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Supreme Court of Victoria - Court of Appeal |
Last Updated: 13 May 2015
COURT OF APPEAL
S APCR 2014 0157
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JUDGES:
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WHERE HELD:
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DATE OF HEARING:
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DATE OF JUDGMENT:
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MEDIUM NEUTRAL CITATION:
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DPP v Maxfield [2014] VCC 911
(Judge Maidment)
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CRIMINAL LAW — Sentence — Crown appeal — Intentionally cause serious injury — Multiple stab wounds — Permanent injury — Sentenced to 12 month community correction order (CCO) — Whether manifestly inadequate — Objective seriousness — Intellectual disability — Post-traumatic stress disorder — Community protection — Importance of rehabilitation and treatment — Resentenced to three year CCO — Work condition, treatment and rehabilitation conditions — Justice Plan condition — Boulton v The Queen [2014] VSCA 342 applied — Sentencing Act 1991 Part 3A, s 80.
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APPEARANCES:
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Counsel
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Solicitors
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For the Appellant
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Mr J Champion SC with Mr P Kidd SC and Mr C Carr
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Ms V Anscombe, Acting Solicitor for Public Prosecutions
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For the Respondent
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Ms H Fatouros with Mr J Cass and Ms D McCann
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Victoria Legal Aid
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WEINBERG JA
PRIEST JA:
Summary
1 In June 2012, the respondent, Ms Maxfield, stabbed her partner (‘SL’) four times: twice in the shoulder, once in the lower back and once in the chest. Both his gall bladder and appendix were removed and he suffered a collapsed lung.
2 In July 2013, Ms Maxfield pleaded guilty in the County Court to one count of intentionally causing serious injury (‘ICSI’). The sentencing hearing was adjourned after the sentencing judge was informed that Ms Maxfield suffered from an intellectual disability. Recognising the potential significance of that factor to the sentencing exercise,[1] his Honour ordered a psychological report from Forensicare.
3 Ultimately, in June 2014, Ms Maxfield was sentenced to a 12 month Community Correction Order (‘CCO’). Conditions were attached requiring engagement with mental health treatment; compliance with a Justice Plan; and the supervision of a community corrections officer.
4 The Director of Public Prosecutions appealed against the sentence on the ground of manifest inadequacy. On 27 April, we allowed the appeal and resentenced Ms Maxfield to a three year CCO. Attached to the order are a community work condition, requiring 100 hours' work, and conditions requiring supervision, treatment (for mental health and drug abuse) and behaviour modification.[2] Ms Maxfield will also be required to participate in a Justice Plan formulated and implemented by the Department of Health and Human Services.[3]
5 These are our reasons for making those orders.
6 Ms Maxfield and SL were in a de facto relationship. They had known each other for about four years. They had three children, two being Ms Maxfield’s from a previous relationship and one being the couple’s child. At the time of the offence, Ms Maxfield was pregnant with her fourth child.
7 The couple had come to Victoria from Queensland for the purpose of SL finding work on a dairy farm. Unfortunately, the position was unavailable when they arrived. It was accepted on the plea that SL’s unemployment, and what Ms Maxfield perceived as his insufficient motivation to find work, caused considerable friction between them. They found emergency accommodation in Kyabram and, at the time of the offence, were staying at a caravan park in Tongala.
8 The offending occurred in the early hours of 19 June 2012. The circumstances prior to the stabbing were contested on the plea. SL claimed that he went to bed around 10.30 pm. At 1.00 am, the baby woke the couple, needing to be changed. SL left the cabin to retrieve babywipes from the car and, when he re-entered, Ms Maxfield attacked him. Ms Maxfield claimed that SL had pushed her into the cupboard and that she had struck her head. She also claimed that SL hit her in the head prior to the stabbing. As will appear, this factual dispute was not resolved at the sentencing hearing, and cannot now be resolved.
