Steven Guy v The Queen
[2020] VSCA 163
•18 June 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0080
| STEVEN GUY | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | NIALL and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 5 June 2020 |
| DATE OF JUDGMENT: | 18 June 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 163 |
| JUDGMENT APPEALED FROM: | DPP v Guy (Unreported, County Court of Victoria, Judge Ryan, 11 October 2019) |
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CRIMINAL LAW – Appeal – Sentence – Application for extension of time to file notice of application for leave to appeal against sentence – False imprisonment, common law – Intentionally causing injury, Crimes Act 1958 s 18 – Contravention of Community Correction Order, Sentencing Act 1991 s 83AD(1) – Whether judge erred in orders for cumulation – Whether judge failed properly to consider giving applicant a further opportunity on Community Correction Order – Whether judge failed properly to take into account mental health issues and homelessness in relation to compliance with Community Correction Order – Application refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant: | In person | |
| For the Respondent: | Mr J C J McWilliams | Ms A Hogan, Solicitor for Public Prosecutions |
NIALL JA
WEINBERG JA:
On 27 April 2018, on his plea of guilty, the applicant was sentenced by Judge Cotterell for the offences of false imprisonment and intentionally causing injury. He was sentenced to an aggregate sentence of 729 days’ imprisonment and a Community Correction Order (‘CCO’) for a term of three years. Although s 44 of the Sentencing Act 1991 (the ‘Sentencing Act’) provides that a CCO can only be combined with a term of imprisonment of one year or less, pre-sentence detention is not included in the calculation of one year. By the time of sentence, the applicant had been in custody for the offences for 624 days.
A very short time after his release from prison, the applicant returned a positive urine test, imposed to detect illicit drugs, and soon thereafter ceased contact with Community Corrections. The failure to undergo treatment, rehabilitation and supervision on certain dates constituted a breach of the CCO, and an offence in its own right, for which the applicant was charged and pleaded guilty. The breach also meant that the applicant was liable to be resentenced for the initial offending that had been dealt with by Judge Cotterell.
These matters were dealt with by Judge Ryan. Before Judge Ryan, the applicant was represented by counsel and sought reinstatement of the CCO. The judge had before him a report of Community Corrections, which recommended that the CCO be cancelled and the applicant resentenced.
In the result, the judge cancelled the CCO and resentenced the applicant to a term of imprisonment of four years with a non-parole period of two years and nine months. From that sentence the applicant applies, out of time, for leave to appeal.
The application for extension, and if the extension is granted, the application for leave to appeal, were heard together. The applicant appeared for himself by video link from prison. Counsel for the respondent also appeared remotely.
Although there are a number of matters which this Court conventionally takes into account in determining whether an extension of time ought be given, we informed the applicant that in the event that he could persuade the Court that he had an arguable case of error in the sentence, the Court would grant an extension of time. We have carefully considered the submissions advanced by the applicant, both orally and in writing and have, for ourselves, closely examined the sentences of both Judge Cotterell and Judge Ryan. We are satisfied that there is no arguable ground of appeal. For that reason we would refuse the application for an extension of time. Our detailed reasons follow.
Initial offending
The initial charges related to a six day period from 18 to 23 February 2016 during which the applicant imprisoned and assaulted the victim.
At the time, they were living together in a boarding house in Lilydale.
On 18 February 2016, the applicant and victim went to the city to purchase methylamphetamine. During their train trip home the two argued, and this continued at the boarding house. The applicant accused the victim of being a whore and confined her in a room until 23 February 2016, allowing her to leave only for short periods to go to the bathroom and kitchen. If the applicant left the room, he would secure the door using scissors and knives. The victim tried to leave the room by the door and to remove the flyscreen from the window.
During this time, the applicant continually assaulted the victim. He hit her with various objects, punched her and kicked her. The applicant placed his hands around the victim’s neck and poured urine on her after he had urinated in a container. The applicant and victim used methylamphetamine and smoked cannabis together. The victim hoped that this would calm the applicant but the assaults continued.
