Director of Public Prosecutions v Andrei

[2015] VCC 1596

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-00750

DIRECTOR OF PUBLIC PROSECUTIONS

v

NICOLAE PARIS ANDREI

---

JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	23 July 2015, 11 and 17 September 2015, 15 October 2015
DATE OF SENTENCE:	12 November 2015
CASE MAY BE CITED AS:	DPP v Andrei
MEDIUM NEUTRAL CITATION:	[2015] VCC 1596

REASONS FOR SENTENCE
---

Subject:Plea of guilty; reckless conduct endangering life; use of prohibited firearm in housing complex

Catchwords:  Confrontation with participants from noisy neighbour party; childhood traumatic events; prior criminal record including violence; drug addiction

Legislation Cited:     Sentencing Act 1991 s.6AAA

Cases Cited:Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen [2014] VSCA 342; R v Verdins; R v Buckley; R v Vo [2007] VSCA 102  

Sentence:TES: 1 year 7 months imprisonment followed by 18 month CCO.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms N. Warda	Office of Public Prosecutions
For the Offender	Mr R. de Kretser	Melasecca Kelly Zayler

HER HONOUR:

1Nicolae Paris Andrei, you have pleaded guilty to one charge of reckless conduct placing other persons in danger of serious injury, and one charge of being a prohibited person carrying or using a firearm. 

2You have also admitted a considerable criminal history to which I shall refer later. 

3The maximum penalty for reckless conduct endangering serious injury is five years' imprisonment; and for possession of a firearm whilst prohibited the maximum penalty is ten years' imprisonment.  These maximum penalties reflect the relative seriousness with which parliament, on behalf to the community, regards offences of this nature, and I have taken them into account as doing that.

4Both charges arise out of your conduct in the very early hours of Tuesday, 30 September 2014.  At that time you were living with your partner, Kasha, and young daughter at 45C Raglan Street, South Melbourne, which unit is part of a Housing Commission complex.  Your unit had a front courtyard with what looks from photos like a metal fence of about head height.  It was part of an apartment block which also had first floor apartments, accessed by stairways.  Opposite, as part of the same complex, was another similar building.  The blocks of units were separated by a wide communal pathway lined on each side by the same high fences.

5About two months before this incident new occupants had moved into apartment 49G which was on the first floor diagonally opposite yours, across the communal pathway.  Those new occupants had been holding parties with loud music and other noise, and there had been ongoing disputes between them and other occupants of the complex because of the noise levels. 

6On the night of Monday 29 September last year about nine people were visiting apartment 49G, having a party and making a lot of noise.  This had lasted for most of the afternoon and evening.  At approximately 12.15am on the Tuesday, a 15 year old girl, Lois Rosewood, who was one of the guests at the party left to walk to a nearby shop apparently to buy cigarettes.  She and one of her friends was standing outside the apartment waiting for others when you walked out from your apartment gate and said "Can you shut the fuck up, I've got a kid".  Several more of the occupants of that apartment arrived in the communal pathway, and asked you to shut up and to stop threatening them, and as a result more people came out from apartment 49G.

7You had initially armed yourself with a metal bar before coming out of your gate into the communal pathway.  The dispute between you and the group continued for several minutes, during which time there were further verbal threats and insults exchanged. 

8A neighbour of yours, Mr Caglar, heard the dispute and came out of his apartment in order to attempt to calm down the situation but was unable to do so, and he retreated to his apartment after being threatened by one of the occupants of apartment 49G.

9You then yelled to your partner, Kasha, for assistance and she came out and handed you a knife.  She apparently said words to the effect "Here you go, babe".  You then switched the pole into your left hand and held the knife in your right.  Your partner, Kasha, urged you on.  A female from the other apartment got between you and the others in an attempt to calm down the situation, but there were further threats and abuse exchanged.  By this time, a couple of people from apartment 49G had armed themselves with steel poles and knives and, at one stage, one of them ran towards you with a knife.  You were clearly outnumbered.

10You then ran and retrieved a sawn-off .22 calibre bolt action firearm that you knew was stored in a garden bed on the side of one of the buildings.  I am told that this was not your firearm and had not been placed there by you, but you knew where it was from the person who had placed it there.  On retrieving the firearm you returned to the laneway.  You fired a shot into the air.  You did this from a position standing near a stairwell which accessed the upper level of the apartment complex about 20 metres to the west of where the dispute initially occurred outside your apartment.

11On hearing the shot the occupants of 49G did try to run away.  They ran up the stairs towards their apartment to go back inside.  As they did so, you attempted to reload the firearm but it was jammed and the cartridge was ejected.  However, you persevered, and managed to make it function again and fired a second shot towards the general area of apartment 49G.  At that stage Ms Rosewood had got everyone else back inside the apartment to safety but she was in the process of closing the front security door of the apartment.  She sustained a wound to the left side of her head.  It is unclear whether that was as a direct result of the shot you fired or whether it ricocheted or whether it was debris from the security door. 

12She held her head trying to stem blood which she could feel was dripping onto her face.  She blacked out and upon waking saw several people in the apartment assisting her.  An ambulance was called and she was taken to the Royal Children's Hospital where she underwent some surgery and remained for several days.  She sustained a severe graze to the left side of her head.

13You were, at all times, a prohibited person as defined by the Firearms Act 1996 having substantial criminal convictions and at that stage being on a Community Corrections Order. 

