anyone that had … anything expensive’. The applicant said that he had warned Mr Bao that he had a weapon and had told him to hand over his phone. He said he assaulted Mr Bao and hit him 10 or 15 times. When he saw Mr Bao was bleeding, the applicant said, he knew that he had injured him ‘fairly bad’, although he said that he did not want to ‘beat him to a pulp’. The applicant told police that his reasons for offending included that he was having financial difficulties and that he was often harassed by Chinese people, which really bothered him. He acknowledged that this did not justify his behaviour and that he was completely guilty. At the conclusion of the record of interview, he was charged and remanded in custody.
Mr Bao did not make a victim impact statement. At the time of sentence, there was no information about any residual difficulty he might have as a result of the applicant’s conduct. In his statement, Mr Bao described feeling dizzy and sick when the applicant repeatedly struck him, thinking he was going to die.
The applicant’s personal circumstances
The applicant was aged 23 years[5] at the time of offending. He is the youngest of two siblings. He struggled academically throughout his schooling and attended special English classes when in primary school. In later years, he attended Eltham High School, where he was the target of bullying, associated with excess sweating and body odour. He also had health issues associated with digestion that required specialist treatment, and his personality became introverted. The applicant passed VCE, however, and attended TAFE for a short time. He worked at Coles supermarket for a year and did volunteer work with his father.
[5]His date of birth is 29 September 1997. He is now aged 25 years.
At age 17, the applicant began to smoke cannabis, and continued to do so on a daily basis until around August 2021. He also has a history of using psychedelic hallucinogens and binge drinking. The applicant completed barista training, and then moved out of home in 2020, to a single bedroom rental apartment in Richmond. He resided on his own for around 10 months, until after the current offending. He was unemployed; and, as a result of COVID-19-related restrictions in place during 2020-2021, the applicant felt socially isolated, and he could not go to visit his parents to ‘recharge’.
The applicant obtained a Forklift Driver's licence in January 2022 and commenced casual employment at a Goods Distribution Centre in Tottenham. He worked approximately 32 hours per week, for 14 weeks, until 10 June 2022, and he completed a certificate in warehouse management in June 2022.
The reasons for sentence
The judge’s reasons were careful and thorough. She noted that the applicant had no prior convictions. His plea was entered early, and it had enhanced utilitarian benefit because it was entered during the pandemic, thereby attracting ‘a more pronounced amelioration of sentence than at another time’. The judge also set out the applicant’s personal circumstances in some detail.
The applicant, the judge noted, was remanded in custody for two days after his arrest. In a Mental Health Advice and Response Service (‘MHARS’) report dated 15 June 2021, a clinician was concerned that the applicant was psychotic, with disorganised thoughts, bizarre statements, and reports of past auditory hallucinations. The applicant was released on bail with strict conditions, and was transported under the Mental Health Act 2014 to the emergency department of St Vincent’s Hospital on an Inpatient Assessment Order. He was reviewed by a psychiatrist the next day and discharged back into the community. A week later he was arrested on unrelated matters, and spent a further 21 days in custody.
The judge noted that, after his second arrest, the applicant was bailed with strict conditions, including that he comply with support provided by the Court Integrated Services Program (‘CISP’). Upon his release, however, the applicant’s mental health deteriorated, and he was admitted to the Swanston Centre Acute Psychiatric Admissions Unit from 30 July to 16 August 2021, with a first episode of psychosis, variously characterised as a drug-induced psychosis or the first presentation of schizophrenia. He was treated with anti-psychotic medication, but was later readmitted to the Swanston Centre under a further assessment and treatment order, from 23 August to 10 September 2021. His mental state was thought to have deteriorated in the context of increased paranoia associated with cannabis use. He was discharged due to behavioural problems and ongoing cannabis use while an inpatient. The applicant was prescribed anti-psychotic medication, and was case-managed by JIGSAW (Barwon Health Youth and Mental Health Drug and Alcohol Service) from 10 September 2021 to 5 January 2022.
When the applicant moved from the family home to Richmond in 2020 he became despondent and depressed, as he struggled to find work. He did not manage his health issues well, and they were amplified by the effect of the restrictions associated with the COVID-19 pandemic. Two days prior to his offending, the applicant contacted his parents. He told them that he was really down, that he needed help and that he wanted to move home. As a result of travel restrictions related to the pandemic, his parents did not immediately come to see him, assuming that he would cope for a few more days. He committed the offences, however, the following Monday.
