Director of Public Prosecutions v Alexander (a pseudonym)
[2020] VCC 1884
•30 November 2020
trac
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROSIE ALEXANDER (a pseudonym) |
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JUDGE: | HIS HONOUR JUDGE C.J. RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 September and 13 November 2020 | |
DATE OF SENTENCE: | 30 November 2020 | |
CASE MAY BE CITED AS: | DPP v Alexander (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1884 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: criminal damage - aggravated burglary (intention to assault and having with you an offensive weapon) - causing injury intentionally - No prior convictions - methamphetamine-induced psychotic disorder - cannabis induced psychotic disorder - general deterrence - public denunciation - just punishment - COVID-19 pandemic – early guilty plea
Legislation Cited: Sentencing Act 1991
Cases Cited:R v Martin (2007) 20 VR 14 - DPP v Arvantidis [2008] VSCA 189 - R v Verdins (2007) 16 VR 269
Sentence: 3 years’ imprisonment and I fix the period of 18 months’ imprisonment as the period that you must serve before you will become eligible for parole.
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APPEARANCES: | Counsel | Solicitors | |
| For the Director of Public Prosecutions | Ms C Boult | Office of Public Prosecutions | |
| For the Accused | Ms N Karapanagiotidis | James Dowsley & Associates | |
HIS HONOUR:
1 Ms Alexander[1], on 23rd September 2020, you pleaded guilty to an indictment containing three charges: criminal damage (Charge 1); aggravated burglary, (intention to assault and having with you an offensive weapon) (Charge 2); and causing injury intentionally (Charge 3). The maximum penalty for criminal damage and causing injury intentionally is 10 years' imprisonment. The maximum penalty for aggravated burglary is 25 years' imprisonment.
[1] A pseudonym
2 Tendered as Exhibit A and read aloud in court was the summary of prosecution opening. On Friday, 21st February 2020, at 9pm you drove to your victim’s home in Rosebud. You got out of your car and approached the front door. You yelled from outside the front door “come out”. Your victim opened the front door and stood in the doorway. He saw that you were holding a nail gun in your right hand. You approached the front door and fired two to three nails in the direction of your victim. One of those nails hit a side light to the victim’s door, that caused it to smash. (Charge 1, criminal damage)
3 Your victim closed the front door and retreated into the house. He moved around a corner towards the doorway of the spare bedroom. You approached the front door and us ed the nail gun to smash the broken side light further. You then reached through the window into the house with both arms holding the nail gun (Charge 2, aggravated burglary). You fired at least 12 nails into the house. You hit doors, furniture and internal walls. At one stage your victim was standing one and a half metres away from the front door and was struck in the face by a nail that you fired. This caused injury to your victim’s left upper lip, gum and looseness in his top left tooth. (Charge 3, causing injury intentionally).
4 Your victim’s keys were on a hanger inside the house next to the front door. You attempted to grab them through the broken side light but were unsuccessful as you knocked the key hanger to the floor. Your victim grabbed the key hanger and pulled it around the corner of the doorway. Your victim then grabbed at the nail gun that you were holding through the broken side light. Still holding the nail-gun you pulled your arm back across the broken glass side light. This caused a deep laceration 15cm in length on your arm. You then left your victim’s home in your car.
5 Your victim reported the matter to police at 9.30pm that evening. You were arrested some three hours later and transported to the Frankston Hospital Emergency Department in order to receive treatment to your arm. You were not interviewed in relation to this matter and were bailed from the Melbourne Magistrates' Court on the 23rd February 2020.
6 No prior convictions were alleged against you.
7
At the conclusion of the Crown opening and in discussion with
Ms Karapanagiotidis of counsel who appeared on your behalf, the issue of the need for a further psychological or psychiatric report was discussed as the issue of you being in a psychotic state at the time of your offending was raised on the papers. It was resolved that such a report should be obtained. The plea was adjourned part-heard to the 23rd November 2020.
8 On the return date, Ms Karapanagiotidis tendered the following documents:
· Exhibit one: outline of plea submissions dated 22nd September 2020;
· Exhibit two: psychological report of Pamela Matthews dated 21st September 2020;
· Exhibit three: a bundle of references, including one from your mother and father;
· Exhibit four: a medical certificate signed by Dr Das of Advantage Medical Rosebud dated 22nd September 2020;
· Exhibit five: psychiatric report of Dr Patel dated 23rd October 2020; and
· Exhibit six; a letter from Shannon Vogt, case manager from Peninsula Health dated 11th November 2020;
9 In conference with Ms Matthews, you admitted you had been in a relationship with your victim and that you used methamphetamine together beginning in June 2019. However, your use of methamphetamine appears to have been limited as you told Dr Patel that you used methamphetamine only a few times when you lived with your victim. The relationship with your victim ceased in November 2019. You allege the relationship with your victim was an emotionally abusive one however you acknowledge that your offending was “totally unacceptable”.