14These circumstances are the basis for Charge 1 of reckless conduct endangering a person and for Charge 2 of being a prohibited person carrying or using a firearm.

15A neighbour heard the shots fired and came out of his apartment and took the firearm from you saying he would deal with you later.  You remained at the scene. 

16Police were called.  They found the remains of cartridges, a bullet and bloodstains at the front door of apartment 49G.  At your apartment they found a kitchen knife and an iron bar.  They searched for but were unable to recover the firearm used by you.  You told them you did not know its location but it has since been recovered.

17You were arrested at that stage, and interviewed by police.  In your recorded interview you describe the events from the noise which caused you to go outside to ask people to be quiet, to what then happened.  You said that they were then violent towards you, that they approached your apartment and were trying to get over the fence, and you were feeling defensive of your family - that is the reason you took the iron bar.  You described yourself as feeling scared, nervous and overwhelmed and asked your partner to bring a knife.  You also said that you knew a friend had hidden a small calibre sawn off rifle in the bushes next to the apartment complex and having become scared because there was so many of them coming from apartment 49G, you ran and obtained the firearm. You said that you fired one shot into the air, and some of the neighbours ran back into the apartment but others stayed outside and continued to be rude to you, so you then fired one more shot into the air. 

18You said that you never meant to hurt anyone, and when you fired the second shot you were standing outside your apartment and aiming above the other apartment.  You said you did not know how to use the rifle properly and one bullet fell out in front of your front fence.  You said you were sorry and did not think it through and were sorry that you lost your temper. 

19You were remanded in custody on 30 September 2014 and have remained there ever since on these charges, being a period of more than 13 months.  Those 408 days of pre-sentence detention, not including today, will count towards the sentence I impose.

20You pleaded guilty to these charges at the commencement of a committal hearing and before any witnesses were required to give evidence.  You are entitled to considerable leniency for the utilitarian value - that is saving the time and cost of disputed hearings - and for saving the witnesses, including a teenage girl who was 15 at the time, from having to give evidence at either hearing.  There was potentially a large number of witnesses taking into account the numbers in the opposite apartment so the overall saving from your plea of guilty is considerable.

21Further, your plea of guilty reflects acceptance of responsibility for your conduct.  I also take it to reflect some remorse as you did say you were sorry when interviewed by police, were generally cooperative with police and did not refuse to answer questions.  I also take into account your sister's evidence to the effect that you have repeatedly expressed your remorse about this incident to her. 

22I have given considerable leniency for your plea of guilty, and shall tell you after I have announced your sentence what it would have been had you not pleaded guilty.  I have also taken into account that, due to a number of adjournments for gathering more information (including one because I requested an in depth pre-sentence report) since this matter commenced before me in July of this year, you have had added stress hanging over you for longer than usual of waiting to find out what your sentence will be.  I have allowed for some leniency for that extra burden of the stress on you.

23I must assess the seriousness of this offending and your role in it.  This was a volatile incident, late at night in a residential area where many people were at least trying to sleep, and it was largely of your making.  You initiated it by going outside and starting the verbal confrontation, although I accept that there was some justification for you wanting to ask for the noise to stop, and you had a young child who could not sleep because of it. You were on a CCO at the time and ought to have been particularly conscious of the need to stay away from potential trouble.

24However, you could have stood at your gate and just asked, but instead armed yourself with a metal pole; and then rather than retreat when the numbers against you grew, you escalated your weapon first by the addition of a knife delivered by your partner to you at your request, and then you acted with her encouragement.  Then, and clearly most seriously of all, when you found yourself vastly outnumbered and some of the protagonists bringing similar weapons to yours, you went and retrieved a firearm from where you knew it was hidden and fired it, twice. 

25This had the makings of a situation of even greater seriousness than did occur.  That you later said you did not know how to fire the gun properly seems to me to increase the potential danger and level of recklessness.  The first shot you fired was in the vicinity of a stairwell, where there could have been other totally innocent people harmed, notwithstanding that it was occurring after midnight.  The fact that you then fired again and towards the apartment to which the protagonists had retreated only needs to be stated to indicate the potential harm that could have been done.

26As it was, you did cause injury to a 15 year old.  She clearly was part of the argument that preceded you obtaining the firearm, but that is not to excuse what you did.  She required treatment in hospital for an injury to her head.  I do not have a Victim Impact Statement from her, and there is nothing to indicate that she has suffered any long term consequences from her injury, but I have seen photos of the significant laceration to her scalp, and an injury to the head which required surgery reflects not only that that occurred but that there was potential for much more serious harm from your conduct.

27I accept that you were originally reacting to an interference with not only your own but your family's ability to sleep in your own home, and that the escalation happened quickly and without your planning it, and with you perceiving that there may be danger to your family.  You reacted to that on the spur of the moment, but you acted without pausing to consider the consequences.  To bring a firearm into an already confrontational situation was clearly reckless, let alone to fire it.

28I take as an aggravating factor that you were serving a sentence of a Community Corrections Order at the time and that should have made you more aware of the need to stay out of situations of potential trouble, as any offending, and in your circumstances especially, violent offending, would also breach that sentencing order.  I am not here dealing with any breach of that sentencing order, but as I say for these reasons I regard it as an aggravating factor that you were not being especially careful at the time.

