Clark v The Queen
[2021] VSCA 350
•13 December 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0083
| SHANE CLARK | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 7 December 2021 |
| DATE OF JUDGMENT: | 13 December 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 350 |
| JUDGMENT APPEALED FROM: | DPP v Clark [2020] VCC 1906 (Judge Mason) |
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CRIMINAL LAW – Appeal – Sentence – Common assault, making threat to kill, intentionally exposing emergency worker to risk by driving, possessing a drug of dependence and related summary charge – Sentenced to 5 years and 3 months’ imprisonment with 3 years non-parole – Whether judge erred in concluding that drug use was incapable of reducing applicant’s moral culpability – Whether judge erred in finding applicant foresaw that taking methamphetamine would cause him to develop psychotic symptoms and offend in the way he did – Whether judge erred in concluding that any insight the applicant had into negative effects of methamphetamine use increased moral culpability – Respondent conceded there was insufficient evidence for judge to find applicant foresaw conduct of offending and that voluntary ingestion of methamphetamine aggravated the offending – Leave to appeal granted – Appeal allowed – Resentenced to 4 years’ imprisonment with 2 years and 3 months non-parole.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant: | Mr P D Coleridge | Kerry Clancy Solicitors |
| For the Respondent: | Mr J C J McWilliams | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
MCLEISH JA:
Introduction
On 9 July 2020, the applicant pleaded guilty before a judge of the County Court to common assault[1] (charge 1); making a threat to kill[2] (charge 2); the aggravated offence of intentionally exposing an emergency worker to risk by driving[3] (charges 3 and 4); possessing a drug of dependence[4] (charge 5); and one related summary charge of driving in a manner dangerous.[5]
[1]Common assault is a crime at common law. By s 320 of the Crimes Act 1958, the maximum penalty is five years’ imprisonment.
[2]Crimes Act 1958, s 20. The maximum penalty is 10 years’ imprisonment.
[3]Crimes Act 1958, s 317AD(1)(b). The maximum penalty is 20 years’ imprisonment.
[4]Drugs, Poisons and Controlled Substances Act 1981, s 73(1). The maximum penalty is one year’s imprisonment.
[5]Road Safety Act 1986, s 64(1). The maximum penalty is two years’ imprisonment.
Following a plea, on 27 November 2020 the judge sentenced the applicant to a total effective sentence of five years and three months’ imprisonment, with a non-parole period of three years, in accordance with the following table:
Charge Offence Sentence Cumulation 1 Common assault 6 months 3 months 2 Making a threat to kill 4 months — 3 Aggravated offence of intentionally exposing an emergency worker to risk by driving 3 years 1 year 4 Aggravated offence of intentionally exposing an emergency worker to risk by driving 4 years Base 5 Possessing a drug of dependence 1 month — Related summary charge 18 Driving in a manner dangerous 3 months — Total effective sentence 5 years and 3 months’ imprisonment Non-parole period 3 years Pre-sentence detention 80 days Section 6AAA declaration 7 years’ imprisonment with 5 years non-parole Other orders Driver’s licence cancelled and disqualified for 3 years; finding under s 89C of the Sentencing Act 1991 the applicant under influence of drugs, contributing to the offence; disposal order
The applicant seeks leave to appeal on three grounds as follows:
1. In light of Mr Clark’s significant early childhood experiences of abuse, trauma and exposure to substance abuse, the sentencing judge erred in concluding that the drug use that precipitated the offending was incapable of reducing his moral culpability.
2. The sentencing judge mistook the facts, namely, by finding that Mr Clark knew at the time of the offending that methamphetamine was ‘extremely dangerous for [him] and that [he] believed it caused [him] to become manic, angry and depressed and to develop psychotic symptoms’.
3. In light of the sentencing judge’s acceptance that it was possible that Mr Clark’s profound childhood disadvantage had rendered him more vulnerable to substance abuse, the sentencing judge erred in concluding that any insight Mr Clark did possess into the negative effects of his methamphetamine use increased his moral culpability.
Counsel for the respondent very fairly and properly conceded that the judge had made the errors embodied in grounds 2 and 3. Those concessions should be accepted. We will thus grant leave to appeal; allow the appeal; and resentence the applicant in the manner set out below.
