Sweeney v The King

[2023] VSCA 9

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0162

JOSHUA SWEENEY	Applicant
v
THE KING	Respondent

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JUDGES:	KYROU and KENNEDY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	25 January 2023
DATE OF JUDGMENT:	9 February 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 9
JUDGMENT APPEALED FROM:	[2022] VCC 1747 (Judge Lauritsen)

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CRIMINAL LAW – Appeal – Sentence – Four charges of burglary, three charges of theft and one charge of committing an indictable offence while on bail – Total effective sentence 2 years, 6 months’ imprisonment – Whether judge erred in not applying fifth limb of R v Verdins (2007) 16 VR 269 – Applicant diagnosed with post-traumatic stress disorder, borderline personality disorder, major depressive disorder and generalised anxiety disorder – Psychological evidence did not establish that prison would weigh more heavily on the applicant than person in normal health – No error established – Application for leave to appeal refused.

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Counsel
Applicant:		Mr PJ Smallwood
Respondent:		Ms RL Harper
Solicitors
Applicant:	Tyler Tipping & Woods
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

KYROU JA
KENNEDY JA:

Introduction and summary

1. On 29 September 2022, the applicant pleaded guilty to the charges set out in the table below and, on 7 October 2022, he was sentenced by a County Court judge as set out in that table:[1]

   [1]DPP v Sweeney [2022] VCC 1747 (‘Sentencing remarks’).

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Burglary [Crimes Act 1958, s 76]	10 years	18 months	Base
2	Theft [Crimes Act, s 74]	10 years	3 months	—
3	Burglary	10 years	18 months	4 months
4	Theft	10 years	12 months	—
5	Burglary	10 years	18 months	4 months
6	Burglary	10 years	12 months	4 months
7	Theft	10 years	12 months	—
Related Summary Offence
13	Commit indictable offence while on bail [Bail Act 1977, s 30B]	3 months	1 month	—
Total Effective Sentence:		2 years, 6 months
Non-Parole Period:		18 months
Section 6AAA Statement:		Total effective sentence 3 years, 9 months
Other Relevant Orders: 1   Driver’s licence cancelled; disqualified from obtaining a further licence for 18 months.

1. The applicant has sought leave to appeal against his sentence on the following grounds:[2]

   [1]There was an error in the sentence imposed in that the sentencing judge did not consider all relevant circumstances when determining whether R v Verdins limb 5 applied to the sentencing exercise.

   [2]The sentencing judge erred by not applying Verdins limb 5.

   [2]In these reasons, proposed grounds of appeal are referred to as grounds of appeal.

2. As the fifth limb of R v Verdins is the focus of both grounds, it is set out below:

   The existence of [a mental] 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. [3]

   [3](2007) 16 VR 269, 276 [32] (‘Verdins’).

3. For the reasons that follow, the application for leave to appeal will be refused.

Circumstances of the offending

1. The applicant’s offending involved four instances of burglary and associated thefts that occurred in the Cowes area over a seven day period.

2. At some time between 21 and 22 September 2021, the applicant attended a house in Settlement Road, Cowes and gained entry by breaking the locks to a security door and sliding glass doors (charge 1 — burglary). He stole a makeup bag from inside the house (charge 2 — theft).

3. At some time between 20 and 23 September 2021, the applicant attended a house in Red Rocks Road, Cowes and gained entry by breaking open a lock box containing the front door key and cutting wires to disable an alarm system (charge 3 — burglary). He stole a .22 Winchester rifle, a passport and a firearms licence from inside the house (charge 4 — theft). The rifle had been stored in a gun safe, which he had prised open. The passport and firearms licence were subsequently recovered from the applicant’s premises, however the rifle was not located. In written submissions filed for the plea hearing, defence counsel (who did not appear before us) stated that the applicant’s instructions were that ‘he buried the firearm but … it was then stolen by an associate.’   

4. At some time between 21 September 2021 and 23 September 2021, the applicant entered a house in Beach Road, Rhyll by forcing the lock to a window (charge 5 — burglary).

5. At some time between 25 and 26 September 2021, the applicant gained access to a warehouse in The Concourse, Cowes by cutting the padlock to a gate, opening a roller door and breaking an internal door (charge 6 — burglary). The applicant stole a Mercedes-Benz van from inside the warehouse (charge 7 — theft). The van was subsequently recovered.