29The most important sentencing purposes for these offences, in my view, are general and specific deterrence, just punishment and protection of the public. 

30So far as general deterrence is concerned, the sentence I impose must send the message to the community that serious punishment can be expected for behaviour of this type - in particular, introducing and then discharging a firearm in a situation of heated argument and where a significant number of people were present.

31Further, specific deterrence is of importance in this case - that means to discourage you personally from re-offending in this or indeed any other manner.  With your long criminal history, to which I shall refer shortly, including many offences of violence, for which neither terms of imprisonment nor community based orders have adequately deterred you in the past, a significantly onerous sentence is required for specific deterrence to be given sufficient weight.

32As for just punishment, I have already described the circumstances of the offending and the factors I have taken into account, and protection for the public is also self-evident given the means you were prepared to use, albeit recklessly, on this occasion.

33I turn now to your personal circumstances. 

34You are now aged 37.  You came to Australia when aged about 18 months, your parents having already fled from Romania where you were initially left in the care of an aunt.  Your younger brother and sister were born in Australia. 

35You have described your childhood as harsh and abusive, with corporal discipline, and being kept away from school at times.  Your sister, who gave evidence before me, describes it as very strict as your parents, who did not know or understand much of Australian life and tried to instil their own culture, restricted you and your siblings from mixing with other children from school and as children you knew that you were missing out on activities and friendships which others at school had.

36However it was an event in December 1992, when you were aged about 15, which very significantly changed the lives of every member of your family.  You and your younger brother were crossing a road when he was hit by vehicle, thrown into the air and landed on his head, an incident witnessed by both you and your sister.  He suffered devastating injuries and apparently was clinically dead before being revived by ambulance officers. At the scene you tried CPR before the ambulance arrived, and your sister recalls seeing his blood being all over your clothes.  Your brother was in a coma for two months and then for almost a year hospitalised for rehabilitation.  He has survived, but with very serious permanent impairments and requires constant assistance.

37The effect on the family was that your parents stayed with your brother at the hospital 24 hours a day - alternating days and nights between them - and you were left responsible for looking after your younger sister.  You were in your mid-teens, had no adult controls over that time, but were also offered no help or support coping with your own trauma from what you had seen or its impact on your life in those immediate months afterwards or indeed in the long term.  There also seems to have been an issue as to whether your parents attributed some blame to you for the incident itself. When your brother was eventually brought home, your parents tried to reimpose the previous restrictions in the household, but by then you had taken up with friends and were misbehaving, and it is unclear to me whether you were abandoning school at that stage or shortly afterwards.  Your own schoolwork clearly suffered considerably and you were subsequently expelled from school.

38In your sister's words, it was about the same time that your parents kicked you out of the family home.  It was also about that time that you started taking drugs, although elsewhere it is said you started that at about age 18.  I am told that after you started taking drugs you were soon addicted to heroin.  Although your family kept in touch with you, they did not know how to deal with your use of marijuana or heroin and you were in criminal trouble from that time onwards.

39You have admitted a long and very considerable criminal history, commencing, as it is provided to me, 20 years ago when you were aged 18.  Early offences were for thefts and burglary.  Those attracted fines, and then a CBO with rehabilitative conditions; and when you breached that, a suspended sentence.  In 1997 you received your first sentence of imprisonment. That was for four months, relevantly not only for offences of dishonesty but also relating to firearm and ammunition possession.  Your next term of imprisonment was for trafficking heroin as well as dishonesty offences.  You have served many more sentences of imprisonment over the intervening years for a range of offences, not all of which I shall itemise.

40In April 2005 you were sentenced for recklessly causing serious injury and injury, to a total effective sentence of 32 months imprisonment with 18 months before parole.  I have read His Honour Judge Pilgrim's sentencing remarks in that case, and note that both offences were against your then partner, the first arising from you punching her during an argument as she was driving, and the second only days later and in breach of bail, going to the unit in Raglan Street where she was still living.  I note that was the same unit as where you were living last year. You entered and repeatedly struck her, this said to be because you wanted a reconciliation with her.

41While you were serving that sentence, further obviously previously committed offences, including some of assault, came before courts in 2005.  Then in 2010 further offences of violence came before courts, including one of urging a dog to attack which I am told involved the father of your then partner and arose during another domestic argument.  You were sentenced to a partially suspended sentence.  Earlier that year you had been placed on a CBO with both community work and rehabilitative conditions, and I am told that you did attend a few sessions with a psychologist but do not recall other programs.  You completed the community work.

42The final prior offence of significance was a charge of affray in February 2014, when you were placed on a Community Corrections Order with only unpaid community work as a condition.  I am told that that arose from an incident in which your partner became involved in an argument in a shopping precinct and you intervened to assist her. 

43Your criminal history reflects entrenched anti-social behaviour and inability on your part to control your drug abuse, or your frustration, or your anger.  Having heard of some harshness and trauma in your childhood and youth, which clearly left you emotionally vulnerable and also sadly lacking in adequate education, your lapse into drug abuse and related offending in your late teens and early 20's is perhaps explicable, although certainly not acceptable. However, over many following years your offending has continued, and too many of your past offences involve loss of self-control leading to violence. 