Two days after his arrest the applicant was released on bail to live with his parents. His behaviour fluctuated between normal and bizarre. He was first admitted and released from the Swanston Centre after he assaulted his father, who said that the applicant appeared to be hallucinating at that time. The applicant’s father stated that, apart from his recent conduct, the applicant is neither a violent person nor a racist.
The judge accepted that, consistently with his early plea of guilty, the applicant had shown remorse for his actions, and that his prospects for rehabilitation are good. She also took into account as mitigating factors the applicant’s age, and his compliance with onerous bail conditions. The judge also made extensive reference to the opinions of Dr Zimmerman, a forensic psychiatrist, which we summarise briefly below.[6]
[6]At [24].
Further, the judge observed:
The principles of general deterrence and community protection must be the primary sentencing considerations in cases such as this, due to the prevalence of ‘soft target’ armed robberies in our community. Your schizotypal personality disorder appears to be ongoing. I accept that ongoing supervision and professional intervention would assist the safety of the community and ensure your continued compliance with treatment. It would also encourage your rehabilitation.
Denunciation and punishment must also feature in the sentence. The principle of specific deterrence is of limited relevance here.
When considering the appropriate penalty, your counsel submitted that a significant [CCO] would be appropriate and satisfy all the relevant sentencing requirements in your case. The prosecution agrees that such an order would be appropriate, although only if it is imposed in combination with a term of imprisonment, given the seriousness of this offending. You have spent two days on remand for these offences. It is agreed that the 21 days you spent on remand for the unrelated offending can be taken into account as ‘Renzella time’.[7]
[7]R v Renzella [1997] 2 VR 88.
And ultimately the judge said:
This has been a difficult sentencing exercise. After careful consideration, I consider that the objective gravity of your conduct necessitates the imposition of a term of imprisonment, notwithstanding the mitigating material provided on your behalf. ... I am persuaded that a combination disposition is the appropriate outcome in your case.
A period of supervision on a therapeutic CCO will form part of this sentence, which will be of benefit both to you and to the community.
It is accepted by the prosecution that additional restrictions in custody as a result of the COVID-19 pandemic are relevant to sentencing, consistent with the usual principles applicable to considering additional hardship in custody.
At the time you were remanded, when on bail for these matters, you were required to spend 14 days in isolation in quarantine. You will be required to go into isolation again after you are sentenced. Imprisonment was more stressful for you than for those who do not have your mental health issues, particularly in the current environment.
The duration of the more onerous conditions within the custodial environment is unclear, given the evolving nature of the pandemic. Overall, the measures taken by Corrections may continue add to your hardship as a prisoner. These hardships justify a sentencing benefit.
I take this into account, particularly as this is the first time you have been sentenced to a period of incarceration. I also take the 21 days of ‘Renzella time’ into account when determining the appropriate period of imprisonment.
I take into account the maximum penalty for these offences and current sentencing practices. I have considered the cases to which I was referred in the course of the plea. The principle of totality is relevant, and I have taken care not to doubly punish you for these offences.
Given that you have committed two offences which are intertwined and in effect, form part of the one course of conduct, I intend to impose an aggregate sentence.
I have endeavoured to tailor your sentence to ensure that it is proportionate to your overall criminal conduct.
Ground 3: Fresh evidence
In support of proposed ground 3, counsel for the applicant relied heavily on a report of consultant forensic psychiatrist, Dr Anthony Cidoni, dated 10 October 2022, confirmed by oral evidence he gave to this Court on 14 October 2022.
By way of background, two reports by Dr Nina Zimmerman, forensic psychiatrist, dated 15 and 16 December 2021, were tendered on the plea. We need not recapitulate their contents in detail. It is enough to observe that Dr Zimmerman noted that the applicant had presented as a challenge for mental health professionals diagnostically, and she had diagnosed the applicant as suffering from a ‘schizotypal personality disorder’ (there being no evidence of an enduring psychotic illness). Importantly, the judge noted the following from Dr Zimmerman’s second report:[8]
It is likely that [the applicant’s] schizotypal personality disorder would impact [his] ability to cope with prison. [He] would be vulnerable to bullying in the custodial environment and to developing brief psychotic episodes in the face of the inevitable stress of prison life.
[8]Emphasis added.
The judge observed that there was no dispute that limbs 5 and 6 of Verdins[9] were enlivened. She said:
I accept that [the applicant] would undergo more significant hardship in custody, with the risk of deteriorating mental health, in light of [his] diagnosis of schizotypal personality disorder and the opinion of Dr Zimmermann regarding [his] increased level of vulnerability. These are relevant sentencing considerations.
