Director of Public Prosecutions v Asmanis

[2019] VCC 196

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

AT MILDURA
CRIMINAL JURISDICTION

CR 18-01227
CR-18-01229

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAMIEN ASMANIS

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Mildura
DATE OF HEARING:	1 March 2019
DATE OF SENTENCE:	1 March 2019
CASE MAY BE CITED AS:	DPP v Asmanis
MEDIUM NEUTRAL CITATION:	[2019] VCC 196

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	MR D. O'DOHERTY	Office of Public Prosecutions
For the Accused	MS J. TURFREY	Martin Irwin & Richards Lawyers

1HIS HONOUR:  Damien Asmanis, you have pleaded guilty to two charges of intentionally causing injury.  That crime carries a maximum penalty of ten years' imprisonment.

2You are 47 years of age.  You have no prior convictions and I accept that your plea of guilty has strong utilitarian effect in this situation.  Remorse is somewhat problematic, but that is almost always the case with people who suffer from long-term schizophrenia.

3The summary of the offending is that at the time you were 45 and the first offending was in late 2016.  You were in the central shopping centre in Mildura and were walking across a pedestrian crossing.  You walked into your victim Mr Gilby, who apologised to you and kept walking.  You turned around, walked up behind him, saying, "What the fuck do you think you're doing to me this time of morning?"  Grabbed him by the head, punched him a number of times, and that caused his glasses to dig into the bottom of his eye.  A witness saw this and approached you, asking you what was going on.  You simply walked away.  Police were called.  You were interviewed and essentially blamed the other man.

4In regard to Mr Crocker, this happened in February of 2017, a few months later, when, again, you were walking in Mildura and an older man approached you.  He said, "G'day," to which you replied, "Hi, strong man."  You then launched an unprovoked attack on him, punching him to the head, causing him to fall to the ground.  He crawled to his knees, but you kept punching him to the face and kept punching him while he was in that situation.  You then apparently walked off as if nothing had happened.

5He went to a nearby podiatry clinic.  He was bleeding from the nose, as well as from the abrasion above his eye and he also had other minor abrasions he had received while you were punching him.  You were arrested at a car park nearby and a no comment interview record of interview and, as I understand it, your mental health became a bit of an issue during the cause of the evening and you were placed into involuntary treatment.

6I have a victim impact statement from Mr Crocker, the second victim and it clearly outlines the ongoing distress that your assault on him has caused.  Whether your perceive that or not, I have no idea, but I certainly take into account the effects it has had upon him.

7In this situation, it is important to note that, overall, you have done 255 days of pre-sentence detention which strikes me as an extraordinary set of circumstances, but that is the fact of the matter and you have already paid a severe penalty for someone with no priors at the age of just 45, as you were then for this offending.

8That is a summary of the matter.  On the face of it, it is serious because the caused events were called for the application of general specific deterrence as was denunciation and punishment.  Having renewed the situation, all the principles of Verdins are called into play.  You have schizophrenia, though it seems to me you are currently in remission, but clearly where you were, for the purpose of this sentence, delusional as to what occurred, moral culpability is reduced, and there are sensible reductions to general deterrence, as well as specific deterrence.

9There has been tendered during the course of the matter, a number of psychologist reports.  Originally it came before me as a fitness to plead scenario.  It is clear to me that you are fit to plead and would have been able to conduct a trial through counsel, admittedly with some difficulty but, nevertheless, without any serious problems.  That matter having then resolved and you electing not to run with a mental impairment defence, but to use it as Verdins, we get to the situation we are.

10Those reports essentially outline somebody who, whilst your initial background is somewhat difficult to determine as to your natural parents and the like, it would appear clear that you did go to primary school in Mildura.  You went onto secondary school.  You did all right at school.  You left school in Year 11.  You did an electrical apprenticeship which, after leaving your apprenticeship, you were offered a plastering job by your father.  Then, worked for about five years.  You, then, began working with other employers in the area, left home and shared a flat and, then, spent a year travelling in Europe and the USA.  You returned to Mildura and continued working.  You have had one or two intimate relationships, but have never married and have no children.