9 The judge described the offending in these terms:
[ICSI] is a very serious offence indeed and the circumstances were such that there was no provocation that could possibly justify your conduct on this particular night. You were fortunate indeed that you did not kill your victim. The offence is one which ordinarily would demand a term of immediate imprisonment, and a substantial term at that.[The] victim impact statement ... indicates that not only were there serious physical injuries, but there will no doubt be an emotional overlay of your offending conduct for a very considerable period, and probably for the victim's life. All of that has to be taken into consideration.
10 After referring to the report from Forensicare, his Honour said:
You clearly do have a mild intellectual disability. It seems to me that the Verdins principles are engaged. They do not reduce your moral culpability to zero by any means, however they do moderate your moral culpability, and looking at the other Verdins considerations as they are dealt with in the Forensicare report, including the difficulty you would have in serving a term of imprisonment with your disability and psychological profile, and given the fact that you have had a very difficult background, it seems to me that the community can be served by imposing a Community Corrections Order which is designed to help you to a point where what is assessed as a moderate risk, presently a low risk but some moderate risk in the medium to longer term of you reoffending, is reduced. In those circumstances, and given your family situation, it seems to me that that can be appropriately achieved by imposing a Community Corrections Order.The facts of this case need to be assessed in the light of all the background features that are spoken to in the reports to which I have identified and referred. Although it may well be that an objective view of the bare facts would suggest that imposing a Community Corrections Order is an unduly lenient course it seems to me that, taking everything together, the community can be and should be best served in the way that I have indicated.
11 As can be seen, his Honour recognised that the seriousness of the offence was such that it would ordinarily call for a substantial term of imprisonment. His Honour made clear, however, that his decision to impose a non-custodial order reflected his judgment of how the community’s interest would best be served, having regard to Ms Maxfield’s intellectual disability and ‘psychological profile’.
12 Specifically, his Honour found that:
(a) her intellectual disability moderated her moral culpability for the offending;
(b) a term of imprisonment would be made more burdensome by her ‘disability and psychological profile’; and
(c) given her ‘very difficult background’, the imposition of a CCO would help to reduce her risk of reoffending.
13 Before addressing those considerations further, it is necessary to deal with a dispute of fact about the circumstances of the offending.
14 Defence counsel appearing for Ms Maxfield on the plea had prepared a detailed written outline of sentencing submissions, which contained the following account of the circumstances:
It is disputed that Maxfield stabbed [SL] in the back as he came inside the cabin. It is maintained that the assault took place when both parties [were] inside the cabin. This version was provided by Maxfield to the police in interview shortly after the incident.Prior to [SL] going outside of the cabin, she describes him as being drunk, having consumed a large quantity of alcohol. She describes him as being annoyed at having to go outside to the car and began ‘mouthing off’ on his return to the cabin.
On returning to the cabin [SL] yelled at her and she yelled back. She describes herself as still ‘half asleep’ ... as she had taken a valium prior to going to bed that night to help herself sleep as she had not slept very well for the previous 2 nights. He pushed her and she stepped back against the kitchen cabinet.
They were in the kitchen area of the (small) cabin when she states that [SL] punched her, more than once on the head ... She put her hand on the kitchen workbench and inadvertently onto the knife. She felt the knife and grabbed hold of it. She cannot recall the exact mechanics of how she stabbed him but believes he had stopped hitting her and had turned away. This would accord with the injuries on [SL]’s back.
She states the reason for the offending was to get [SL] to stop and that she’d had enough of it, having experienced domestic violence. She has no rational explanation, only that she just ‘over reacted’.
15 After adverting to the factual dispute, the prosecutor submitted that the ‘argy-bargy at the start ... doesn’t justify what happened and it still [is] a very, very vicious attack ...’ He submitted further that:
[on a] reading of the facts [it] would appear pretty obvious that there was a bit on both sides and the accused, of course, [has] for some reason just taken it far too far.
16 At this point, the judge pointed out to the prosecutor, quite correctly, that if the prosecution’s version of the facts was contested, he could not accept it unless it was proved beyond reasonable doubt. In response, the prosecutor said:
I don’t think it will be contested ... that there was a bit of a tete-a-tete and that whatever’s happened the accused has completely over-reacted ... and indulged in a vicious attack.