On 23 February 2016, the victim managed to escape and fled, first to a community centre at the Lilydale Lake. Finding no assistance there, she went to her sister’s home. The victim’s extensive injuries, including numerous bruises and superficial wounds, were readily visible.
The applicant rang the victim’s sister. During the first call, the victim’s sister asked what was going on and the applicant replied: ‘just a bit of family violence’ and laughed. On the second call, which was made to the sister’s husband’s phone, the applicant admitted that he had ‘stuffed up big time’.
Initial sentencing
The applicant was sentenced in the County Court on 27 April 2018 by Judge Cotterell as follows:
Charge Offence Maximum Sentence Cumulation 1. False imprisonment
(common law) (Crimes Act 1958[1] s 320)10 years Aggregate term of 729 days’ imprisonment and a 3 year CCO — 2. Intentionally cause injury (Crimes Act s 18) 10 years As above — Total Effective Sentence: Aggregate term of 729 days’ imprisonment and a CCO for 3 years.
The special conditions of the CCO were:· 50 hours of unpaid community work;
· supervision for 3 years;
· assessment and treatment for drug abuse or dependency;
· assessment and treatment for mental health issues;
· participate in offending behaviour programs; and
· judicial monitoring.
Non-Parole Period: N/A Pre-Sentence detention: 624 days 6AAA Statement: Not recorded. Other relevant orders: The applicant was ordered to attend for judicial monitoring on 20 November 2018. [1]The ‘Crimes Act’.
Judge Cotterell noted that the applicant had suffered significant disadvantage during childhood, which had continued throughout his life.[2] He had limited education, a very limited employment history and was on a disability support pension due to his psychiatric state.[3] At the time of sentencing, he was 37 years old, with an extensive criminal record.[4]
[2]DPP v Guy [2018] VCC 587, [35] (‘2018 Reasons’).
[3]Ibid [24], [35].
[4]Ibid [20].
The applicant’s parents separated when he was six years old and he had no contact with his father for about nine years.[5] He had a very difficult time at school and was assaulted multiple times from the age of 12, which led to truanting and anxiety.[6] He left school to work as a trolley collector.[7]
[5]Ibid.
[6]Ibid [21].
[7]Ibid [23].
At his mother’s request, he left the family home at the age of 14 and lived with a cousin.[8] He also commenced consuming alcohol and smoking cannabis around that age.[9] The applicant underwent a period of youth detention at 16.[10] During this period, he was prescribed sedating anti-psychotic medication, which he took for about five years.[11] The applicant began using amphetamines and methylamphetamine at the age of 18.[12]
[8]Ibid [24].
[9]Ibid [21].
[10]Ibid.
[11]Ibid [22].
[12]Ibid [25].
In sentencing the applicant, the judge took into account his psychological condition, with reference to three reports: a report of Mr Ian Mackinnon dated 11 July 2014; a report of Ms Alison Mynard dated 22 October 2017; and a Court ordered Forensicare report of Dr Adam Deacon dated 20 December 2017.
Mr Mackinnon diagnosed the applicant with a psychotic disorder which could not be defined and opined that the applicant’s use of illicit substances rendered a firm diagnosis of schizophrenia or drug-induced psychosis impossible at that stage.[13]
[13]Ibid [36].
Ms Mynard diagnosed the applicant with a major depressive disorder and generalised anxiety and recommended further assessment.[14]
[14]Ibid.
The judge noted Dr Deacon’s opinion that the applicant’s diagnosis was likely to be schizophrenia and that the delusions the applicant had experienced in custody were consistent with the compounding effect of methylamphetamine use on schizophrenia.[15]
[15]Ibid [27].
The applicant reported to Dr Deacon that he developed psychotic symptoms following surgery in 2001 on a fractured eye socket due to an assault in custody.[16] The applicant had a persistent delusional belief that a camera was inserted behind his eye so that police could monitor him.[17] The applicant also reported other psychotic symptoms, including auditory hallucinations.[18]
[16]Ibid [26].
[17]Ibid.
[18]Ibid.