10 Ms Alexander, you were raised in Tanti Park on the Mornington Peninsula. You attended Tanti Park Primary School from years prep to two before moving to Safety Beach Primary School. You then went to Dromana Secondary College where you completed part of year eight before leaving school and obtaining a carpenter’s apprenticeship. While at school you were bullied because you were overweight.
11 Your father is a retired brick layer and your mother is a chef. You have three brothers, the eldest of which is presently in psychiatric in-patient care and has, what you described to Dr Patel as “schizophrenia-bipolar”. This brother sexually abused you when you were 14 years old by masturbating in your presence while you were in bed at night. This abuse caused you to run away from home as you did not know how to speak to your parents about the abuse because of your personality disorder the details of which are set out at page 8 of Dr Patel’s report. You reported to Dr Patel that your youngest brother “has similar problems to me” and lives at home with your parents.
12 When you ran away from home you lived with the family of a friend and you became apprentice to her stepfather who you reported sexually abused you although no detail was provided in respect to this.
13 At 19 years of age, you were diagnosed Hodkinson’s Lymphoma and you underwent chemotherapy for 9 months. During this time your returned home and after treatment convalesced there until you were well enough to return to work. Your treatment was successful, and you are in complete remission. Surprisingly you returned to work with the man who had abused you. You remained working with him until you moved to Bendigo with your then boyfriend Josh where you remained for about 2 years.
14 In Bendigo you were unable to find work as a carpenter and worked as a tiler and qualified as a tiler obtaining your second trade qualification. Your partner Josh worked as a fly in fly out worker and over time you grew apart, your relationship failed, and you returned to Melbourne. While in Melbourne you formed a relationship with your victim, and you moved in together. Your relationship broke down in November 2019.
15 Exhibit five, the psychiatric report of Dr Patel contains a more extensive history of your substance abuse. You began using alcohol, marijuana and speed when you were 14 years old. You have abused marijuana continuously since that time until earlier this year when you ceased for a period of 2 months, before resuming once more. You reported that after you broke up with your victim that you returned home and began abusing methamphetamine on a daily basis, taking up to a gram per week. During this time, you would drink up to ten cans of pre-mixed bourbon per day.
16 In a reference from your parents, which forms part of exhibit three, they wrote that “around October we noticed Rosie doing odd things and acting strange.” Your parents further report that after you separated from the victim in November 2019 you “got a lot worse.” You would talk to the TV, hide in the overgrown trees at the front of your parents' property, and on one occasion your parents returned home to find planks of wood covering the windows. In January 2020 you drove your car into the ocean because you believed it had been bugged. After this incident, the Rosebud police took you to the Frankston Hospital and you were introduced to the CAT (Crisis Assessment and Treatment) team. Despite contact with that team your erratic behaviour continued.
17 On the day of the offending, you recall that you had used ice and had been drinking and that you listened to music that provoked you to do something about the relationship. You are unable to recall the specifics of this provocation. You do not recall the offending itself at all.
18
Dr Patel opined that between November 2019 and the time of your offending, you suffered from a severe methamphetamine-induced psychotic disorder.
Dr Patel further opined that given your family’s history of mental illness you may suffer from a schizophreniform disorder. However, when giving evidence on the plea, Dr Patel conceded that this could only be a possibility, and that such a diagnosis would require continual assessment of you in a state of abstinence. At the time of assessment in October 2020, Dr Patel opined you met the criteria for a moderate cannabis induced psychotic disorder.
19 After your offending you had some contact with a CAT team, but this lapsed until August this year. Since August you have been treated and monitored by the Frankston CAT team, initially, on a daily basis and you were prescribed olanzapine and periciazine which you take daily. You reside at home with your parents who are supportive of you. As a consequence of your psychiatric condition, brought about by your drug abuse you have not worked for 12 months.
20 Ms Karapanagiotidis relied on several authorities from the Court of Appeal to support her submission that in this case, drug induced psychosis should enliven Verdins principles. In R v Martin (2007) 20 VR 14 at [19] the Court of Appeal did not endorse the proposition that drug induced psychosis can never be a mitigating circumstance. In DPP v Arvantidis [2008] VSCA 189 at [34] Redlich JA with whom the other members of the Court agreed opined:
If the respondent was aware that by taking the drug, his judgment would be so affected that he would behave irrationally or that it would affect his ability to exercise control, his self-induced mental state would not constitute a mitigating circumstance. It was for the respondent to establish on the balance of probabilities that he did not know that the drug would have such effects.
