Thomas v The Queen
[2021] VSCA 97
•19 April 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2019 0190
| DANIEL THOMAS | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P, McLEISH and SIFRIS JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 4 March 2021 |
| DATE OF JUDGMENT: | 19 April 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 97 |
| JUDGMENT APPEALED FROM: | [2019] VSC 608 (Coghlan JA) |
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CRIMINAL LAW – Appeal – Sentence – Intentionally causing serious injury in circumstances of gross violence (2 charges) – Aggravated burglary – Theft – Sentenced to 11 years and 6 months’ imprisonment – Non-parole period 9 years – Whether manifestly excessive – Applicant’s acquired brain injury (ABI) – Cognitive deficits - Whether causal link to offending – Applicant offended while affected by drugs and alcohol – Planned and purposeful offending – Open to judge to reject causal link with ABI – Very serious offending – Long term harm to both victims – Sentence within range – Leave to appeal refused – Carroll v The Queen [2011] VSCA 150 applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Desmond | David Baresse & Associates |
| For the Respondent | Mr J McWilliams | Ms A Hogan, Solicitor for Public Prosecutions |
MAXWELL P
McLEISH JA
SIFRIS JA:
Introduction
The applicant pleaded guilty to multiple charges arising from an attack on two men in the early hours of the morning. He was sentenced as set out in the table below. He now seeks leave to appeal against sentence. For reasons which follow, we would refuse leave to appeal.
Charge on Indictment Offence Maximum Sentence Orders 1. Aggravated burglary 25 years 2 years 6 months cumulative 2. Causing serious injury intentionally in circumstances of gross violence 20 years 8 years Base sentence 3. Causing serious injury intentionally in circumstances of gross violence 20 years 8 years 6 years concurrent 4. Theft 10 years 3 months - 5. Resisting an emergency worker on duty 5 years 2 years 6 months cumulative 6. Making a threat to kill 10 years 2 years 6 months cumulative Total Effective Sentence: 11 years and 6 months’ imprisonment Non-Parole Period: 9 years’ imprisonment Pre-Sentence Detention Declared: 1,126 days Section 6AAA statement: 15 years’ imprisonment with a non-parole period of 12 years. Ancillary orders: Sentenced as a serious offender in respect of charges 2 and 3. Circumstances of the offending[1]
[1]This summary is taken from DPP v Thomas [2019] VSC 608 (‘Reasons for Sentence’), the Amended Summary of Prosecution Opening dated 23 July 2018 and the Registrar’s neutral summary.
Around 5:00 am on 25 July 2016, the applicant and a co-offender (B) went to the home of CN and SS. The applicant had known CN for a number of years. Inside, CN was dozing at the kitchen table, while SS was asleep in his bedroom.
The offenders were dressed in clothing which looked like Victoria Police uniforms. They entered via an unlocked door, shouting, ‘This is a police raid, get on the floor, face down. Where are your drugs?’. Believing they were police, CN complied with their request. He directed them to where he had stored some cannabis and methylamphetamine. (Charge 1 – aggravated burglary – intent to steal – person present).
Then the applicant or B began stomping on CN’s back. When CN tried to get up, he was hit with a hammer. The applicant and/or B then held CN against the wall and screamed at him to tell them where his drugs and money were. CN said that he did not have any more. The offenders then hit CN multiple times with hammers on his head, hands, arms and body.
After one of the blows to his head, CN momentarily lost consciousness. He next remembers being in the hallway, where he was told by one of the offenders, ‘We’ve killed your mate, now tell us where the drugs are’. CN was then hit again, to the head, with a hammer. (Charge 2 – intentionally cause serious injury in circumstances of gross violence).
At this point, CN recognised the applicant and began screaming for help. The applicant put his hand over CN’s mouth to stop him from yelling. CN recalls one of the offenders saying, ‘Someone’s coming’.
SS woke to male voices yelling. When he got up, he was confronted by one of the offenders, who pushed him back towards his bedroom and said, ‘I’ll kill you’. When SS ran at the male, he was struck to the head, losing consciousness momentarily. When he regained consciousness, he was face down on the kitchen floor being beaten by both offenders. One of them was demanding drugs. (Charge 3 – intentionally cause serious injury in circumstances of gross violence). SS then heard one of them say, ‘Let’s go, the cops are coming’. The offenders then left, taking the methylamphetamine and cannabis with them. (Charge 4 – theft).
