Williams v R
[2017] VSCA 130
•5 June 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0195
| DWAYNE WILLIAMS | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | REDLICH and McLEISH JJA and CROUCHER AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 17 May 2017 |
| DATE OF JUDGMENT: | 5 June 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 130 |
| JUDGMENT APPEALED FROM: | DPP v Williams (Unreported, County Court of Victoria, Judge Lawson, 9 February 2016) |
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CRIMINAL LAW – Appeal – Sentence – Guilty plea – Seven offences committed in two incidents – Overall total effective sentence of 6 years’ imprisonment, 4 years non-parole period – Whether judge erred in failing to apply Verdins principles 1, 3, 4 and 5 – Appellant suffered chronic paranoid schizophrenia – Appellant under influence of methamphetamine at time of second offending – Whether sufficient evidence that paranoid schizophrenia contributed to second offending – Appeal allowed – Re‑sentenced to overall total effective sentence of 5 years’ imprisonment, 3 years 4 months non-parole period – R v Verdins (2007) 16 VR 269; DPP v O’Neill (2015) 47 VR 395, applied.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J F Desmond | Valos Black & Associates |
| For the Respondent | Ms S Flynn | Mr J Cain, Solicitor for Public Prosecutions |
REDLICH JA
McLEISH JA
CROUCHER AJA:
The appellant pleaded guilty to several charges on two indictments concerning offending that took place in November 2014 and April 2015. On 9 February 2016, he was sentenced to imprisonment as follows:
Indictment F10699591
Charge Offence Maximum Sentence Cumulation 1 Causing injury recklessly [s 18 Crimes Act 1958] 5 years 17 months Base 2 False imprisonment [common law] 10 years [s 320 Crimes Act 1958] 12 months 3 months 3 False imprisonment 10 years 12 months 3 months Summary Charge 9 Common assault [s 23 Summary Offences Act 1966] 3 months 2 months 1 month Total Effective Sentence
(F10699591)
24 months’ imprisonment (12 months cumulative upon the sentence on Indictment F11431748) Indictment F11431748 Charge Offence Maximum Sentence Cumulation 1 False imprisonment 10 years 1 year 6 months 2 Causing injury intentionally [s 18 Crimes Act 1958] 10 years 4 years Base Summary Charge 9 Aggravated assault [s 24(2) Summary Offences Act 1966] 2 years 1 year 6 months Total Effective Sentence
(F11431748)5 years’ imprisonment Overall Total Effective Sentence 6 years’ imprisonment Overall Non-Parole Period 4 years Pre-Sentence Detention Declared 290 days 6AAA Statement 7 years 6 months’ imprisonment, non-parole period of 5 years
On 23 January 2017, Kyrou JA granted the appellant leave to appeal against both sentences on the grounds set out later in these reasons.
Factual background
The first indictment
On 7 November 2014, the appellant, his former partner, Kelly Etrich, and their daughter were at the appellant’s sister’s house. The appellant and Ms Etrich were drinking heavily.
After midnight, the three of them, together with a friend, left the premises on foot. Ms Etrich told the daughter and the friend to walk ahead while she and the appellant stopped to talk. The appellant and Ms Etrich walked to the California Gully cricket oval where, following a discussion and without warning, the appellant punched Ms Etrich in the back of the head.
Their daughter arrived at the oval shortly thereafter. The appellant began to talk about family history. In the ensuing discussion his daughter swore at him. This led the appellant to punch her in the jaw, causing bleeding. This was the summary charge.
Ms Etrich attempted to comfort and protect their daughter. The appellant then punched Ms Etrich in the face with such force that it knocked her off her seat and onto the ground. Her mouth, nose and lip were bleeding heavily, and she developed bruising and a severely swollen face. The appellant told Ms Etrich that he hit her because she didn’t tell their daughter off for swearing at him. This was charge 1.
