Director of Public Prosecutions v Austin

[2023] VCC 2240

IN THE COUNTY COURT OF VICTORIA

AT BALLARAT

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHRISTOPHER AUSTIN

---

JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Ballarat
DATE OF HEARING:
DATE OF SENTENCE:	28 November 2023
CASE MAY BE CITED AS:	DPP v Austin
MEDIUM NEUTRAL CITATION:	[2023] VCC 2240

REASONS FOR SENTENCE
---

Catchwords:              

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Pezzimenti
For the Accused	Mr T. Theocharous

HIS HONOUR

1       Christopher Austin, you have pleaded guilty to one charge of assault an emergency worker on duty, one charge of prohibited person possess an imitation firearm and one charge of using a firearm to resist arrest.  Those crimes carry maximum penalties of five years, ten years and ten years.

2       You are now 30 years of age and were 28 years of age at the time of the offending.

3       It is a very unusual set of circumstances.

4       You do have a significant criminal history and you have been in custody on a number of occasions. That causes difficulty in terms of rehabilitation and the risk of reoffending but there is nothing in your prior convictions that suggests that you are not redeemable.

5       The plea of guilty comes in the time of Worboyes and you must get the benefit of that.  There has been a significant delay since charges were laid and a lot of that has been because of non-disclosure.  I am not going to go down that path but the simple fact of the matter is it was not your fault that that occurred and my understanding is that there was an offer made to plead to these very charges two months after the offending occurred.  It need not have even come to the County Court.  All these three matters could have been dealt with in a Magistrates' Court.

6       Be that as it may, at the time of this offending you were under investigation and I am using that in the neutral sense, for an arson.  That arson charge you were eventually committed on, the entire matter was ultimately discontinued.

7       So, insofar as these proceedings are concerned, they are based upon an arrest pursuant to a matter that was ultimately completely discontinued.

8       That then leads me to the plea of guilty.  In your situation you have endeavoured to show remorse, certainly to Mr Theocharous and to Mr Chisholm, your barrister.  You must get the utilitarian benefit of that plea of guilty.  It saved the need for a trial.

9       I also point out that this is a situation where I have now seen the body camera footage.  I am well aware of what was said to you and where everything occurred during the course of this arrest.

10     I, personally, indicated at the sentencing indication I have grave doubts about the validity of the arrest and grave doubts about the lawfulness of the stopping of the motor vehicle.

11     This plea of guilty has saved all the difficulties in relation to that.  I am certainly not making any adverse findings against anybody.  But it is a situation where if IBAC, for example, had been involved in this it may have been a very unfortunate outcome for everybody concerned.  Fortunately, they are not and they were not and I think any police officer in the Warrnambool District knows what I am referring back to from a few months ago.

12     But in any event, it is a plea of guilty with a very real furtherance of the interests of justice and the Crown and your counsel are to be congratulated on a very, very sensible solution.

13     You have now served some six months or so and that is all I am going to sentence you to.  You cannot do what you did and I think you know that.  You cannot carry an imitation firearm and a real looking imitation firearm, I add, having seen a photo of it, and there must be punishment for it.

14     The seriousness of the offending is brought home in the victim impact statement.  I am well aware of the difficulties of operational police facing these circumstances and the decisions that have to be made under real pressure and under real perceived threats and understand totally what he is saying in that victim impact statement and take it very much into account.

15     Clearly, in my view, in this particular situation, nothing other than a custodial sentence would be appropriate.

16     General to specific deterrence, insofar as you are concerned, are probably of little value.  Denunciation, anyone knowing your full background and the full circumstances would appreciate the sentence I am going to impose and I think punishment is custody and that is sufficient punishment in itself.

17     A summary of the matter, and I made clear at the outset that that is being exhibited, but there are aspects of which I am not prepared to accept beyond reasonable doubt.  I do not see any reason in these circumstances where the Crown are not in disagreement with the sentence I intend to impose that I need to invite conjecture or to invite conflict.

18     You were 28 at the time and what occurred was that your mother's vehicle with her driving was intercepted by two police officers.  I accept that the police were looking for you.  Whether there was a warrant out or not in my view remains somewhat for conjecture.  But in any event, the vehicle was stopped.  The two police alighted from their vehicle.  Your mum got out of the car and they then decided they were going to arrest you.

19     It is said in the Crown opening that the police radioed their location and that you were likely on board the vehicle.  Apparently that radio message has never been forthcoming, despite it being called for on a number of occasions but in any event, they are the sort of matters that are concerning me.