11Around about ten years ago, your mental health issues began to become much clearer.  In 2010 you were an involuntary in-patient and there have been community treatment orders since, then, and I will not go into the history of all that.  You have disagreed with quite a bit of it.  You have been an involuntary patient on occasion and, at the present time, you were on a community treatment order and looked after by the Mildura Base Hospital.

12I do not think I need to take it much further than that.  Insofar as punishment is concerned given that you have already had more than enough, I suspect, the only concern is that obviously members of the public have to be protected from you when you are not well and, accordingly, I am going to impose a disposition which, hopefully, enables you to get on with your life, but also promotes in you the need to continue with psychiatric assistance, and in particular, to continue with the medication.

13A report from Mr Purchase, describes that the only treatment you really need at this stage is that of medication.  You may well benefit from counselling, but that is what needs to be in place.  The prospects of your rehabilitation are, I think, totally dependent on medication.  The risk of you reoffending is, again, I think, probably totally dependent upon your continuing to take medication.

14But, taking all those matters into account, you are currently living at home.  You do appear to have a stable environment.  Whilst the medication makes you tired and you have not worked for some time, you at least appear to be keeping out of trouble.  I think we can just hope that that remains the case.  Accordingly, if you agree, you will be released on a two-year adjournment.  You will with conviction because of the seriousness of the actual offending, itself.

15The only condition will be that you be of good behaviour and that you comply with any community treatment order then in place, which means that if one lapses and another one starts, it is still subject to this.  All the medications, the Depo and everything, is within that order, so I do not need to go into the details.  That is just simply comply with any order then in place.

16MS TURFREY:  Sorry, Your Honour, just in terms of complying with the community treatment order ‑ ‑ ‑

17HIS HONOUR:  Yes.

18MS TURFREY:  I am a little bit concerned that that might be about to expire.  Can I ‑ ‑ ‑

19HIS HONOUR:  That is up to them.  I understand that.

20MS TURFREY:  Yes.

21HIS HONOUR:  That is why I said, "Then in place."

22MS TURFREY:  Yes.

23HIS HONOUR:  It is a matter for the hospital.

24MS TURFREY:  To maintain it.

25HIS HONOUR:  To maintain it.

26MS TURFREY:  Yes.

27HIS HONOUR:  You know, I am not going to start buying him - I cannot make one.

28MS TURFREY:  No, no, that is fine, Your Honour.  As long as you appreciate that.

29HIS HONOUR:  No, but I realise that.  But that is why I have used the expression "then in place".  So, it is a matter for the hospital to get another one in place.

30MS TURFREY:  Excellent, very well.

31HIS HONOUR:  I cannot put a condition that he take - inject himself.

32MS TURFREY:  No, and I am fine with that.  I just needed to be sure that Your Honour appreciated ‑ ‑ ‑

33HIS HONOUR:  No, no, I understood that from - when I worked out the times on Mr Purchase's, I realised that was the case.

34MS TURFREY:  Yes, thank you.

35MR O'DOHERTY:  Well, I have been asked to ask for a 464.

36HIS HONOUR:  No.

37MR O'DOHERTY:  Thank you.

38HER HONOUR:  I make it clear with that, that the 464 was (indistinct words) burglaries and things like that and drugs, and he has got to 47 with no priors.  He is all right.

39MR O'DOHERTY:  Mr Lou is even smiling more, now.

40HIS HONOUR:  I do not know that he is going home with instructions.  I don't know.  All right, Mr Asmanis, if you would not mind just standing up just for a second.  Just so you understand, there is an adjournment for two years.  If you commit any offences, you get brought back and you get resentenced.  Okay?  It would start again.

41Also, and I realise you struggle with all this, but it is important that you keep up with the medication from everybody's point of view.  Now, you may or may not agree with what your conditions are, but the main thing is to stay out of strife, and that is the way to do it.  All right?  So, I do not want to see you again, and I hope you do not want to see me again.  So, we will see how we travel.  Thanks for that.

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