Ms Etrich and the daughter attempted to leave the scene because the appellant was continuing to exhibit threatening behaviour. The appellant prevented them from doing so for several hours. Eventually, the three of them walked to the Eaglehawk High School. Ms Etrich and the daughter still remained with the appellant out of fear: during that time, the appellant threatened to hit Ms Etrich with a tree branch and pretended to hit her, as well as threatening to hit both Ms Etrich and the daughter if they left; he threatened to kill Ms Etrich if police arrived. This conduct formed the basis of charges 2 and 3.
Eventually, the daughter was able to call police. They arrested the appellant at approximately 11:10 am. He was twice interviewed by police before being released, and was eventually charged in February 2015.
The second indictment
In April 2015, the appellant was living in a caravan on the premises of his stepfather, Gordon Hynes. During the late afternoon on 25 April 2015, the appellant returned home after having been out since the night before. He joined a group of family and friends in the backyard of the premises. The group were consuming alcohol. It included Mr Hynes and the appellant’s uncle, David Williams.
The appellant began to argue with David Williams. As the argument escalated, he slapped him in the face. Mr Hynes intervened in an attempt to calm the appellant down. Mr Hynes and the appellant began to wrestle. The appellant picked up a stick and struck Mr Hynes over the head with it, rendering him unconscious. At some point during this incident, David Williams fell over in the driveway and could not get up due to his bad hip and his level of intoxication.
The appellant went inside and armed himself with a knife. He returned outside and threatened those attempting to assist David Williams and Mr Hynes.
The appellant approached David Williams and kicked him in the back of the head. This was the summary charge. He then kicked Mr Hynes in the face after he had regained consciousness.
The appellant lay down beside Mr Hynes while holding the knife to him, including putting it to his throat. He put Mr Hynes in a headlock and threatened to kill him, as well as anyone who attempted to assist him. This conduct gave rise to charge 1.
The police were called. Several units arrived, together with an ambulance. The police began to negotiate with the appellant, who continued to detain Mr Hynes and threaten him with the knife.
While negotiations continued, the appellant stabbed Mr Hynes in the right leg. As he attempted to stab Mr Hynes a second time, he was tasered by the police. The knife still made contact with Mr Hynes, albeit with less force than it would have otherwise.
Mr Hynes received two stab wounds to his right leg, two to his right arm and one to the upper right side of his chest. He also suffered small fractures to the jaw and nasal bone, and severe bruising to his eye. These injuries constituted charge 2.
The appellant was arrested, charged and remanded in custody.
Following two adjournments of the committal mention hearing in respect of both indictments, the first so that a mental impairment assessment could be conducted and the second to facilitate plea discussions, the appellant pleaded guilty at the committal mention hearing on 14 October 2015.
The plea and the sentencing remarks
On the plea, the appellant’s counsel sought to invoke the principles in R v Verdins in mitigation of sentence.[1] He relied on medical reports, particularly the psychiatric opinion of Dr Lester Walton, as well as clinical notes from the Metropolitan Assessment Prison and the Mobile Forensic Mental Health Service, in support of that submission. The judge stated that counsel for the appellant sought to invoke Verdins only in respect of the second indictment.[2] The relevant evidence is set out later in these reasons.
[1](2007) 16 VR 269 (‘Verdins’).
[2]DPP v Williams (Unreported, County Court of Victoria, 9 February 2016, Judge Lawson) [44] (‘Reasons’).
In her sentencing remarks, the judge observed that the appellant had an extensive criminal record dating back to 1999, when he was aged 19. That record included several offences of violence, in particular against Ms Etrich.[3]
[3]Ibid [5].
The judge noted that the appellant was 35 at the time of the offending and was of Aboriginal descent.[4] She stated that the appellant had had a good relationship with Mr Hynes, whom he respected.[5]
[4]Ibid [8].
[5]Ibid [9].
The judge stated that the appellant suffered from auditory hallucinations and had been diagnosed with chronic schizophrenia. The hallucinations were reportedly reduced by the appellant taking an atypical antipsychotic medication. The appellant was also prone to depression.[6]
[6]Ibid [10].
