Director of Public Prosecutions v Adaman
[2013] VCC 925
•24 June 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00150
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| FRANCIS CHISHOLM ADAMAN |
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JUDGE: | HER HONOUR JUDGE CAMPTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Plea: 25 March 2013; Further plea: 8 April 2013 | |
DATE OF SENTENCE: | 24 June 2013 | |
CASE MAY BE CITED AS: | DPP v. Adaman | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 925 | |
REASONS FOR SENTENCE
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Subject: Aggravated burglary – causing injury intentionally – theft – contravening a family violence order – unlicensed driving
Catchwords:
Legislation Cited:
Cases Cited:
Sentence: 2 years imprisonment with a non-parole period of 16 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Rooney | Office of Public Prosecutions |
| For the Accused | Mr R. Keating | Slink & Keating Solicitors |
HER HONOUR:
Charges
1 Francis Chisholm Adaman, you have pleaded guilty to one charge of aggravated burglary, one charge of causing injury intentionally and one charge of theft. The maximum sentence for aggravated burglary is 25 years' imprisonment, while for intentionally cause injury and theft it is ten years' imprisonment. In addition, you pleaded guilty to the summary charges of contravening a Family Violence Intervention Order, for which the maximum penalty is two years' imprisonment or 240 penalty units; and unlicensed driving, for which the maximum penalty is one months' imprisonment or ten penalty units.
Circumstances surrounding the offending
2 The circumstances surrounding your offending are that on 14 February 2011, an intervention order was granted at the Dandenong Magistrates' Court, where the aggrieved family member was your father, Malcolm Adaman, and you were the offender. This order prevented you from approaching and assaulting your father and prevented you from being at or within 200 metres of the family home at 6 Peppermint Court, Hampton Park.
3 On Sunday 14 October 2012, you called your mother and told her that your power and water had been cut off and you asked her for $100 as you were hungry. When your mother told you that you could not have any money, you said that because the power had been switched off you were unable to cook and you would be around in 20 minutes. Approximately 20 minutes later, at 3.30, you arrived in a taxi at your parents' house. Your father went to the front door and opened it, but left the security door locked so that you could not get in. Your father told you that you were not allowed to be at the house and you said you wanted to see your mother. Your father said that if you did not leave he would call the police. You then said to your father, "I'll teach you a lesson" and broke a window that was next to the front door and entered the house through it. These facts relate to the first charge, which is one of aggravated burglary.
4 Your mother was scared and ran and hid in the bedroom. You went to the kitchen and got a knife. You told your father to go and pay the taxi and your father told you he would cover the taxi fare if you left the house. However, you then put your left arm around your father's neck and placed the knife against his neck, leaving a red mark. Your father tried to get away and attempted to call the police, but you prevented him from doing so. You punched him in the chest and he put his right hand out to stop you which deflected your hand to a degree. Then your father noticed that blood was escaping from the area where he had been punched and a cut to his right hand and he realised he had been stabbed. These facts relate to Charge 2, intentionally causing injury and the summary charge of contravening a Family Violence Intervention Order.
5 Your father then ran out to the street and asked a taxi driver and neighbours to call the police. In the meanwhile you went to the bedroom and demanded $100 from your mother, saying that today was your last day and that you were going to take your own life. When your mother refused to give you her credit card, you demanded that she went with you to the bank. While she was scared about what you might do, she initially refused, however she then went in the car with you to the Hampton Park Shopping Centre and withdrew $100 from the ATM. You took the money from her and drove away in the car. Your driver's licence had expired on 6 February 2012 and had not been renewed. These facts relate to Charge 3, theft and the summary charge of unlicenced driving.
6 The police attended soon afterwards at your parents' house and your father was transferred to the Royal Melbourne Hospital by ambulance, where he was taken to the Emergency Department and examined. He was found to have the following injuries: A one and a half centimeter wound in length and
3 millimetres in depth to the left side of the anterior chest wall with a mild oozing of blood, a 2 centimetre wound in length and 1 millimetre in depth in the first web space of his right hand with a minimal oozing of blood. The wounds were dressed and cleaned and your father was discharged.
7 In his statement to the police, your father said he did not think that you had meant to hurt him. He thought you had lost your mind because you had not had your medication. He said he wanted to make it clear that you were not a criminal, but you were suffering from a mental illness called schizophrenia. Your father inspected his car, when it was recovered by the police. He noticed a couple of things were missing, such as seat covers and tools. The car was also badly damaged.
8 On 16 October 2012, the police were advised that you were at the Dandenong Hospital receiving treatment. They attended and arrested you. You showed them where the knife was. You were interviewed. You made admissions to the offending and stated that you had not taken your medication for over a week.
9 You have 29 prior court appearances with three convictions for contravening Family Violence Intervention Orders. You also have priors for causing injury, six for recklessly causing injury, one for intentionally causing serious injury and two for intentionally cause injury. You have ten priors for assault.
