Steven Cooper v The Queen
[2020] VSCA 300
•24 November 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0230
| STEVEN COOPER | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST, NIALL and T FORREST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 19 November 2020 |
| DATE OF JUDGMENT: | 24 November 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 300 |
| JUDGMENT APPEALED FROM: | [2020] VCC 913 (Judge Hogan) |
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CRIMINAL LAW – Appeal – Application for extension of time to file notice of application to appeal – Attempted armed robbery (2 years 10 months) – Commit indictable offence whilst on bail (1 month) – Applicant had antisocial personality disorder – Brown v The Queen [2020] VSCA 212 applied – Inadequate evidence of connection between personality disorder and offending – No prospect of success – Application for extension of time to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P A Chadwick QC | Robyn Greensill |
| For the Respondent | Ms D Piekusis QC | Ms A Hogan, Solicitor for Public Prosecution |
PRIEST JA
NIALL JA
T FORREST JA:
The applicant seeks an extension of time to bring an application for leave to appeal against a sentence imposed on him by a judge in the County Court. The applicant pleaded guilty to two charges, the first, and most serious of which, was an attempted armed robbery. That offence was committed when the applicant was on bail and this constituted the second charge. He was sentenced as follows:
Charges on Indictment Offence Maximum Sentence Cumulation 1 Attempted armed robbery[1] 20 years 2 years 10 months Base Related Summary Offence 5 Commit indictable offence whilst on bail[2] 3 months or 30 penalty units 1 month 1 month Total Effective Sentence: 2 years and 11 months’ imprisonment. Non-Parole Period: 2 years’ imprisonment. Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: 392 days. 6AAA Statement: 4 years’ imprisonment with a non-parole period of 3 years. Other relevant orders: Disposal order. [1]Crimes Act 1958 ss 75A and 321M.
[2]Bail Act 1977 s 30B.
In short, the applicant submits that he suffers from an antisocial personality disorder which, in the light of the decision of this Court in Brown v The Queen,[3] constitutes an impairment which caused, or contributed to, the offending and which engages principles in R v Verdins.[4] Brown was decided after the sentence was imposed and his personality disorder was not able to be relied on in this way before the judge. The applicant submits that this Court should now apply the approach explained in Brown and which, for the first time, recognises that a personality disorder may potentially constitute a relevant impairment of mental functioning.
[3][2020] VSCA 212 (‘Brown’).
[4](2007) 16 VR 269; [2007] VSCA 102 (‘Verdins’).
For the reasons that follow, an extension of time must be refused because there was simply insufficient evidence to establish a connection between the applicant’s personality disorder and the commission of the offence. Further, even if such a connection were established, there is no reasonable prospect that a lower sentence would be imposed.
The offending
On the afternoon of 17 May 2019, the applicant approached the victim in the foyer of a block of units in which the victim lived and pulled a large knife from his pants. The knife was 25 cm long, bladed on both sides, and wrapped in a tea towel. After unwrapping it, the applicant pushed the victim into the foyer wall, held the knife to the victim’s throat and said: ‘give me drugs, give me money and don’t say you don’t have any’. When the victim told the applicant that he did not have any, the applicant yelled: ‘shut up or I will slash you’. The victim was known to the applicant and the judge accepted that the victim had previously supplied drugs to the applicant.[5]
[5]DPP v Cooper (aka Carl Wilson) [2020] VCC 913, [25], [27], [31] (‘Reasons’).
The reason for the offending was a matter in contest on the plea. The applicant submitted that it had occurred when he was in a psychotic state that was attributable to his schizophrenia.[6] That causal connection was not accepted by the judge, although as will appear, the judge accepted that the applicant suffered from schizophrenia.[7] The judge found, beyond reasonable doubt, that the immediate reason for the offending was that the applicant was trying to obtain drugs or money for drugs from the victim.[8] In making that finding, the judge noted that the applicant was an unreliable historian[9] and she plainly did not accept the applicant’s account that he was psychotic at the time of the offence. In that respect, her Honour accepted that the victim had supplied drugs to the applicant in the past and CCTV footage showed the applicant to be composed. Further, the threat to the victim was tied to obtaining drugs or money for drugs which showed a sense of purpose.
[6]Ibid [31].
[7]Ibid.
[8]Ibid [27], [31].
[9]Ibid [28].
The judge also made an alternative finding, in the event that she was wrong in her primary conclusion, that any psychosis was a consequence of the applicant voluntarily having ceased to comply with his anti-psychotic medication.[10]
[10]Ibid [32].
The judge described the applicant as having a ‘very lengthy criminal history for violent and antisocial offending’.[11] The judge recorded an extensive criminal history extending over three decades. It included multiple violent offences, including intentionally causing serious injury, rape and indecent assault. The applicant’s criminal history also included dishonesty offences, including aggravated burglary, theft and obtaining property by deception. The applicant has convictions for threatening to inflict serious injury and charges involving the use or possession of controlled weapons and assault with a weapon.[12] Unsurprisingly, with that lamentable record, the judge noted the importance of specific deterrence.[13]
[11]Ibid [41].
