Williams v The Queen
[2018] VSCA 171
•11 July 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0085
| LUKE WILLIAMS | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and HARGRAVE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 11 July 2018 |
| DATE OF JUDGMENT: | 11 July 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 171 |
| JUDGMENT APPEALED FROM: | DPP v Williams (Unreported, County Court of Victoria, Judge Gucciardo, 6 April 2018) |
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CRIMINAL LAW — Appeal — Sentence — Intentionally causing injury — Applicant suffering from paranoid schizophrenia — Relapse of psychotic illness the result of stress, failure to take medication and drug use — Verdins principles — When community correction order (‘CCO’) available in addition to term of imprisonment — Whether CCO satisfies punitive and rehabilitative sentencing requirements — Observations on absence of victim impact statement — Appeal allowed — R v Verdins (2007) 16 VR 269; Boulton v The Queen (2014) 46 VR 308 considered — Sentencing Act 1991 s 44(1).
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr N Papas QC with Ms R Avis | Victorian Aboriginal Legal Services |
| For the Respondent | Mr B Sonnet | Mr J Cain, Solicitor for Public Prosecutions |
PRIEST JA
HARGRAVE JA:
Introduction
Just after 11.00 am on Friday, 14 April 2017, the applicant stabbed his brother-in-law, Raymond Williams, in the abdomen with a large knife.
A little over ten months later, on 21 February 2018, the applicant pleaded guilty in the County Court to intentionally causing injury to his brother-in-law.[1]
[1]Crimes Act 1958, s 18. The maximum penalty is 10 years’ imprisonment.
Following a plea, on 6 April 2018 the judge sentenced the applicant to be imprisoned for three years and six months, and imposed a non-parole period of two years.[2]
[2]The applicant had also pleaded guilty to a related summary charge of exceeding the prescribed blood concentration of an illicit drug within three hours after having driven a motor vehicle. For that offence he was fined $300 without conviction, and a driver’s licence cancellation of three months was imposed.
Ultimately, the applicant sought leave to appeal against that sentence on a single ground, formulated as follows:[3]
4. The sentencing hearing miscarried as a result of the learned sentencing judge misapplying the provisions s 44(1) of the Sentencing Act 1991.
[3]Initially, the notice contained three grounds of appeal. During the hearing in this Court, however, the applicant’s sought — and was granted — leave to abandon those grounds, and sought — and was granted — leave to amend the notice by adding a further ground, ground 4. The abandoned grounds were in the following terms:
1. The sentencing discretion miscarried as a consequence of the learned sentencing judge having found — despite the applicant’s unchallenged history of an organic paranoid schizophrenic illness — that:
(a)the realistic cause (and only cause) of the applicant’s offending was his consumption of methamphetamine and failure to adhere to his medication regime; and
(b)the applicant’s moral culpability was not relevantly reduced, nor were general and specific deterrence sensibly moderated.
2. The sentencing discretion miscarried as a consequence of:
(a)the sentencing judge admission into evidence — in the absence of a Victim Impact Statement — of the Informant’s hearsay opinion evidence regarding the victim; and
(b)the sentencing judges’ synthesis of the material pleaded in paragraph (a).
3. The individual sentences, orders for cumulation, total effective sentence and non-parole period fixed are each manifestly excessive.
[Particulars provided]
Subject only to the question of whether a different sentence ought to be imposed,[4] counsel for the respondent — with perspicuous fairness — conceded that the error embodied in the ground was made out.
[4]See Criminal Procedure Act 2009, ss 280(1)(a) and 281(1)(b).
In our opinion, ground 4 should succeed. For the reasons that follow, we would grant the application for leave to appeal against sentence; allow the appeal; set aside the sentence imposed in the County Court; and in lieu, impose a community correction order (‘CCO’) of five years’ duration, with the conditions we will later set out.
Circumstances of the offending
Before turning to consideration of the ground, it is convenient to summarise the facts surrounding the applicant’s offending.
At the time of the stabbing, the applicant was aged 36 years,[5] and the victim, Raymond Williams, who is married to the applicant’s sister, Michelle, was aged 48.
[5]The applicant was born on 15 December 1980 and is now aged 37 years.
Raymond and Michelle Williams lived in Wodonga with their four children. The applicant would sometimes stay at their home, but in the period leading up to the stabbing, he had been residing mainly in Albury.