6. At the time of his offending, the applicant was on bail for other charges (summary charge 13 — commit indictable offence while on bail).

7. Defence counsel submitted at the plea hearing that the applicant’s offences were motivated by drug use and the desire to find a place to stay overnight. It was said that he deliberately targeted unoccupied premises.

Applicant’s personal circumstances

1. The applicant was 37 years old at the time of the offending and 38 at the time of sentence. He was born in Gippsland and has three older sisters and a younger brother. His parents separated in 2012. His father died in 2014.

2. The applicant described his parents as heavy drinkers who often argued and were occasionally violent towards each other. Whilst the applicant had been close to his father up until his death, he had a strained relationship with his mother. He had no contact with his brother for the past seven years but has had some contact with his sisters.

3. The applicant was expelled from school before completing Year 8 and had no further formal education.

4. The applicant first left the family home aged 14 and lived at the home of a friend until he was 17. While he lived with his friend, his friend’s younger brother committed suicide. The applicant then returned to live with his parents for a period of time. From age 20, he lived with friends or partners. He was homeless on some occasions.

5. The applicant has struggled to maintain stable employment and only worked two years in the past 13 years.

6. The applicant has had numerous relationships. He described two as significant, the most recent of which ended when he was 29. At the plea hearing, defence counsel stated that the applicant’s former partner from his most recent relationship was willing to allow him to reside with her upon his eventual release.  

7. The applicant has a history of using cannabis, alcohol and amphetamine. From the age of 28, he was using amphetamine daily.

8. The applicant has a criminal record dating back to 2002. The offences he has committed include: motor vehicle offences; drug offences; being unlawfully on premises; dealing with property suspected of being proceeds of crime; handling stolen goods; going equipped to steal; firearms offences; attempting to escape from lawful custody; breach of a community correction order, a suspended sentence order and conditions of bail; and multiple theft and burglary offences. He has spent a considerable proportion of the previous eight years in custody.

Evidence and submissions at the plea hearing on the fifth limb of Verdins

1. At the plea hearing, defence counsel tendered a report dated 13 February 2022 prepared by a psychologist, Sandra Cokorilo.

2. Ms Cokorilo stated that the applicant had informed her that he had seen a psychologist at age 17, following the suicide of a friend’s brother, and had been diagnosed with post-traumatic stress disorder (‘PTSD’) in his first session. He did not attend any further sessions. He also told her that a GP had diagnosed him with anxiety and depression and prescribed antidepressants, but he ceased taking them after two weeks. He said that he chose to self-medicate with alcohol, cannabis and amphetamine.  

3. Ms Cokorilo stated that the applicant had informed her that ‘[w]hilst he was adamant that he does not want to return to prison, he noted that he prefers [the] structure of the custodial environment to the instability that defines his life in the community.’[4] She opined that he appeared genuine in his expression of remorse for the offending.

   [4]Paragraph 52 of Ms Cokorilo’s report dated 13 February 2022.

4. Ms Cokorilo diagnosed the applicant as suffering from PTSD, borderline personality disorder (‘BPD’), major depressive disorder (‘MDD’) and generalised anxiety disorder (‘GAD’). She assessed his PTSD and GAD as ‘moderately severe’ and his MDD as ‘moderate’.

5. Ms Cokorilo further stated that:

   [The applicant's] chronic depression and anxiety … undermine his functioning by altering cognitions and behaviour, impairing impulse control and decision-making, ability to rationalise, and consider alternative responses.

   It is important to note that [the applicant] has spent a total of six of the last eight years of his life incarcerated. Whilst this is a reflection of severity and frequency of his offending, the resulting exacerbation of hypervigilance, interpersonal distrust, suspicion, emotional deficits, isolation, and low self-worth limits his coping capacity in the community and increases the likelihood of self-destructive and impulsive behaviours already inherent in his psychopathology.[5]

   [5]Paragraphs 78-79 of Ms Cokorilo’s report dated 13 February 2022.

6. Ms Cokorilo assessed the risk of the applicant reoffending as high, but noted that the risk could be reduced if he abstained from use of illicit drugs. She stated that the applicant was unlikely to receive treatment specific to his mental health conditions in custody and suggested that this limited his prospects of rehabilitation.