[12]Ibid [7].
[13]Ibid [41].
The medical evidence
The applicant suffers from schizophrenia. On the plea, he sought to rely on medical evidence in order to establish the proposition that his schizophrenia contributed to his offending and relied on Verdins. The judge rejected that submission. It is necessary to refer to the medical evidence.
The first report was written by Dr Arthur Kokkinias, psychiatrist, and Natasha Colman, and dated 14 April 2020. The letter states that the applicant has been diagnosed with ‘Schizophrenia in addition to Antisocial Personality Disorder and Substance abuse disorder.’ In that report, the authors record a history of treatment for ’psychiatric issues’ dating back to 1991 and involving multiple admissions as an inpatient and extensive pharmacological treatment. The report records some history of non-adherence to prescribed medication and failures to attend scheduled appointments. The authors express no opinion as to whether the applicant’s medical condition contributed to the relevant offending.
Dr Lester Walton, psychiatrist, provided two reports dated 4 May 2020 and 11 June 2020, respectively. His first report makes no reference to the applicant suffering from an antisocial personality disorder or any other personality disorder. In that report, Dr Walton confirms the diagnosis of ‘chronic paranoid schizophrenia, likely aggravated by substance abuse.’ He concluded that the applicant seemed to be suffering some ‘psychotic disturbance’ at the time of the offending and that his ‘major mental disorder ha[d] made a significant contribution to the offending’. Plainly, the reference to a ‘major mental disorder’ was to the applicant’s schizophrenia.
As appears from her reasons, the judge was puzzled about aspects of Dr Walton’s report. Specifically, she noted that Dr Walton had not mentioned the diagnosis of antisocial personality disorder, nor had he explained what he meant by a remark in his first report that ‘attempted armed robbery is an unusual offence to be the direct product of psychotic disturbance.’[14] As a result, the supplementary report was obtained.
[14]Ibid [17].
In his supplementary report, Dr Walton addressed his earlier opinion that the schizophrenia contributed to the offending. Directing his attention to the diagnosis of antisocial personality disorder contained in the report of Dr Kokkinias, Dr Walton said:
it is a hazardous procedure to make an additional diagnosis of any type of personality disorder in the face of a chronic psychotic illness additionally complicated by drug abuse. Secondly, labelling a person with antisocial personality disorder usually amounts to no more than shorthand for the fact that they have an established history which, clearly, applies to [the applicant]. It is simply tautological to suggest that otherwise ill-defined antisocial personality disorder amounts to a causal explanation of any antisocial behaviour.
Dr Walton returned to the topic in the context of addressing a specific question about whether the applicant’s antisocial personality disorder contributed to the offending. To that question, Dr Walton said:
I have commented about the relevance or otherwise of antisocial personality traits above. To reiterate, it is certainly possible that [the applicant] may have antisocial tendencies independent of his mental illness. Just because you may be properly deemed to be ‘mad’ does not exclude the proposition that you may also be ‘bad’. However, to reiterate one or other of those two factors may or may not have relevance but they are not mutually exclusive. If it were a situation of antisocial behaviour simpliciter with no contribution from mental illness I would anticipate a higher level of violence than was exhibited and probable flight after the incident.
The applicant also relied on a report of Bernard Healey, psychologist, dated 2 May 2020. That report makes no mention of a personality disorder.
As noted, the judge rejected a submission that the applicant’s schizophrenia contributed to his offending. The judge accepted that the applicant had an antisocial personality disorder. In a single sentence, of which the applicant presently relies, the judge said:
Certainly, I cannot conclude that your antisocial personality traits were the sole reason for your offending albeit that I cannot exclude them as a contributing factor.[15]
[15]Ibid [20].
The applicable principles
In Verdins, this Court brought together the various ways in which a mental impairment may be relevant to sentencing an offender. They are:
1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
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.[16]
[16](2007) 16 VR 269, 276 [32]; [2007] VSCA 102 (Maxwell P, Buchanan and Vincent JJA) (citations omitted).
It was generally understood that these principles applied to psychiatric illness and were not applicable to personality disorders.[17] That general understanding was disapproved by this Court in Brown.[18] In Brown, this Court explained that such a rigid dichotomy was inappropriate, and that in assessing whether the offender’s functioning was relevantly impaired, the issue was not to be determined by labels but by evidence. On the need for cogent evidence to establish both the diagnosis and its connection with the offending, the Court said:
Evidence-based decision-making is, of course, precisely what Verdins both authorises and requires. What the sentencing judge needs is not a diagnostic label but a clear, well-founded expert opinion as to the nature and extent of the offender’s impairment of mental functioning and, so far as it can be assessed, of its likely impact on the offender at the time of the offending and/or in the foreseeable future.[19]
[17]DPP v O'Neill (2015) 47 VR 395; [2015] VSCA 325.