The offending
The applicant’s offending was described in the Prosecution Plea Opening as follows:
[Applicant]
1. The [applicant] in this matter is Shane Ronald Clark (the [applicant]). At the time of the offending, the [applicant] was residing at [an address in] Benalla with his sister. He was 31 years old …
Complainant
2. The victim in relation to charges 1 and 2 is Jazmyne Ford … (the complainant). At the time of the offence, the complainant was 30 years old and residing at [an address in] Glenrowan. Also residing at the address were her children, Summer Ford aged 8 years … and Willow Ford, aged 2 …
Background
3. The [applicant] had been in a de-facto relationship with the complainant for approximately eight and a half years. The complainant has a child from a previous relationship, Summer, and a child with the [applicant], Willow.
4. On Thursday, the 21st of November 2019, the [applicant] told the complainant he didn’t love her anymore and stated he was leaving the relationship. This was unexpected. The [applicant] moved in with his sister in Benalla.
5. In the following days the complainant did not see the [applicant], however, she received frequent calls and text messages from him which varied in contents. Some messages were nice, whilst others demanded a DNA test for Willow and accused the complainant of seeing other men.
Offending
6. On Monday, the 25th of November 2019, Jazmyne Ford was at her residence [in] Glenrowan. The complainant had spent the evening with her neighbour, Rebecca Martin. The complainant had invited Ms Martin to her house as she was upset by the text messages that the [applicant] had been sending her since he moved out. At approximately 10:30 pm, Ms Martin returned to her residence next door.
7. The [applicant] had borrowed a VW Golf car, UEB097, from a friend Sarah Childs and drove to the complainant’s house.
8. At approximately 11:30 pm, the complainant was sitting on a chair in her loungeroom watching TV. She heard the back-wire door slam shut and before she knew what was happening, the [applicant] had entered the back door and stormed into the living room and started screaming at her.
9. The [applicant] called the complainant a, ‘slut’ and accused the complainant of never loving him. The [applicant] made accusations that the complainant had men at the house since he had moved out and that she had slept with a male called ‘Darren’. The complainant does not know this person ‘Darren’ and denied the accusations.
10. The [applicant] placed his hand on the complainant’s chest, but without too much pressure. This caused the complainant to cringe in her chair. (Part of charge 1) The complainant told the [applicant] that she was going to call police.
11. The [applicant] walked to the kitchen and grabbed a fork from the kitchen bench and used the fork to scratch his neck, chest and face and told the complainant that he would tell the police that she had done it and that she would be arrested and he would get the children.
12. During the confrontation, the [applicant] told the complainant he wished he’d never met her and he was going to, ‘Slit her throat’. The [applicant] told the complainant that if she took the children, he would kill himself.
13. The complainant told the [applicant] he ‘Would never get his hands on the children’. The [applicant] told the complainant that he’d take Summer from school and started to walk towards Willow’s bedroom door. The complainant felt she couldn’t get to Willow’s bedroom door before the [applicant], so she yelled at the [applicant] to get his attention.
14. The [applicant] walked back to the complainant and grabbed her by the throat (Part of charge 1 — Common assault) with his hands. The [applicant] then said, ‘I’m just going to kill you, you fucking cunt’. (Charge 2 — Threat to Kill) The complainant moved backwards which loosened the [applicant’s] grip. The [applicant] walked away and removed the housekey from the backdoor. The [applicant] told the complainant, ‘Enjoy your sleep tonight, I’ll be back and when I see you I’m gunna slit your fucking throat’.
15. The complainant believed that the [applicant] was going to return and slit her throat. The complainant ran to her neighbour Ms Martin’s house for assistance and then returned to her address. Ms Martin noted that Jazmyne was hysterically crying. Emergency services were contacted.
16. At approximately 2:23 am, now 26 November 2019, the [applicant] sent text messages to the complainant stating;
‘I would like to start off with ‘I’m sorry I’m sorry for the last 9 years that I didn’t treat you right or do the right thing by you so can you please promise me you will look after Willow and Summer but make sure they’re safe maybe in the next life time we would have been perfect but for now I love you Jazz Summer and Willow please make shore the 3 of u look after each other I’m sorry.’