The judge noted that the appellant had pleaded guilty at the earliest stage in respect of the first indictment and noted his plea of guilty on the second indictment.[7] She described the impact of the offending against Mr Hynes, as set out in his victim impact statement.[8] She stated that general and specific deterrence were important sentencing considerations, as was protection of the community.[9]
[7]Ibid [15], [35].
[8]Ibid [37].
[9]Ibid [38].
The judge found that the material put before her did not constitute ‘cogent evidence to demonstrate any mental impairment was linked to this offending’.[10] In that regard, she referred in particular to the report of Dr Gunvant Patel, which stated that, while he considered the appellant’s auditory hallucinations were genuine, there was no evidence substantiating the development of a psychotic illness or impairment of the appellant’s intellectual or psychosocial capacity.[11]
[10]Ibid [45].
[11]Ibid [46].
The judge found that the offending in both instances was ‘a consequence of [the appellant] being unable to control [his] anger, combined with [his] use of alcohol in the first instance and [his] use of drugs, ice and amphetamines, in the second instance’.[12] While the judge accepted that at the time of the offending charged in the second indictment ‘there may have been some evolving symptoms of paranoia’, there was ‘nothing in the material to support a link between mental impairment and the offending’.[13] For that reason, Verdins did not apply so as to reduce the appellant’s moral culpability or to moderate the weight given to general and specific deterrence.[14]
[12]Ibid [47].
[13]Ibid [52].
[14]Ibid.
The judge went on to find the appellant’s moral culpability was high.[15] She noted the appellant’s personal history, including the fact that he lived with his grandparents from the age of four due to his parents’ inability to care for him. It was noted that his grandfather was especially strict and used severe physical punishment for minor disobedience.[16]
[15]Ibid [53].
[16]Ibid [54].
The appellant was expelled from school, where he was subjected to racial abuse, at the age of 13 and was sent to live on a mission the following year. This was a tough environment, characterised by physical violence. But he was able to complete Year 8 by correspondence.[17]
[17]Ibid [55].
The appellant had in the past been a heavy user of alcohol and cannabis. He had also used ice intravenously since he was last released from prison.[18] The appellant’s relationship with his family was ‘problematic’ and had led to estrangement from several family members.[19] He had experienced the loss of many people important to him while in custody, which had caused him ongoing distress.[20]
[18]Ibid [56].
[19]Ibid [57].
[20]Ibid [58].
The sentence was discounted for the utility of the early guilty pleas, as well as for the evidence of some remorse that they demonstrated.[21]
[21]Ibid [59].
The judge also made reference to the requirement of just punishment. She noted that the appellant’s prospects of rehabilitation were ‘guarded’ and that he needed to be supported appropriately in the community in order to facilitate his release.[22]
[22]Ibid [66].
She then proceeded to sentence him in the manner set out above.
The appeal
The revised application for leave to appeal lists six grounds:
1.The sentencing judge erred in failing to apply Verdins principles 1, 3, 4 and 5.
2.The sentencing judge erred in finding on the balance of probabilities there was ‘no link’ between the diagnosed mental illness and the offending concerned with both or either of the two indictments.
3.The sentencing judge erred in failing to impose sentences in accordance with the principles in Verdins and accordingly failed to moderate to any degree general and/or specific deterrence.
4.The sentencing judge erred in failing to address the applicant’s submission on the plea [that] Verdins principle 5 should be applied.
5.The sentencing judge erred in failing to apply Verdins principle 5 and moderate the total effective sentence accordingly.
6.The total effective sentence imposed was manifestly excessive in all the circumstances.
On the hearing of the appeal, counsel for the appellant stated that he sought to concentrate on the sentence passed on charge 2 on the second indictment, being the base sentence of 4 years for intentionally causing injury to Mr Hynes.
The appellant contended that, on the basis of the report of Dr Walton, the judge ought to have found that there was cogent evidence of a link between the appellant’s mental impairment and the offending, so as to attract Verdins principles 1, 3 and 4.
