TS v The Queen

[2014] VSCA 24

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0202

TS[1]

Applicant

v

THE QUEEN

Respondent

[1]To ensure that there is no possibility of identification of the applicant, the judgment has been anonymised by the adoption of a pseudonym.

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JUDGES	WEINBERG and OSBORN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	21 February 2014
DATE OF JUDGMENT	21 February 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 24	1st Revision:  27 February 2014, [43]
JUDGMENT APPEALED FROM	DPP v [TS] (Unreported, County Court of Victoria, Judge Ryan, 31 May 2013)

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CRIMINAL LAW – Sentence – Guilty plea – Aggravated burglary, recklessly causing injury and theft – Applicant sentenced to three years and six months’ imprisonment with non-parole period of two years – Applicant sentenced on basis that he suffered drug-induced psychosis – Verdins substantially rejected by sentencing judge – Fresh evidence – Applicant diagnosed with long-standing schizophrenia – Moral culpability clearly reduced – Verdins principles applicable – Leave granted – Appeal allowed – Sentence reduced to two years and six months’ imprisonment with non-parole period of 18 months.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D A Dann	Melasecca Kelly & Zayler
For the Crown	Mr G J C Silbert SC	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA
OSBORN JA:

1. The applicant (now aged 39), pleaded guilty in the County Court at Melbourne to aggravated burglary, recklessly causing injury and theft.  He was sentenced on 31 May 2013 as follows::

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Aggravated Burglary [Crimes Act 1958 (Vic) s 77(1)]	25 years [Crimes Act 1958 (Vic) s 77(2)]	3 years	Base
2	Causing Injury Recklessly [Crimes Act 1958 (Vic) s 18]	5 years[Crimes Act 1958 (Vic) s 18]	12 months	6 months
3	Theft [Crimes Act 1958 (Vic) s 74(1)]	10 years [Crimes Act 1958 (Vic) s 74(1)]	1 month	N/A
Total Effective Sentence:		3 years 6 months
Non-Parole Period:		2 years
Pre-sentence Detention Declared:		10 days
6AAA Statement:		5 years’ imprisonment, 3 years non-parole period
Other orders: Forensic Sample Order

1. The applicant now seeks leave to appeal upon the following ground:

1. That in light of fresh evidence relating to the applicant’s mental health – the sentencing discretion should be re-opened.

Circumstances of the offending

1. The applicant and the complainant were married.  Shortly before the relevant offending, they had separated and were living apart.  In the week before the commission of these offences the applicant visited their two children at the complainant’s home.  He was verbally abusive to the complainant.  As a result she changed the locks on the house.

1. On 1 April 2012 they attended the wedding of a mutual friend together.  The complainant returned home from the wedding with BM, a friend of the applicant’s.

1. The applicant suspected that the complainant and BM were having an intimate relationship.  At about 2.30 am the applicant broke into the complainant’s home through a rear window (charge 1 – aggravated burglary) and found her in bed with BM.

1. The applicant punched the complainant in the face.  BM attempted to pull the applicant away and a scuffle ensued.  During the course of the struggle, the complainant hid in the bathroom.

1. The applicant called the complainant a ‘slut’ and accused her of being involved with his friends.  BM left the house.  The applicant then bashed the complainant’s head repeatedly into a wall and took her phone (charge 3 – theft).  He then left the house.

1. The complainant went to a neighbour’s home where the police and an ambulance were called.  The complainant was treated at hospital for swelling to her face, tenderness and a laceration to her nose (charge 2 – recklessly cause injury).

1. At about 9.30 am the complainant’s brother saw the applicant driving his vehicle.  The applicant was rambling and crying.  The brother suggested that the applicant go to the police station and asked him to return the complainant’s phone.

1. The applicant handed the complainant’s phone to the brother and then followed him to the police station where he turned himself in.  He was interviewed and told police that he had used drugs and alcohol the previous night.  He did not recall attending the complainant’s home or assaulting her.  He did, however, remember receiving a message from the complainant’s mother about her daughter’s phone and finding it in his car.

1. The applicant was remanded in custody and granted Court Integrated Services Program (CISP) bail on 3 April 2012.  He was subsequently remanded in custody in relation to an unrelated matter.

The course of the plea

1. Counsel who appeared on behalf of the applicant on the plea outlined something of his history.  The applicant was born and raised in Carlton at the Housing Commission flats.  His parents were divorced when he was aged eight.  Since then he had had relatively little contact with his father.  Both his parents had died in 2010.  His mother was the person he was closest to, and he relied on her for support.  An elder brother had died of a heroin overdose seven years previously and another older brother, who was also a heroin addict, was in custody in relation to serious criminal offences

1. The applicant completed year 10 at school.  At the age of 18 he obtained employment with a firm in Bayswater learning the glazing and window business.  He worked there for nine years.

1. In 2006 the applicant and the complainant met.  In 2007 he obtained employment with a glass firm in Box Hill.  He remained with that firm, albeit only intermittently, because of issues relating to drugs, his family circumstances and mental health problems.