The applicant was diagnosed with paranoid schizophrenia, and has for many years been treated with antipsychotic drugs. If he fails to take his prescribed medication and uses methylamphetamine (‘ice’), the applicant becomes erratic and aggressive, his aggression often being directed at his brother-in-law, Raymond Williams, whom he delusionally believes spits in his food. In the lead-up to the stabbing, Michelle Williams observed that her brother’s behaviour was becoming more erratic, and she believed that he was again using methylamphetamine.
On Friday 14 April 2017, as the victim drove away from his premises, with his wife the front seat passenger in his car, the applicant drove past in his utility and extended his middle finger. Michelle Williams saw this gesture and the asked victim to return to their residence. At the residence, the applicant got out of his vehicle and walked to the victim’s car. The applicant approached the window of the victim’s car and produced a knife from the waistband of his trousers. Telling family members who were standing outside the house to call the police because the applicant had a knife, the victim drove away, intending to seek refuge at the police station. As Raymond and Michelle Williams drove towards the police station, the applicant pursued them in his vehicle. Michelle Williams was on the telephone to police advising them of what was happening.
As the victim approached the intersection of Hume and Lawrence Streets, Wodonga, the applicant crossed onto the wrong side of the road, came up alongside the victim’s car and attempted to cut him off (although he then had to pull back behind the car because of oncoming traffic). The victim and his wife continued to drive towards the police station.
At about 11.00 am, the victim drove into the entrance of the car park of the Wodonga police station. He stopped his car in the driveway and the applicant parked his utility behind him, blocking his car in. The applicant got out of his vehicle, ran towards the victim’s car and opened the door. He had the knife in his hand. The victim got out of his car and the applicant then stabbed him in the right side of the abdomen with the knife (a large kitchen knife about 30 centimetres in length). Having been stabbed, the victim tried to grab the knife to prevent further injury, but the applicant slashed at him and chased him around the car. In the course of the chase, the victim tried to fend off the knife with his hands causing the webbing of his left hand to be slashed. The victim again tried to flee, and was again chased.
At that stage, Senior Sergeant Christopher Parr got out of a marked police car and yelled at the applicant: ‘Police. Put the knife down. Drop the knife now’. Senior Sergeant Parr courageously positioned himself between the two men, and continued to call upon the applicant to drop the knife. The applicant complied. He was taken to the ground and arrested.
Raymond Williams sustained a puncture wound to his right abdomen and slashing cuts to the webbing of his left hand. He was treated by paramedics at the scene, before being taken to the Albury Base Hospital for treatment. At the hospital he presented with a three to four centimetre wound to his lower chest and upper abdomen. Fortunately, the knife had struck a rib which prevented it from penetrating the chest cavity and damaging vital organs. The wound was cleaned and sutured and the victim was discharged.
The applicant was interviewed at the Wodonga police station and made admissions to stabbing Raymond Williams due to an ongoing family dispute. Analysis of a sample of the applicant’s blood disclosed the presence of methylamphetamine and diazepam.
In the course of the plea hearing, the prosecutor called the informant, Detective Senior Constable Raymond Causer, to give evidence concerning relevant background, and the effect of the offending on the victim. He testified that he had worked in Wodonga for approximately 15 years and was familiar with the applicant. Detective Causer said that he was also ‘familiar with the connection’ between the applicant and his brother-in-law, and was aware that there is ‘some apparently ongoing antipathy’ on the part of the applicant towards his brother-in-law. There has been ‘animosity’ between the two over several years. If the applicant is ‘substance-affected’ it ‘heightened the animosity’, but if he takes his anti-psychotic medication ‘there doesn’t seem to be any problem’.
No victim impact statement was tendered, but Detective Causer gave the following additional evidence, which was neither the subject of objection nor cross-examination:
… Can I just ask you about the current condition of the victim. First of all, he’s been advised of these proceedings today?---He has.
And he’s been offered the option of compiling a victim impact statement?---He has.
What was his response to that?---Your Honour, the – the victim, um, is aware of these proceedings, he wished to make a victim impact statement but, ah, to alleviate any further animosity between the family he’s chosen not to. Um---
[D]oes he have some special position within the Aboriginal community?---Sir, he’s – he’s considered to be an elder within the community, within the Aboriginal community. Ah, he is heavily involved in sport within the Albury/Wodonga region. Um, he’s commonly referred to as either Uncle Ray, um, he’s not on a tribunal or considered to be a … Judicial elder, but he is considered amongst the community as an influential member.