44Your record also shows that you have not taken advantage of several opportunities that have been offered through rehabilitative orders.  I am well aware, from long experience on this court, that entrenched drug abuse is not easily overcome or cured, but yours is a very long history that cannot be ignored in assessing your chances of changing your ways and turning your life around.  You have served sentences of imprisonment on numerous occasions and they too have not been sufficient to reform your behaviour or at least not enough to prevent you from reacting recklessly and with violence when stressed.

45Your sister gave evidence before me and also provided a written reference. She confirmed your family history.  She obviously remains strongly attached to you and wants your life to improve.  She seems to me to have insight into a number of aspects of your conduct which have caused your problems over the years, although I think that some of her optimism about your prospects for the future is based on her emotional ties to you.  She herself has studied for a Diploma in Justice, and has worked at VCAT.  She is married with two children and appears to lead a law-abiding and responsible life style.  She describes you as "amazing" with her children, and that you can spend hours playing with them without stopping, even for a cigarette.  She ascribes much of your downfall to addiction to heroin in your late teens, and says that while you continued to live in the Dandenong area you were known as a heavy drug addict.  She says that your overall control of drug use and living circumstances have improved significantly since you moved to South Melbourne, which was in your late 20's.  I note, however, that you have spent considerable time serving prison sentences since the move to South Melbourne.

46Your sister says that you have expressed what she calls "heaps of remorse" for the current offences, and that you know that there is an issue with your anger which you need to learn to manage.  She says that you just "snap".  She urges that you receive assistance with that rather than incarceration.

47There is no information before me that you have ever had a stable occupation, or none since casual labouring jobs in your teens.  I was told that you had been on a Disability Support Pension for a number of years.  Further investigation led to documents being obtained for a previous adjournment of this matter.  Those show that you were rejected for the Disability Support Benefit in 2009 as your disability was short term, and again in December 2010 when impairment was lower than qualified you for that benefit. Drawing inferences from the documentation, however, it seems that you were granted the Disability Support Pension from December 2013 after an application made in January 2014 supported by a form completed by your GP, Dr Josefsberg, diagnosing anxiety and depression, opiate dependence, and Hepatitis-C as a result of a long history of IV drug abuse. You were at that stage on a methadone program and also taking Valium and anti-depressants.  It was said that your conditions impacted on your ability to function in that you could not cope with stressful situations, being in contact with a lot of people.  This fluctuated, but was said to likely persist for more than two years, which did qualify you for the benefit. It seems that at the same time a form was submitted that had been signed in December 2013 by your then treating psychiatrist, Dr David Baron.  It stated your diagnosis as Bipolar Disorder, although subsequent clarification indicates that you were believed to be suffering mood instabilities, such as those in bipolar conditions, and Dr Baron thought that you may be suffering a variant of that disorder, but he now does not believe that you satisfy the diagnostic criteria for Bipolar Disorder.

48Over the course of several adjournments of this case to enable further materials to be obtained, there is now before me a collection of reports about your psychological and psychiatric history. 

49I have read a report from a psychologist, Ms Melissa Donati, who was treating you in January 2014, and which seems to have been provided to Centrelink at the same time as the other reports to which I have referred.  It sets out that you had been attending psychological treatment since September 2012, that you initially presented with significant drug and alcohol abuse with psychotic features, reported hallucinations, delusional thinking and severe paranoia, all of these symptoms having been present most of your adult life, and previous to your drug and alcohol use, but having become significantly worse with substance abuse. You had been stabilised on methadone for a few years, and had significantly reduced other substance use, and you were engaging and motivated to seek treatment to modify depressive and anxiety symptoms, and assistance with management of post-traumatic stress disorder and the bipolar disorder condition as diagnosed at that stage by Dr Baron.

50Ms Donati recommended further treatment for an unknown duration due to the complexity of your psychological condition, but it is not clear to me that much psychological treatment did persist after January 2014.

51A report dated May 2015 from your psychiatrist, Dr Baron, explains that he has treated you as a patient since July 2007, but it turns out that has been significantly intermittent.  Initially, you told him of your history of spells in prison for causing serious injury and trafficking in heroin and amphetamines, of your background and of you sustaining childhood abuse.  You described to him wanting love and closeness, but then becoming angry and distressed when difficulties develop. When he first saw you in 2007 you appeared to be anxious, depressed and close to tears, and he considered that you had a significantly disabling personality disorder.  He considered that an anti-depressant would help, but you failed to attend further appointments until reappearing in October 2013.  That is some six years later.  On that occasion he says you again appeared significantly depressed, and he thought quite suicidal.  Anti-psychotic medication was prescribed and appeared to work well to stabilise your moods but anti-depressants were unhelpful.

52Dr Baron in his report this year and confirmed recently, says that he did not get a clear history of bipolar disorder although your moods fluctuated, and the drug Seroquel as an anti-psychotic had been helpful.  It had, however, been discontinued and you were said to have fallen back into a depressed state. Dr Baron prescribed more Seroquel, but with some reservations given your history of trafficking in drugs.  He saw you monthly from October 2013 to January 2014 having to change the drugs more than once.  At that point you told him you were reducing your methadone consumption, and also mentioned that you had had counselling and were getting many flashbacks about your childhood.  In January 2014 you thought the medication was calming you down but then you appeared to develop side effects to it.

