Director of Public Prosecutions v Bardic

[2019] VCC 1767

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00124

DIRECTOR OF PUBLIC PROSECUTIONS

v

ADAM BARDIC

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JUDGE:	HIS HONOUR JUDGE ALLEN
WHERE HELD:	Melbourne
DATE OF SENTENCE:	28 October 2019
CASE MAY BE CITED AS:	DPP v Bardic
MEDIUM NEUTRAL CITATION:	[2019] VCC 1767

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Thomson
For the Accused	Mr J. Blackley

HIS HONOUR

1Adam Bardic, you have pleaded guilty at this court to one charge of intentionally causing injury, two charges of criminal damage, one charge of theft and one charge of reckless conduct endangering persons.  There were several related summary offences which were uplifted and to which you also pleaded guilty.  Namely, assault with a weapon, unlicensed driving, commit indictable offence whilst on bail and another charge of assault with a weapon.  Those summary offences arise out of the same circumstances giving rise to the charges on the indictment.

2You also admitted to a large number of prior criminal convictions going back many years.  The earliest recorded conviction is in 1988.  Significantly, one of the charges found proven against you on that occasion was a charge of criminal damage.  You have many prior convictions for criminal damage, many prior convictions for theft, many prior convictions in relation to driving, numerous prior convictions in relation to intoxication, driving vehicles whilst intoxicated, being drunk in a public place and being drunk and disorderly.  You also have numerous prior convictions in relation to what is clearly a long term drug problem, including, possession of cannabis, cultivation of cannabis and the like.

3The nature of your convictions is consistent with what I have heard about your life.  It is significant to note that, whilst you have a large number of prior convictions, most of them have resulted in community dispositions because, relative to the extremely grave criminal conduct which brings you before this court, those matters were less serious.

4You only have one prior conviction for any offence involving violence.  That was a conviction that was originally recorded against you in the Magistrates' Court in 2010 for recklessly causing injury.  Many of the prior sentencing orders have sought to have you assessed and treated in relation to your life long problems with intellectual disability and, more recently, acquired brain injury, drug abuse and alcohol abuse. 

5The circumstances of your offending were set out in the Summary of Prosecution Opening, which was read to the court, tendered and marked as Exhibit 1.  That summary describes you as having been a 48 year old man who was living 'an itinerant lifestyle' in the Rosebud area.  Most of your convictions were recorded at courts on the Peninsula.  As I understand it, you are quite well known around the area.  For example, when the police on one occasion noticed you scurrying off on your bike, they knew who you were.

6The victims and witnesses in this case recognised you.  The fact that you were there on that occasion and committed this vile, violent, horrific offending in a public place is a tragedy on various levels.  Primarily, it is a tragedy to the victim, Ms Mullenger, and her two young daughters who experienced and witnessed what occurred.  It has damaged them profoundly already and that damage is likely to be lifelong.  The injuries to Ms Mullenger are physical and she will go on, probably for the rest of her life, experiencing the physical residue of what you did to her.  Everyday this is a reminder of the horror that occurred, not only to her but also to her two innocent children.

7I was told this morning that they, the two little girls, are about to start formal psychological counselling to help them recover psychologically and emotionally from what has occurred and what they have witnessed.  I will say more about those matters in due course.  The impact on the victims, Ms Mullenger and her daughters, is set out in sad and compelling detail in the victim impact statements.

8On another level, it was a tragedy that you were there in the state that you were in.  The previous month you had turned up to Corrections telling them that you were feeling very distressed because you were unable to remember things that the police said you had done in relation to previous offending.  When Corrections directed you to go to your doctor to get a mental health plan, you failed to keep the appointment.  On another occasion, you turned up at the doctor’s on the wrong day, but eventually you made it there and you saw the doctor.  He has reported in his notes that you turned up telling him you wanted a mental health plan but he could not work out what it was all about because Corrections had sent a form with you that included no information, detail or explanation as to the extent, and the depth, of your problems, which clearly needed close attention, treatment and supervision, to try and avoid the risk of you reoffending.  While it is not the doctor's fault that you were sent away without a mental health plan, eight days later you did reoffend: this horrific incident occurred.