At 5:31 am, two police officers attended. They found CN and SS lying on the floor in a serious condition with severe injuries. Blood was sprayed over the walls and ceiling and there were large pools of blood on the floor. The two men were taken to hospital.
SS suffered a complex open skull fracture to the side and back of his head; a Contre-Coup injury to the brain; two stab injuries to the scalp; and two stab injuries to the face. Part of his skull had to be removed to relieve pressure and swelling on his brain and to clean the contaminated wound. He remained in hospital for a week. The prognosis was that his quality of life will be poor and he will most likely suffer epileptic fits and mental health issues in the future.
CN suffered a fracture to the left back of his skull; multiple lacerations to his head, lips and front scalp; multiple nose fractures; lung tissue collapse; complicated multiple rib fractures; multiple spinal fractures in the left lumber spine bones; and a 3 cm in size wound to the side of his right mid shin. He underwent surgery on his head and for a deep cut to his leg. He remained in an induced coma and intensive care for two days and stayed in hospital for a week. As for SS, the prognosis was that his future quality of life would be poor.
On 3 August 2016, a search warrant was executed at the applicant’s home address. The applicant was arrested. During the course of the arrest, the applicant pulled a knife from behind him and lunged at an officer, saying, ‘Fuck off, you dog cunts won’t take me alive’. One of the other police officers sprayed the applicant with capsicum spray but the applicant continued to swing the knife in a circular motion in front of him, saying to the first officer, ‘You come near me you fucking dog cunt and I’ll stab you in the fucking head and kill you’. (Charge 6 – make threat to kill). Police negotiated with the applicant for about two and a half hours. He had the knife in his hand for the whole time. (Charge 5 – resisting an emergency worker on duty).
The reasons for sentence
The judge characterised the attacks on CN and SS as ‘quite serious examples’ of the crime of intentionally causing serious injury in circumstances of gross violence. (The relevant circumstance was that, in relation to each victim, the applicant continued to inflict injury after the victim was incapacitated.) His Honour continued: ‘This sentencing process is dominated by the seriousness of that offending and the serious injuries inflicted on your victims’. No issue is taken with that description.
On the plea, as in this Court, most of the submissions were directed at matters personal to the applicant. The submissions focused in particular on the significance of the applicant’s acquired brain injury (ABI), which is addressed under proposed ground 1.
His Honour accepted that the applicant had had a ‘very traumatic upbringing’.[2] His parents were divorced when he was about three and he was physically and sexually abused by his mother’s boyfriends. The applicant was born with a significant squint in his right eye, and has severe vision impairment on that side. His impaired vision meant he struggled at school and he did not receive adequate support from teachers. The applicant was expelled in year eight for fighting, then repeated year eight and was expelled again for fighting. He subsequently worked as a roof plumber for about 10 years.
[2]Reasons for Sentence [32].
The applicant turned to drug and alcohol use at an early age. He began using amphetamines by the age of 13 and was injecting daily by the age of 17. He had been on and off anti-depressants since the age of 18.
The applicant also had what the judge described as a ‘limited, but reasonably significant’ criminal history.[3] He had prior convictions for intentionally causing serious injury and unlawful assault. The unlawful assault arose from the applicant punching a young man and knocking him into a swimming hole. Shortly afterward, he became involved in an attack on an older man whose daughter had been frightened by his earlier actions. The victim had his hair pulled, then ended up in the water where he was struck with a bottle, then was punched and hit with a branch and finally attacked with golf clubs. He suffered reasonably serious injuries. The sentencing judge also noted two prior convictions for breach of bail in April and June 2016.
[3]Ibid [38].
At the time of the offending, counsel told the judge, the applicant was injecting ‘a couple of grams of ice [methylamphetamine] daily’.[4] He was also using GHB and cannabis every day or two and intermittently using heroin. As his counsel said, it was ‘a volatile cocktail of illicit substances’. The applicant himself told the neuropsychologist who examined him, Associate Professor Brewer, that he had not slept for ‘a few days’ prior to committing the offences, as he had been ‘high’ on ice, alcohol and GHB.
[4]Ibid [45].
The sentencing judge accepted that the applicant’s drug taking explained his incomplete recollection of the events. His Honour’s own observation, based on the video recordings of the altercation with police, was that the applicant gave ‘every indication of being heavily affected by drugs’.[5]
[5]Ibid [28].