53Dr Baron concluded that you have a significant personality disorder marked by impulsive behaviour, drug addiction and aggressive behaviour.  Anti-psychotic medication appears, to some extent, to take the edge off your symptoms.  Consultations appear to give you some comfort but it was unclear whether they affect the outcome. In a recent clarification Dr Baron confirms the views he set out in his main report, and that while he initially thought your instability of mood could be a bipolar variant, you do not fit neatly into the formal diagnosis of that disorder.

54I have also read a report by forensic psychiatrist, Dr Nina Zimmerman, who examined you in July of this year for the purposes of this case, and while you were in custody at Port Phillip Prison.  Dr Zimmerman outlines your personal and family background, as you outlined it to her.  She had available Dr Baron's report of May of this year.  You informed her that you have had rapid swings in your mood for much of your adult life, from feeling on top of the world and then plunging into despair very rapidly, and that those moods never last more than two days and rarely more than one. You told her of being persuaded to see a psychiatrist, Dr Baron, about seven years ago but you were returned to prison before your moods could be stabilised, and you only returned to Dr Baron about two years ago.  You told her that at the time of the offences with which I am dealing you were on methadone, and diazepam for anxiety, as well as on anti-psychotic medication as a mood stabiliser. That medication, she elicited, apart from the methadone, was stopped in prison because of potential abuse. You were commenced on the sedating anti-psychotic, Olanzapine, which helps you to sleep and you had recently commenced on an anti-depressant as well.  You have no thoughts of wanting to harm yourself now, as you want to live for your daughter.  However you have scars on your forearm indicating self-inflicted harm in the past.  You reported nightmares that wake you at night although you do sleep long hours. 

55Dr Zimmerman noted your long time substance abuse history.  You are still on a methadone program, but have apparently decreased the dose and have more recently been decreased to 75 mg.  You also have a history of abuse of prescription drugs such as Xanax, which was when most of your violent offending occurred, as well as when using amphetamines and crystal methamphetamine. 

56Based on the information she had, and what she gleaned from you and your criminal history, Dr Zimmerman found no evidence of a psychotic or major mood disorder such as Bipolar Mood Disorder.  She considered that, nevertheless, you presented a compelling picture of a genuinely distressed man with a developmental history that has left you with a vulnerable personality structure.  You have developed few adaptive mechanisms to deal with perceived or actual abandonment, and that was reflected in your struggle to cope with stress in your relationships.  Your substance abuse, intense mood fluctuations, past suicidal thoughts, and presentation to services in crisis were characteristic of what is referred to as a borderline personality structure.

57She described your current offences as having appeared to occur in the context of frustration, and a resort to violence to gain a sense of control over a threatening situation.  You denied to her being affected by drugs or alcohol on the night, although I have been told that you had been smoking cannabis.

58Dr Zimmerman's view that there may be a link in your offending and your failure to deal more constructively with a difficult situation, does not amount to evidence of a causative link between an underlying mental health disorder and your offending on this occasion.  She did give the opinion that any custodial sentence carries the potential to aggravate your mood fluctuations.  She noted that your current partner and daughter appear to be the main positive and motivating factors in your life, and that the disruption to that relationship will have significant consequences both for you and your family. 

59She considered the likelihood of your reoffending would depend on whether you are able to remain drug free in the future.  You are continuing on the methadone program, and expressed willingness to see Dr Baron or an alternative private psychiatrist for counselling regarding your self-defeating ways of managing negative emotions, and she thought that would potentially assist you in the future.

60I was also invited by your counsel to take into account remarks from a psychological report by Ms Carla Lechner set out in the sentencing remarks of Judge Pilgrim in 2005.  Apart from noting that His Honour had such a report and that your mental health was an issue at that time, I do not consider that anything quoted from Ms Lechner's report can advance my understanding of your psychological condition at the time of or since the offending last year, not having seen the full report to ascertain the full context of what was being said some ten years ago about you. Also, you first sought psychiatric treatment after that all occurred - that was in 2007 - and I have the reports from Dr Baron.

61Your counsel initially conceded that the reports now available do not substantiate a causal link between your conditions and your offending sufficient to enliven mitigating principles known to lawyers as principles 1 to 4 in the case of Verdins[1].  However Mr de Kretser did rely on the last two of those principles from that case, namely that your mood fluctuations are likely to make imprisonment more onerous for you than for someone not suffering that condition, and also are likely to be aggravated by prolonged incarceration.  He relied on the opinion of Dr Zimmerman as indicating that further incarceration has the potential to aggravate mood fluctuations, and also is likely to add to your concern for your current partner and your daughter in your absence.

[1] R v Verdins; R v Buckley; R v Vo [2007] VSCA 102

62Although Dr Zimmerman's opinion does not reach the point of saying that further imprisonment is likely to aggravate your mood fluctuations, I have allowed some moderation in your sentence to take that potential into account.  In that I am told that you are able to take prescribed mood stabiliser medication, Olanzapine, and also been prescribed an anti-depressant I consider that there is some amelioration available of any aggravation of your mood fluctuation condition. I do accept that you are genuinely concerned for your child and partner during your imprisonment, and that that has weighed heavily on you and would continue to weigh heavily on you for any further time in prison.  I also accept that with your longstanding and well diagnosed history of unstable moods, the worry about your child and partner is likely to be a further strain on your mood instability.