9On 13 July 2018, the evidence reveals, you attended at a local hardware store in Rosebud and purchased a tomahawk, hammer and glue.  You were well known to the shop assistant.  She says that you would come in every second or third day to buy that particular kind of glue.  She noted that on that morning you were 'unusually agitated, fidgety and limping badly.'

10Later that day, at about six o'clock in the evening, Ms Mullenger was on her way home from work.  She is an ambulance officer employed by Ambulance Victoria.  It was a Friday night and she had just completed her shift.  I assume she had picked up her children from where they were being cared for and they decided to go and buy some fish and chips for tea.  The shop was located in a busy public place on the Nepean Highway, Rosebud.  Ms Mullenger went in with her two children.  She was still wearing her uniform.

11Upon entering the store she saw you nearby.  You were familiar to her.  She recognised you from work.  She knew, or believed, that you were someone who was homeless or itinerant, who at some stages had lived on the Rosebud foreshore.  She decided not to engage with you.  While she was in there ordering you were loitering about in the street. 

12Another woman drove up to the fish and chip shop and parked in a nearby parking bay with her daughter and her granddaughters, aged eight and four.  That woman's daughter left the vehicle and went into the fish and chip shop to order that family's fish and chips.  While they were waiting, that is the grandmother and the grandchildren in the car, you approached their vehicle.  The grandmother locked the car doors.  She was horrified to see you trying to open the front passenger door handle, trying to get in, before you turned away and headed towards Ms Mullenger. 

13By now she had come out of the fish and chip shop and returned to her car.  She had begun to put her daughters back into their car seats when she felt someone come up from behind her and put their arm around and over her shoulder, and across her neck with their thumb, feeling the area under her left ear.  Maybe partially as a result of her training, she instinctively pushed the arm down away from her neck.  But, as she did, she instantly felt two slashing motions across her chest.  It is thought you were attempting to cut her throat but that is speculation.  But you were certainly attempting to harm her in some way, and you did.

14The slashing motions across her chest resulted in a serious injury, namely, a deep wound to her chest, which required multiple sutures and has left a serious and permanent scar.  Those circumstances give rise to Charge 1 on the indictment, causing injury intentionally, and also the charge of committing an offence whilst on bail.  You were on bail in relation to those other matters that you had expressed distress about to the Corrections workers, when you told them you could not remember the circumstances of what had occurred.

15Ms Mullenger cried out in alarm, and no doubt pain, and you fled the scene.  Witnesses attended.  She asked for someone to dial 000 and they could not do this, so she did it herself.  She dialled 000, and eventually police, and an ambulance, arrived.  You had ridden off on your pushbike and disappeared.  All of this was captured on CCTV footage. 

16Ms Mullenger was taken by ambulance to the emergency department at the Frankston Hospital and treated for a deep, long laceration to her upper left chest.  The laceration was so deep that it extended down into subcutaneous fat and muscle.  Fortunately, however, there was no intrathoracic trauma. 

17About half an hour later that evening, Leading Senior Constable O'Callaghan was on her way to attend the scene of the stabbing when she was redirected to attend at an address in Rosebud, in response to a report that a man had been witnessed breaking into a vehicle.  When she arrived she saw a male wearing a dark jacket crouched down behind some bushes.  On her approach, the male got on his bike and quickly rode off.  She recognised that male as you.  She then saw a Holden sedan with all of its windows smashed, including the front and rear windows.  Those circumstances give rise to Charge 2, the charge of criminal damage.

18A couple of hours later, at about 8.40 pm, Mark James and his wife were in the process of locking up their takeaway food shop in Ninth Avenue, Rosebud, when his wife noticed you peering through the front window.  You were told that the store was closed, but you yelled that you wanted food.  Mr James came and told you that all the appliances were turned off.  He then heard what he has described as an almighty crack, as you struck the glass door with the tomahawk.  He looked over to see you strike the door again, a second time.  Mr James and his wife went outside.  You raised the tomahawk above your head and yelled, 'I want food.'  He told you to wait and acted as if he was getting you some food but in fact dialled 000.  He described you, amongst other things at the time, as 'wild looking.'  Those circumstances give rise to Charge 3, the charge of criminal damage to the glass door and also summary offence 18, the first charge of assault with a weapon.