17 That is where the matter rested. Shortly afterwards, in the course of defence counsel’s submissions, the judge became aware for the first time (when counsel handed up a letter from Ms Maxfield’s mother) that she had an intellectual disability. His Honour pointed out that this new information might ‘make the difference between a term of imprisonment and not a term of imprisonment’. Further, his Honour said, it was something that
ought to be explored, because that goes to moral culpability and ... it’s the kind of offence where you would expect to see something in the nature of mental impairment or intellectual disability. And I mean the reaction is so far above that which the circumstances even on her version would justify.
18 His Honour then proposed to the parties that there be further investigation of ‘issues of mental impairment and/or intellectual disability’. With the parties’ agreement, he ordered a Forensicare report, a pre-sentence report and a ‘statement’ from the Department of Human Services in relation to intellectual disability and ‘available services’.
19 The plea was then adjourned without his Honour hearing further defence submissions on the factual dispute. There were several further adjournments — in October 2013 and again in February and May 2014 — before the Forensicare report was received, a delay partly attributable to Ms Maxfield’s failure to attend for interview. On the final day of the plea hearing, 18 June 2014, Ms Maxfield was represented by different counsel, who submitted in reliance on the Forensicare report that the Verdins principles[4] were engaged.[5] Once again, there was no discussion of the factual issue before his Honour proceeded to the sentencing.
20 We set out earlier his Honour’s conclusion that ‘there was no provocation that could possibly justify’ Ms Maxfield’s conduct. Counsel for Ms Maxfield maintained on appeal that her offending should be viewed ‘in the light of the escalating family violence between [Ms Maxfield] and [SL] as well as the events between them as they immediately preceded the offence’. It was ultimately conceded, however, that in the absence of any findings of fact by the sentencing judge addressing those matters, this Court could not go beyond the judge’s conclusion that the violent attack was out of proportion to anything which had preceded it.
21 The report ordered by the judge was prepared by Dr Melisa Wood, a clinical and forensic psychologist employed by Forensicare. It was a report of the highest quality. Dr Wood noted that Ms Maxfield had an established diagnosis of intellectual disability, and that formal cognitive assessments revealed her ‘overall intellectual functioning to be in the mild range of disability’.[6]
22 According to Dr Wood’s report, Ms Maxfield had given the following account of the incident:
She explained that the offence occurred in the context of her and [SL’s] methamphetamine withdrawal, which she perceived resulted in frequent irritability, arguments and aggression by both of parties. She further reported that she was angry at [SL] for not having confirmed his job arrangements prior to leaving Queensland, resulting in his unemployment and their relocation to a tiny cabin. She was further angry that the victim was drinking a lot when he ‘should have been looking for a job or a house’, and also stressed due to James’ illness. On the night of the offence she reported taking 5mg of Valium to help her relax, which was unusual for her and made her feel ‘floaty’. She awoke to [SL] informing her that James’ nappy required changing. She requested he take care of it, which reportedly sparked an argument. She reported that she does not recall attempting to bite the victim, however accepted that this was possible. On his return from the car, Ms Maxfield reported that [SL] continued the argument, pushed her into a corner and began hitting her to the head. Ms Maxfield reported she ‘blanked out’ and ‘went crazy’, and does not recall taking the knife out of the drawer, stabbing the victim, or putting the knife back. She reported such memory loss was unusual for her and believed it was possibly due to her heightened ‘rage’ and ‘frustration’.
Dr Wood noted that Ms Maxfield expressed ‘considerable remorse’. She showed ‘full appreciation of the severity of her actions and took full responsibility for them’.