7. Relying upon Ms Cokorilo’s report, defence counsel submitted that the fifth limb of Verdins was engaged. Counsel accepted that Ms Cokorilo’s report did not directly refer to prison being more onerous for the applicant but submitted that:

   the evidence in the report about how it is presenting itself, that he is suffering symptoms of moderate severity for anxiety and depression is in itself evident that he would find the experience of custody more onerous.[6]

   [6]Transcript of Plea (29 September 2022) 13.18-13.22.

8. Defence counsel accepted that there was not enough evidence to support a submission that the other limbs of Verdins were engaged.

9. Defence counsel contended that the judge should take into account, as context for the offending and as a factor in mitigation, the applicant’s ongoing struggle with mental health and drug addiction.

10. The prosecutor submitted that the psychological material did not support the proposition that the fifth limb of Verdins was engaged. She noted that para 79 of Ms Cokorilo’s report referred to the adverse effects upon the applicant of his mental conditions while he is in the community, but did not state that those effects would also apply when he is in custody. She contended that one could not draw the inference that an offender with the conditions identified by Ms Cokorilo would necessarily find prison more burdensome. It was said that, in the absence of some psychological evidence, one could not conclude that the applicant would find prison more burdensome.

Sentencing remarks

1. The judge stated that the burglaries were in the middle range of seriousness, and that there was nothing to lower the applicant’s moral responsibility for any of the offences.

2. The judge said that the applicant’s plea of guilty at the earliest reasonable opportunity avoided the time and expense of a trial. He noted that the applicant deserved a greater discount on sentence in line with the principles explained in Worboyes v The Queen,[7] regarding pleas of guilty while the courts continue to be adversely affected by the COVID-19 pandemic.

   [7](2021) 96 MVR 344, 356 [35]; [2021] VSCA 169.

3. The judge remarked that the applicant’s prospects of rehabilitation were ‘most uncertain’ and although the applicant had expressed a willingness to reform himself, he had resisted doing so in the past.[8]

   [8]Sentencing remarks, [43].

4. The judge accepted that the applicant’s expression of remorse was genuine but doubted that it would translate into a sufficient determination to not reoffend unless he accepted professional assistance.

5. The judge described general deterrence and denunciation as important sentencing considerations. He observed that the applicant’s criminal history emphasised the need to deter him from committing similar offences and pointed to the need to protect the community from him.  

6. The judge took into account the fact that, while in custody, the applicant had been quarantined for two weeks after contracting the COVID-19 virus and the fact that there had been restrictions in the provision of educational and other programs.

7. The judge observed that Ms Cokorilo’s report lent no direct support for the application of the fifth limb of Verdins. He remarked that the nearest Ms Cokorilo came in supporting the application of that limb was at para 79 of her report.[9] He said that although one might suppose that the attributes identified in that paragraph of the report would make imprisonment harder for the applicant, the evidence ‘lack[ed] the rigor demanded by Verdins and emphasised in cases like O’Neill.’[10] He concluded that the fifth limb of Verdins did not apply.

   [9]Paragraph 79 of Ms Cokorilo’s report is extracted at [24] above.

   [10]Sentencing remarks, [42], referring to DPP v O’Neill (2015) 47 VR 395.

Grounds 1 and 2

1. At the hearing of the application for leave to appeal, counsel for the applicant sensibly conceded that the two grounds of appeal are not only interrelated but also that the applicant could not succeed by making out ground 1 alone. Accordingly we will consider both grounds together.

2. In written submissions, the applicant contended that Ms Cokorilo’s report provided clear evidence of the existence and severity of his conditions and that the judge erred by focusing only on para 79 of that report. He argued that the judge should have considered the whole of the report regarding his conditions and their impacts when determining whether his time in custody would weigh more heavily upon him compared to a person in normal health.

3. In oral submissions, the applicant’s counsel accepted that the psychological evidence regarding the applicant’s depression, anxiety and PTSD was not at a level of specificity that one might expect from expert evidence on a sentencing hearing. Nevertheless, counsel relied upon the statement in Verdins that ‘[s]elf-evidently a prisoner suffering from (for example) severe depression will find each day in prison more of a burden than would a person in normal health.’[11] He contended that the same sentiment could be applied to the applicant.

   [11]Verdins (2007) 16 VR 269, 276 [28] (emphasis added).