Proposed ground 1 — acquired brain injury
Proposed ground 1 is in the following terms:
The learned sentencing judge erred in failing to accept that the principles in R v Verdins applied to the applicant and consequently failed to have regard, or failed to have sufficient regard to the impact of the applicant’s acquired brain injury:
(a)the sentencing judge erred in not finding a causal link was established on the evidence between the offending and the ABI;
(b)accordingly the sentencing judge erred in failing to apply Verdins principles 1, 3 and 4 i.e. the moderation of moral culpability, general and specific deterrence.
On the plea, the defence relied on reports from a forensic psychiatrist, Dr Zimmerman, and the neuropsychologist, Associate Professor Warrick Brewer, who also gave oral evidence. Associate Professor Brewer’s opinion was that the applicant had a ‘mild to moderate’ ABI, although the cause of the injury remained unclear.
Given the centrality of the expert evidence to the defence’s arguments on the plea and in this Court, it is necessary to set out ― as the sentencing judge did ― a lengthy extract from Associate Professor Brewer’s neuropsychological report:
(f)More specific elements of reduced capacity according to the cognitive evidence detailed above that arguably were factors at play at the lead up to and at the time of the offending include:
i.compromised ability for registering and retaining new information;
ii.impaired new verbal learning capacity;
iii.distracting features associated with post-traumatic distress and dysfunctional attempts to self-medicate the same;
iv.substance abuse including the associated risk for auditory hallucinations;
v.a reported awareness of the hedonic pleasure associated with engaging in assault, immaturity in emotion regulation;
vi.reduced self-monitoring;
vii.poor impulse control and frustration tolerance; and
viii.reduced ability to think in an organised and mindful manner.
(g)Moreover, as suggested above, Mr Thomas demonstrates little regard for the impact of his behaviour on others, and further, apparent limited ability to appreciate the likely outcome of imprisonment that his behavior [sic] would attract.
(h)Irrespective of the above suite of psychological and cognitive difficulties and the further impact of substance abuse on the same, the evidence nevertheless also suggests Mr Thomas was of sufficient sound mind at the time of the offending to:
i.apparently dress in what appeared to be Victoria Police uniforms, to mimic a police raid;
ii.to allegedly be mindful of the arrival of a third person or persons…; and further,
iii.be sufficiently mindful capacity [sic] at the time of his arrest to hug and shake hands with another person who was in the lounge room at the time and then to pull a knife from behind him and lunge at [the officer] with that knife and say ‘fuck off you dog cunts won’t take me alive’.
(i)In addition, as Mr Thomas stated to Dr Zimmerman, his main motivation for the offending was to punish the victim [CN]; arguably, this mission arguably [sic] requires some functional organisational capacity, notwithstanding the documented nature of deficits in the same outlined in the ‘Results’ section above.
(j)Furthermore, as Dr Zimmerman notes, despite Mr Thomas’s very heavy and constant drug use in his adult years, he nevertheless was able to continue working in the roofing industry for 10 years. Her further opinion that Mr Thomas is unlikely to have learned to manage impulses or to handle negative emotions in a prosocial manner is also consistent with the clinical history outlined above; [sic]
(k)As Dr Zimmerman further notes, and consistent with the opinion formulated above by this Clinician, Mr Thomas’s history further reflects a likely well learned response of resorting to violence and drug use to assuage the impact of his underlying cognitive and mental status vulnerabilities.
Hence, it is my further opinion:
(a)that Mr Thomas’s chronic risk for impulsivity and aggression would be expected to be further exacerbated by the impact of an ABI;
(b)his ability to think rationally about the consequences of his behaviour and to control his impulses would have been further significantly impaired at the time of the offending relative to that expected in a similar peer who does not suffer an ABI, irrespective of the further compounding impact of his substance abuse.
The sentencing judge then noted that, in oral evidence, Associate Professor Brewer had been asked about the effect of the applicant’s significant illicit drug use. His opinion was that ‘there was no objective evidence that he could rely on to ascertain the further compounding impact [the applicant’s] substance abuse had on [the applicant’s] underlying ABI at the time of the offending’, and that he was unable to indicate which played a greater role in impairing the applicant’s judgment, the substance abuse or the ABI.[6]
[6]Ibid [53].
His Honour also noted Associate Professor Brewer’s evidence that ‘the ABI exacerbates the impact of any illicit substance abuse and illicit substance abuse exacerbates the existence of a pre-existing ABI’.[7] His Honour continued:
[7]Ibid [54].