19About 50 minutes later at approximately 9.30, an elderly couple were driving along Point Nepean Road towards Dromana, having attended a function at the Rosebud Bowls Club.  You were driving a stolen vehicle in the opposite direction along the Point Nepean Road.  You suddenly veered across the road, out of control apparently, narrowly missing the vehicle driven by Mr Gault.  The vehicle you were driving spun out of control and slammed into a tree.  There was significant damage to the vehicle and the tyres were shredded.  The elderly couple immediately pulled over to render assistance, concerned about your welfare.  The circumstances of the driving that I have just described give rise to Charge 5, the charge of reckless conduct endangering persons.

20The vehicle that you had stolen had been taken from a car space earlier that night near the Rosebud Hotel, where it had been left by its driver.  The fact that you were driving that stolen vehicle in those circumstances gives rise to Charge 4, the charge of theft in relation to that motor vehicle.

21In any event, Mr Gault went to the driver's door to render assistance to you.  He saw you sit up and reach into the passenger side of the vehicle and suddenly exit the car, standing up with a tomahawk in your right hand and a hammer in your left hand, holding them at shoulder height.  You then advanced towards
Mr Gault, coming within arm's length of him, before turning to the right and walking straight out into oncoming traffic.  Mr Gault's wife remembers screaming out to her husband, warning him that you had an axe.  She recalls that, as her husband turned and ran away, you swung the tomahawk at him but missed him by some margin.  Those circumstances give rise to summary offence Charge 13, assault with a weapon.

22At about 2.45 am the following morning, 14 July, you were seen by police to be loitering about outside the Rosebud Police Station and you were arrested.  You were hospitalised for neck and leg injuries, that you had somehow sustained, and were discharged four days later into police custody and then interviewed.  You subsequently explained that the circumstances which led to you being outside the Rosebud Police Station in the early hours of the morning were that you had woken up on the Rosebud beach in your underwear, not knowing what had happened.

23You claimed that you could not recall how you got there.  You went to the police station to report what you believed had happened to you, namely, that someone had done something to you, taken your clothes and stolen your bike.  That is the final part of the story of these events.  Each part of the story, it seems to me, reflects that you were far from in your right state of mind. 

24I am not a psychiatrist or a psychologist.  None of the experts in this case have even attempted to resolve the mystery, or the mysteries, of what was going on in your mind that afternoon, that evening and in the early hours of the morning.  It is clear to me, however, that your conduct was far from rational; it was bizarre.  In particular, your attack upon Ms Mullenger, and your other conduct, seems to lack any motivation, any reason.

25Your conduct is consistent, in my view, with the opinions expressed by the expert, in that it was probably the product of your intellectual disabilities, notably, your acquired brain injury, in combination with alcohol and drug abuse.

26When you were interviewed you were ostensibly cooperative with the police, as your counsel has indicated, but you were emphatic, as you have been with everyone who has spoken to you about these events since (Corrections workers, the psychologists and the psychiatrist), that you have no recollection of the events in question and can provide no explanation for your conduct.  You have repeatedly said that what occurred was terrible, but it is not something that you would have done and you cannot explain why you did it. 

27Having been interviewed, you were charged and remanded in custody.  You have now been on remand since 14 July last year. 

28As I mentioned earlier, victim impact statements were tendered, and I do not propose to go through them in detail now.  It is sufficient to briefly summarise them in the following way: in her victim impact statement Julie Mullenger describes, as I have said, in comprehensive and tragic detail, the multifarious ways in which your appalling conduct has impacted upon her life. 

29First, there is the physical injury, the pain, the surgery and the ongoing aches and discomfort that she continues to suffer.  There is the ugly scar, which causes her embarrassment, and is a constant reminder to herself, and her daughters, of the traumatic events that occurred on that Friday the 13th.