Dr Deacon concluded that the applicant was psychotic at the time of the offending, which would have significantly impaired his capacity to exercise reasonable judgment.[19] Dr Deacon noted that the applicant’s use of amphetamine during the offending would have exacerbated his psychotic symptoms.[20]
[19]Ibid [28]–[29].
[20]Ibid.
The judge accepted that the principles in Verdins[21] applied.[22] Her Honour noted that the applicant’s diagnosis had been modified by repeated drug use which meant that (to a certain extent) his condition was self-induced or exacerbated.[23]
[21]R v Verdins (2007) 16 VR 269; [2007] VSCA 102.
[22]2018 Reasons [40].
[23]Ibid [41].
The judge also took into account:
(a) The applicant’s acceptance that he had an enduring mental illness which required ongoing treatment and the indication that he was willing to continue psychiatric treatment.[24]
[24]Ibid [31]–[32].
(b) The applicant’s efforts to control his addiction to methylamphetamine, including his abstinence in prison and the fact that he had self-referred to Odyssey House, which indicated a strong desire for rehabilitation.[25]
[25]Ibid [33], [46].
(c) The applicant’s need for ongoing treatment, supervision and rehabilitation.[26]
[26]Ibid [50].
(d) The fact that the applicant had expressed remorse and empathy, accepting that the victim would have been significantly traumatised by his behaviour.[27]
[27]Ibid [31], [47].
(e) The need to moderate the requirement of general deterrence in light of the applicant’s serious psychiatric illness.[28]
[28]Ibid [42].
(f) The difficulty of achieving specific deterrence in light of the applicant’s psychiatric illness;[29] and
(g) The fact that the applicant’s psychiatric illness may result in any sentence weighing more heavily on him than it would on someone in normal health.[30]
[29]Ibid [43].
[30]Ibid.
Contravention of CCO
The applicant commenced the CCO on 9 August 2018, upon his release from prison. Between 10 August 2018 and 18 September 2018, he attended a number of appointments in respect of his mental health and drug treatment. On 4 September 2018, the applicant tested positive for amphetamines, methylamphetamine, cannabis, methadone and buprenorphine. Soon after, he ceased contact with Community Corrections.
The applicant pleaded guilty to the offence of contravening the CCO and was sentenced by Judge Ryan in the County Court on 11 October 2019.[31]
[31]DPP v Guy (Unreported, County Court of Victoria, Judge Ryan, 11 October 2019) (‘2019 Reasons’).
Resentencing
The prosecution relied on a report from Community Corrections dated 17 October 2018. The authors jointly recommended that the applicant’s CCO be cancelled and he be resentenced for his original offending. One of the authors was present in Court but was not cross-examined by counsel for the applicant.
As will appear, the applicant complained about the accuracy of a statement contained in that report and it is necessary to refer to its contents. The report recorded that the applicant ceased contact with Community Corrections from 24 September 2018 and that, of most concern to the authors, the applicant had disengaged from the mental health services and it was unknown if he was medicated for schizophrenia. The report went on to say that Community Corrections had received notification that the applicant’s housemate had taken out an intervention order against him.
The authors said that as Community Corrections could not work with the applicant to mitigate the risks to him in the community, contravention proceedings had been commenced. In the conclusion and recommendations section of the report, the authors noted that this was the applicant’s first CCO. He had made initial progress, had engaged in mental health treatment, drug counselling and attending regular supervision appointments, but his compliance had deteriorated and he had ceased all contact with Community Corrections. The report concluded that although it was the applicant’s first attempted CCO, the seriousness of his offending behaviour, his positive test for methylamphetamine, coupled with untreated schizophrenia, indicated that community safety was of serious concern and that due to these factors it was recommended that the CCO be cancelled and that he be resentenced for the original offending.
After referring to Judge Cotterell’s reasons for sentence, Judge Ryan assessed the applicant’s offences of false imprisonment and intentionally causing injury as serious examples of the offending.[32] He noted the applicant’s history of offending, which included convictions for contravention of Family Violence Intervention Orders, offences of violence, dishonesty offences and robbery, dating from June 2007 to October 2017.[33]
[32]Ibid [7].
[33]Ibid.