[9]R v Verdins (2007) 16 VR 269. The Court observed (at 276 [32]):
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.
Dr Cidoni had interviewed the applicant via video conference on 30 September 2022. Among the materials he had been provided with were psychiatric reports by Dr Nina Zimmerman, a CISP (‘Court Integrated Services Program’) Final Progress Report and medical material.
In his report, Dr Cidoni expressed the following views (among others):
56 In my opinion, at present, Mr Shrubshall is presenting with a relapse of psychosis.
57I note Dr Zimmerman’s diagnosis of schizotypal personality disorder and, whilst I agree with this, I note that those with this personality type can become frankly psychotic in the context of acute stress, and in my opinion, this is what is happening at this point in time. In other words, it is not an either/or scenario, he has both an acute psychotic episode and a disorder of personality.
58I believe Mr Shrubshall requires urgent psychiatric treatment which, if out of custody, would be required to be as an inpatient on an Inpatient Assessment Order. ...
59Were he to remain in custody, he should be considered for transfer to the Acute Assessment Unit at MAP [‘Melbourne Assessment Prison’] with the option of transfer to Thomas Embling Hospital for further treatment.
60It appears that Mr Shrubshall was having paranoid beliefs about Indians and Chinese at the time of the offending, and also acted out of anger about how his life was. I agree with Dr Zimmerman’s view that it is difficult to be certain whether he was psychotic at the time of the offending. He appeared more clearly psychotic during the Barwon Health admission.
61His personality disorder is permanent. The psychotic episode is temporary and has previously responded to antipsychotic treatment.
...
63His personality disorder is likely to affect him in the future by impairing his social relationships and causing distortions of his thinking and perception. It will also lead to vulnerability for him to become frankly psychotic under stress.
64In my opinion, his personality disorder of itself has and will affect his ability to cope with imprisonment due to his difficulty in interacting with others and the manner in which he interprets the environment around him.
65He has become frankly psychotic in custody and the psychotic episode further exacerbates the negative effects of imprisonment. His delusions and hallucinations are going to make it very difficult for him to endure the imprisonment. His symptoms are associated with anxiety and fear and he is unable to seek support or reassurance from those around him. He is likely to incorporate others into his delusions and his behaviour is likely to continue to be disturbed, which will lead to restrictions in the manner in which he is treated in custody.
66In my opinion, his psychotic condition is highly likely to further deteriorate in custody and would be less likely to respond to treatment in custody as the stress of imprisonment escalates his anxiety and promotes distortions of thought and perception.
In viva voce evidence to this Court, Dr Cidoni largely confirmed the opinions expressed in his report.
Key aspects to be distilled from Dr Cidoni’s evidence include the following:
· first, the applicant has a schizotypal personality disorder;
· secondly, those with that personality type can become frankly psychotic in the context of acute stress, and that has occurred in the applicant’s case;
· thirdly, although the applicant’s personality disorder is permanent, the psychotic episode he is experiencing is ‘temporary’;
· fourthly, the applicant requires urgent psychiatric treatment;
· fifthly, the applicant has previously responded to psychiatric treatment;
· sixthly, were he to remain in custody, the applicant should be considered for transfer to the Acute Assessment Unit at MAP (with the option of transfer to Thomas Embling Hospital for further treatment); and
· seventhly, the applicant’s psychotic condition is highly likely to further deteriorate in custody and would be less likely to respond to treatment in custody.
Relying on Nguyen,[10] counsel for the applicant submitted that Dr Cidoni’s evidence concerning the applicant’s condition constituted ‘fresh evidence’. He contended that the judge took into account that the applicant risked ‘developing brief psychotic episodes in the face of the inevitable stress of prison life’, whereas Dr Cidoni’s evidence makes plain that the psychotic episode that the applicant is experiencing is not ‘brief’.
[10]R v Nguyen [2006] VSCA 184, [30]–[37] (Redlich JA, Maxwell P and Neave JA agreeing) (‘Nguyen’).
We do not accept these submissions.
Many of the leading cases in this area of discourse, including Nguyen, were recently discussed in Packard.[11] The principles that must be applied were spelled out in WEF:[12]
The circumstances in which this court will entertain new evidence relating to events which are alleged to have supervened after sentence are rare and exceptional. In normal circumstances, if it is suggested that subsequent events have made or made to appear a sentence, appropriate when passed, manifestly excessive, then that is a matter for the consideration of the Executive in the exercise of the prerogative of mercy and not a matter for an appellate court. The authorities for this proposition have been collected and explained by this court recently in the case of R v Babic [1998] 2 VR 79, per Brooking JA at 80-1.