Personal circumstances
10 Your personal circumstances were outlined to the court by your counsel. Further details were contained in two reports from Dr Cidoni. You were born on 22 December 1976 in Sri Lanka and you have one younger sister. While you were very young in Sri Lanka, due to the conflict there, you were exposed to significant violence. You also instructed your counsel that you were sexually abused. However, on coming to Australia, in your early years your life improved. You did well at school, you were a good sportsman, playing for the Victorian under-16's in rugby. You completed your VCE and three months of an electronic engineering course. You then completed an apprenticeship at Bosch and worked as an engineer and trades person between 1997 and 2001. During this period of your life, you had a ten year significant relationship which ended in 1999 after your girlfriend terminated her pregnancy.
11 Your counsel tendered a number of documents which supported your past achievements. These included a reference from St Bede's College, a certificate of completion of the training program for engineering trades person, a certificate from Chisholm Institute and a Certificate 3 in Engineering Technology and Mechanical.
Dr Cidoni’s reports
12 Unfortunately, on reading Dr Cidoni's reports, it appears that this largely positive picture changed over time. This change appears to be due both to mental illness and drug use. You commenced using cannabis aged 16 and moved on to amphetamines from the age of 24, injecting up to 5 grams a day. You also used heroin on a few occasions in the past, but apparently no longer use it. You have a lengthy history of schizophrenia. You have had 34 hospital admissions between 2001 and 2002. Your first admission was when you were 24, when you had psychotic symptoms.
13 It appears from Dr Cidoni's report that since 2012, however, your psychotic symptoms have largely been controlled through medication, although you were not taking your medication at the time of offending. When you saw Dr Cidoni, on 12 December 2012, you instructed him that it had been a few years since you had had frank psychotic symptoms. You reported to him that you had gone without your medication for your schizophrenia and diabetes for several days prior to the offending. You told him you were not thinking straight at the time. You told him that you were feeling suicidal and had thought of jumping off the bridge at Heatherton Road but went to hospital instead.
14 In relation to your state at the time of offending, in his report, of 14 December 2012, Dr Cidoni said:
"In terms of recent offending, it is clear that Mr Adaman was off his medication which would have meant that the usual sedative effect could not be achieved. This would likely have resulted in a greater degree of irritability and agitation. It does not appear that he had a frank relapse of his psychotic illness at the time, however, as there is no evidence of delusions or hallucinations."
15
In his opinion, your offending had been driven by the need to finance your substance abuse habits. There also appeared to be a significant amount of resentment towards your father. In his opinion you need specific intervention in order to reduce the risk of you re-offending. In his more recent report, of
22 March 2013, he noted that while in custody you had completed a maths course and done a drug and alcohol course. He described you as appearing quite motivated to abstain from substances and as recognising the negative impact that that had on your mental state. While he described your mental state as being relatively stable, he also reported that you had experienced a number of fits in 2012 and that an MIR performed in 2012 revealed a benign lesion on your brain. You needed follow up in relation to these neurological symptoms which had included numbness down your left arm and leg, hot flushes from the left hip down to the toes when you stand up.
Neurological report
16 Given these neurological symptoms, I requested a detailed report regarding your neurological health. I have now received this report from Dr Simon Bower of the Department of Neurology at the Monash Medical Centre. Dr Bower confirmed that you had suffered from a seizure on Christmas Day in 2011 and then further seizures in April 2012. However, he said that your more recent history was that you had been seizure free on the current combination of medication. After reviewing all your imaging and serum antibody results, Dr Bower concluded that you may have suffered autoimmune limbic encephalitis which had responded to immune treatment. He also concluded that the clinical course of your illness and biological results were inconsistent with a malignant brain tumour, which is certainly good news for you. However, he said you had been very ill throughout 2012 and that there should be neurological follow ups.
Sentencing submissions
17 With respect to the appropriate sentence for your offending, your counsel submitted that I could sentence you to three months' imprisonment and then release you on a community corrections order for 12 months. It was submitted that you could receive appropriate treatment for your various problems on such an order.
18 In support of his submission, your counsel relied on the following mitigating circumstances. Your early plea of guilty; your mental illness in that general and specific deterrence could be moderated in accordance with the principles of R v. Verdins; your neurological problems that you had suffered from in 2012; the fact that you had been in custody for some 60 days on another matter (which would call into play the Renzella principle); your early promise as a young man from which it could be concluded that there was still reasonable chances of rehabilitation; the fact that when the offences took place you did not have your anti psychotic drugs or medication for diabetes; and also that environmental factors had led to your offending.
19 The prosecutor's sentencing submission was that a community corrections order was a wholly inadequate sentence. The sentencing range submitted to be appropriate was two to three years with a non-parole period of 18 months or two years. This sentencing range was said to take into account the principles in Verdins to a limited extent as you had not been suffering from paranoid delusions at the time you committed the offence. It was submitted that you had a bad prior record, including four priors for breaching intervention orders and two previous aggravated burglaries. It was conceded that Renzella would apply to your situation.