When asked in examination-in-chief what, if any, he opines to be the causal nexus between your ABI and the offending, Professor Brewer agreed that the ABI has a limited or moderated causal connection in exacerbating your underlying propensities. In regard to your underlying propensities, having assessed your history, Professor Brewer stated that you reflect behaviour that has a propensity for offending (which was exacerbated by your substance abuse) and that that pattern of behaviour was well entrenched prior to any brain injury.
When cross-examined on this [causal] nexus question by Mr Fisher, Professor Brewer summarised his opinion as follows:
in my opinion his offending was associated more with the overall impact of his drug and alcohol abuse, but that we also have to make the point that there is a relationship between — a compounding relationship between his drug history, drug use history and his ABI.
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When asked about your moral culpability, Professor Brewer stated that you did not demonstrate convincing remorse at the time he assessed you and that your entrenched lifestyle demonstrated a learned pattern of offending, with little regard for the impact of your behaviour on others. Professor Brewer confirmed that your appreciation of wrongfulness remains limited, irrespective of the ups and downs of your substance abuse.
Overall, Professor Brewer concluded that you have a number of underlying deficits. These deficits may be the result of your ABI or your illicit drug use, however, it is more likely that these deficits are due to a combination of both those things. Professor Brewer agreed that these factors are capable of coming into play when assessing your offending because these deficits ultimately describe you as a person.[8]
[8]Ibid [55]–[56], [58]–[59] (citations omitted).
The sentencing judge then stated that he was ‘not satisfied that Professor Brewer’s evidence goes as far as confirming a causal connection between your ABI and the offending, so as to enliven the first, third and fourth principles enunciated in R v Verdins’.[9] He did, however, accept that ‘the deficits from which you suffer mean that your sentence will weigh more heavily on you than it would on a person of normal health.’[10] He said he would take the ABI into account as part of the applicant’s ‘general background’.[11]
[9]Ibid [60]; (2007) 16 VR 269 (‘Verdins’). These principles relate to the reduction in moral culpability and the moderation of general and specific deterrence.
[10]Reasons for Sentence [61]. The judge then referred to the fifth principle enunciated in Verdins.
[11]Ibid [62] (citations omitted).
In this Court, counsel for the applicant accepted that in order for the Verdins principles to be engaged, the evidence needed to establish a ’realistic connection’ between the applicant’s cognitive impairment and the offending. For that purpose, the submission relied on what was said to be unchallenged evidence from Associate Professor Brewer that the ABI had affected the applicant’s ability to appreciate the wrongfulness of the conduct, had obscured his intent to commit the offence, and had impaired his ability to make calm and rational choices and to think clearly at the time of the offences.[12]
[12]DPP v O’Neill (2015) 47 VR 395, 415 [75] (Warren CJ, Redlich and Kaye JJA).
The applicant further submitted that, where an impairment or mental illness and illicit drug use were both connected to offending, any reduction in moral culpability was ‘a question of fact to be determined on the available evidence’.[13] The illness still remained relevant, it was said, even if the drug use was a contributing factor to the offending.[14] The applicant submitted that, based on Associate Professor Brewer’s evidence, there was a ‘substantive basis on which it could be concluded on the balance of probabilities’ that the ABI was ‘materially operative at the time of the offending’.
[13]See Breuer v The Queen [2011] VSCA 244, [18] (Hansen JA, Whelan AJA agreeing at [31], Ross AJA agreeing at [32] ).
[14]See R v Dupay [2008] VSCA 63, [29] (Ashley JA, Buchanan JA agreeing at [1], Forrest AJA agreeing at [41]); R v Miller [2015] VSC 180, [39] (King J).
The applicant referred to the case of Director of Public Prosecutions v Granata,[15] in which this Court allowed an appeal by the Director of Public Prosecutions against the sentence imposed on an offender who had been affected by heavy use of methylamphetamine at the time of the offending. The Court rejected the offender’s argument that psychological difficulties (an ABI and/or post-traumatic stress disorder) had contributed to the offending. The submission for the present applicant, however, was that the Court in Granata had not ruled out the application of Verdins in a case with both an underlying condition and years of drug use.
[15][2016] VSCA 190.