30There is the emotional and psychological impact.  She explains that she has developed an ulcer from the stress of what has occurred, physically and mentally.  She is still receiving fortnightly treatment to deal with the trauma that she suffered, the emotional and psychological trauma.  These things have affected her life in many ways.  Amongst other things, she is hyper vigilant.  She experiences impaired sleep and nightmares.  She is constantly fearful for the safety of herself and her daughters.  As she puts it, she has a generalised loss of safety in the world.

31It has affected relationships.  Her life has been impaired by fatigue and an ongoing sense of guilt and shame, which of course is not a rational feeling that she should experience, but it is a natural one.  It has affected her social life.  It has affected her career in numerous ways.  It has had a significant impact upon her already strained financial circumstances as a single mother raising two daughters. 

32I will conclude this summary in relation to Ms Mullenger by quoting this sentence:

'Adam Bardic on Friday 13^th, when he stabbed me, has sent my life into a downward spiral, which I am still struggling to keep afloat from.  He has ruined the life that I know, taken the innocence from my daughters and ruined the life that we will have in the immediate future while I am recovering.'

Later, and finally, she says:

'Before the attack life was very challenging as a single parent of two very small girls but I coped and provided well for all their needs.  The stabbing was the last straw that broke my back.'

33The impact upon her young daughters cannot be exaggerated.  The victim impact statements describe the immediate trauma that each of them suffered, having witnessed what was done to their mother by you, as they sat in that car.  Neither of them could be calmed while waiting for paramedics.  They were screaming, wanting to be with their mother, as she was taken away for treatment.  They are emotionally and psychologically scarred, with feelings of insecurity, hypervigilance, loss of confidence, loss of belief in self, distrust of other people, sleep disturbances and constantly reliving the events, making statements and asking questions about them.  As I have said, each of them requires ongoing psychological counselling which will commence within the next week or so.

34As your counsel conceded at the outset of his very comprehensive and balanced plea submissions, these charges, in particular Charge 1, are a very serious example of this type of offending.  There are numerous reasons that highlight how serious this offending is.  First, and most obviously, it was committed upon an innocent woman who had her back to you, for no reason whatsoever, in the presence of her two small daughters.  It is difficult to imagine anything more horrific.

35That horrific act was committed in an extremely public place and witnessed by innocent bystanders.  I do not have victim impact statements from them, but I have little doubt that there were many people who saw what occurred, who have also suffered traumatic consequences, as a result of what they witnessed and may continue to live with them.  There were two small children in the first car that you tried to enter.  It is likely that they witnessed what happened also and there were other witnesses whose statements are contained in the material. 

36This horrific assault was not only committed in a very public place, in a peaceful shopping centre, outside a fish and chip shop where families were buying their tea, but it was committed by a man who was on bail at the time, you, and on a community correction order.  Your offending breached both those court orders.  The seriousness of the offending is also highlighted by its impact, physical, mental and emotional, as I have described already, on Ms Mullenger and her daughters.

37The attacks on the other victims involved were also serious.  For example, on the couple in the takeaway food store, as you violently smashed the window as they were locking up their business, and then brandished the tomahawk in a threatening way at them.  Also, the elderly couple who witnessed your dangerous driving and then came to your assistance, only to be threatened by you brandishing the hammer and the tomahawk. 

38So your offending calls for a significant sentence of imprisonment, and your counsel conceded that.  Your counsel conceded that the sentence needed to be so serious as to preclude any suggestion that you might be released on a combined sentence of imprisonment and community correction order.  That was a very proper concession that he made, and a realistic one.

39Your counsel then put before me a number of mitigating factors, which he is required to do pursuant to his duty to assist the court, and his duty to represent you.  First, in relation to the circumstances of the offending, whilst conceding that they do represent very serious examples of these particular offences, he asked me to take into account that the offending clearly lacked any sophistication, pre-planning or motive.  Further, he asked me to take into account that it was of short duration, seemingly impulsive and, as he put later, explicable, to some extent, at least, by your serious mental impairment.

40He asked me to take into account, and I do of course, as I am required by law to do, the fact that you pleaded guilty to these matters at an early stage in the proceedings.  The prosecutor has not taken any issue with the fact that you are entitled to a significant sentencing discount by reason of that plea.  Your plea has avoided the need for your victims and the witnesses to come forward, to relive these terrible events by describing them in evidence and being questioned about them.  Your plea of guilty has avoided the need for the community to conduct protracted proceedings.  The law says that that means your plea has facilitated the course of justice. 