20     But in any event, the car came to a halt.  One police officer arrived at the front passenger door and you pointed the imitation hand gun at him.  He shut the door and stepped back a couple of metres.  That is part of the use firearm to resist arrest.

21     The other police officer approached the still open driver's side door where your mother had got out and recognised you.  You said you were getting from the passenger seat to the driver's seat and you then apparently pointed the imitation firearm at him.  He leant into the vehicle to try and apprehend you.  There was a wrestle and he was struck to the face with the imitation firearm.  A struggle continued.  The keys were eventually removed from the car and thrown onto the road and the other police officer came around and yelled out 'taser' and you were then tasered.

22     There was a struggle.  You were told to get out onto the ground and as that struggle continued – and I have seen all this and as I say I am not going to make comment on it.  You were told to get on the ground.  It is hard to see how you could have done that.  But in any event, you were tasered a second time and you subsided a little bit.  You were then tasered a third time when you had been told get on the ground and were in fact still in the car but apparently tried to get on the ground.

23     You were then threatened to be tasered but you were already on the ground.  I understand that the emotion of a situation such as this, both having watched the body camera and being aware of what took place after, that it does not exactly cover anybody in glory, neither you nor the police.  And I think there would be no point in me taking it any further than that.

24     These matters occur in the early hours of the morning.  The police are under pressure.  You were clearly drug affected, had an imitation firearm.  If things got out of control they did and I am certainly not going to make any adverse findings whatsoever against anybody in these circumstances, other than to indicate that your plea of guilty is one of real value and I accept that it is an acknowledgment of what you should not have done, even with your limited capacity.

25     The imitation firearm, which was a gel gun or whatever they are called was found in the car and I have seen the indicated photograph of that.

26     You were then remanded and you had – I am working on the basis of 187 days in the situation to be on the safe side.  It might be a little bit more than that but remanded for a period in excess of six months before you were ultimately bailed.

27     Since you have been bailed back in, as I understand it, October of 2022, there has been some minor offending which has just been dealt with in the Magistrates' Court.  And in the whole period of time you have been on a Community Corrections Order.  You have been placed on different orders, ultimately resulting in July of this year of you being placed on the one Community Corrections Order, which has been continuing on.

28     I have before me a letter from Corrections, which was sent to my associate just a day or two ago.

29     Now, you have been with them since your release on bail back in October of 2022 and that report, very much to your credit, Mr Austin, for somebody with your difficulties, is laudable.

30     It points out a number of things, that the order is due to expire in January of 2024, that you have been maintaining your weekly appointments.  Indeed, they have been put off to once a month because you have been doing well.

31     Those supervision sessions are focussed on increasing your daily living skills in connection with community organisations and services and the like.  You have done a formal drug and alcohol assessment and have been sent for an episode of complex care counselling.

32     Again, to your credit you attended 12 sessions of counselling and you have successfully completed the treatment requirements.  Those sessions focussed on education and harm minimisation, relapse prevention strategies and links to additional supports.  You were engaged with the Warrnambool Mental Health Services, who monitor your monthly DEPO injection of Paliperidone.  You also have Lorazepam which is taken morning and night and you get your script from the chemist on a weekly basis.

33     You are assisted by the Power In You Program to collect your medication.  You have twice monthly appointments with the psychiatrist at Warrnambool Mental Health Services.  You have done a neuropsychological assessment in May of 2023 and prior to all this of course, you have been found to have an intellectual disability and obviously are – the services of NDIS are available to you.  They support you in the appropriate way, as I understand it.

34     They say in that report from Corrections that your presentation and engagement has noticeably improved since the administration of the DEPO injection.  You have presented with reduced hypervigilance and are starting to get to the stage where you can identify future focussed goals.

35     That is the gist of the report.  It also points out, of course, that you are subject to a justice plan and you have no absences against that order condition, which is in the CCO.

36     In the normal course of events, one might think, yes, well, what is that all about.  But the circumstances are that your history is a very sad one indeed.

37     I am not going to go into great detail and humiliate either you or your family but essentially it amounts to this. 

38     You have an intellectual disability that calls into play the aspects of Muldrock and in fact the disability I think has been omnipresent during your arraignment here today.  It is very difficult for you to function and I take Muldrock very much into account.  It clearly ameliorates matters of specific and general deterrence and I think anybody understanding your condition would pull back on concepts of denunciation.