The respondent submitted that it was open to his Honour to conclude that there was no causal connection established between the applicant’s ABI and the offending, based on the following material:
(a) the applicant’s illustrated propensity for violence prior to any suggested impactful head injury;
(b) Associate Professor Brewer’s opinion that the applicant’s ABI was only relevant in that it exacerbated his existing propensity towards violence in a limited or moderate way;
(c) Associate Professor Brewer’s opinion that it would be ‘pushing it’ to conclude that the applicant’s ABI was a cause for the offending;[16] and
(d) Associate Professor Brewer’s description of the applicant’s deficits as having relevance to the commission of the offence only to the extent that those cognitive deficits ‘describe who he is’ rather than establishing the requisite connection to the offending.
[16]Transcript of Proceedings, DPP v Thomas (Supreme Court of Victoria, S CR 2018 0005, Coghlan JA, 29 July 2019) 68.30–31.
According to the respondent’s submission, the circumstances of the offending did not speak to any of the manifestations of the ABI, such as emotional dysregulation, reduced self-monitoring, poor impulse control and reduced ability to think in an organising and mindful manner. It was noted that, in the course of argument on the plea, the sentencing judge had drawn attention to the planning involved in the offending and to the applicant’s stated motivation of wanting to ‘bash’ CN. These features were said to demonstrate that the incapacities resultant from the ABI were not operating at the time of the offending.
Analysis
In our view, the respondent’s submission must be upheld. It was well open to the sentencing judge to conclude, as a fact, that the expert evidence did not establish any relevant connection between the applicant’s ABI and the offending so as to attract the relevant principles in Verdins (principles 1, 3 and 4).
In Carroll v The Queen, Maxwell P said:[17]
[17][2011] VSCA 150, 6–8 [17]–[18], [20].
It needs to be emphasised that a finding made by a sentencing judge about the applicability of one or more of the principles identified in Verdins[18] is a finding of fact. It is for the sentencing court to decide whether, and if so to what extent, any condition from which the offender is said to suffer is likely to have affected his/her mental functioning in the particular circumstances – that is, at the time of the offending or in the lead-up to it – or is likely to affect him/her if sentenced to imprisonment.[19] As to proposition 1, concerning the reduction of moral culpability, the Court in Verdins said:
It is of the nature of the sentencing discretion that views will differ as to how, and to what extent, impaired mental functioning may reduce the blameworthiness of the offender’s conduct. The effect on the court’s assessment of culpability will, of course, vary with the nature and severity of the condition, and with the nature and seriousness of the offence.[20]
Accordingly, a finding of the kind in issue here – that the appellant’s moral culpability was not reduced – will attract appellate intervention only if it can be shown that the finding was not reasonably open on the evidence.[21] In the present case, the appellant would have had to show that no other conclusion was reasonably open but that his culpability was reduced, at least to some extent, by what was said to be the impairment of his mental functioning.
…
Where reliance is placed on proposition 1, concerning moral culpability, the question for the Court is whether the evidence establishes – on the balance of probabilities – that the impairment of mental functioning did contribute to the offending in such a way as to render the offender less blameworthy for the offending than he/she would otherwise have been. Very often, this question is approached as one of causation. Did the evidence establish a causal connection between the impairment of mental functioning and the offending for which sentence is to be imposed?[22]
[18](2007) 16 VR 269.
[19]Ibid 272, [13] (Maxwell P, Buchanan and Vincent JJA).
[20]Ibid 275, [25] (Maxwell P, Buchanan and Vincent JJA).
[21]See Lam v The Queen [2011] VSCA 140, [6] (Weinberg JA and King AJA).
[22]Ashe v The Queen [2010] VSCA 119, [14], [19] (Neave and Redlich JJA and Coghlan AJA); Davey v The Queen [2010] VSCA 346, [25] (Redlich JA); MC v The Queen [2011] VSCA 2, [20]–[21] (Weinberg JA and King AJA); Bowen v The Queen [2011] VSCA 67, [28], [29], [33] (Warren CJ, Redlich JA agreeing at [75]); DPP v HPW [2011] VSCA 88, [28], [63] (Tate JA, Neave JA agreeing at [1], Mandie JA agreeing at [2]); Pettiford v The Queen [2011] VSCA 96, [32]–[34] (Neave JA, Mandie JA agreeing at [76], Tate JA agreeing at [78]).