17. The [applicant] also posted a message on Facebook:
‘So this is it I have be fighting with mental health for a long time and I can’t do it anymore so to any 1 I hurt or did anything to My family will all ways love yous to the moon and back ok my friends it’s been a joy till next time.’
The complainant was extremely distressed by these messages.
18. After the complainant had been removed for her safety from Glenrowan, at approximately 2:40 am, Senior Constable Lincoln and Leading Senior Constable Browne (Wangaratta Police) drove into the Glenrowan Recreation Reserve in search of the [applicant].
19. Senior Constable Lincoln and Leading Senior Constable Browne observed the black VW Golf hatch Victorian registration UEB097 near the football clubroom building. The [applicant] had the headlights switched off. The [applicant] attempted to drive away from them and Senior Constable Lincoln positioned the police divisional van in an attempt to block the [applicant’s] vehicle and prevent him from avoiding arrest.
20. The [applicant] immediately reversed his vehicle backwards and forwards and then accelerated straight at the divisional van (1NY7LQ) colliding into the left passenger side of the bull bar before reversing back again and accelerating a second time, colliding with the police vehicle again causing further damage to the front number plate, LED light bar and bumper bar. (Charge 3 — Aggravated intentionally exposing an emergency worker to risk by driving)
21. The police car was extensively damaged.
22. The [applicant] managed to evade police and exited the sports ground driving towards Winton — Glenrowan Road.
23. Senior Constable Lincoln and Leading Senior Constable Browne returned to the complainant’s address and were informed by Ms Martin that the [applicant] had driven past the house again.
24. At approximately 2:59 am, Senior Constable Lincoln observed the [applicant’s] vehicle parked in the vicinity of [an address in] Glenrowan. Leading Senior Constable Browne observed a hose hanging from the driver’s side window.
25. The [applicant] has sighted police and accelerated towards their vehicle and veered past the driver’s side door and back onto Siege Street, travelling in a westerly direction. The [applicant] approached the intersection of Siege Street and Beaconsfield Parade. The [applicant’s] car was observed driving in Beaconsfield Parade at approximately 60 km/h per hour, without headlights and veering over the road.
26. Sergeant McGuffie, working with First Constable Marsh, positioned their police vehicle at the intersection of Beaconsfield Parade and Gladstone Street, Glenrowan. Sergeant McGuffie formed the opinion that the [applicant’s] behaviour was extreme and his driving had become aggressive and dangerous to other road users, including police.
27. First Constable Marsh, was instructed to set up ‘stop sticks ‘in an attempt to disable the [applicant’s] vehicle. As First Constable Marsh opened the passenger side door to exit, the [applicant] was observed driving towards the police station wagon at an estimated speed of 55–60 km/h. As First Constable Marsh was about to get out of the Police car, Sergeant McGuffie yelled at First Constable Marsh to get back in the Police vehicle stating ‘Get in, he’s going to fucking ram us’.
28. Sergeant McGuffie attempted to take evasive action by moving the police vehicle to the left, but as he did so the [applicant] turned slightly right in the same direction and then quickly turned left and collided with the right rear driver side end of the police vehicle (1MK9EIW). The impact was severe and caused such force that Sergeant McGuffie’s body was shifted forward and his right shoulder struck the ‘B’ pillar. The impact of the collision with the police vehicle caused the [applicant’s] front right tyre to deflate. (Charge 4 — Aggravated intentionally exposing an emergency worker to risk by driving)
29. The [applicant] continued to drive with no regard to others safety, and sparks were observed flying from the right front side of the [applicant’s] vehicle by Sergeant McGuffie.
30. The [applicant] failed to stop his vehicle and continued driving North along Gladstone Street Glenrowan. Sergeant McGuffie completed a U-turn and pursued the [applicant’s] vehicle. Sergeant McGuffie used his police vehicle to nudge the [applicant’s] vehicle in an attempt to stop the [applicant].