23 Dr Wood made the following assessment of the risk of future violent offending:
Ms Maxfield’s risk of future violence in the long-term is assessed as Moderate. Currently, she presents with few clinical risk factors and a number of lifestyle factors appear to have stabilised since the index offence. On the available information, her risk of violence in the short to medium term is thus considered Low. While some future risk management factors may increase in a custodial environment, the most likely impact of this is considered to be a prolonging of the lifestyle instability and personal factors which perpetuate her long term risk, rather than an increase in risk of imminent violence within the prison environment. Based on her violence to date, any future violence is considered most likely to occur in the context of a resumed tumultuous intimate relationship, and an increase in lifestyle stressors (eg financial, parental, or housing-related) with which she is struggling to cope. In this context, perhaps with the added contribution of resumed stimulant abuse, Ms Maxfield may respond to interpersonal conflict with heightened emotional arousal (rage) and increased behavioural impulsivity, resulting in poorly controlled aggression or violence.[7]
24 Dr Wood noted that Ms Maxfield’s two significant long-term relationships — the second being that with SL — had been ‘marked by conflict and domestic violence’. Her emotional development had been affected by ‘multiple traumatic experiences during childhood and adolescence [which] included sexual abuse, witnessing violence by her father, and a home invasion’.
25 Dr Wood’s conclusion was in these terms:
On this personality and relationship background, Ms Maxfield’s index offence occurred in the context of methamphetamine withdrawal, financial and associated stressors, and increasing anger toward the victim due to her perception that he was responsible for their predicament. Ms Maxfield articulated that the degree of conflict and irritability during that period was unusually heightened due to these circumstances. It appears that the offence itself resulted from impulsive poor behavioural problem solving in the context of heightened emotional arousal (‘rage’). Her intellectual disability may have played some role in her impulsive decision-making in this context (ie her failure to consider other behavioural alternatives in the heat of the moment), in addition to the interpersonal context.Ms Maxfield’s risk of further violence in the short term is currently low. This risk may increase in the event of relationship instability, resumed stimulant abuse, and poor emotional coping. In this context, violence may recur impulsively in response to heightened emotional arousal. It is noteworthy that Ms Maxfield does not appear to display cognitive, behavioural, or affective instability in the current absence of a turbulent relationship. She presents with additional strengths; she is insightful regarding the causes and consequences of her violent actions, problematic substance use, and expressed considerable remorse for her offending with no attempt to attribute responsibility to the victim or situational circumstances. Her insight in this regard is particularly remarkable in consideration of her intellectual disability. Moreover, she presents as a very caring mother, and appears to have increased her responsibility for her children’s care since ceasing stimulants and the index offence.
26 Her report ended with the following recommendations:
With respect to psychological treatment, the following is additionally recommended.
The second Forensicare report
27 On 5 December 2014, the Court ordered a further Forensicare report, after being informed that new information had come to light about Ms Maxfield’s psychological condition. In making the order, Maxwell P expressed concern about the foreshadowed lengthy delay in provision of the report:
The sentencing judge had a report from Dr Wood of Forensicare dated 16 June 2014, a thorough, careful and most informative report about the psychological condition of [Ms Maxfield]. It seems highly desirable, indeed essential for the purposes of this proceeding, that there be a review and a supplementary report prepared, based no doubt on a further interview with the respondent and by reference to the additional information which she has disclosed.Counsel for [Ms Maxfield] has been informed, and has informed the Court, that Forensicare have indicated that the preparation of this report will take up to 14 weeks from the date of the order. That seems to me to be an extraordinarily long time. I infer that it reflects the burdens which Forensicare carries in the preparation of reports for sentencing courts in this State on a very frequent basis.
But particularly when this is a review report — this is not a new patient requiring the full investigation appropriate in those circumstances — it does seem astonishing that more than three months would have to elapse before this supplementary report could be prepared. I assume that this reflects under-resourcing of Forensicare. If that is the case, it is a matter of great concern to sentencing courts and a matter about which this Court, on behalf of sentencing courts and the public, may wish to say something when this matter is finally resolved. To that end, I have asked counsel for [Ms Maxfield], who also occupies a senior position at Victoria Legal Aid, to make some enquiries about the reasons for the delay being as long as this.
The order of priority of reports in Forensicare is obviously a matter for that agency. But one of the issues in this particular appeal is whether, as the Director has submitted, [Ms Maxfield] should be gaoled, and she remains at risk of such an outcome until this appeal can be finalised.