63Returning to whether the psychiatric material now presented supports any other mitigation of your sentence, that means a need for reduction in it by reducing your moral culpability, or the need for general and specific deterrence, it does not, in my view, establish a direct causative nexus which would call for reduction of those sentencing requirements. However, I do take into account that this evidence has some relevance in putting your behaviour on the relevant night into some overall context.  I find that although not meeting the criteria for a diagnosis of Bipolar Disorder, you have long suffered from considerable mood fluctuations that contribute to your failing to manage your anger, to which unfortunately you have a history of reacting with violence. It is clear that you do not cope well with stressors including being amongst numbers of people. Further, although much mention has been made in all medical material of your very long history of abusing drugs, it would appear that you have maintained your methadone program for a long time now and managed to reduce your dosage.  Your behaviour on the night was not drug related as far as was put before me.

64I am told that you have been in protective custody at Port Phillip Prison for some time, and this results from an altercation about which I have no other details.  I accept that serving a sentence under protective conditions is inevitably more restricted than being in the mainstream with other prisoners, and that is likely to make the time in such conditions more onerous.

65It is conceded on your behalf that the circumstances of this offending were serious, and that those circumstances, taken with your long criminal history, call for a sentence of imprisonment to adequately reflect general and specific deterrence and protection of the public.  However, I have been urged by your counsel to impose a sentence which will also facilitate your rehabilitation.

66It is submitted on your behalf that you have reached the stage of having recognised that if you want a life in the general community with not only your partner, but your young child, and if you want to be there while your child is growing up, you must address the issues that have clearly contributed to your ongoing criminal behaviours. 

67Your counsel argues that at now aged 37 you are genuinely motivated by your wish to participate in your daughter's upbringing, and should be given another chance to prove that you can apply yourself to your rehabilitation.  You apparently recognise that unless you do address the issues of substance abuse and in particular now the need to control your mood fluctuations and your reactions to stress, your anger and your tendency to react with violence when frustrated or stressed, you will very likely spend much more time in future in prison.

68I am urged on your behalf to impose a Community Corrections Order at a time that you are willing to undertake rehabilitation and therefore to limit the time you are to spend in prison to enable you to be released under a heavily conditional Community Corrections Order.

69I regard your prospects of rehabilitation as very guarded at best, given your 20 year history of criminal offending of various types. This is all against a background of serious substance abuse, trafficking in drugs and failure to control your reactions to frustration or anger, and with failures to take advantage of sentencing orders which promoted rehabilitation.

70However, I do regard there as being some positive signs for potential effective rehabilitation.  Even at your current age and with your history in this regard it is still, in my view, of some importance to try to promote what prospects there are of effective rehabilitation for you.  In particular, the support and encouragement of your sister, the fact that you do seem to have attempted engagement with a psychologist and psychiatrist by late 2013 and early 2014, and to be contemplating return to Dr Baron or someone similar for further treatment are, in my view, positive signs.

71Although separated from your treaters during imprisonment you seem to have been continuing to take medication although it has been altered there.  You apparently have also adhered moderately well over several years to methadone treatment to replace your opiate use, and have worked on reducing other illegal substance use.  Your offending does not appear to have been as frequent or extensive over more recent years as it was in your 20's.  However, it has been significantly linked to you lacking the self-control to avoid or walk away from confrontation when you were frustrated or angry.

72Unfortunately, I do not anticipate that you will be reinforced in making better judgements by your current partner.  I recognise that you regard life with her as well as with your young child as a strong motivation for you to reform, and it is to be hoped that you maintain that strong motivation.  Unfortunately, your partner appears to have her own drug abuse problems and to struggle to cope with daily life and looking after your young daughter.  Further, her behaviour on the night of these offences in delivering a knife into your hands and encouraging you in confronting the other people in the other apartment does not reflect well on her being a stabilising or modifying influence on your behaviour.  You will need to take that into account to be even more careful about how you behave in the future. I do accept that your young daughter is a real motivator for you to try to stay out of trouble in the future.  It appears that there has also been considerable support from a neighbour, and from your sister, although she has her own family to prioritise.

73I am satisfied that although your history would suggest otherwise, there are some signs that you might have reached a stage in your life where you can more effectively maintain your resolve to try to turn your life around and to stay out of criminal trouble when you are next released from prison.  If you could succeed in doing this it would not only give you personally and your family the chance of much more happiness and hope for the future, but ultimately would also be in the public interest.  Ultimately, it depends on your own resolve, and your determination to address the background problems that you say you now recognise as underlying causes of your past offending. 

74The prosecution submits that the seriousness of the offending, your past criminal history and your failure to sufficiently rehabilitate after several previous opportunities at rehabilitative orders, means that to adequately apply sentencing factors of just punishment, community protection and general and specific deterrence, a significant term of imprisonment is warranted of a duration that could not be combined with a Community Corrections Order, and so a significant term of imprisonment before parole should be imposed.

75I requested a long form of pre-sentence report to specifically consider your interaction with Community Corrections services, and what rehabilitative services they offered in the past under previous court orders; I hoped that that would assist me in understanding whether there are sufficient changes in your situation now that give the promise of you engaging better if placed on such an order from hereon.  Unfortunately, the report provided to me provided no more information than I already had as to the basic facts of the number of previous orders, including parole orders, and whether they were or not breached.  That report assessed you as at high risk of general re-offending according to its assessment tool, but did accept that you would be suitable for a Community Corrections Order to follow imprisonment with recommended conditions. 