And emotionally – or physically, has he recovered from the injury?---Ah, physically, sir, he’s recovered well. The wound has healed. Um, emotionally he is still struggling with the injury that he suffered and the circumstances of how it has occurred. It is affecting his family.
And they’re the things he would have wanted to say?---That’s what he – yes.
Although the ground of appeal that made complaint about the reception of the informant’s evidence was abandoned,[6] we pause to make plain our view that the course adopted in this case is not to be encouraged.
[6]See footnote 3.
Division 1C of Part 3 of the Sentencing Act 1991 provides a detailed regime for the making and the reception of victim impact statements. Thus, by virtue of s 8K, a victim of an offence may make a victim impact statement to the court for the purpose of assisting the court in determining sentence. Such a statement may be made by statutory declaration, or by statutory declaration and orally by sworn evidence. By virtue of s 8N, an onus is placed upon the victim who prepares a victim impact statement to file a copy with the court, and to provide a copy to the offender or his or her legal practitioner, and prosecutor, within a reasonable time before sentencing is to take place. Section 8L(3) permits the court to rule as inadmissible the whole or any part of a victim impact statement (including the whole or any part of a medical report attached to it). And if a request is made that a victim statement be read aloud, s 8Q(2) makes plain that the court must ensure that only the admissible parts are read aloud, the judge having no flexibility to waive that requirement.[7] Furthermore, s 8R provides that the court may direct that alternative arrangements be made for the reading aloud of a victim impact statement upon an application by the person who is to read aloud the victim impact statement or by the prosecutor, or on its own motion.
[7]York (a pseudonym) v The Queen [2014] VSCA 224, [25]. See also Luciano v The Queen (2015) 45 VR 844.
Quite plainly, the scheme of the Act — insofar as it provides for the filing and distribution of a victim impact statement, and contains safeguards to ensure that only admissible parts of any such statement are received by the court — may be defeated if a course similar to that adopted in this case is followed.
Psychiatric opinion
It is convenient at this juncture to discuss the evidence that was before the sentencing judge relevant to the applicant’s mental illness.
On the plea, counsel for the applicant tendered three reports from consultant psychiatrist, Dr Prashant Pandurangi, concerning the applicant’s psychiatric condition. The first report, dated 9 August 2017 (‘Exhibit 1’), was obtained ‘to address the availability of a mental impairment defence’; the second, dated 18 January 2018 (‘Exhibit 2’), was obtained ‘to address any mental health issues of potential relevance in event (sic.) of a bail application’; and the third, dated 21 January 2018 (‘Exhibit 3’), was obtained ‘to address any mental health issues of potential relevance in event (sic.) of a bail application or in sentencing (‘Verdins principles’)’.
Dr Pandurangi’s unchallenged opinion, as set out in his third report, was that the applicant has an established diagnosis of paranoid schizophrenia:
He has an established diagnosis of Paranoid Schizophrenia, as set out in the International Classification of Diseases (ICD-10). I would consider paranoid schizophrenia as an enduring mental illness and is a permanent condition with intermittent relapses in to florid psychosis. He was suffering from paranoid schizophrenia at the time of the alleged offending.
In his first report, Dr Pandurangi discussed the applicant’s psychiatric history. He reported that the applicant’s first contact with mental health services was in December 2003. The applicant recalled having a ‘nervous breakdown’, and ‘alluded to heavy use of cannabis and amphetamines prior to this first contact’. The records show that the applicant ‘was initially diagnosed with drug induced psychosis and treated with antipsychotic medications’. Dr Pandurangi stated that the applicant ‘has had several psychiatric inpatient admissions for relapse of his psychotic illness, in context (sic.) of non-adherence to medications and use of drugs’.
Records show that the applicant was admitted to Nolan House — a psychiatric inpatient unit at the Albury Base Hospital — on 26 January 2015. At that time, the applicant’s mother reported a history of his non-compliance with medication in the previous month and his heavy use of cannabis and ice. He was discharged on 5 March 2015 (having been on overnight leave since 10 February 2015).
The applicant’s next admission to Nolan House was in March 2016. He had been arrested by police at a shopping centre displaying bizarre behaviour while armed with several knives, scissors and a screwdriver. On admission to Nolan House, ‘he presented as floridly psychotic’. Following inpatient treatment, on 13 April 2016 he went to a rehabilitation centre.
It appears that the applicant left the rehabilitation centre on 27 April 2016, but a month later, on 27 May 2016, the Mental Health Tribunal (NSW) made him subject to a community treatment order (‘CTO’) under the Mental Health Act 2007 (NSW). The applicant told Dr Pandurangi that he stopped taking his antipsychotic medication after the CTO expired and ‘that he had been non-compliant with medications for approximately six months at the time of the alleged offences’.