31. The [applicant] drove his vehicle erratically and suddenly turned left towards the Glenrowan CFA building and Sergeant McGuffie continued to follow behind nudging the [applicant’s] vehicle a second time, this did not impact the [applicant’s] driving and he continued to drive along a gravel pathway. The [applicant’s] vehicle hit a culvert and became airborne, scraped two trees and landed heavily with the vehicle becoming disabled. Both airbags were deployed. The [applicant’s] vehicle sustained major damage and was later towed from the scene.
32. The police car was extensively damaged.
33. As a result of the collision Sergeant McGuffie felt stiffness and neck and lower back pain, but did not require medical treatment. First Constable March suffered mild back pain following the [applicant] ramming the police vehicle he was a passenger in, but did not require medical treatment.
34. Excluding the above-mentioned driving that directly involved the [applicant] colliding with the two Police cars, his overall driving was erratic and involved swerving and driving without headlights. (Relevant Summary offence — Dangerous Driving)
35. During the entire time that the [applicant] was driving erratically, his pet dog ‘Narla’ was confined to the front passenger well of the vehicle. The animal was tied to the gear stick by her lead and unable to escape. Police freed the animal from the vehicle.
36. At the time of intercept, the [applicant] made threats of self-harm stating, ‘I want to die, kill me’. The [applicant] was arrested under the Mental Health Act and conveyed to North East Health Wangaratta under s 351 by ambulance with First Constable Marsh.
37. At approximately 8:20 am, on the 26th of November 2019 at Wangaratta Police Station, Detective Leading Senior Constable Schultz located a green shopping bag in the rear passenger side of the [applicant’s] vehicle. The shopping bag contained green vegetable matter, suspected to be cannabis in a zip lock plastic bag. Further green vegetable matter (cannabis) was located inside a pink plastic container in the driver’s side door. The total amount of cannabis was approximately 7.8 grams. A bong was also located in the car.
Arrest and record of interview
38. At approximately 2:24 pm on 26 November 2019 at North East Health Wangaratta Leading Senior Constable McClounan arrested the [applicant] and he was conveyed to Wangaratta Police Station for interview. During the interview the [applicant] made partial admissions and was remorseful and in part indicated:
- Answers 49-50 – The [applicant] stated that he has been struggling for ten years with not wanting to be alive. He stated he has been trying to receive help and had attended the GP in the week prior to the incident and was prescribed medication for his mental health, depression and anxiety.
- Answers 54/56 – The [applicant] stated that he was trying to be admitted to a mental health facility, but he needed private health insurance.
- Answers 62/71 – The [applicant] stated that since he separated from the complainant, the complainant had joined Tinder and had been sending him messages about men she wanted to see and this made him snap. The [applicant] said he told her she could send them but he thought he saw a male in Benalla, who the complainant had sent him a picture of and had laughed at him. He lost it because of this.
- Answers 79/82 – The [applicant] stated he went to the complainant’s residence and told her everything she had done wrong, never touched her, just pointed at her but admitted yelling.
- Answers 199/200 – When asked about putting his hand on the complainant’s chest, the [applicant] couldn’t remember touching the complainant but stated that Jazmyne wouldn’t lie. The [applicant] stated he would never hurt his kids.
- Answer 83 – In regard to harming himself in front of the complainant he stated, that he was ‘fucking with Jazmyne with the fork, it was just a cat scratch I wanted freak her out like she freaks me out. I was giving a little bit back. I was probably going nuts yelling at her probably saying your making me do this’.
- Answer 95 – The [applicant] detailed yelling and pointing at the complainant. Stating that he took a house key, said ‘sweet dreams, sweetheart’.
- Answers 99/100 – The [applicant] stated that he drove back to Benalla and then returned to Glenrowan because he wanted [to] die and to be with his Nan. The [applicant] denied wanting to hurt people.
- Answer 105 – In regard to, ramming the police divisional van, he stated that police caught him, and he freaked out and ran. The [applicant] explained that he just wanted to get away so he could finish what he was doing, he didn’t want the police to stop him (committing suicide).
- Answer 106 – When police located the [applicant] the second time, he stated that he had driven down Siege Street near a silo to gas himself, but police found him again. The [applicant] explained that he drove away, hoping police would shoot him.
- Answer 108 – In regard to ramming the police station wagon the [applicant] admitted to driving over the bridge and hitting another police car, stating he was coming down too fast, maybe 40-50km/h and was trying to get through a gap but misjudged and completely took the police vehicle backend out.