His Honour noted that the CCO imposed by Judge Cotterell was designed to be principally therapeutic in nature, crafted to assist the applicant in overcoming drug addiction and to treat him for psychiatric illness.[34] Once the applicant ceased contact with Community Corrections, he ceased taking antipsychotic medication and abused methylamphetamine, which could only have exacerbated his psychiatric illness.[35] The judge assessed the applicant’s prospects of rehabilitation as poor.[36]
[34]Ibid [21].
[35]Ibid.
[36]Ibid.
His Honour also took into account:
(a)the applicant’s plea of guilty, which evidenced remorse and had utilitarian value;[37]
(b)the applicant’s admission that he had contravened the CCO;[38]
(c)all of the matters regarding the applicant’s offending and background set out in Judge Cotterell’s reasons for sentence;[39] and
(d)the contents of the reports relied on in the plea hearing.[40]
[37]Ibid [24].
[38]Ibid.
[39]Ibid.
[40]Ibid.
The judge noted that the sentence he imposed must punish the applicant, publicly denounce his conduct and deter the applicant and others from committing these types of offences.[41]
[41]Ibid [26].
For those reasons he resentenced the applicant as follows:
Charge Offence Maximum Sentence Cumulation 1. False imprisonment
(common law) (Crimes Act s 320)10 years 3 years Base 2. Intentionally cause injury (Crimes Act s 18) 10 years
2 years 12 months 3. Contravention of CCO (Sentencing Act s 83AD(1)) 3 months 1 month — Total Effective Sentence: 4 years’ imprisonment Non-Parole Period: 2 years and 9 months Pre-Sentence detention: 743 days 6AAA Statement: 6 years’ imprisonment with a non-parole period of 4 years. Other relevant orders: N/A
Application for leave to appeal
The applicant has three proposed grounds of appeal:
(a)cumulation in sentence;
(b)the judge did not properly consider allowing him a further opportunity on the CCO; and
(c)the judge did not properly take into account his mental health issues and homelessness in his compliance with the CCO.
At the hearing, the applicant’s submissions centred on the second ground, that he should have been given another chance on the CCO.
The applicant said that he was not provided a copy of the breach report and that his counsel had only received it shortly before the hearing.
He submitted that the breach report contained inaccuracies. He said that the statement contained in the report that an intervention order had been taken out against him by his housemate was wrong.
The applicant referred to the decision of this Court in Boulton v The Queen[42] in support of his argument that, although the offending was serious, a CCO was justified.
[42](2014) 46 VR 308; [2014] VSCA 342.
Further, the applicant said that although he ceased contact with Community Corrections, he had not breached the order previously. In addition, he had not engaged in offending of a similar nature to the original offending or caused distress to any further victims.
The applicant said that although he initially had a rapport with his corrections officer, after a very short time, the officer changed and he felt unsupported. He noted that he needed consistency and this change affected his compliance with the CCO.
At the hearing, the applicant did not address grounds 1 and 3 separately. His written submissions provide little elaboration on those grounds. We have taken them to assert that the sentence is too long.
The respondent submitted that the applicant’s counsel had been in possession of the breach report and other materials, and was in a position to engage with the judge. The respondent also noted that during the hearing, counsel was given the opportunity to take detailed instructions from the applicant in relation to how he had spent his time, during the period that he was in breach of the CCO, and that presumably the breach report would have been part of the materials discussed. Counsel also declined the opportunity to cross-examine the author of the breach report who was present in Court. Moreover, counsel had not raised with Judge Ryan any inaccuracies in the contents of the report.
Conclusion
The task of this Court is not to determine the sentence we would have imposed. It is necessary for the applicant to establish some error in the exercise of the sentencing discretion by the judge. That error might be one of fact or law.
The applicant says that the judge proceeded on a wrong factual basis because the report from Community Corrections said that he had been the subject of an intervention order. Although there is no evidence as to whether or not the intervention order existed, we are prepared to accept the applicant’s assertion that this was an error in the report.