The applicant told Dr Pandurangi that in the weeks leading up to the offence his girlfriend delivered a stillborn child. He described this as ‘extremely stressful’, and told Dr Pandurangi that he began using ice and drinking alcohol. The applicant told Dr Pandurangi that his girlfriend blamed him for the loss of the child leading to an end of the relationship.
As indicated, Dr Pandurangi’s view was that the applicant was suffering from a mental impairment — paranoid schizophrenia — at the time of the alleged offending. In Dr Pandurangi’s opinion, as expressed in his first report, the applicant’s use of illicit drugs would have contributed to a deterioration in his underlying schizophrenic illness, and would partly have precipitated a relapse of the applicant’s schizophrenic illness:[8]
[The applicant] indicated to me that the stress of loss of his child and the separation from his partner led to recommencing of the methamphetamines in the weeks leading to the alleged incident. This along with non-compliance with antipsychotic medications is likely to have contributed to a deterioration in his underlying schizophrenic illness.
… I consider that [the applicant] would have known the nature and quality of his conduct, in that he clearly had intentions to harm his brother in law. However, at the relevant time, he was in the midst of a relapse of his schizophrenic illness which was precipitated by non-compliance to (sic.) his antipsychotic medications, stress and use of illicit drugs. He was preoccupied by the incorrigible persecutory delusion that his brother in law was calling him names, spitting in his food and was threatening to kill and ‘bury’ him. He was so driven by this persecutory belief that he chased his brother in law across the town and stabbed him despite being in front of the Police Station and in the presence of a Police Officer.
[8]Emphasis added to this and following passages.
In his second and third reports, Dr Pandurangi addressed the risk presented by the applicant:
In terms of risks in the event he is granted bail, the notable factors which need to be taken into account are that he does have a history of prior violence, suffers from a serious mental illness, has a history of polysubstance misuse, has relationship and employment difficulties and has problems with supervision. He does not display significant antisocial or pro-violent attitudes. His history of compliance with treatment is good when he has been subject to compulsory treatment or close monitoring, but it is poorer when he is left to his own decisions. He was non-compliant with psychotropic medications for many months leading into the alleged offences. The alleged offending occurred whilst he was floridly psychotic and his actions were driven by his long standing persecutory delusional beliefs about victim [sic.]. His current mental state although stable is not in remission and he continues to experience residual psychotic symptoms. He displays superficial insight into his illness and is willing to take medications and follow-up with the local mental health services.
Overall, I believe that his risk of similar offending, can be mitigated by assertive follow-up by local mental health services with placement in a mental health rehabilitation family (like a Community Care Unit), total desistence from use of illicit drugs and compliance with prescribed medications. He would likely need psychosocial rehabilitation by a multidisciplinary team (input from psychiatrist, psychologist, nursing, occupational therapist and social worker) in an evolving therapeutic relationship with him to optimise his functioning. A relapse in his mental illness is likely to increase the risk of similar offending.
With respect to the burden of imprisonment upon the applicant, in his second and third reports Dr Pandurangi remarked:
His mental illness renders incarceration more onerous for him, than others who do not suffer from his condition. The stress of imprisonment may also mitigate against full recovery of his condition.
Ground 4 — Error concerning the availability of a CCO
It is clear that the genesis of ground 4 was the respondent’s written case. That was where the error now embodied in the ground of appeal was first identified. Counsel for the respondent is to be commended for his fairness in that regard.
At the time that the plea was conducted, the applicant had been in custody for some 313 days. As part of her plea, counsel for the applicant submitted that a CCO, coupled with a further sentence of up to 12 months’ imprisonment, was open. In other words, notwithstanding that the applicant had already been in custody for ten and a half months (or thereabouts), the judge was not foreclosed from imposing a sentence of imprisonment — involving up to a further 12 months’ detention — together with a CCO.
Indeed, the prosecutor — very fairly, it must be said — had already informed his Honour in effect that such a course was open. He had said:
What this man needs and requires is some sort of strictly controlled regime of mental health treatment and medication. And I’ve taken instructions from the learned Crown prosecutor. It seems that there are two viable options with respect put by the Crown, Your Honour. First of all, a head sentence and a non-parole period, a period of parole in which he could be monitored by the parole authorities. The other alternative is a combination sentence of imprisonment and the Crown notes that he has served 313 days pre-sentence detention, not including today.