- Answer 139 – The [applicant] denied seeing any police officers outside the cars.
- Answer 143 – The [applicant] said he was trying to find somewhere quiet to gas himself and his dog.
- Answer 160 – The [applicant] admitted he had smoked marijuana for a long time but it wasn’t doing anything anymore. The [applicant] admitted to smoking ICE the previous four days straight before the incident and that he hadn't slept. The [applicant] stated he smoke 3 points over four days which cost about $150.00.
- Answer 165 – The [applicant] admitted possessing the cannabis located in his vehicle stating it was his personal bong.
- Answer 189 – Admitted making her feel terrified.
Applicant’s personal circumstances
The applicant is now aged 33 years.[6] He has a relatively limited criminal history, which includes convictions in 2011 and 2012 for exceeding the prescribed concentration of alcohol, failing a drug blood test, using cannabis and dangerous driving. He was placed on a community based order for these offences, which he later breached. In 2015, he was fined for criminal damage. He was also penalised for driving offences in 2010 and 2012.
[6] His date of birth is 20 May 1988.
In a court-ordered report, dated 19 October 2021, Dr Maria Triglia, Consultant Forensic Psychiatrist with the Victorian Institute of Forensic Mental Health, set out the applicant’s developmental history as follows:
37. Mr Clark is the first in a sibship of two. He was born in Victoria and was unaware of any birth or developmental problems. He reported a family history of psychiatric illness and said a paternal uncle died by suicide, his mother has depression and is on treatment and that his father and other relatives on his father’s side had significant problems with alcohol abuse.
38. He described a difficult early childhood environment. He said his father drank heavily and was violent towards Mr Clark’s mother and to him. Mr Clark recalled his father once broke the car window next to him when his mother came to pick him up from the pub too early.
39. Mr Clark’s father died at age 26, possibly from alcohol poisoning or suffocation after he attended a party when intoxicated, drank a large quantity of spirits and became unconscious.
40. Mr Clark reported that at around age six he was sexually abused by two cousins, then aged 11 and 13. He said he disclosed this to his family and although said he was not believed, it appears his family confronted the cousins, who denied the abuse. Mr Clark reported that he subsequently felt victimised by his father and recalled being verbally and physically abused. He reported that his mother had given his account some credence but believed he should ‘Move on from it’.
41. After his father died Mr Clark reported his mother had a number of partners. He described that she would leave the children at home unattended and go to parties. Child Protection was involved with the family for some period. Mr Clark reported that after his mother began a relationship she would move the family to be with her partner and so Mr Clark attended approximately 15 different schools. The family moved to New Zealand for about eight years where Mr Clark reported his mother's partner was physically violent to him and beat him with an electrical cord. This relationship broke down and the family returned to Australia when Mr Clark was aged 15. He left home shortly afterwards.
42. He reported that he had a difficult time at school. He said he had difficulty with the academic component and was always behind other students and left in Year 10. He reported he still has difficulties with literacy and relies on Ms Ford. He described having functional numeracy.
43. He reported having worked in a number of positions including briefly in retail, as a roustabout in a shearing shed and constructing building trusses. He indicated that he had difficulty persisting in work and would often get bored and self-sabotage the job. He reported he has been on unemployment benefits for most of the last few years.
44. In relation to significant relationships, he was in a relationship for seven years with a woman he described as verbally and physically abusive to him. He described his relationship with Ms Ford is of 10 years’ duration. They have one child aged three and Ms Ford has a daughter from a previous relationship. Mr Clark reported that he treats her as his own daughter and she believes him to be her father. The family lived in Queensland but returned to Victoria approximately two years ago to be near Mr Clark’s maternal grandmother after she became ill. She subsequently died and Mr Clark reported he found it difficult to cope with this loss.
Grounds 2 and 3
Turning first to ground 2, in his sentencing reasons, the judge remarked:
The overwhelming evidence is that you have a long history of illicit drug and alcohol use since you were 15, escalating to daily use of methamphetamine for approximately 12 months prior to the offending. You were aware that methamphetamine was extremely dangerous for you and that you believed it caused you to become manic, angry and depressed and to develop psychotic symptoms.