However, we are not persuaded that that factual error played any part in the judge’s decision to cancel the CCO and resentence the applicant. In the reasons for sentence, the judge referred to the report, but confined his consideration to its recommendation that the CCO be cancelled and the applicant resentenced. His Honour also had regard to evidence relating to the breach.
The judge did make reference to the applicant’s living arrangements since his release from prison. His Honour noted that the applicant had lived with a friend who worked as a sex worker and that he had acted as security for her.[43] They had commenced a relationship and abused methylamphetamine together.[44] The applicant’s friend had given birth to a child a few weeks earlier and, although he was not the father, the applicant had expressed a desire to be involved in her upbringing.[45] The judge recorded that in more recent times, the applicant had expressed a desire to clean up his life and had obtained accommodation with a friend in Mordialloc.[46]
[43]Ibid [8].
[44]Ibid.
[45]Ibid [13].
[46]Ibid [10], [15].
Importantly, the judge did not refer to a housemate of the applicant having taken out an intervention order against him. As a result, we do not consider there to be any basis to conclude that the judge might have taken into account the observation in the report that an intervention order had been obtained in arriving at the sentence he imposed. In the context of the material as a whole, it was not a factor that could have had any material bearing on the disposition.
That being so, it is not necessary to determine whether, given that the applicant was represented at the CCO breach hearing and his counsel had made a decision not to cross-examine an author of the report, it is open to the applicant to now complain that the report contains error.
Ultimately, in order to succeed on this application, the applicant would need to persuade this Court that the sentence imposed by the judge was wholly outside the range available to him.
It must be said that Judge Cotterell’s decision to place the applicant on a CCO in circumstances where he had already served 624 days of pre-sentence detention and had a very long history of unstable mental health, drug use and criminal activity carried significant risks of breach. We have considered carefully the applicant’s submission that his non-compliance with the CCO did not involve any serious criminal activity which resembled the original offending. That may be so. Nevertheless, the applicant’s conduct provided a sound basis for not continuing with a CCO.
Faced with the gravity of the offending and the history of the applicant, there was no error on the part of Judge Ryan in declining to extend the CCO. The recommendation of Community Corrections was something to which the judge was entitled to have regard. We are entirely satisfied that the decision to impose a term of imprisonment was well open to the judge.
The judge was alive to the mental health challenges that had blighted the applicant and the need to allow for rehabilitation as part of the sentencing exercise. Although Judge Cotterell had considered that a CCO was the appropriate means for that to be achieved, it is plain Judge Ryan considered that, in the circumstances, a term of imprisonment with the opportunity for a suitable period of supervised release on parole was the appropriate means by which that might occur and at the same time meet the other demands of a just sentence. There was no error in doing so.
We have considered the length of the term of imprisonment imposed by the judge, both as to its individual elements and the total effective term. We are not persuaded that any error has been demonstrated. The offending extended over a significant period of time, involved deprivation of liberty and a number of serious assaults on the victim. It was serious offending, and called for a period of imprisonment. The applicant’s mental health and troubled history were relevant to the sentence and operated to moderate the applicant’s culpability. We are not persuaded that the judge gave inadequate weight to those matters.
In the usual course of events, the cancellation of a CCO and its replacement with a term of imprisonment of four years would warrant close scrutiny. That is because s 44 of the Sentencing Act prevents a CCO from being combined with a term of imprisonment of longer than 12 months. However, as noted earlier, time served is not taken into account. At the time he was sentenced by Judge Cotterell, the applicant had already been in custody for 624 days and a total effective sentence of 729 days’ imprisonment was imposed. By the time the matter was heard by Judge Ryan, the applicant had pre-sentence detention of 743 days. On any view, the offending warranted a significant period of imprisonment.
The combination of a CCO and a term of imprisonment of 743 days could only be available where there is substantial pre-sentence detention. Once pre-sentence detention is taken into account, the cancellation of the CCO and its replacement with a term of imprisonment of four years with a minimum of two years and nine months is explicable.
In the circumstances, no arguable error has been demonstrated in the sentence. For that reason, any extension of time in which to bring the application for leave to appeal would be futile. Accordingly, the application for extension of time must be refused.
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