1. When the applicant’s mother died in 2010 she left him an inheritance of about $100,000.  By 2011 his marriage to the complainant had begun to break down.  In the context of that marital breakdown, the death of his mother and his having come into a substantial amount of money, the applicant began using methamphetamines on a regular basis.  He continued to do so right up to the time of the relevant offending.  Following his arrest his usage reduced to about once a fortnight.

1. By mid-2012, the applicant had no money.  He entered into voluntary bankruptcy over a $35,000 debt that both he and the complainant had incurred.  His financial circumstances were deteriorating and he was in Housing Commission Accommodation but could not afford to pay rent.

1. In January 2012, the applicant began seeing a psychologist, Makayla Heard, in relation to anxiety and depression.  He continued to see her throughout the CISP period of four months while he was on bail.

1. Towards the end of 2012 the applicant was placed on a community treatment order, as an outpatient, for three months.  He remained a voluntary patient with Eastern Health.  He was on antidepressants and attended Eastern Health fortnightly to receive an injection of anti-psychotic medication.

1. Counsel submitted that the offending was out of character, having regard to the applicant’s history, his relationship with the complainant and his general conduct in the community.  He had no history of violence whatsoever.  The complainant indicated that, up until the time of the offending, he had never displayed any violence towards her.  

1. Counsel further submitted that the applicant had been deteriorating psychologically during and after the offending period.  He submitted that the offending had resulted from a combination of the breakdown of his marriage and the loss of his mother.

1. Counsel submitted that the applicant was profoundly remorseful regarding his behaviour on the night in question.  He reminded the judge that the applicant had pleaded guilty, and had been totally cooperative with the police.

1. Finally, counsel submitted that Verdins[2] principles were applicable by way of mitigation.  The applicant was clearly in some form of psychosis when he acted as he did.  He was subsequently hospitalised on two or three occasions for psychosis.  This must have some bearing in terms of his moral culpability.  Moreover, the combination of depression, anxiety and psychosis would have an ongoing impact, and render any term of imprisonment more burdensome.

   [2]R v Verdins (2007) 16 VR 269.

1. It should be noted that the plea was presented on the basis that the applicant’s use of methamphetamine had contributed to his mental instability.  In effect, it was put that he acted whilst in a state of drug induced psychosis.

1. A report prepared by Ms Heard was tendered as an exhibit.  In that report she indicated that the applicant had begun treatment for anxiety under a mental healthcare plan in January 2011, and had been referred to her in February 2012 for treatment for anxiety.  Over the following months, he had become suspicious of the complainant.  He had begun to formulate theories about lengthy affairs in which he believed she had engaged.  The theories became conspiratorial, and were highly elaborate.  Ms Heard was of the opinion that the applicant was suffering from paranoid delusions.  She noted that there had been a reduction in psychotic symptoms after a period of medication.  However, the applicant’s continued drug use was a barrier to recovery.  

1. Ms Heard further noted that the applicant had struggled to maintain his medication regime when not supported by primary mental health.  She expressed the opinion that a long period of abstinence from drugs would need to occur in order to differentiate between the applicant’s possible paranoid schizophrenia, and any drug induced psychosis.

1. Dr Nuala Moran of Chandler House provided a report in which she expressed the opinion that the applicant was suffering from a psychotic disorder.  She was uncertain as to whether it should be characterised as a drug-induced psychosis, or a form of schizophrenia. 

1. An Anglicare report tendered on the plea stated that the applicant had attended a number of counselling sessions and had a good understanding of Relapse Prevention, Harm Minimisation, Stressors and Triggers, and the harmful effects of drug use on his emotional and psychological well-being.

1. A CISP report tendered on the plea stated that the applicant had presented with issues relating to mental health and illicit substance abuse and reported a history of depression and anxiety. The applicant successfully completed the CISP.

1. It was noted that the applicant has subsequently offended against the complainant.  He had breached an intervention order by leaving a letter at the complainant’s home in October 2012.  He had also sent her threatening texts in the context of tension over his access to the children.  These matters had been adjourned to June 2013.  We were informed that the applicant has been dealt with in relation to these matters.  A term of six months’ imprisonment was imposed which was to be served concurrently with the sentences presently under consideration.

1. Counsel submitted that, in the unusual circumstances of this case, it would be appropriate to have his client assessed for suitability for a Community Correction Order (CCO) rather than being imprisoned. It might be said that this was a somewhat ambitious submission.

1. The prosecutor submitted, on the plea, that nothing short of an immediate custodial sentence would be appropriate.  He further submitted that the applicant’s subsequent offending bore upon the genuineness of any remorse that had been shown.  He argued that rehabilitation was problematic.  By reason of the applicant’s subsequent offending, specific deterrence had more of a role to play than it otherwise might have.

1. The prosecutor reminded the judge of the gravity of the offence of aggravated burglary.  He noted that the applicant’s conduct was so prevalent that it had been characterised by the Sentencing Advisory Council as a class of offending known as ‘intimate relationship burglary’.  According to its Report on Aggravated Burglary of June 2011, that class of offending accounted for 15 per cent of all aggravated burglaries.