41Your plea of guilty is also evidence you that accept responsibility, even though you cannot remember these things.  You accept responsibility and are both remorseful and regretful for what occurred.  In relation to the question of remorse, for the purpose of sentencing you, on the balance of probabilities, I accept that you are remorseful.  At the outset, when the police told you during the interview what had occurred, you said words to the effect, 'that sounds terrible', and indicated your remorse.  You have now been interviewed by a number of people, experts from Corrections, a neuropsychologist and a forensic psychiatrist, and they all echo what you have told your counsel, that you are very sorry for what you have done.

42I was told by your counsel something about your upbringing, and personal circumstances, and those details are set out in the reports which were tendered: the original neuropsychological reports which were tendered by the defence, the reports of Dr Fratti and, subsequently, the reports from Forensicare and Corrections.  Those reports stated that you were born in Victoria.  You have two siblings, a brother and a sister.  You attended school in the south eastern suburbs, or on the Peninsula, and it seems that you have spent most of your life in that area of extended Melbourne.

43According to some reports, it seems that your education was marred by obvious intellectual difficulties.  You struggled with reading and writing.  You required special help.  Those difficulties were no doubt aggravated by the fact that, as a result of an accident you suffered at the age of 12, you underwent extensive surgery and hospitalisation for a period of months.  This was followed by rehabilitation for a period of years as a result of, amongst other things, having your right eye removed.  No doubt, this interfered with your education, which was already problematic.

44Unsurprisingly, your adolescent years were marked by truancy.  You had to repeat Year 8 and you left school at around the age of 14.  Your employment history has been chequered.  You have limited education, and as I understand it, limited literacy and numeracy, but when you could, you have worked and in recent years, in particular, according to what you have told everyone, and I have no reason to doubt, you have done a lot of community work with the Salvos and St Vincent De Paul, assisting on food vans and the like.

45At the age of 27, as a result of a bout of severe depression and anxiety, you attempted suicide by hanging yourself and were admitted to the Mornington Peninsula Psychiatric Ward for some time.  As a result of a severe assault that occurred in 2013 you suffered significant cranial and brain damage, which lead to extensive hospitalisation and treatment.  Later that year, in 2013, you were diagnosed as having suffered a severe acquired brain injury, which affects you in numerous ways.

46I will turn now briefly to some of the findings that have been made about you by the experts who have seen you and provided reports to the court.  Having described your background, including your early educational deficits and problems, and your previous psychiatric history involving severe depression and anxiety, and an attempted suicide by hanging, Dr Fratti administered a number of neuropsychological tests in order to assess your neuropsychological functioning.  That testing revealed that you experienced what is described as borderline intellectual abilities.  It further revealed that prior to the acquired brain injury you probably had a pre-existing IQ in the extremely low range of 63, or at least, somewhere between 60 and 68.  That premorbid intellectual deficit was, of course, then aggravated by the acquired brain injury. 

47Under the heading, Summary and Opinion, Dr Fratti says at paragraph 42 of her report:

'Against the background of estimated borderline premorbid abilities
Mr Bardic's current neurocognitive profile was characterised by severe primary impairment in speed of information processing.  It also demonstrated profound impairments in aspects of executive functioning such as verbal fluency and idea generation, cognitive flexibility, divided attention and self-monitoring.  On the other hand, working memory, verbal and non-verbal reasoning and remaining aspects of executive functioning were commensurate with premorbid expectations in the borderline range.'

At paragraph 43 she says:

'The aetiology of his cognitive impairment is largely due to the enduring effects of his acquired brain injury, likely exacerbated by long term alcohol and cannabis misuse…The residual effects of Mr Bardic's ABI are permanent in nature.’

At paragraph 47 she says:

'In my opinion Mr Bardic's ABI does not preclude him from understanding the wrongfulness of his actions after the fact but it is likely to affect his ability to efficiently and readily think through the potential consequences of his behaviour when caught in highly stressful situations, particularly under the influence of alcohol or other substances.'