The undesirability of that uncertainty continuing is obvious. And for that reason, I would emphasise the urgency of the preparation of the supplementary report. Put simply, this hearing cannot resume until that report has been prepared. As things stand, if it will take three and a half months, as indicated, the hearing will not be until the end of April at the earliest — more than four months away — and then there will of course be time taken for consideration and decision.
28 In the event, almost four months elapsed before the report was received, on 25 March 2015. It was prepared by Mr Chris Drake, senior clinical psychologist. Like the earlier Forensicare report, it was thorough, careful and most informative. The vital importance of reports such as this only underlines the need for better resourcing of Forensicare to enable reports to be prepared more promptly.
29 Mr Drake summarised Ms Maxfield’s account of a three month period in 2012 when she and her two children were held captive on a rural property, by a person from whom she and SL had previously purchased drugs. The events she described included:
being held against her wishes in a remote property, threats of death if she tried to escape (via being shot and hunted by dogs) ... being forcibly ingested with drugs, and witnessing the abuse of her children. She described a realistic sense of fear for her life, and those of her children, during these events.
30 Mr Drake expressed the following opinion:
In my opinion, Ms Maxfield experienced significant symptoms of Post Traumatic Stress Disorder (PTSD) following these events, as evidenced by her description of re-experiencing aspects of the trauma in the form of dreams and distressing memories, experiencing ongoing anxiety and avoidance of (or a desire to avoid) events that remind her of these events. These appear to have occurred prior to the offence for which she is currently being sentenced, and during a period in which she was returning to normal functioning after a period of excessive drug use, which was forced upon her. Ms Maxfield appears to continue to show symptoms of this disorder as evidence by current responses on psychological testing. However, I suspect their intensity is somewhat reduced.I interpreted Ms Maxfield’s diminished emotional responsivity as a consequence of the emotional distress she had experienced rather than any attempt to concoct a story or misrepresent her symptoms. This emotional blunting could occur as a result of a conscious process of ‘suppression’ — where she chooses not to engage in thoughts that result in distress, an unconscious process of ‘repression’ — where the thoughts and feelings are too painful to experience, or as a result of drug intoxication interfering with her capacity to form normal memories. Her history suggests a pattern of resilience in response to serious trauma and I suspect minimising trauma has become a learned response (as modelled by her mother). Her current presentation, where she is attempting to ‘put herself together’ to ‘get her children back’, is consistent with this pattern. However, such a response is in no way a suggestion that the emotional consequences of the events she experienced are anything less than very serious.
Given her account of her experiences, in particular her lack of readiness to talk about the kidnapping, and her pattern of pushing emotional experiences aside, I believe it is understandable that Ms Maxfield did not report the above events to Dr Wood in a previous assessment in June 2014. Such behaviour is consistent with her desire to avoid recollections of the trauma, in other words a symptom of her traumatic distress. Indeed, it appears that even when she was becoming ready, a number of people took several attempts to encourage Ms Maxfield to fully tell her story — more than possible during a single assessment session.
In relation to the issues raised in the Verdins case, in my opinion the following points are relevant. In addition to the factors giving rise to Ms Maxfield’s offence (frustration in her relationship with the victim, anger towards the victim, impulsivity and poor problem solving — as described by Dr Wood) in my opinion the symptoms of PTSD further impacted on her capacity to make appropriate decisions in a period of stress and conflict leading to the offence. Although I consider it likely that being blamed by the victim for the trauma she experienced further contributed to her incapacity to make reasonable decisions, this was not possible to verify as she had little recall of her thinking at the time. Results of psychometric testing support the presence of ongoing symptoms and several avoidance strategies that she uses to cope with her symptoms.
...
Ms Maxfield appears to have made substantial gains in recent years, namely ceasing drug use, providing care for two children.
On the basis of the material, I concur with Dr Wood’s risk assessment, that is, that her risk in the short term is low, and that risk of violence would increase in the context of problematic romantic relationships and substance use.