1. Finally, the prosecutor submitted that to the extent that the applicant’s self-induced drug psychosis caused him to experience delusions, it had to be borne in mind that some of these ‘delusions’ turned out to be true.  The complainant was, as the applicant believed, involved in a relationship with BM.  It was submitted that there was no envisaged fantasy, or false concept, that would enliven Verdins principles.

1. Alternatively, it was submitted on behalf of the prosecution, that if Verdins did apply to reduce the applicant’s moral culpability, it did so to only a limited degree.  It was acknowledged that the sixth limb of Verdins might have some application in terms of the applicant’s ongoing mental health.

1. The judge was reminded of the impact that the offending had had upon the victim, as outlined in her victim impact statement.

1. The judge took into account and relevantly found:

(a)the applicant’s subsequent offending demonstrated that he was unable to accept his situation, blamed the complainant for what had occurred and bore her real animosity.  As a result of this conduct, no finding of remorse in the applicant’s favour should be made; and

(b)the situation in which the applicant found himself was a direct result of his drug abuse.  Whilst not mitigatory, it explained the offending and demonstrated that he viewed his situation through the prism of a drug affected and damaged mind.

Fresh evidence

1. Dealing then with the fresh evidence led before this Court.  Dr Anthony Cidoni in his report dated 9 October 2013, stated that the applicant had described first suffering from psychotic symptoms in 2010, well before he commenced using methamphetamine.  He did not report any symptoms at the time because he was worried about being ‘put away’.  He was aware of his uncle having had a history of schizophrenia.

1. Dr Cidoni expressed the following opinions in his report:

(a)the applicant has suffered from schizophrenia for a considerable time.  His symptoms were likely exacerbated by drug use, but were not consistent with a drug-induced psychosis.  He had also suffered from associated depression.

(b)the applicant’s schizophrenia was active at the time of the offending, and should therefore be regarded as having significantly reduced his moral culpability in relation to his behaviour on the night in question; and

(c)as a result of his schizophrenia, the applicant was likely to find imprisonment more burdensome than a person in normal health.  There was a high risk that his mental state would continue to fluctuate, and might deteriorate with prolonged custody, particularly having regard to aspects of his background.

1. The Crown did not object to the reliance, before this Court, upon the fresh evidence constituted by Dr Cidoni’s report.  In addition, Dr Cidoni gave oral evidence, and was briefly cross-examined. 

1. What emerges clearly from all of this is that the applicant was sentenced on the basis that he was suffering from drug induced psychosis at the time of the offending, that was so although it was clear that both Ms Heard and Dr Moran recognised that there might be more to his mental condition than that.  Each of them acknowledged the possibility that there might be a diagnosis of schizophrenia. 

1. It now appears, as a result of Dr Cidoni’s evidence, that the applicant was sentenced upon the basis of a complete misdiagnosis of his underlying condition.  The fresh evidence raises concerns as to whether the sentencing judge accorded adequate weight to the mitigating circumstances, including a reduction in the applicant’s moral culpability.  In addition, Dr Cidoni’s evidence suggests that the applicant’s mental health is at risk of deterioration while he remains in custody, and that imprisonment would be significantly more onerous by reason of his current mental state.

1. The evidence of Dr Cidoni satisfies all of the requirements for the reception of fresh evidence.[3]  In particular, it demonstrates the true significance of facts that were in existence at the time of the plea.  It shows that, despite there being no error in the sentencing judge’s approach to the gravity of these offences, or indeed, given the evidence led on the plea, the applicant’s personal circumstances, his Honour was under a misapprehension as to the true nature of the applicant’s mental condition.  That misapprehension led his Honour to undervalue the weight to be accorded to Verdins considerations.  It follows that the sentence imposed can now be seen to have been excessive, despite no error having been made by the sentencing judge. 

   [3]R v Nguyen [2006] VSCA 184, [36].

1. It is appropriate in these circumstances that the application for leave to appeal be granted.  The appeal should be treated as having been heard instanter, and allowed.  The sentences imposed below should be set aside and the applicant resentenced as follows.

·Charge 1, aggravated burglary – two years’ imprisonment;

·Charge 2, causing injury recklessly – 12 months’ imprisonment with six months of that sentence to be cumulated upon the sentence on charge 1; and

·Charge 3, theft – one months’ imprisonment wholly concurrent with the sentences upon charges 1 and 2;

making a total effective sentence of two years and six months.  We fix a non-parole period of 18 months.

1. The Court declares, pursuant to 6AAA of the Sentencing Act 1991 that but for the plea of guilty, the applicant would have been sentenced to a total effective sentence of three years and six months, with a non-parole period of two years.

1. The Court states that the period of 266 days, not including this day, is to be reckoned as already served under the sentence.  It is ordered that there be noted in the records of the Court the fact that that declaration was made and its details.

1. Any ancillary orders made below are affirmed