Director of Public Prosecutions v Adams

[2015] VCC 837

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01482

DIRECTOR OF PUBLIC PROSECUTIONS

v

KRISTOPHER ADAMS
DANIEL ADAMS

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	19 June 2015
CASE MAY BE CITED AS:	DPP v Adams
MEDIUM NEUTRAL CITATION:	[2015] VCC 837

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Fisher
For Accused K. Adams	Mr Goldberg
For Accused D. Adams	Mr Malik

HER HONOUR: 

1Daniel James Adams and Kristopher Thomas Adams, you have both pleaded guilty to one charge of causing injury intentionally.  Mr Kristopher Adams, you have also pleaded guilty to one charge of theft.  The maximum penalty for each of those offences is ten years' imprisonment.

2The circumstances of your offending are set out in the Summary of Prosecution Opening which was tendered as Exhibit A.  In brief the circumstances are as follows.  On the morning of 11 April 2014, the male victim was at home.  An older female friend was visiting him at the time and they were watching television.  You both walked from Kristopher Adams' unit to their house and entered the house.  Once you were inside, an argument started.  The male victim tried to push you out.  This resulted in a scuffle between you both and the male victim.  At one point the male victim picked up a cricket bat which he held up to defend himself.  During the scuffle, Kristopher Adams struck the male victim to the back with an unknown object.  This incident lasted for about a minute before you both ran from the house.  As you left the house, Kristopher Adams grabbed a handbag that belonged to the female victim.  You were both yelling out while you were in the house and the two victims were very frightened.  The female victim called 000.

3When you returned to Kristopher Adam's unit, Kristopher Adams hid the handbag in his unit.  Later when the police arrived, Kristopher Adams gave the police permission to search the unit and told them that he had hidden the handbag in the roof cavity next to the manhole.

4As a result of the assault, the male victim suffered pain and dizziness.  He had a small bruise and abrasion to the right side of his lower back.

5You were both taken to a police station.  During your interview, Mr Daniel Adams, you made some admissions to the police.

6The charge of causing injury intentionally is put on the basis that you were acting in concert when you assaulted the male victim in his unit.

7A Victim Impact Statement from the male victim was tendered as Exhibit B.  In that statement the male victim describes his fear during the time of the incident and his ongoing anxiety.  He says he has moved, which has been difficult for him and that he has found that he is very wary when he is out in public.

8The female victim describes her ongoing victims of fear, she describes her difficulty sleeping and her nervousness when out in public.

9In sentencing each of you, I have taken into account your personal circumstances.  For each of you your personal circumstances have been described by counsel to an extent and also set out in reports which were provided.

10In respect of you, Daniel Adams, a report was tendered as Exhibit D2 from Dr Aaron Cunningham dated 5 March 2015.  You are now 32 years old, Dr Cunningham described your background which I am satisfied was a very dysfunctional one.  You were placed in foster care at 13.  You ran away from foster care and spent a lot of time on the streets.  You have three daughters who you have not seen for ten years.  You are currently receiving a carer's pension.  You have been particularly affected by the suicide of your sister and the death of your father.

11You completed Year 8 at school, you have worked as a plasterer and brick-maker, you have not worked for about ten years.  You began using alcohol and cannabis at an early age.  You at some point used amphetamines and then started using heroin and have had ongoing difficulties with heroin abuse.

12Dr Cunningham says that you presented with a major depressive disorder.  It is his opinion that imprisonment would weigh more heavily on your compared to an individual without a major depressive disorder.

13You have admitted an extensive prior criminal history.  That criminal history has involved a considerable amount of similar offending and dishonesty offending.  You have received a number of community based orders with which you have had difficulty complying.  You have also received suspended sentences at various times.  It appears that courts in the past have tried to give you sentences to deal with your ongoing problems but you have been unable to effectively deal with those problems and remain offence-free.