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The voluntary ingestion of illicit substances, particularly when their destructive effects are known, is incapable of reducing culpability for a crime. Axiomatically, it increases it.
The judge’s observation that the applicant was aware that methamphetamine was extremely dangerous for him and he believed it caused him to become manic, angry and depressed and to develop psychotic symptoms, was based on Dr Triglia’s report, in which she observed:
33. He reported his first use of methamphetamine was in 2019, by his account to improve his mood. He reported that for approximately 12 months prior to the offence he was using 3 to 4 points per day. He described that methamphetamine was ‘Very dangerous’ for him and he believed it caused him to be ‘manic, angry and depressed’ and to develop psychotic symptoms.
Counsel for the applicant submitted that the difficulty with the sentencing judge’s finding was that it equated evidence of the applicant’s insight into the consequences of his methamphetamine use almost a year after the offending with foreknowledge of those consequences. Dr Triglia had not said that the applicant had contemporaneous insight into the negative consequences of his methamphetamine use. Her report said no more than that by the time of her assessment of the applicant (on 28 September 2020) he was able to identify the significant negative relationship between his methamphetamine use and his mental health in the period immediately prior to the offending almost a year earlier. Hence, it was not open to the judge to find that the applicant was aware, at the time of the offending, that methamphetamine was ‘extremely dangerous for [him] and that [he] believed it caused [him] to become manic, angry and depressed and to develop psychotic symptoms’. On the evidence as a whole, counsel submitted, it was much more likely that the applicant’s statements to Dr Triglia reflected a developing insight at the time of the assessment that had been markedly absent at the time of the offending.
As we have indicated, counsel for the respondent fairly conceded that it was not open to the learned sentencing judge to find that the applicant knew, at the time of the offending, that methamphetamine was extremely dangerous for him and that it caused him to become manic, angry and depressed, and to develop psychotic symptoms that would lead him to offend in the way he did. Counsel conceded that there was insufficient evidence on the plea for the sentencing judge to find that the applicant foresaw that the taking of the methamphetamine would cause him to offend in the way he did.
The respondent’s counsel also submitted that, consistently with the concession made under ground 2, the sentencing judge could not have been satisfied beyond reasonable doubt that the applicant was aware, at the time of his offending, of the probability that methamphetamine would predispose him to conduct similar to that constituting the relevant offending. It was therefore conceded that the sentencing judge erred in finding that the voluntary ingestion of methamphetamine aggravated the offending.
In our view, each of these submissions should be accepted.
As was said in Lisle:[7]
One cannot sit daily in criminal courts without being acutely aware that many crimes are committed by individuals who are under the influence of alcohol (or illicit drugs). Authority dictates, however, that — generally speaking — intoxication is not a circumstance going in mitigation of an offence.[8] But to deny intoxication as a mitigating circumstance is not to say that intoxication must therefore necessarily be considered to be an aggravating feature of an offence. Indeed, in a case such as the present, before alcohol ingestion or intoxication may be considered to be an aggravating feature of an offence, a sentencing judge will need to be satisfied beyond reasonable doubt that an offender was aware of the probability that alcohol use would predispose him or her to conduct similar to that constituting the relevant offending.
[7]Lisle v The Queen [2017] VSCA 4, [34] (Priest JA) (citation as in original).
[8]Morrison v The Queen [2012] VSCA 222, [17]–[20] (Buchanan JA); Hasan v R (2010) 31 VR 28, 33–7 [20]–[34].
Disposition
Given that grounds 2 and 3 must succeed, it is unnecessary to deal with the first ground.
In imposing sentence afresh, we take into account in the applicant’s favour: his early plea of guilty (including its utilitarian benefits); his remorse (as found by the sentencing judge); the absence of prior convictions for violent offending in his criminal history; and his good prospects of rehabilitation.
With respect to his prospects of rehabilitation, we note that material before the sentencing judge indicated that the applicant had a long history of illicit drug and alcohol use since age 15, escalating to daily use of methamphetamine for approximately 12 months prior to the offending. Whilst on bail prior to sentence, however, the applicant appears to have engaged well with the Court Integrated Services Program, which included treatment for his substance abuse and his longstanding psychological problems. We were also informed that the applicant has been doing well in treatment whilst serving his sentence. Further, counsel informed us that the applicant has a responsible billet as a cleaner, and has been trusted to counsel new inmates who may have suicidal ideas.