However, this court has recognised that there is a rare exception to this otherwise fundamental rule. The court will receive evidence of events occurring after sentence, in appropriate circumstances, if those events can be said to be relevant, not so much per se, but because they throw a different light on circumstances which existed at the time of sentence. Thus, in the case of R v Eliasen (1991) 53 A Crim R 391, the Court of Criminal Appeal said, per Crockett J at 394:
This court may, if it considers the case an appropriate one to do so, permit evidence of matters or events that have occurred since the date of the passing of the sentence upon an applicant to be placed before this Court with a view to this Court's reconsidering the matter in the light of that additional evidence. It must follow that, if the Court does think that the additional evidence should lead to the imposition of a sentence different from that imposed by the judge, then even where the judge's sentencing discretion has not miscarried the case must be treated as one calling for appellate intervention.
This authority has been followed by this court in a number of cases since Eliasen: see R v Rostom [1996] 2 VR 97; R v Williams (unreported, 18 September 1995); R v Morgan (1996) 87 A Crim R 104; R v Bell (unreported, 18 August 1997). In the case of Rostom, Charles JA, speaking for the court at 99, explained that the basis for receiving the new evidence was to be found in demonstrating the true significance of facts in existence at the time of sentence.
[11]Packard (a pseudonym) v The Queen [2022] VSCA 128, [3]–[14] (Priest JA).
[12]R v WEF [1998] 2 VR 385, 388–9 (Winneke P, Charles JA and Hampel AJA agreeing) (emphasis added) (‘WEF’).
In light of Dr Zimmerman’s opinions, the judge sentenced the applicant on the basis that there was a risk that the stress of prison life might lead to him developing ‘brief’ — that is, short-lived — psychotic episodes. Dr Cidoni’s evidence is that the stress of prison has provoked a ‘temporary’ — that is, short-lived — psychotic episode. Hence, the very risk anticipated by the judge when she imposed sentence has materialised. It therefore cannot be concluded that the evidence of Dr Cidoni throws ‘a different light on circumstances which existed at the time of sentence’, or demonstrates ‘the true significance of facts in existence at the time of sentence’.
In those circumstances, we would refuse leave to amend the notice of application for leave to appeal to add proposed ground 3.
Ground 1: Manifest excess
In Leimonitis[13] it was observed that
manifest excess is a conclusion which does not depend upon the attribution of identified specific error. Moreover, it is a conclusion that ordinarily does not admit of much elaboration or sustained argument,[14] since excess is, or is not, plainly apparent, and a sentence is, or is not, unreasonable or plainly unjust. The sentence may be excessive because the wrong type of sentence has been imposed, or because the sentence imposed is manifestly too long.[15] A judge of an appellate court will approach the task of assessing whether a sentence is manifestly (as opposed to simply arguably) excessive in much the same way that a sentencing judge approaches the imposition of sentence at first instance; that is, by instinctively synthesising all relevant factors in order to determine whether he or she considers the impugned sentence to be just and appropriate.[16] But it is not enough for appellate intervention to be warranted that the judges of the appellate court regard the impugned sentence as stern, or that they would not themselves have passed the same sentence. Intervention is justified only if the sentence is wholly outside the range of those open in the sound exercise of discretion.[17]
[13]Leimonitis v The Queen [2018] VSCA 198, [32] (Priest JA).
[14]R v Kenny (Unreported, 2 October 1978, Vic, CCA); Noa v R [2013] VSCA 4, [12]; Allen v R (2013) 36 VR 565, 573 [51]-[52].
[15]Dinsdale v The Queen (2000) 202 CLR 321, 325–6 [6] (Gleeson CJ and Hayne J).
[16]Ibid.
[17] Lowndes v The Queen (1999) 195 CLR 665, 671–672 [15].
Rather than manifestly excessive, we consider the sentence imposed to be moderate (if not lenient). It can only be the result of the judge having weighed all mitigating features — including the applicant’s early plea of guilty (entered during the pandemic); remorse; lack of prior convictions; family support; good prospects of rehabilitation; relative youth; compliance with bail; and mental condition — properly in his favour.
In our opinion, the contention that the sentence is manifestly excessive is not reasonably arguable. Proposed ground 1 cannot be upheld.
Conclusion
The application for leave to appeal against sentence will be refused.
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