14In respect of you, Mr Kristopher Adams, a report was tendered from Dr Rachel O'Mara dated 4 April 2015, Exhibit K1.  You are 31 years old.  Like your brother you grew up in a highly dysfunctional household.  You went to mainstream school until the end of primary school when you were transferred to a school which provided special education.  You were expelled during Year 7 and have completed no other formal education.

15You had behavioural issues as a young person and were placed under the custody of the Secretary order at one stage.  You have a limited employment history of fruit-picking and assisting friends with manual labour and tasks.  You have been in receipt of a disability support pension and have suffered a chronic pain problem.  You also have a son but you have had no contact with him. You have suffered a significant number of head injuries, loss of consciousness, you began using alcohol and cannabis at an early age.  It appears that you have been using other substances although you did not discuss that in detail with Dr O'Mara.

16It appears clear that you have been having difficulties with various illicit drugs.  As I have said, you have had a chronic pain issue and you have been diagnosed with multiple diagnoses for psychological disorders.

17Dr O'Mara assessed your intellectual and cognitive functioning.  She says, "In summary, Mr Adams' cognitive profile was characterised by performances moderately to severely below most age-matched peers across all cognitive domains other than basic visual based skills, basic planning and organisation and verbal impulse control."  She says you have an extremely poor ability to learn or remember or recognise new information.  She says that your full scale IQ score is 66.  The results of her testing are consistent with an intellectual disability of mild severity.  You reported having been diagnosed at various stages with a number of psychological issues to Dr O'Mara.

18It was not clear to me what Dr O'Mara's diagnosis if any was of your current psychological state except that she appears to accept that you have clinically significant symptoms of depression, anxiety and stress although she suggests that there is some degree of catastrophising in your responses.

19It is Dr O'Mara's opinion that given the nature of the offending, you were aware of its wrongfulness and understood that you should not be engaging in that kind of offending and that it would have consequences for you.  Dr O'Mara says that is so despite your cognitive deficits having a negative impact on your ability to exercise appropriate judgement or make calm and rational choices and to think clearly.

20It is Dr O'Mara's opinion that you would experience difficulties in the prison environment because of your cognitive difficulties.  She is also concerned about a negative impact a term of imprisonment would have on your mental health.

21You also admitted an extensive prior criminal history which includes similar offending and a number of attempts by courts including the imposition of community orders and suspended periods of imprisonment to enable you to deal with these issues.

22I accept in respect of each of you that in terms of this offending, there was no pre-planning. You did not attend with any weapons or equipment.  I accept that there was a brief scuffle with limited injuries although it is clearly a serious matter that this event occurred inside the male victim's home where he and his visitor were entitled to feel safe.

23I accept, Mr Kristopher Adams, submissions by your counsel that certain Verdins principles would apply in respect of any sentence to be imposed.  I accept that you are not a particularly good vehicle for general deterrence and that specific deterrence ought be sensibly moderated. I accept that imprisonment would make your mental health difficulties worse and that you would be particularly vulnerable in prison.  I have obtained reports which confirm that you have an intellectual disability and are suitable for a justice plan which has been provided to me.  You have also been assessed as suitable for a community correction order with a justice plan condition and other conditions.

24In respect of you, Daniel Adams, I accept that you had a somewhat more limited role in the offending.  I have also accepted your counsel's submission that Verdins principles would have application to a sentence imposed on you due to your major depressive disorder and the potential effect of imprisonment on you.

25I have also taken into account in respect of each of you that you pleaded guilty.  Mr Daniel Adams, you made some early admissions to police which I have also taken into account.

26Sentencing each of you is not an easy task.  You were engaged in offending which was serious in a way that you engaged in violence against a person inside his home.  There were two of you effectively against one.  You both have long criminal histories.  The courts in the past have tried to impose orders on you which would try and change your behaviour as well as punishing you.

27I propose to make similar orders but I should warn you that the courts eventually would be likely to decide that a term of imprisonment would be the only thing that would protect the community from your criminal behaviour.  If it gets to that point then you will be sentenced to prison despite the clear benefit to the community of you being rehabilitated if you are able to be rehabilitated.