Victim Impact Statements
20 With respect to the victim impact statements, there was a statement from both your mother an father. It was clear from these statements that your crime had a considerable effect on them. I understand that you have read these statements. No doubt it was upsetting for you to read the effect of your crimes on your mother. She described your early promise and what had happened to you since you took drugs. She said it was very sad, it broke her heart. She said that you had threatened them with a knife before, but she never imagined you would actually do what you had done. She said her heart had been racing, she was scared, she was really frightened, she was worried that her husband was going to die. Your father refers not only to the physical pain of the injury he suffered, but he also talks about being sad and depressed. He said for the last ten to 15 years it has been a never ending story.
Sentencing remarks
21 In sentencing you, I take into account all the mitigating factors referred to by your counsel. I take into account your plea of guilty and I have given you an appropriate discount for it. I have also taken into account the principles of Verdins and I have moderated to some extent the principles of general and specific deterrence. In doing so, I have accepted that your illness had effect on your judgment and ability to think clearly, even though you did not suffer from a paranoid episode. I accept that your time in custody could be more difficult for you than a person who does not suffer from your mental disorder and also from the neurological problems referred to in Dr Bower's report. I have taken time into account, the 60 days you served on another matter as Renzella time.
22 As long as you continue to use drugs, I am not optimistic about your chances of rehabilitation. However, given your early promise, I accept that if you can do something about your drug addiction and continue to take your medication for your mental illness there are some prospects there.
23 In sentencing you, as I have said, I have taken into account the principle of totality. However, even taking into account these principles and these matters, I do not consider that a three month sentence with a community corrections order is appropriate. You have breached intervention orders on three other occasions, you have priors for aggravated burglary and recklessly and intentionally causing injury. The stabbing of your father was a serious event even if you only intended to slightly wound him. It could have been far worse. You cause great trauma and stress to your parents and your offending was motivated by your desire for money for drugs. Taking into account all the circumstances of your case, I think that a sentence of imprisonment is appropriate.
Sentence
24
On the charge of aggravated burglary, you are convicted and sentenced to
12 months' imprisonment.
25 On the charge of causing injury intentionally, you are convicted and sentenced to 12 months' imprisonment.
26 On the charge of theft, you are convicted and sentenced to nine months' imprisonment.
27 On the charge of contravening a Family Violence Intervention Order, you are convicted and sentenced to six months.
28 On the charge of unlicenced driving, you are convicted and sentenced to one month. Your licence is cancelled for 12 months.
29 The base sentence is a sentence of 12 months on Count 1 of aggravated burglary. I cumulate six months of the sentence on Count 2, three months of the sentence on Count 3 and three months of the sentence on completing a Family Violence Intervention Order on Count 1. The head sentence is therefore two years. I fix a non-parole period of 16 months.
30 But for your plea of guilty, I would have sentenced you to three years and six months to serve two years and three months.
31 I make a disposal order.
32 I make a retention order.
33 I declare 192 days as pre-sentence detention.
34 (Disposal order signed and acknowledged.)
35 (Section 464ZF order signed and acknowledged.)
36 Yes. Is there anything arising out of the sentence?
37 PROSECUTOR: No, Your Honour. All I can say, I think the licence, as I understand it, it is not current so it would be a - I do not know if it makes any difference, but it is normally a disqualification.
38
HER HONOUR: All right, yes. Disqualified from obtaining a licence for
12 months.
39 PROSECUTOR: As I understand it, the licence has lapsed, so it would not be current.
40 HER HONOUR: Is that right?
41 COUNSEL: I do not think he has got a licence, Your Honour. Can I just check on that? He got it renewed when he was in prison, Your Honour. Could I just approach my friend?
42 HER HONOUR: Is 192 days right?
43 PROSECUTOR: That is correct, Your Honour.
44 HER HONOUR: Yes, so he has already done a substantial part of the sentence.
45 PROSECUTION: The retention order was made, Your Honour.
46 COUNSEL: Retention, sorry.
47 HER HONOUR:
48 COUNSEL: Retention, sorry.
49 HER HONOUR: Yes, I think last time you consented to that, am I right?
50 COUNSEL: Right, I am sorry, I got thrown - retention. It is the forensic, I understand, yes. That is right, Your Honour. I would have thought if he licence was cancelled and then he was disqualified from driving, then that would cover every possibility.
51 PROSECUTOR: I think that is right, Your Honour. I am must looking at s.28 of the Road Safety Act, s.28(b). It says:
"Cancel all driver licences and permits held by that person and whether or not that person holds a driver licence disqualify him or her."
52 So I think your original order was correct.
53 HER HONOUR: All right, well I will retain my original order.
54 PROSECUTOR: And that is also in light of - - -
55 HER HONOUR: So your licence is cancelled and you are disqualified from obtaining a licence for 12 months. Any licences held by you are cancelled and you are disqualified from obtaining. I think that covers it. Yes, is there anything else.
56 PROSECUTION: No, thank you very much.
57 COUNSEL: No, Your Honour.
58 HER HONOUR: Yes. You may take the prisoner down. Thank you. A very sad case. Yes.
59 PROSECUTOR: Yes, Your Honour.
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