Dr Walton’s report was said by the appellant to be uncontradicted, notwithstanding the comments of Dr Patel to which the judge referred. Those comments were limited to the offending the subject of the first indictment. The judge’s observations during the plea hearing were said to recognise, albeit implicitly, a link between the appellant’s offending and his mental impairment.
As to Verdins principle 5, the appellant submitted that the judge failed to address this in her reasons for sentence despite specific reliance being placed on it by counsel on the plea. It was contended that this was a denial of procedural fairness which vitiated the sentence.[23]
[23]See R v Tannous [2017] VSCA 91 [34]–[36] (Redlich and Ferguson JJA).
The respondent emphasised that the Court needed to be satisfied that there was a ‘realistic connection’ between the alleged impairment and the offending, or that the impairment was ‘causally linked’ to the offending.[24] The respondent submitted that the judge’s finding that the requisite nexus between the alleged mental impairment and the offending was not established was reasonably open. In support of that contention, the respondent pointed to several aspects of Dr Walton’s evidence with which the judge had taken issue, either in her sentencing remarks or on the plea, as well as other evidence which meant that Dr Walton’s evidence could not be described as ‘uncontradicted’, most notably that of Dr Patel. In that respect, the respondent observed that, when invited, the appellant’s counsel on the plea made no submissions responding to Dr Patel’s report. However, counsel for the respondent accepted that Dr Patel’s report had been concerned with the offending in the first indictment only.
[24]See DPP v O’Neill (2015) 47 VR 395, 414 [74] (Warren CJ, Redlich and Kaye JJA).
Finally, the respondent submitted that failure to refer to a matter relied on in mitigation did not necessarily amount to appealable error.[25] It was implicit in the judge’s remarks that she had applied Verdins principle 5, because she referred at some length to the manner in which the appellant responded to treatment while in custody and referred to his need for support in prison. The judge’s failure to refer expressly to the principle was therefore of no moment. Even if she ought to have done so, it was not a material error and would not cause any different sentence to have been imposed.
[25]See Valayamkandathil v The Queen [2010] VSCA 260 [27] (Neave JA; Buchanan JA agreeing).
Analysis
The Court in Verdins enunciated the following principles concerning the relevance of mental impairment to sentencing:
Impaired mental functioning, whether temporary or permanent (‘the condition’), is relevant to sentencing in at least the following six ways:
1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.[26]
[26]Verdins (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA) (citations omitted).
In DPP v O’Neill, the Court referred to the evidentiary foundation required in order to attract the operation of these principles:
Clearly, it is inappropriate to apply a mechanistic approach that, because an offender is said to suffer from impaired mental functioning, the offender thus attracts the Verdins principles. Such an approach is overly simplistic, and erroneous. As this Court emphasised in Verdins and many later cases, careful consideration needs to be given to whether the evidence establishes that mental capacity has been impaired and which of the circumstances set out in Verdins are engaged. It requires a rigorous evaluation of the evidence.[27]
[27](2015) 47 VR 395, 412 [68].
In relation to general deterrence, the Court elaborated:
Clearly, there must be an established evidentiary basis for moderating the principles of general deterrence in a particular case. For that to occur, it is not sufficient that the offender suffer from a particular mental impairment. There must be proper, and informed, consideration of how that impairment might have either materially diminished the capacity of the offender to reason appropriately at the time of the offence concerning the wrongfulness of his or her offending, or of how the offender’s condition might make the full application of the principles of general deterrence repugnant to the underlying sense of humanity which guides proper sentencing.[28]
Verdins principles 1, 3 and 4
[28]Ibid 410 [59].