So far as his mental health is concerned, the available material reveals that the applicant has a long history of difficulties with mood and regulation of emotion commencing in his early teens, probably related to childhood trauma and abuse. The applicant reported to Dr Triglia having made approximately five suicide attempts, including driving his car into a train station; jumping in front of a truck; overdosing on stimulant medication, amphetamine and paracetamol; and attempting carbon monoxide poisoning (proximate to the offending). He has had previous admissions to psychiatric institutions in response to suicidal ideation (including the Kerferd Inpatient Psychiatric Unit in Wangaratta), and he has been prescribed anti-psychotic and anti-depressant medication. Indeed, a little over two weeks prior to the offending, the applicant had attended Dr Caroline Hawkins, where the applicant’s mental health issues resulted in attempts to obtain his admission into an inpatient program. Counsel informed us during the course of the hearing, however, that whilst serving his current sentence, the applicant has been able to cease use of the prescribed medications, Sertraline, an antidepressant, and Quetiapine, an antipsychotic.
As discussed by Dr Triglia,[9] the applicant’s formative years were blighted by his father’s violence and alcohol abuse, and by his sexual abuse at the hands of others. These matters significantly mitigate sentence. As the Court in Bugmy made clear: [10]
[9]See [7] above.
[10]Bugmy v The Queen (2013) 249 CLR 571, 594 [40] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.
The Court also observed: [11]
The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.
Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving ‘full weight’ to an offender’s deprived background in every sentencing decision.
[11]Ibid 594-5 [43]–[44]. See also DPP v Herrmann [2021] VSCA 160, 10–14 [35]–[46] (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA).
As against those matters in mitigation, the applicant’s conduct towards his partner, Jazmyne Ford — although not resulting in physical injury — was reprehensible. Ms Ford has reconciled with the applicant — she provided a very helpful reference as part of the resentencing exercise[12] — but at the time of the applicant’s offending against her she believed that the applicant intended to slit her throat and she was hysterical.
[12]The Court also received and took into account references from Sharon Wallace, Michelle Ford, Douglas Dowling, Levi Ford and Jessica Clark; a letter from Christopher Kelly, consultant psychologist dated, 6 December 2021; and a newspaper clipping from the Benalla Ensign, dated 1 December 2020, entitled, ‘The Hero of Carrier St – Benalla Man Stops Runaway Taxi’.
Moreover, the applicant’s conduct founding charges 3 and 4 was nothing short of outrageous. It placed a number of police, upon whom the community relies for protection and the maintenance of order, in appreciable danger, causing actual physical injury (albeit relatively minor) to two (and, incidentally, resulting in significant damage to police vehicles). We consider the applicant’s offending on charges 3 and 4 to be serious examples of a serious offence, warranting stern punishment. As has been said in a similar context, ‘the message needs to be sent clearly and unequivocally to like-minded individuals that conduct such as the applicant’s simply cannot — and will not — be tolerated’.[13] General and specific deterrence, just punishment and denunciation must all be given prominence in the sentence to be imposed.
[13]Jaeger v The Queen [2020] VSCA 116, [36] (Priest and Beach JJA).
As we have indicated, we would grant leave and allow the appeal. Balancing, as best we are able, all relevant features, we would resentence the appellant in accordance with the following table:
Charge Offence Sentence Cumulation 1 Common assault 6 months 3 months 2 Making a threat to kill 4 months — 3 Aggravated offence of intentionally exposing an emergency worker to risk by driving 2 years and 6 months 9 months 4 Aggravated offence of intentionally exposing an emergency worker to risk by driving 3 years Base 5 Possessing a drug of dependence 1 month — Related summary charge 18 Driving in a manner dangerous 3 months — Total effective sentence 4 years’ imprisonment Non-parole period 2 years and 3 months Pre-sentence detention 461 days Section 6AAA declaration 6 years’ imprisonment with 4 years non-parole
All other orders of the County Court should be confirmed.
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