A combination sentence of imprisonment together with a community corrections order could be a lengthy community corrections order with supervision and treatment and assessment conditions. So those two options seem to the Crown to be, with respect, viable and appropriate.
We need not recapitulate what the judge said in his sentencing remarks concerning the issue, but it seems plain that the judge misapprehended that he was limited to (in effect) imposing ‘time served’ so far as any term of imprisonment coupled with a CCO was concerned. Thus, his Honour did not understand that, notwithstanding that the applicant had been in custody for 313 days, it was open to him to impose a sentence of imprisonment which could result in the applicant serving up to a further 12 months’ detention. That it was open to the judge to do so was made clear in Younger.[9]
[9]Younger v The Queen [2017] VSCA 199 (Redlich and McLeish JJA, and Croucher AJA) (‘Younger’).
A court’s power to impose a CCO in addition to a sentence of imprisonment is circumscribed by s 44(1) of the Sentencing Act 1991 which, so far as relevant, provides:
(1) Subject to any specific provision relating to the offence, when sentencing an offender in respect of one, or more than one, offence … a court may make a community correction order in addition to imposing a sentence of imprisonment only if the sum of all the terms of imprisonment to be served (after deduction of any period of custody that under section 18 is reckoned to be a period of imprisonment or detention already served) is one year or less.
In Younger, this Court discussed the effect of s 44(1), and of the Court’s decision in Boulton,[10] and observed:[11]
Boulton stands for the proposition that pre-sentence detention declared under s 18 of the Act does not count for the purposes of the length of imprisonment capable of being combined with a CCO.[12] Boulton approved the approach taken in Hancock v R,[13] in which this Court resentenced an offender to a term of imprisonment of 249 days’ imprisonment (equivalent to time served) in combination with a CCO, even though s 44 at that time only permitted a maximum term of three months’ imprisonment to be combined with a CCO.[14] Thus an effective term of imprisonment longer than the maximum period allowed under s 44 could be imposed if the effect of any declared pre-sentence detention was that the term of imprisonment that remained to be served at the time of sentencing was less than the maximum period of imprisonment which s 44 permitted.[15]
[10]Boulton v The Queen (2014) 46 VR 308 (Maxwell P, Nettle, Neave, Redlich and Osborn JJA) (‘Boulton’).
[11]Younger, [65].
[12](2014) 46 VR 308, 339 [136].
[13][2013] VSCA 199.
[14]Boulton (2014) 46 VR 308, 360 [237].
[15]Ibid 360–1 [236]–[238].
In our view, the judge’s error had a material adverse effect on the exercise of his sentencing discretion. Moreover, we are satisfied that a different sentence ought now be imposed.
Dr Pandurangi’s opinion was that the relapse of the applicant’s serious mental disorder was ‘precipitated’ by stress, non-compliance with his antipsychotic medication and the use of illicit drugs. In other words, Dr Pandurangi’s opinion was that the relapse of the applicant’s paranoid schizophrenia was caused by three factors: first, the stress associated with the birth of the stillborn child; secondly, his failure to take his antipsychotic medication; and thirdly, his use of ice. This is against the background of the applicant over a number of years having had ‘several psychiatric inpatient admissions for relapse of his psychotic illness, in [the] context of non-adherence to medications and use of drugs’.
Although the applicant cannot rely on the relapse of his mental condition insofar as caused by his abstention from medication and ingestion of illicit drugs was concerned, Dr Pandurangi’s unchallenged opinion was that the stress of the applicant’s stillborn child had also had some part to play in the decline of his mental health. Hence, the applicant was entitled to rely upon some diminution of his moral culpability[16] insofar as a factor beyond the applicant’s control had some part to play in the development of his psychotic symptoms.[17]
[16]R v Verdins (2007) 16 VR 269, 276 [32] (‘Verdins’).
[17]Compare Wright v The Queen (2015) 257 A Crim R 261, 272–3 [43]–[45] (Maxwell P, Redlich and Osborn JJA); DPP v Boyles (a pseudonym) [2016] VSCA 267, [42]–[43] (Maxwell P and Osborn JJA).
In this Court, counsel submitted that the applicant’s rehabilitation — and hence the protection of the community — would best be promoted by the imposition of a CCO, the applicant to this point having served 453 days (or about 15 months) in custody.[18] Counsel also relied on the applicant’s personal circumstances, including that he:
[18]See Sentencing Act 1991, ss 5(1)(c), (e) and (f).