In our respectful view, the approach of the judge in the present case exemplifies the rigour with which sentencing courts scrutinise claims that an impairment of mental functioning contributed to offending in such a way as to warrant a reduction in moral culpability (or a moderation of specific or general deterrence). Such scrutiny is especially important in cases like the present, where the offender’s mental functioning at the time of the offending was admittedly, and significantly, impaired by reason of self-induced intoxication. In such circumstances, a court will ordinarily require clear expert evidence before accepting that a pre-existing mental or cognitive impairment also made a material contribution to the offending.
For example, in Johnston v The Queen,[23] the appellant had an underlying depressive illness, which both preceded and was exacerbated by his use of drugs. The Court upheld the sentencing judge’s refusal to accept that there was a causal link between his depressive disorder and his drug abuse. Redlich JA (with whom Priest JA and Robson AJA agreed) said:
For a sentencing judge to be satisfied that an offender was affected by a particular mental condition so as to reduce his moral culpability, there must be a ‘realistic connection’ between the mental condition and the commission of an offence. It must have ‘caused or contributed’ to the offending or have been ‘causally linked’ to it. The argument raised here — that the appellant’s moral culpability should be reduced on the basis of an indirect causal link between the offence, his drug addiction, and an underlying mental disorder — must be rejected.
Where offending occurs in circumstances where the offender was affected by drugs or alcohol, his substance abuse is not generally to be regarded as a factor in mitigation. Circumstances must be quite exceptional before the effects of drugs or alcohol at the time of offending can mitigate the offender’s moral culpability. The underlying reason sometimes advanced is that where a crime is the predictable consequence of a rational choice to take the drug, that choice establishes moral responsibility for the condition at the time of the offence. Where a person’s mental state is affected by voluntary drug-taking, it will only constitute a mitigating factor in the rare circumstance where it is established that the offender did not have any foreknowledge of the mental state that would be induced by the taking of drugs. Where an offender suffers from a mental disorder, the disorder is not to be treated as a mitigating factor because it explains the offender’s recourse to drugs.[24]
[23][2013] VSCA 362.
[24]Ibid [14]–[15].
As appears from the extracts from the judge’s reasons set out above, his Honour carefully reviewed Associate Professor Brewer’s evidence about whether there was a causal link between the offending and the applicant’s cognitive deficits. He noted Associate Professor Brewer’s statement that the applicant ‘reflect[ed] behaviour that has a propensity for offending (which was exacerbated by [his] substance abuse) and that that pattern of behaviour was well entrenched prior to any brain injury’.[25]
[25]Reasons for Sentence [55].
Apart from the obvious operative effects of the applicant’s intoxication, there was another feature of the offending which called for close scrutiny. As the judge pointed out to defence counsel on the plea, this was planned and purposeful offending. The decision to ‘dress up as police officers’ revealed that the applicant was well able to think clearly and strategically about how best to achieve his avowed purpose of harming CN and taking money and drugs. His actions were premeditated and deliberate and he knew exactly what he was doing. He was, as the judge found, ‘prepared to use as much force as [he] thought it would take’.[26]
[26]Ibid [20].
When offending has features of that kind, the sentencing court will inevitably view with scepticism a claim that the offender’s decision-making was nevertheless materially affected by some mental or cognitive impairment. In a case such as the present, there is an obvious implausibility about the contention that, but for the impairment, the offending would not have occurred or would not have taken the form it did.[27] That is, after all, what the conventional approach to causation requires.[28]
[27]Carroll v The Queen [2011] VSCA 150, [22] (Maxwell P, Buchanan JA agreeing at [70]).
[28]March v E & M H Stramare Pty Ltd (1991) 171 CLR 506, 515–516; [1991] HCA 12 (Mason CJ).
For the reasons we have given, his Honour was fully entitled to reject the defence argument directed at Verdins limbs 1, 3 and 4. Accordingly, we refuse leave to appeal on this proposed ground.
Proposed ground 2 — manifest excess
Proposed ground 2 is in the following terms:
The individual sentences, orders for cumulation, total effective sentence and non-parole period fixed are each manifestly excessive.
Particulars the learned sentencing judge:
(a)gave manifestly insufficient weight to the applicant’s pleas of guilty and the principle of totality;
(b)the sentences imposed are more severe than that which were necessary to achieve the purposes for which the sentences were imposed[;]
(c)gave manifestly insufficient weight to the appellant’s health and personal circumstances/background;
(d)failed to adequately moderate general and specific deterrence as a result of the his relatively low IQ; mildly impaired processing speed and impoverished verbal memory in addition to the diagnosed ABI;
(e)the weight that a term of imprisonment would have on the applicant was not given adequate consideration[.]