21 You have a history of drug and alcohol dependence. However, there is no evidence before me to suggest you had previously experienced psychotic episodes as a result. In his evidence, Dr Patel opined that from November 2019 until the offending you were in a “floridly disorganised psychotic state”. Dr Patel further opined that this impacted on your insight in two ways: firstly you would not have been able to appreciate that the use of methamphetamine was in fact contributing to your psychotic state and secondly, the psychotic state itself was so disorganised that you would not have appreciated that what you were experiencing was in fact not normal. The intervention of the police and the CAT team gave you no insight into your psychotic state nor that the abuse of methamphetamine could cause you to behave irrationally or would affect your ability to exercise control. The principals enunciated in R vVerdins therefore has application to you in that your moral culpability is reduced and that general deterrence should be sensibly moderated. Dr Patel, in his evidence, stated that although you would not receive the same treatment regime in custody as you would in the community, there was no more than a possibility of imprisonment having an adverse effect on your mental health. However, I am satisfied that a sentence of imprisonment would weigh more heavily on you than it would on a person in normal health.
22 Ms Karapanagiotidis relied on the fact that you are a person without prior conviction. Further, that you entered your plea of guilty at the earliest opportunity and that you are entitled to the benefits that flow to you from such a plea. In addition, it was submitted that you are remorseful and that you have shown resilience and a strong character by obtaining 2 trades in the face of a personality disorder, sexual abuse and cancer and accordingly have good prospects for rehabilitation. Further it was submitted that if you were to receive a custodial sentence that it would be your first time in prison and that it would interfere with the targeted therapy that you need and that you are currently receiving. Ultimately, it was submitted on your behalf that a Community Correction Order with conditions was the appropriate sentence in all of the circumstances.
23
Ms Boult, who appeared on behalf of the Crown, tendered as exhibit B, prosecution submissions on sentence. Ms Boult acknowledged your early plea, remorse, lack of prior convictions and prospects for rehabilitation. Further it was accepted that the injuries to your victim were relatively minor. However,
Ms Boult submitted that your offending was a serious example of offending of the kind, a submission that I accept. You attended the home of a former intimate partner at night, armed with a nail gun. Your intention was to assault your victim using that weapon. You discharged the nail gun multiple times into your victim’s home. Your victim was struck in the face and this caused him injury. Ms Boult submitted that in all the circumstances the application of the principles of general deterrence, public denunciation and just punishment warranted a term of immediate imprisonment that necessitated the fixing of a head sentence and non-parole period.
24 Ms Alexander, you have continually expressed remorse for your offending in this matter and I accept you are remorseful. This will be your first time in custody, and you will be subject to the strictures that are imposed on prisoners as a result of the COVID-19 pandemic. You are a qualified carpenter and tiler and have recently sought medical assistance for your substance use disorders. I find your prospects of rehabilitation are good however this assessment is entirely dependent on your abstinence from drugs. You entered your plea at the earliest opportunity and are entitled to the benefits that flow to you from that plea, being that it is evidence of your remorse and that it has utilitarian benefit. However, you must be justly punished, and your conduct publicly denounced.
25 Doing the best I can, taking into account the circumstances of your offending and their effects, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you as follows:
On Charge 1, criminal damage – 3 months' imprisonment;
On Charge 2, aggravated burglary – 2 years and 6 months' imprisonment;
On Charge 3, causing injury intentionally – 12 months' imprisonment.
26 I order that 6 months of the sentences imposed on charge 3 be served cumulatively upon the sentence imposed on charge 2. This results in a total effective sentence of 3 years’ imprisonment and I fix the period of 18 months’ imprisonment as the period that you must serve before you will become eligible for parole.
27 I declare that you have spent 19 days by way of presentence detention.
28 Pursuant to s6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty I would have sentenced you to 5 years’ imprisonment with a non-parole period of 3 years’ imprisonment.
29 The Crown made application for the following orders, namely a forfeiture order, in respect to the nail gun and nails and I have made that order and there was an application that you pay compensation in respect of $300 to your victim. I make both of those orders.
30 Is there anything arising out of sentence?
31 COUNSEL: Thank you.
32 HIS HONOUR: Thank you. I want to thank counsel very much for their assistance in this case I found it difficult and I can say no more than that.
33 MS KARAPANGIOTIDIS: Your Honour, I beg your pardon. May I just - I have a conference with Ms Alexander at the end of the day but is it possible that she and I remain on the link just for a couple of minutes?
34 HIS HONOUR: Certainly, there is no difficulty about that at all.
35 MS KARAPANGIOTIDIS: Thank you.
36 HIS HONOUR: I should have offered it to you, I am sorry. Certainly that will be made available to you.
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