4. During the oral hearing, the Bench asked the applicant’s counsel whether the fact that the applicant had expressed a preference for the structure of the prison meant that the fifth limb of Verdins was not applicable. In response, counsel contended that, according to Verdins, the manner in which the applicant copes in the community is not the denominator by which to compare the impact of imprisonment upon the applicant. Counsel argued that, although the applicant may cope better in prison than in the community, nevertheless the fifth limb could be engaged if he found prison more burdensome than a prisoner who did not suffer from the same conditions.  

5. According to the applicant, the judge’s finding that the fifth limb of Verdins was not engaged is vitiated because the judge erroneously failed to consider — or give appropriate weight to — all the evidence regarding his mental conditions and their impacts.

6. In our opinion, both grounds of appeal must be rejected.

7. Consistent with the observation in Verdins, we accept that, in cases of a severe mental condition, it may be open to the sentencing court to infer, in the absence of direct expert evidence, that a prisoner who suffers from such a condition would find prison more burdensome than a prisoner in normal health. However, in the present case, Ms Cokorilo found that the applicant’s MDD and PTSD were ‘moderately severe’ and that his GAD was ‘moderate’.[12] Furthermore, whether such an inference should be drawn in a particular case will depend upon the totality of the evidence. In the present case, the only evidence upon which the applicant relied in support of limb five of Verdins was Ms Cokorilo’s report. Read as a whole, that report was insufficient to engage that limb.

   [12]Emphasis added.

8. The applicant has had extensive experience with prison life in the past eight years.[13] In the light of the fact that he gave detailed information to Ms Cokorilo about his mental health history, it would be expected that, if he had found prison burdensome for reasons connected with his mental conditions, he would have disclosed this to Ms Cokorilo. Instead of doing so, he told her that he ‘prefers [the] structure of the custodial environment’. Further, in para 79 of her report, Ms Cokorilo found that the applicant’s mental conditions would be burdensome for him in the community but she said nothing about whether they would be burdensome while he is in custody. In our opinion, the combination of the applicant’s statement and Ms Cokorilo’s finding leaves no room for an inference that the applicant’s conditions would render imprisonment more onerous for him compared to prisoners without those conditions.

   [13]Ms Cokorilo stated in her report that the applicant had spent six of the previous eight years in prison. The applicant’s criminal record does not appear to support this statement. Nevertheless, it is clear that the applicant has spent a considerable proportion of the previous eight years in prison.  

9. We reject the applicant’s contention that the judge relied exclusively upon para 79 of Ms Cokorilo’s report on the question of whether limb five of Verdins was engaged and failed to take into account other parts of the report which were said to support that limb. The judge’s sentencing remarks indicate that he was aware of the applicant’s history of mental health problems and the entirety of Ms Cokorilo’s report. There is simply no basis for an inference that the judge disregarded any parts of that report or that he did not have regard to all of the evidence bearing upon limb five of Verdins. However, even if the judge had erred in this respect, as we have demonstrated, a consideration of the evidence as a whole does not support a finding that limb five was engaged.

10. Furthermore, even if, contrary to the above analysis, it is assumed in the applicant’s favour that the judge erred in finding that limb five of Verdins was not engaged, we would nevertheless refuse leave to appeal on the basis that there is no reasonable prospect that the Court of Appeal would reduce the total effective sentence.[14] That is because the total effective sentence of 2 years, 6 months’ imprisonment is very lenient having regard to:

    (a)The judge’s findings that the burglaries were in the middle range of seriousness and that there was nothing to lower the applicant’s moral responsibility for any of the offences. Although the applicant’s offending was limited to a period of seven days, it involved three separate houses and a warehouse and constituted serious violations of the property rights of members of the public.

    (b)The applicant’s extensive relevant criminal history and Ms Cokorilo’s finding that the risk of him reoffending was high. These factors mean that considerable weight must be given to specific deterrence and protection of the community.

    (c)The judge’s finding that the applicant’s prospects of rehabilitation were ‘most uncertain’.

    (d)The important role of general deterrence for the offences of burglary and theft.

    [14]See s 280(1)(b) of the Criminal Procedure Act 2009.

1. We accept that the applicant is able to call in aid important mitigating factors, including his early plea of guilty, particularly in the context of the COVID-19 pandemic, and his remorse. Although no limb of Verdins was engaged, the applicant’s long history of mental illness and disadvantaged background were relevant considerations in the exercise of the sentencing discretion. Nevertheless, with all of these factors being given generous weight, the total effective sentence can only be described as very lenient.

Conclusion

1. For the above reasons, the application for leave to appeal will be refused.

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