Turning first to consider the application of Verdins principles 1, 3 and 4, it is necessary to say more about the evidence. Dr Walton examined the appellant in prison on 21 August 2015. The interview was interrupted by a prison lockdown, which Dr Walton said may have meant that he did not obtain a comprehensive background history. None the less, in the section of his report entitled ‘Opinion’, Dr Walton said:
1. Dwayne Williams is suffering from chronic paranoid schizophrenia.
…
3. Given that Mr Williams seems to have ceased his routine antipsychotic medication for some months prior to the offending and his description of a resurgence of paranoia and hallucinosis, it is far from frivolous to suggest that he might have a defence of mental impairment available to him. However, Mr Williams was not able to provide me with a very detailed description of his mental state at the material time because of his seemingly suffering from significant amnesia due to alcohol intoxication and drug use respectively. It is highly likely that the alcohol consumption and the use of methamphetamine particularly would have contributed to aggressivity. I am simply not in a position to state that the hallucinations and paranoia were of a degree to deprive Mr Williams of moral capacity, for example, he does not provide a history of specifically relevant deluded ideas in relation to the victims, neither does he describe so-called command hallucinations directing him towards the aggression. Thus I have concluded, albeit on what might be described as a reasonably fine balance of probabilities, that Mr Williams does not have a formal defence of mental impairment available to him.
That said, this man’s very probable paranoia and at least a degree of hallucinosis at the material times would suggest that his chronic mental disorder has made at least some contribution to the offending, in particular, substantial erosion of his capacity to exercise proper social judgment and also disinhibition of impulsive urges.
4. Now that he is in a sober frame of mind and his psychotic symptoms have very substantially subsided, Mr Williams can make appropriate expression of remorse.
…
6. With respect, in my opinion, it would be open to the sentencer to rely upon those principles outlined in Verdins in this particular case. Along the spectrum of psychiatric disorder having no relevance to the offending compared with a near-miss mental impairment, I would see Mr Williams’ mental disturbance as falling towards the upper end of that range in terms of weighting. Compared with many persons suffering from schizophrenia, Mr Williams actually exhibits a striking degree of preservation of appropriate emotional expression, especially in relation to remorse. Arguably Mr Williams is an inappropriate vehicle for the expression of general deterrence. Whether or not the specific deterrent component of any particular disposition may have enduring impact upon Mr Williams (and his conviction record would tend to argue to the contrary) depends rather more on whether or not he can remain free from drug and alcohol abuse than the outcome in relation to his mental illness but to the extent that his psychotic symptoms can be controlled, which does appear to be the case with medication, then that ought to enhance the prognosis both in relation to his mental health and also the risk of recidivism.
The sentencing judge was faced with a difficult task in approaching this report. Whether or not because it was prepared under some constraint, it is difficult to follow in places. Further, as counsel for the respondent submitted, para 6 of the ‘Opinion’ section appeared to be directed more to questions of sentencing discretion than psychiatric opinion. Dr Walton stated in para 3 that it was highly likely that drug and alcohol consumption would have contributed to the appellant’s aggression and that, on balance, he had no defence of mental impairment available to him. In the circumstances, counsel submitted, it was well open to the judge to conclude that the report did not supply cogent evidence that any mental impairment was linked to the offending.
On the other hand, Dr Walton stated in para 6, in effect, that the appellant was close to being mentally impaired in relation to the offending. Although directed to his ‘moral capacity’ rather than moral culpability, this observation must be read in light of the statement in the second part of para 3 that the appellant’s ‘very probable paranoia and at least a degree of hallucinosis at the material times’ suggest that his mental disorder ‘made at least some contribution to the offending, in particular, substantial erosion of his capacity to exercise proper social judgment and also disinhibition of impulsive urges’. In the light of that conclusion, the judge was in error to state that there was ‘nothing in the material to support a link between mental impairment and the offending’.[29]
[29]Reasons [52].
Of course, the judge was required to consider the whole of the evidence directed to this question, and she did so. In that regard, the report of Dr Patel, obtained in relation to the first indictment after an interview on 4 January 2016, did not support the application of Verdins principles. (It was not suggested that the clinical notes bore in any significant way upon the matter.) Relevantly, Dr Patel expressed the following opinions:
1. I believe that Mr Williams’ report of auditory hallucinations is genuine and often reported from childhood by persons who have been exposed to serious trauma and violence. I do not believe however that Mr Williams has any evidence to substantiate the development of a psychotic illness and that his intellectual and psychosocial capacity has not been impaired as seen with severe mental illness. Furthermore Mr Williams clearly does not demonstrate any of the recognised symptoms of a chronic psychotic illness.