Ms Maxfield requires a high level of psychiatric and psychological treatment to assist her to manage her current symptoms. Her mental state would be helped if she knew that her children were also receiving treatment (I understand this is limited at best).[8]
Consideration
31 This appeal was instituted, and the initial submissions made, before the Court handed down the guideline judgment on CCOs in Boulton v The Queen.[9] Following the publication of that decision on 22 December 2014, both parties filed supplementary submissions.
32 The Director’s supplementary submission maintained that the sentence was manifestly inadequate but conceded that, on resentencing, immediate incarceration was ‘not the only option’. This was a significant change from the position adopted initially. As the Director acknowledged, the Court in Boulton held that a CCO was:
punitive in nature, and ... intended — and expected — to operate punitively for every day of its operation.[10]
More particularly:
Both the period of the CCO, and the conditions attached, bear upon the extent of the punishment inflicted. In the particular case, the punitive effect will be determined by the extent, and duration, of the curtailment of the offender’s freedoms.[11]
33 The Director also acknowledged the Court’s statement that:
a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment (such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape and some categories of homicide). The sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly-conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation.[12]
In the Director’s submission, however, the CCO imposed by the judge in the present case was neither long enough nor ‘properly-conditioned’, and hence could not satisfy the relevant sentencing purposes.
34 If we may say so with respect, the sentencing judge’s decision to impose a CCO — made well before the decision in Boulton was handed down — reflected a lively appreciation of its potential benefits in an unusual case such as this. In particular, as noted earlier, his Honour had regard to Ms Maxfield’s intellectual disability and psychological difficulties, and concluded that the objective of community protection was more likely to be achieved — through the reduction of the risk of reoffending — by making such an order with appropriate conditions attached, rather than by imposing a prison sentence.
35 His Honour’s approach anticipated what was subsequently said in Boulton, as follows:
The sentencing court can now choose a sentencing disposition which enables all of the purposes of punishment to be served simultaneously, in a coherent and balanced way, in preference to an option (imprisonment) which is skewed towards retribution and deterrence.The CCO option offers the court something which no term of imprisonment can offer, namely, the ability to impose a sentence which demands of the offender that he/she take personal responsibility for self-management and self-control and (depending on the conditions) that he/she pursue treatment and rehabilitation, refrain from undesirable activities and associations and/or avoid undesirable persons and places. The CCO also enables the offender to maintain the continuity of personal and family relationships, and to benefit from the support they provide.
In short, the CCO offers the sentencing court the best opportunity to promote, simultaneously, the best interests of the community and the best interests of the offender and of those who are dependent on him/her.[13]
36 Ms Maxfield’s intellectual disability was of particular relevance to the sentencing exercise. As the High Court pointed out in Muldrock,[14] a person who suffers from a mild intellectual disability is unlikely to be a proper vehicle for general deterrence. Moreover
the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender’s moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community.[15]
37 The significance of the second Forensicare report (the contents of which were not disputed) was that it identified — in addition to Ms Maxfield’s intellectual disability — a second and separate basis on which her moral culpability and the reduced significance of general and specific deterrence, should be viewed as reduced. According to the expert’s opinion, the PTSD from which Ms Maxfield suffers was operative at the time of the offending and materially affected her decision-making in the circumstances in which she found herself.
38 We agreed with the Director, however, that even allowing for Ms Maxfield’s reduced moral culpability, the sentence imposed was simply insufficient to satisfy the requirements of just punishment and denunciation, given the objective gravity of the offence. This was, on any view, a savage attack, which caused grievous injuries at the time and from which the victim will suffer life-long medical difficulties.
39 We concluded that a substantially longer CCO was required and that, in addition to the conditions previously imposed — requiring supervision, and assessment and treatment for mental health — there should be conditions requiring assessment and treatment for drug dependency and participation in a behaviour modification program. We also concluded that there should be a compulsory work condition.
40 Given Ms Maxfield’s personal circumstances, we concluded that 100 hours of community work was appropriate. She has recently given birth to her fifth child and it must, of course, be recognised that her capacity to do community work will be limited in the short term. The majority of the work will probably need to be done once the child is older and is more easily cared for by others.