· is an aboriginal man, who was aged 36 when he offended;
· was without paternal guidance, given that his father left the family home when he was a toddler and remained absent throughout his formative years;[19]
[19]We note that in his first report Dr Pandurangi states that the applicant ‘essentially described a good upbringing and that he was “provided” everything he needed’.
· has no formal qualifications, having struggled with literacy and education;
· has limited history of manual employment and at the time of the offending was in receipt of a disability support pension;
· suffered sexual abuse as a child by a family member.[20]
[20]No attempt was made, however, to explain how the alleged abuse could have had an impact on the offending. Certainly, Dr Pandurangi did not address the issue in any of his three reports. See R v AWF (2000) 2 VR 1, 4–5 [7]; GEM v The Queen [2010] VSCA 168, [54]; Beevers v The Queen [2016] VSCA 271, [35] (Priest and Santamaria JJA).
Counsel for the respondent did not seek to go behind — indeed, he relied on — the following submissions made by the prosecutor to the sentencing judge:
… Can I say that the Crown takes no issue with the application of [Verdins] principles 5 and 6. It is incontrovertible that this accused is a man … is afflicted with schizophrenia and has been for many years. It is the position that he has been managed with medication, antipsychotic medication, there’s no dispute about that, and ideally that will continue … indefinitely, over the rest of his life.
…
What this man needs and requires is some sort of strictly controlled regime of mental health treatment and medication. …[21]
[21]See [35] above.
Exercising the sentencing discretion afresh, we are of the opinion that the competing sentencing considerations in this case are best served by the imposition of a CCO with appropriate conditions calculated to ensure (so far as practicable) that the applicant is subject to a regime that will maximise his chances of keeping his paranoid schizophrenia under control. Self-evidently, an order which aims to facilitate and maintain the applicant’s stable mental health is not only in his interest, but also in the interest of the community.
We should, however, observe that the applicant’s was a serious offence. Albeit that the applicant faced a charge of intentionally causing injury — rather than serious injury — the injuries caused to Mr Williams were far from trivial. Indeed, the wound to the abdomen and slash wounds to the hands collectively added up to a grave example of simple injury. In any event, the seriousness of the offence must be gauged not only by the injury itself, but also the method by which it was occasioned.[22] Thus, the injury did not result from a spontaneous and momentary loss of self-control. Rather, the applicant pursued his victim for some distance before stabbing and slashing him in very frightening circumstances. Hence, we regard the applicant’s offending as a serious example of the relevant offence.
[22]See Phillips v The Queen [2017] VSCA 313, [54].
We should also make clear that we have not ignored the applicant’s prior criminal history. Since 1999, when aged 19, he has attained prior convictions and findings of guilt for public possession of knives and weapons, assaulting police, burglary, theft, destroying and damaging property, possessing drugs, driving with more than the prescribed concentration of alcohol, and a host of other traffic offences (although, apart from suspended sentences, he has not previously been imprisoned). We would infer that much of that offending, however, might be linked to the applicant’s mental condition, and to his misuse of alcohol and drugs.
As was made clear in Boulton, in an appropriate case a CCO provides a flexible sentencing option, enabling punitive and rehabilitative purposes to be served simultaneously. A CCO can be fashioned to address the particular circumstances of the offender and the causes of the offending, and to minimise the risk of re-offending by promoting the offender’s rehabilitation.[23] And although as the order of seriousness of offending conduct increases, the likelihood that such a disposition will be appropriate diminishes, a CCO may remain open, even in cases of very serious offending.[24]
[23]Boulton, 311 [2].
[24]Ibid, 338 [131].
Ultimately, as we have said, we have concluded that all of the relevant objectives of sentencing — general and specific deterrence, denunciation, just punishment, protection of the community and rehabilitation — in this case can best be served by the imposition of a CCO, noting (as we do) the practical reality that the applicant has been in custody for some 15 months. Apart from the core conditions, the CCO will contain conditions that the applicant undergo necessary mental health assessment and treatment (which may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility),[25] and assessment and treatment (including testing) for drug abuse or dependency.[26]
[25]Sentencing Act 1991, s 48D(3)(e).
[26]Ibid, s 48D(3)(a).
Conclusion
Leave to appeal against sentence will be granted; the appeal will be allowed; and the sentence imposed in the County Court will be set aside. In lieu, we will impose a CCO of five years’ duration with conditions as indicated.
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