Finally, at paragraph 48 she says:

'Because he was substance affected at the time of the alleged offending his ABI related cognitive difficulties would have been exacerbated and his ability to make sound and reasonable decisions and judgments at the time of the alleged offending would have been impaired.  His cognitive impairments therefore are likely to have partially contributed to the offending.'

48In her addendum report, Exhibit C, Dr Fratti, who saw you on a second occasion about five months after the first assessment, reiterated that the neuropsychological reports from January 2019 were substantially unchanged when she saw you again, confirming the impact of the ABI and associated substance misuse on your cognition.  She added:

'Frontal lobe impairments in the form of poor impulse control and self-monitoring would appear to have a significant impact on his decision making and actions.  Furthermore, self-inhibition deficits may result in poor behaviour control and an inability to change set well learned behaviours.'

49She reiterates later in the report that your ABI condition is permanent and you are likely to experience persistent cognitive behavioural and emotional difficulties going forward, and that you will need ongoing support as you progress into older adulthood.  She says that, in general, you will have a better chance of functioning in a setting that is well organised, and has clear routines, such as where you are.  In this sense the structure inherent in a prison environment tends to lend itself to improved functioning in individuals with ABI.

However, she also says:

'Individuals suffering from mental health issues are at a higher risk of deterioration in prison unless formally supported with close supervision.  Mr Bardic has a premorbid history of depression and a documented episode of attempted suicide at age 27.  In January 2019 Mr Bardic reported very elevated symptoms and anxiety and moderate symptoms of depression.  Four months later he endorsed ongoing elevated symptoms of anxiety.  It is important that Mr Bardic's mood symptomology receives close medical attention and systematic review to avoid the risk of deterioration in the prison setting.'

50I have received a report from Corrections.  On the basis of the information I have received, it seems that you are receiving little treatment, if any, in custody.  Later in her report Dr Fratti emphasises the need, whilst you are in custody, for you to receive intensive support, so that upon your release you are not in a worse position than you are now.  That intensive support, as far as I can determine, is not being provided.  I can only hope, on behalf of the community, that when I send these reports to the Correction authorities some such intensive support will be provided not only in your interests, but much more importantly in the interests of the community, so that upon your eventual release you are rehabilitated and the community is protected from any future similar offending on your part.

51The independent report from Forensicare, the State Government psychiatric service, is consistent with the report of Dr Fratti.  There is no issue about that.  The prosecutor has conceded that this court must take into account those sentencing principles which relate to offenders  with mental conditions.

52The Forensicare psychiatrist, Dr Hanratty, at paragraph 84, concludes his report as follows:

'Mr Bardic's early life was marked by physical ill health, poor academic achievement, difficulty attaining occupational milestones and early onset of substance use and antisocial behaviour.  I suspect that these early life difficulties predisposed him to developing behaviour which led him into his intermittent involvement with the criminal justice system.  It is likely that these difficulties were perpetuated by his limited intellectual abilities, alcohol and cannabis use and poor social supports… Following Mr Bardic's acquired brain injuries in 2013 and 2014 there was a decline in his cognitive functioning.  The decline in cognitive functioning included frontal lobe impairments in the form of poor impulse control, which would appear to have had a significant impact on his decision making capacity… Given Mr Bardic's cognitive deficits, secondary to his acquired brain injury and the impact of substance intoxication at the time of offending, in my opinion Mr Bardic would have been unable to make calm and rational choices at the time'.

53Again, the Forensicare psychologist recommends that you should be reviewed on a regular basis whilst in gaol, and linked with drug and alcohol services, and other interventions, targeted to your cognitive ability and level of insight.

54A report that I have received from Corrections Victoria regarding your management whilst on remand for the last 18 months, says as follows:

'Contact was made with Forensic Disability and Justice Health for information on any assessments or treatment conducted on Mr Bardic since he was remanded on 14/07/18.  Justice Health confirmed that Justice Health clinicians do not proactively manage acquired brain injury whilst an offender is in custody.  She reported that each offender takes part in an initial assessment to determine if there any medical conditions that need to be addressed.  Reports confirmed that Mr Bardic had self-reported his ABI and memory loss issues.  It was reported that ABI cannot be treated and it is considered an issue that relates to management of the offender while in custody.  Forensicare would also not be engaged in such cases as Mr Bardic does not meet the criteria of formal mental health diagnosis'.