The essence of the applicant’s complaint of manifest excess is that the sentencing judge failed to give sufficient weight to the following matters in mitigation:
(a) the plea of guilty prior to the final directions hearing in 2018;
(b) an upbringing marked by deprivation and abuse;
(c) the finding of fact that the applicant ‘had a disadvantaged life as a child and beyond’;
(d) the finding that the applicant’s culpability for the offending was ‘reduced by virtue of his past personal history and background’;
(e) the applicant’s limited education, including a failure to complete Year 7;
(f) the unchallenged findings of limited intellectual and social functioning by a psychiatrist and psychologist;
(g) the applicant’s drug use and addiction;
(h) the applicant’s reasonable employment history including 10 years working as a roofing plumber;
(i) the finding that the applicant had prospects of rehabilitation which, although fairly bleak, were not hopeless;
(j) the applicant’s relatively low IQ, mildly impaired processing speed and impoverished verbal memory in addition to the diagnosed ABI; and
(k) the nature of the aggravated burglary which, despite a maximum penalty of 25 years, involved offending that was a particularly lower level example of the offence because:
(i) there was no intention to assault at the time of entry;
(ii) it was an aggravated burglary on the basis of person present with intent to steal;
(iii) neither accused had to physically break into the premises; and
(iv) there was no finding that the accused came to the premises armed.
The applicant contended that the offending the subject of charges 5 and 6 ― resisting an emergency worker, and threat to kill ― occurred in a setting where he was heavily drug affected, lacked any meaningful level of sophistication or planning and very much ‘put the applicant’s own life at risk’. Further, it was said, it was relevant to totality that the aggravated burglary and the two counts of intentionally causing serious injury occurred during one period of offending. The two separate crimes constituted by charges 5 and 6 also occurred during one episode of offending.
In order for the applicant to succeed on this proposed ground, it is necessary to show that the sentence imposed is wholly outside the range available to the sentencing judge. That is, it must be shown that it was not reasonably open to the sentencing judge to come to the conclusion which he, if proper weight had been given to all the relevant circumstances of the offending and the offender. This is a stringent requirement, which is difficult to satisfy.[29] Furthermore, a complaint about insufficient weight can only be assessed by looking at the sentence imposed.[30]
[29]Clarkson v The Queen (2011) 32 VR 361, 384 [89]; [2011] VSCA 157 (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).
[30]DPP v Terrick (2009) 24 VR 457, 459–60 [50]; [2009] VSCA 220 (Maxwell P, Redlich JA and Robson AJA); Smith v The Queen [2020] VSCA 159, [12] (Maxwell P, Kyrou and Weinberg JJA); DPP v Apostolopoulos [2016] VSCA 201, [30] (Weinberg, Beach and McLeish JJA); DPP (Cth) v Estrada (2015) 45 VR 286, 296 [37]; [2015] VSCA 22 (Priest, Beach JJA and King AJA).
All of the matters relied on in mitigation of sentence were addressed by the sentencing judge, who properly balanced these factors with the gravity of the applicant’s initial and subsequent offending. The initial offending involved severe and devastating assaults upon both victims, involving the use of hammers. The physical injuries were extensive. Both victims have suffered serious physical and psychological damage. Each of them faces a bleak future. The subsequent offences relating to the applicant resisting arrest and making a threat to kill were also serious, and separate, examples of gross violence.
The sentencing judge properly concluded that the sentencing process was ‘dominated’ by the seriousness of the offending and the serious injuries inflicted on the two victims.[31] That conclusion, and the separate conclusions that the charge of aggravated burglary was ‘not a particularly serious example’ of the offence and that the theft was ‘relatively minor’,[32] are appropriately reflected in the individual sentences. The sentences on the principal offences can, at the same time, be seen to reflect the giving of appropriate weight to the pleas of guilty and the other mitigating factors.
[31]Reasons for Sentence [73].
[32]Ibid [80].
Further, in our view, the level of cumulation appropriately recognised the separate criminality involved in offences against a number of victims. Each charge quite properly carried weight in the overall sentence.
Balancing for ourselves all relevant features relating to the exercise of the sentencing discretion, we consider that the sentence imposed on the applicant (including the individual sentences, orders for cumulation, total effective sentence and non-parole period) was well within the range reasonably open to the judge in the circumstances of this case.
Leave to appeal on this proposed ground is refused.
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