[18][2020] VSCA 212, [6] (Maxwell P, Niall, T Forrest, Emerton and Osborn JJA).
[19]Ibid [61].
The Court went on to note:
Looking ahead, it would seem from the expert evidence that a personality disorder is likely to engage the Verdins principles only in a case of some severity. But, plainly enough, it is not for this Court to suggest any threshold level of severity which must be reached before those principles would become applicable. Senior counsel for the Director properly conceded that this was so.
Nor is it appropriate to say more about those categories of personality disorder (anti-social personality disorder and narcissistic personality disorder) about which the expert witnesses expressed scepticism. As we have noted, their evidence was that the attachment of those diagnostic labels may be no more than descriptive of maladaptive behaviour and, hence, will provide no insight into an offender’s mental functioning. Whether in a particular case involving such a disorder the expert evidence establishes a clinically significant impairment of mental functioning will, of course, depend on the circumstances of the case and the nature and content of the expert opinion.[20]
Ground of appeal
GROUND 1
The sentence is manifestly excessive in that the learned sentencing judge having found that I had been diagnosed with Anti-Social Personality Disorder and Substance Abuse Disorder erred by not proceeding to consider Verdins principles 1 to 4 except in relation to my diagnosis of schizophrenia.
[20]Ibid [68]–[69] (citations omitted).
Consideration
The applicant submits that the judge accepted that the applicant suffered from a personality disorder which contributed to the offending. As a result, the applicant’s culpability was reduced and he was entitled to a favourable application of Verdins 1 to 4. We reject that submission.
As noted, the judge said that she could not exclude the applicant’s personality disorder as contributing to the offending.[21] That finding of itself is insufficient to attract Verdins, as understood in the light of Brown. Of course, no submission was made to the judge that the personalty disorder might attract Verdins. That is unsurprising. Based on Director of Public Prosecutions v O’Neill,[22] to which the judge referred in passing, such a submission would not have succeeded in point of principle.
[21]Reasons [20].
[22](2015) 47 VR 395; [2015] VSCA 325.
However, we have considered for ourselves the totality of the evidence in the light of Brown. There was simply no evidential foundation to draw the necessary link between the disorder and the offending. It is to be recalled that the judge made a positive finding that the offending was actuated by the applicant’s pursuit of drugs or money for drugs and that he was not psychotic time of the offending.[23]
[23]See above at [5].
The applicant’s personality disorder was the subject of a single sentence in the report co-authored by Dr Kokkinias and there was no suggestion that it constituted an impairment that had caused the offending. Dr Walton’s supplementary report reveals a somewhat sceptical approach to the diagnosis and any contributory effect it may have had. His report provides no support for the submission the applicant now advances.
There was no evidence of clinically significant impairment of mental functioning referable to the applicant’s personality disorder. There was little more than the listing of a diagnosis in Dr Kokkinias’ report, without any consideration of its aetiology or practical impact on the applicant’s judgment or decision-making. To use the language in Brown, that was to do no more than attach a label. There was of course a history of frank psychosis referable to his schizophrenia but, as the judge found, this did not contribute to the offending. In short, the applicant’s submission is bereft of any evidential foundation and must fail.
The judge did not ignore the applicant’s history of mental illness. The judge noted that it was appropriate for her to take the applicant’s ‘complex mental health situation involving paranoid schizophrenia, and an Antisocial Personality Disorder into account as part of the circumstances relevant to the sentencing synthesis.’[24] Indeed, the applicant did not rely on his personality disorder on his plea — it was the judge who raised it and which led to the supplementary report of Dr Walton being prepared. That report did not assist the applicant on the present argument. In fact, Dr Walton was not prepared to endorse a diagnosis of personalty disorder. The judge was not asked to take the disorder into account for the purposes of Verdins. Even if she had been asked to do so, there was no factual basis for the argument to succeed.
[24]Reasons [40].
Even if there existed some connection between the personality disorder which, as its name suggests, is based on the applicant’s continued antisocial behaviour, it is difficult to see how it would exert any significant moderation on sentence. Further, the judge gave full weight to the applicant’s blighted history of mental illness and drug addiction, and imposed a lenient sentence for an offender with the applicant’s criminal history. The offence was appalling and called for close attention to denunciation and community protection through general and specific deterrence. Both the judge’s reasons and the ultimate sentence show that the judge was attuned to the moderating factors and must have given them full weight.
Having regard to all of the matters, and assuming in the applicant’s favour and against the evidence, that there was a sufficient connection between the personality disorder and the offending, there is no reasonable prospect that this Court would impose a lesser sentence.
Since the proposed ground of appeal would enjoy no prospects of success, and even if successful, would not result in a lower sentence, it would be futile to extend the time available for the applicant to file notice of application to appeal. Accordingly, the application for an extension of time should be refused.
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