The assessor then contacted the sentence management for an update from the clinical team about where Mr Bardic is accommodated in Ravenhall.

'Clinicians have spoken to Mr Bardic about his reintegration needs, including accommodation post-release and engagement with community services.  Attempts have been made to engage with him but to no avail.  So to date, Mr Bardic has not completed any of the remand therapeutic programs available at Ravenhall'.

55That is far from a satisfactory situation.  And sadly, it is a common, if not invariable situation.

56Returning to Dr Hanratty's psychiatric report, he also expresses the opinion that upon your release you will require intensive therapeutic management and support.

57I noted this morning that, whereas your offending breaches a community corrections order, that order failed.  I do not blame the correction workers, they do their best with limited funds, limited resources and limited staff.  The government is responsible for adequately resourcing Corrections with appropriately qualified and trained staff, and sufficient levels of staff, as opposed to putting people on short term contracts, with allied services that are accessible, which do not involve waitlists of months and months for assessment, which do not involve long waitlists for treatment, which do not involve people being sent off for 'an episode of treatment', meaning five sessions of counselling, even in circumstances where they have long term serious psychiatric and psychological issues, which have contributed to their offending history.

58In any event, what happened here was a failure, despite what appear to have been efforts you made, with your symptoms of acquired brain injury, which include difficulties remembering appointments, a chaotic lifestyle, inherent unreliability and inability to plan.  By reason of these problems you missed appointments, but you also kept many appointments.  In particular, you eventually kept the appointment to attend the doctor.  For some reason it was considered appropriate, notwithstanding your long history and your diagnosis of an acquired brain injury, and your obvious problems that the Corrections workers had recognised, to simply send you off to the GP to get a mental health plan.  A mental health plan and treatment are funded by the Federal government, by Medicare.  It provides for five sessions of counselling, usually with a psychologist somewhere.  When you were sent off to the doctor, the doctor was given no background information.  He had no idea of your background and your complex issues.  So he sent you away. 

59And so it was, eight days later, the people at the hardware store, who knew you well, noted your condition, ‘unusually agitated, fidgety’.  Corrections workers had noted, when they had seen you a few weeks earlier, that you were ‘distressed’.  Indeed, you were unable to remember things that you had been accused of.

60So I can only hope, on behalf of the community, and on behalf of Ms Mullenger and her daughters, the helpless victims in this case, that you are not only punished appropriately for you have done, but also that you are provided with every opportunity to receive appropriate assessment, treatment and support whilst you are in gaol.  And when you are released, on parole, hopefully you will be provided with further appropriate assessment, treatment and support, so that you are able to live a law-abiding life in the community and not present a future risk to other innocent members of the community.

61I should have noted, that your counsel explained to me, that since you have been in custody over the last 15 months or so, you have voluntarily sought help in relation to drug and alcohol abuse and education to improve your prospects of rehabilitation upon your eventual release.  And that is a matter I take into account in assessing you as having reasonable prospects of rehabilitation, provided that you can receive all of the support and treatment that has been recommended by the experts in this case.

62The sentence that I am imposing is less than the sentence that I would have imposed upon you but for your plea of guilty, and but for, the strong and uncontroverted evidence of the significant matters that affected your intellectual and mental capacity, and your ability to assess your conduct and control your behaviour.  The law says that I must take those matters into account in assessing your moral culpability and the weight to be given to the sentencing objectives of general deterrence, specific deterrence and denunciation.  And I do significantly moderate the weight to be given to those objectives in this case, by reason of that evidence.

63On the charge of causing injury intentionally to Julie Mullenger, Charge 1, you are convicted and sentenced to be imprisoned for four years.

64On Charge 2, the charge of criminal damage to the motor vehicle, you are convicted and sentenced to be imprisoned for one year.

65On Charge 3, the charge of criminal damage to the store window, you are convicted and sentenced to be imprisoned for one year.