76I have already outlined the circumstances of your offending which in my view make its objective seriousness quite high but on the other hand the fact that it was not planned, occurred over a short period of time, and in reaction to some provocation and the immediacy of some perceived possible danger to your family, limits it to the high end of the middle range of seriousness for the offence of reckless conduct endangering serious injury.

77Taking into account that the maximum penalty for that offence is five years imprisonment, that you pleaded guilty at a relatively early stage, and have shown and expressed what I accept to be a level of genuine remorse, I am not convinced that a term of imprisonment is warranted higher than the range which would enable it to be followed by a Community Corrections Order, especially as the latter would add to the overall punishment.

78Although Charge 2 is a separate charge based on the fact of your being a prohibited person in possession of a firearm, the possession of that firearm and use to which you put it, is the most serious aspect of your conduct under Charge 1.  Although your role in the confrontation until then does not reflect well on you, it was your introduction of the firearm into the confrontation, and then discharging of it, twice, which escalated the situation into one of reckless conduct endangering serious injury.  I therefore consider that almost complete concurrency should be applied to any sentence on that change.  Although that charge carries a greater maximum penalty than Charge 1, the objective seriousness of the offence has been largely taken into account under Charge 1.

79Taking all of these matters into account, I do not consider that only a term of imprisonment for which a non-parole period is fixed could adequately achieve sentencing purposes in this case.  I must not impose that higher range of sentence if one less severe could adequately achieve all sentencing purposes. 

80Applying the approach set out by the Court of Appeal in Boulton's case, in my view a term of imprisonment to be followed by a Community Corrections Order that is mainly directed to rehabilitative conditions while maintaining supervision and some discipline of community work, for a period in excess of what might otherwise be an appropriate period before parole, can overall best meet sentencing purposes and offer the opportunity to advance your rehabilitation that you have said you seek but which remains, clearly, a considerable challenge for you. 

81I ask you to stand up now please.

82Nicolae Paris Andrei, on Charge 1 of reckless conduct putting people in danger of serious injury, you are convicted and sentenced to a term of imprisonment of 17 months to be followed by a CCO to last for 18 months.  The conditions of that CCO I shall explain shortly.

83On Charge 2, of being a prohibited person in possession of a firearm you are convicted and sentenced to 12 months imprisonment.

84I direct that two months of the sentence on Charge 2 be served cumulatively on the sentence on Charge 1 making a total effective sentence of 19 months imprisonment to be followed by a CCO for 18 months commencing on the date of your release from prison.

85I declare 408 days already spent in custody in respect of these charges as reckoned served towards this sentence, and I direct that that be recorded in court records.  It will be deducted administratively.

86The conditions of the Community Corrections Order are that you are to perform 50 hours of unpaid community work, to be subject to supervision, attend for assessment and treatment as directed in respect of drug abuse, attend for assessment and treatment as directed for your mental health, and attend such programs as directed to reduce the risk of you re-offending.  Programs dealing with anger management and control of temper and mood seem to me the most appropriate, but ultimately it is for Community Corrections officers to assess you. You are required to attend any such programs they recommend.

87In addition to those conditions all usual terms of a Community Corrections Order apply.  These are that within two clear working days of your being released from prison you are to report to the nearest Community Corrections Office to where you are living.  You will no doubt be provided with it - it is probably the same if you are still returning at that stage to the South Melbourne address but it is currently Carlton if you are returning to that address on your release from prison.

88Throughout the order you are to advise Community Corrections staff of any change in the address of where you are living or if you are working, the address where you are working.  You are not to leave the State of Victoria without prior consent of Community Corrections officers.  You are to submit to visits from and you are to obey all lawful instructions of Community Corrections officers.  Finally, and of course most importantly, you are not to commit any further offence while you are on the Community Corrections Order

89If you contravene the Community Corrections Order, either by failing to comply with its conditions and terms or by further offending, you can expect to be brought back in front of me for a contravention hearing, and a contravention is an offence in itself. Depending on the circumstances of the contravention, and your personal circumstances at the time, the order might be varied by being extended or its terms increased, or it might be cancelled and might lead to you being re-sentenced in relation to the balance of that order on that charge. 

90Do you understand these conditions and terms?

91OFFENDER:  Yes.

92HER HONOUR:  Do you agree to comply with them?

93OFFENDER:  Yes.

94HER HONOUR:  All right now as I say that order would commence on the day you are released from prison.  The net effect of the sentence therefore is that you must spend, on my calculations, a bit over another seven and a half months in prison and on your release be subject to a Community Corrections Order for 18 months.  If I am wrong about the calculation of how long we will have that clarified.

95Now I am also intending to make the orders that were sought for forfeiture and disposal and they were not opposed. 

96I state, for the purposes of s.6AAA of the Sentencing Act, that if you had not pleaded guilty to these charges but had been found guilty of these charges by a jury and if all other circumstances had been the same I would have imposed a sentence of four years' imprisonment on Charge 1, two years' imprisonment on Charge 2, a total effective sentence of four years and three months' imprisonment, with a non-parole period of three years.