28There are some indications in your more recent behaviour for each of you that you are able to be more settled in terms of somewhere to live and community supports.  I am going to place each of you, if you consent, on a community correction order.  As I said, you do need to understand that the courts will eventually stop giving you that sort of chance if you keep doing crimes.

29Clearly drugs is a really important issue for each of you and you really have to do something about that if you want to stay out of gaol.  You are both in your early 30s and that is a time when a lot of people are able to make the decision that they want their lives to go forward in a better way.  Hopefully you will be able to make that decision and act on it and get help from other people.

30You both in different ways need support from others, I hope that a community correction order would be able to provide you with some of that support.  Mr Kristopher Adams, you have spent some time in gaol already after being charged with these matters, I am going to take some of that into account in this sentence and I will say what that is in a moment.  I have tried to take into account in the sentences that I am going to impose different factors for each of you.

31Mr Kristopher Adams and Mr Daniel Adams, can you stand up please.

32Mr Kristopher Adams, in respect of Charge 1, causing injury intentionally, you are convicted and sentenced to 120 days' imprisonment to be followed by a community correction order of 15 months.

33The community correction order will start today.  The 120 days will be reckoned as served so you have already done that.

34The core conditions of the community correction order have been explained to you by the corrections officer, I understand, such as you cannot leave Victoria without permission and so forth, do you understand that?

35The special conditions that I intend to impose are a drug assessment and treatment order, a mental health treatment order, offending behaviour programs order, supervision order and justice plan order so that you would be required to comply with all of those matters.

36In respect of Charge 2 of theft, you are convicted and sentenced to a community correction order of three months' duration that will be at the same time as the other correction order and will have exactly the same conditions so it does not add any additional thing for you.

37Daniel Adams, in respect of one charge of causing injury intentionally, you are convicted and sentenced to a community correction order of 24 months' duration starting today, that is two years.

38You are to do 250 hours of community work.  The other special conditions would be a drug, alcohol and treatment condition, a mental health treatment condition, offender behaviour program condition, and supervision condition.

39Now I am going to ask my associate to do the paperwork for those orders.  She will show that to your counsel who will show it to you and when I come back on the Bench I will ask you if you consent to me making those orders. 

40Can I just say, in respect of Kristopher Adams, if not for your plea of guilty, I would have sentenced you to a term of imprisonment of 15 months.

41Daniel Adams, in terms of your sentence, but for your plea of guilty I would have also sentenced you to a term of imprisonment of 15 months.

42I would have, in each case, have set a non-parole period if I need to say that, and I would have set a non-parole period in each case of 10 months.

43Mr Kristopher Adams, stand up, Mr Adams.  Mr Kristopher Adams, do you consent to me making the orders that I've just outlined?

44ACCUSED K. ADAMS:  Yes.

45HER HONOUR:  Mr Daniel Adams, do you consent to those orders being made?

46ACCUSED D. ADAMS:  Yeah.

47HER HONOUR:  Thank you.  I'm going to get in a moment my associate and I'll sign these ones and then you can - I'll get your counsel to come with Ms Ollquist and you can sign them.

48I just want to say this:  the purpose of these sentences that I have imposed is to punish you, and to try and deter you from further offending - so to try and encourage you not to offend further by the prospect of having this CCO having over your head.  I also hope that it will assist your rehabilitation.  I have moderated general deterrence because I think in each case that is appropriate.

49You understand, I am sure, that if you commit further offences, then you will breach the community correction order and you will be brought back before me, and you can understand that I am not going to look very favourably upon further criminal activity especially if it involves violence against anybody.

50Now, Mr Daniel Adams, any rehabilitation treatment hours that you do will be counted against the community work so I put that in there to try and encourage you to do as much treatment or rehabilitation as is offered to you.  All right, other than that, I think I'll just sign these and then - thank you.

51Thank you, Mr Malik and Mr Goldberg, if you wouldn't mind going with Ms Ollquist and obtaining Mr Adams and Mr Adams' signatures on those documents.

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