41 Like the sentencing judge, we also attached a condition requiring Ms Maxfield to participate in a Justice Plan prepared under s 80 of the Sentencing Act 1991. That section provides as follows:
Justice plan condition(1) A court that is considering—
(a) making a community correction order; or
(b) releasing an offender on adjournment with or without recording a conviction—
may attach a condition to the order directing that the offender participate in the services specified in the plan prepared under subsection (3)(c).
(2) In attaching a condition under subsection (1) the court must—
(a) consider the plan and the other information requested under subsection (3); and
(b) have regard to those objectives and principles specified in Part 2 of the Disability Act 2006.
(3) A court which is considering making an order attaching a justice plan condition may request—
(a) a pre-sentence report under Division 1A of Part 3; and
(b) a statement from the Secretary to the Department of Human Services that the person has an intellectual disability within the meaning of the Disability Act 2006; and
(c) a plan of available services designed to reduce the likelihood of the offender committing further offences and that is in accordance with the objectives and principles of Part 2 of the Disability Act 2006.
(4) When attaching a justice plan condition, the condition may apply for a period of up to 2 years, as specified by the court or the period of the sentence (whichever is the shorter).
(5) If a court attaches a justice plan condition it must cause a copy of the order to be supplied to the Secretary to the Department of Human Services.
42 We imposed this condition having considered the pre-sentence report obtained in November 2014, the original statement from the Department of Human Services confirming Ms Maxfield’s intellectual disability, and a plan of available services, helpfully provided at very short notice.
43 The plan itself did not identify specific services relevant to Ms Maxfield. Instead, it adopted what would appear to be a standard wording, as follows:
Case ManagementCase Management provided by Disability Client Services offers people with a disability individualised support they need to meet their goals and aspirations. Disability Client Services can engage with Ms Maxfield in further planning so that adequate and appropriate supports can be implemented to reduce her risk of reoffending.
Recommendation
1.1 That Ms Maxfield accepts Case Management services from Disability Client Services for the duration of any Order.
1.2 That Ms Maxfield actively participates in all assessments, activities and treatment identified by Disability Client Services.
44 The pre-sentence report had recommended a CCO with all of the conditions which we imposed. The report did, however, recommend that the order itself should have attached to it only those conditions which required supervision, unpaid community work and participation in a Justice Plan. It was recommended that the further conditions requiring treatment and rehabilitation (mental health, drug abuse and offender behaviour) should be included under the Justice Plan, rather than in the CCO itself, so as
to allow Disability Client Services to provide intervention and support to this offender.
45 We accepted this recommendation. In order to achieve that outcome, we specified in the CCO that Ms Maxfield’s participation in the Justice Plan was to include her compliance with those treatment and rehabilitation conditions. Because those conditions were not specified in the Justice Plan itself, we specified them in the CCO.
46 Enough has been said to demonstrate why this was, as the Director submitted, a very unusual case. The combination of intellectual disability and an operative mental illness (PTSD) required that Ms Maxfield’s case be treated differently from that of a person who had committed the same offence but without those disabilities. At the same time, the case serves to emphasise the capacity of the CCO to satisfy the purposes of sentencing even in cases of ‘relatively serious offences which might previously have attracted a medium term of imprisonment’.
[1] See Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 (‘Muldrock’); DPP v Patterson [2009] VSCA 222.
[2] See Sentencing Act 1991 ss 48C, 48D, 48E.
[3] See [41] below.
[4] R v Verdins [2007] VSCA 102; (2007) 16 VR 269.
[5] The relevant parts of the report are set out [25]-[26].
[6] Emphasis in original.
[7] Emphasis in original.
[8] Emphasis added.
[9] [2014] VSCA 342 (‘Boulton’).
[10] Ibid [138].
[11] Ibid [152].
[12] Ibid [131].
[13] Ibid [113]-[115].
[14] [2011] HCA 39; (2011) 244 CLR 120, 137 [50].
[15] Ibid 139 [54].
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