97Now you can take a seat while, first, I check with counsel if I have overlooked anything or if that arithmetic works, and the other thing is that once the order is entered the CCO has to be produced and signed.  So it is 17 months on Charge 1, 17 months' imprisonment followed by 18 month Community Corrections Order.  Twelve months on the second charge of which two months is cumulated.  So total effective sentence 19 months followed by the 18 month CCO.  The 408 days, I think, is a little under 13 and a half months.  So that is why ‑ ‑ ‑ 

98MR DEKRETSER:  I think it makes it just over five and a half - no, hang on.  Yes, five and a half months.  It will be just over, I think, if you subtract 13.5 from 19.

99

MS WARDA:  Your Honour, math was never my strongest point

and ‑ ‑ ‑ 

100HER HONOUR:  Yes I think you're quite right.

101MS WARDA:  ‑ ‑ ‑ I always resort to the time between dates.

102HER HONOUR:  I'm just trying to work - I was thinking one year, 18 months, a bit over that and that's where I got the six and a half but it's 13 and a half.  So I think you're right.  The news is better for Mr Andrei than I had just told him.  It's about five and a half more, a bit over five and a half more months in prison, on top of what's he's already done, which is a significant period and then released on a CCO.

103MR DEKRETSER:  It'd be the end of April I think, Your Honour, on my rough calculation.

104HER HONOUR:  Well I'm not going to work on the dates.

105MR DEKRESTER:  Yes.

106HER HONOUR:  Given what's been going on in the prison system it's always subject to administrative remissions.

107MR DEKRESTER:  Yes.

108HER HONOUR:  So that's where I think it sits at the moment.

109MS WARDA:  Thank you, Your Honour.

110MR DEKRESTER:  Thank you.

111HER HONOUR:  All right I will have the order checked, thank you.

112MR DEKRESTER:  It was 150 hours, was it, Your Honour, of community ‑ ‑ ‑ 

113HER HONOUR:  No it was 50 hours.

114MR DEKRESTER:  Fifty, was it?

115HER HONOUR:  It was 50 hours.

116MS WARDA:  I know my hearing's not the best but I thought I heard that.

117HER HONOUR:  I thought hard and long about that.  It is some further penalty and some further discipline but coming on top of a significant period of more than a year and a half imprisonment it should not be double penalty, so to speak. I am aware though that there is lingering in the background for a magistrate to deal with, a breach of the CCO that Mr Andrei was on at the time of committing these offences and that, no doubt, in due course will go back to the magistrate to deal with.  I think that was purely for unpaid community work.

118MR DEKRETSER:  Community work only order.

119HER HONOUR:  I don't know because the CCO report that I requested didn't even specify in that how far into ‑ ‑ ‑ 

120MR DEKRETSER:  Yes.

121HER HONOUR:  ‑ ‑ ‑ that work Mr Andrei was at the time.  So that's in the hands of a Magistrate, but I - whilst this matter has been repeatedly interrupted and I have had to go back and remind myself of it, it has left the opportunity for considerable thought into all of the issues.  I am sorry the reasons had to be so lengthy but there have been a lot of matters to cover.

122MR DEKRETSER:  As Your Honour pleases.

123HER HONOUR:  All right now I am just checking the conditions here.  I didn't impose judicial monitoring.  Mr Andrei will either comply with the Community Corrections Order which is subject to supervision by those who are in a better position to supervise than me, or else on a contravention he'll be brought back in front of me.  So the drug situation appears to be relatively in hand but there still should be a condition for further assessment and treatment if warranted for that. 

124All right I'll have a copy of the proposed Community Corrections Order shown to both counsel just to check and if it's satisfactory we'll have Mr Andrei sign it and then I will. Mr Andrei, I have explained the conditions of that order and your counsel's checked it but I suggest you read it through and then you're asked to sign your agreement to that Community Corrections Order.

125MR DEKRESTER:  If I may just approach, Your Honour ‑ ‑ ‑ 

126HER HONOUR:  Yes certainly.

127MR DEKRESTER:  ‑ ‑ ‑ just in case there's any question.

128HER HONOUR:  Yes.  I'll sign the Community Corrections Order and that can be copied.  Thank you.  Now I've signed the forfeiture order but there are two disposal orders I've just worked out.

129MS WARDA:  Yes that's right I'm being told, Your Honour, by my instructor.

130HER HONOUR:  That's fine.  One is for the knife.

131MS WARDA:  Yes.

132HER HONOUR:  The other is - I just got confused there.  The other is for clothing and the iron bar.

133MS WARDA:  Yes, Your Honour.  It was separate, Your Honour, in case there was - I'm being instructed ‑ ‑ ‑ 

134HER HONOUR:  Actually it would appear some of the clothing belongs to Ms Rosewood.  Which is a bit odd that I'd be ordering the disposal of on this matter but ‑ ‑ ‑ 

135MS WARDA:  I don't have a good history before Your Honour ‑ ‑ ‑  

136HER HONOUR:  It hasn't taken much attention.

137

MS WARDA:  ‑ ‑ ‑ when it comes to forfeiture and disposal,

Your Honour.

138HER HONOUR:  Sorry?

139MS WARDA:  I don't have a good history before Your Honour when it comes to forfeiture and disposal.

140HER HONOUR:  Good point.  Unfortunately I tend not to look closely until the last minute because they don't usually occupy the greatest part of the consideration.

141MS WARDA:  I'm clearly not looking at them closely enough.

142HER HONOUR:  It's neatest if I just wait here and sign the final order and then that can accompany Mr Andrei.  I just better ask first for Mr Andrei be removed from the court, sorry.

‑ ‑ ‑