66On Charge 4, the charge of theft of the motor vehicle, you are convicted and sentenced to be imprisoned for one year.

67And on Charge 5, the charge of recklessly endangering persons by your driving, you are convicted and sentenced to be imprisoned for six months.

68On the summary charges, you are convicted and sentenced as follows: 
Charge 13, assault with a weapon, nine months of imprisonment; Charge 15, unlicensed driving, three months of imprisonment; Charge 17, commit indictable offence on bail, two months of imprisonment; Charge 18, assault with a weapon, six months of imprisonment.

69The base sentence is obviously the four year sentence on Charge 1.  I order that the following periods be served cumulatively:  in relation to Charge 2, four months of the sentence is cumulative; Charge 3, four months is cumulative; Charge 4, four months is cumulative; Charge 5, two months is cumulative. 

70In relation to the summary charges, the following periods are to be served cumulatively: in relation to Charge 3, three months is cumulative; Charge 15, one month is cumulative; Charge 17, one month is cumulative; Charge 18, two months is cumulative.

71On my calculation, the base sentence is 48 months.  The cumulative periods add up to 21 months.  A total effective sentence of 69 months.  That is five years and nine months' imprisonment.

72I also fix a minimum non-parole period of three years and nine months.

73That is not designed to allow Mr Bardic to get out early, by way of reduction of reduction of penalty.  It is designed to allow a period during which the adult parole board may, if they see fit, release him under strict supervision on parole to facilitate his reintegration into the community in a way that minimises any future risk to the community by reason of his difficulties.

74That sentence of five years and nine months probably seems paltry compared to what has been suffered by the victims.  It is not.  It is a real sentence.  The maximum sentence on Charge 1 is 10 years.  I have to take into account a range of factors in assessing where to apportion the relative weight to be given to moral culpability, general deterrence, specific deterrence, denunciation and rehabilitation.  That includes taking into account, as I think I have made clear but I want to repeat, the plea of guilty which must, as a matter of law, be given substantial weight for reasons that are in the interests of the community.  The law also says, as a matter of principle and humanity, that significant mental issues, which affect the way offenders behave, and explain or partly explain their criminal conduct, or affects their capacity to control and manage their impulses, must be taken into account.  So they are some factors, together with a whole range of other factors that, as you have heard, I have had to take into account in balancing the objective horror of the offending on one hand, with the strong mitigating factors on the other hand.  Mitigating not in the sense of minimising the seriousness of the conduct, but mitigating in the sense of mitigating the punishment that is appropriate and proportionate in all of the circumstances.  I hope I have explained all of that as well as I can and I hope it is of some assistance.

75I would like to acknowledge Ms Mullenger's bravery and courage in the way she has conducted herself in these proceedings.  I would also like to acknowledge the love and care that she continues to provide to her daughters, all the while recognising the immense pain that she has already suffered and will no doubt go on suffering.

76It is necessary for me to make some ancillary orders. Pursuant to s.6AAA of the Sentencing Act, I declare that but for the plea of guilty I would have sentenced you, Mr Bardic, had you not pleaded guilty, to seven years with a minimum of five.  That sentence might also be regarded as less than what some people might expect, but I would still have had to take into account, even if you had pleaded not guilty, to all of the psychiatric evidence that I have referred to.

77I also make an order pursuant to s.464ZF that you provide a forensic sample to the authorities by way of a buccal swab.  That is the authorities will attend upon you and using a swab will obtain a sample of your saliva for your DNA to be placed on the database in the state of Victoria.  Do you understand that?  I am obliged to tell you that if you resist or do not cooperate in that procedure they may use reasonable force to obtain a blood sample.  So you will cooperate with that, I am sure.

78I have made that order because of the grave seriousness of the offending and also bearing in mind that it was not opposed by your very sensible and balanced counsel.

79Further, I make the disposal and forfeiture orders in the terms sought.

80And there are compensation orders to be made to.  I will make the compensation orders, such as they are, in the terms sought to in the written orders, which I will sign in chambers.

81Finally, I declare that you have already served 471 days by way of pre-sentence detention, which will be reckoned as having been served pursuant to the sentences imposed today.

82All right, we will adjourn the court, thank you.

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