…
6. It would appear that the primary driver for his offending was the presence of interpersonal conflict due to feelings of longstanding rage. I could not find any evidence that the presence of voices in themselves having a significant meaningful impact on his actions at the time.
7. Nevertheless Mr Williams does experience the ongoing presence of the voices, particularly at times when his mood is low or he is feeling distressed, as being a significant burden that increases his irritability and sense of frustration which may contribute to acts of impulsive violence.
On the other hand, as counsel for the respondent accepted, Dr Patel had not addressed the offending in the second indictment. His assessment therefore does not tell against any conclusion that might be drawn from Dr Walton’s report pointing to a link between the appellant’s mental impairment and that offending.
Counsel for the respondent submitted that Dr Walton’s statement that the appellant’s chronic mental disorder had ‘made at least some contribution to the offending’ fell short of the cogent evidence required by the decision in DPP v O’Neill. It is true that the statement is far from emphatic. It is hedged in the language of ‘suggestion’ rather than firm opinion. But, read with the other parts of the report which we have quoted above, in our opinion the statement clearly attributes ‘some contribution’ towards the offending to the appellant’s mental condition. It is the level of contribution that is equivocal in the report, not the existence of the link.
Accordingly, in our view the material before the sentencing judge supported the existence of a link between the appellant’s chronic paranoid schizophrenia and his offending in the second indictment. She was therefore in error in finding otherwise and the sentencing discretion is reopened.
In the circumstances it is not necessary to decide whether the judge’s sentencing remarks gave proper consideration to the application of Verdins principle 5.[30] We will instead consider that principle, along with principles 1, 3 and 4, in re-exercising the sentencing discretion.
[30]Nor is it necessary to address the manifest excess ground.
The evidence that the appellant’s mental disorder made ‘some contribution’ to his offending plainly attracts Verdins principle 1, by affecting the punishment that is just in all the circumstances. The importance of denunciation is somewhat reduced in the appellant’s circumstances. The reduction that is appropriate must be moderated to reflect the limited extent of the contribution which Dr Walton identified.
As for general deterrence (principle 3), it is to be borne in mind that Dr Walton also considered that alcohol consumption and use of methamphetamine contributed to the appellant’s aggression at the time of the offending. The offending on the second occasion, especially, was extremely serious. General deterrence, while moderated to some extent by reason of the appellant’s mental condition, remains an important sentencing consideration in the circumstances.
As to specific deterrence (principle 4), we have not been able to identify in the balance of Dr Walton’s report any clear finding on the point. The final sentence, as quoted above, is quite opaque in that regard. The evidence supporting a conclusion that specific deterrence should be moderated or eliminated as a sentencing consideration by reason of the appellant’s mental condition is inadequate.
Verdins principle 5
Finally, there is the question whether the sentence of imprisonment which the appellant must serve will weigh more heavily on him than it would on a person of normal health (principle 5). The position is made more difficult by the fact that custody appears to have seen the appellant’s psychotic symptoms ‘substantially subside[]’ (in Dr Walton’s words). Further, Dr Patel stated that the appellant ‘clearly finds prison in many respects a more containing and less challenging place in which to exist than in the community’. Doubtless the appellant will require support appropriate to his mental condition while in custody, but the evidence does not suggest that, overall, prison would weigh more heavily on him than on a person in normal health.
Conclusion
Taking the above matters into account, and otherwise leaving the sentencing judge’s findings undisturbed, the appellant should be resentenced on the base sentence of intentionally causing injury to a term of imprisonment of 3 years. The other sentences and orders for cumulation should be confirmed, leaving a total effective sentence on the second indictment of 4 years and an overall total effective sentence of 5 years. A non-parole period of 3 years and 4 months should be fixed.
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