39     You were born in this area.  You went to a significant number of primary schools.  You completed Year 8.  You did well apparently in music but that was about the level of it.  You have never worked in the community.  You have been on receipt of a disability support pension on the basis of intellectual disability

40     When you were young you have very bad memories of your father.  You witnessed and there is no doubt about this chronic and severe family violence.

41     It would appear that – and this is not to be reported under any circumstances - but it appears that you were sexually abused by your father and you never saw him again after your parents separated.

42     Your mother re-partnered and you do have a positive relationship with your current step-father.  You have been diagnosed with many things over the years.  You have been diagnosed with depression, which I have no doubt is still in existence.

43     You have been diagnosed, as I said, with an intellectual disability that was confirmed in a Human Services report from 2007 and I have also indicated the justice plan.  You have been diagnosed with ADHD but your mother would not allow there to be any treatment.

44     You have been counselled by CASA during your childhood because of the sexual abuse.  You have been in various mental health programs over the years.  You have been treated with various antidepressants, anticonvulsants.

45     You have done a significant prison term for offending and you attempted suicide in the past.  Although you were unable to explain what prompted it.

46     You began drinking alcohol at the age of seven, began using cannabis at the age of 11, ecstasy at 15 and methylamphetamine from the age of 19.

47     You were unable to provide virtually any detailed information about your own history due to your mental state.  Apparently there has been a number of times when drug rehabilitations have been attempted but nothing since you were about 18.

48     You reported a family history of heroin use with your mother and stepfather.  That is them, obviously.  Whether you were using, I do not know and you really would not discuss it any further with the psychologist, Ms Kokarilo, who was talking to you.  She said it was not possible to obtain a coherent statement from you in relation to the current offending and again, your arraignment would appear to confirm that.  When she tried to discuss these charges with you, you had no idea what she was talking about it would seem.

49     You have severe symptoms of depression.  Extremely severe anxiety and mild stress.  There is a diagnosis of a generalised anxiety disorder.  Previous psychological reports that she had seen also noted cluster B personality traits, namely, borderline, antisocial personality traits.  All this is additionally complicated by your intellectual disability, which further undermines your social, cognitive and emotional functioning.

50     You are in a position now whereby your standards and by the way that you have lived for the previous three decades that you have done pretty well over the last period of time. 

51     Since you have got out you have probably for the first time, cooperated and endeavoured to better yourself through Corrections and through NDIS and I think it would be dreadful shame were that real progress for a young Aboriginal man to be stopped now by putting you back into custody.

52     There are a number of reasons why I do not think that should be done.  One. is what you have been able to do since.  Two. is the dreadful childhood and background that you have and three, that you are finally in the position where you do appear to be making real progress, in terms of becoming a member of the community.

53     Because of earlier offending you do have trouble, as I understand it, I am not going down that path, with local Aboriginal community.  That is understandable.  That is a matter for the community to deal with not me.

54     You at school were bullied and I do not again, have to go down all that path, the transient example or the transience of many schools and getting nothing from them.

55     When I take all those matters into account, which creates a great deal of sympathy for you, balanced against what is a serious crime of using an imitation firearm against police, whilst one might have concerns about how it was carried out you just simply cannot do that.  Everybody has to know that once you start doing that with police you will go to gaol.

56     You have been in prison now over this for 187 days.  There is some Renzella time, just a little bit.  Taking all these matters into account, bearing in mind that there is a fair risk of you re-offending, prospects of a rehabilitation seem to be improving.

57     In all those circumstances I think the time you served is sufficient and I am comfortably satisfied that it is sufficient.  Accordingly, you are sentenced in the aggregate of the three charges to 187 days.  I direct that 187 days be reckoned as having been served under this sentence.

58     If I have not made that – disposal orders made and handed down.

59     MS PEZZIMENTI:  There's a forfeiture order.

60     HIS HONOUR:  Yes.  I will find it.  Yes.  That is made and handed down.  Yes, yes, in case I forget.  Pursuant to s6AAA I say but for your plea of guilty I would have sentenced you to imprisonment for a period of nine months.

61     Now, I will leave him on the line for you, Tess, to talk to if you want to?

62     MS THEOCHAROUS:  Thank you, Your Honour.

63     HIS HONOUR:  Otherwise, no other orders we need to make, ladies?

64     MS PEZZIMENTI:  No, Your Honour.

65     HIS HONOUR:  No other orders, Ms Theocharous?

66     MS THEOCHAROUS:  No, Your Honour.

67     HIS HONOUR:  No.  Thanks for that.

- - -