Director of Public Prosecutions v Barlow
[2020] VCC 491
•24 April 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-19-00662
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMIE BARLOW |
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JUDGE: | Her Honour Judge Hampel | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 April 2020 | |
DATE OF SENTENCE: | 24 April 2020 | |
CASE MAY BE CITED AS: | DPP v Barlow | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 491 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: Sentence – reckless conduct endangering life – aggravated carjack – mandatory term of imprisonment and minimum non-parole period – disadvantaged childhood – schizophrenia – drug abuse – no special reasons – guarded prospects for rehabilitation – Verdins applied
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Raimondo | Office of Public Prosecutions |
| For the Accused | Mr M. Kozlowski | C Marshall & Associates Criminal Lawyers |
HER HONOUR:
1Jamie Barlow, you have pleaded guilty to two charges of conduct endangering life and one of aggravated carjacking. You have also pleaded guilty to two rolled up uplifted summary offences of fail to keep left of median strip and enter an intersection against red arrow.
2The circumstances of the offending are frankly horrifying.
3At about 3.19pm on 11 December 2018, Fletcher Duke was driving his Toyota Land Cruiser on Eastlink. He was travelling at approximately 95km/h in a 100km/h zone. Although unlicensed, you were also driving on Eastlink. You were seen speeding and weaving through the traffic. You then collided with the rear righthand side corner of Mr Duke’s vehicle, pushing it towards the emergency lane and into the barrier. The vehicle flipped and rolled three times. You collided with it a second time, causing further damage. Mr Duke, remarkably, was not seriously hurt, sustaining nothing more than a sore neck and headaches. The Land Cruiser, which was his first car and one on which he had spent a considerable amount of time and hard-earned money, was written off. It is that which constitutes Charge 1.
4You drove off and parked your car on the centre median strip of Greens Road, about 300m from the collision scene. You then walked back towards Greens Road, where there were some stationary vehicles. You got into the front passenger seat of a van, which was stopped in traffic.
5You asked the driver, Owen Bradshaw, to drive you anywhere he was going. You then told him to drive back onto the freeway, but he refused and continued driving along Greens Road. You offered him money, $500, to go back onto the freeway. Not surprisingly, he was fearful of you. He pulled over, refusing to drive you any further. You got out and ran away. Mr Bradshaw then called 000.
6At 3.45pm that afternoon, you were seen running into a business in Metcalfe Drive. There was an unlocked Renault van parked in the driveway. You got into the driver’s seat and attempted to start it. The owner, Konstantinos Chalatsis, went to his van to stop you. He got into the front passenger-side seat and you tried to push him out. There was a struggle. You managed to start the vehicle and quickly reversed. Mr Chalatsis fell out and struck his head on the ground. You drove off, leaving him face down and unconscious. It is that conduct which constitutes Charge 2. Police and ambulance arrived and Mr Chalatsis was taken to the Dandenong Hospital for medical treatment. He sustained bruising to his head and soreness to his neck and ankle. Fortunately, he too suffered no serious injury.
7At 6.00pm you were in Seaford. You were seen driving over the nature strip and into the front yard of a house at 18 Seabrook Way. You narrowly avoided colliding with the front door of the house. You reversed back onto the road and continued driving in a reckless manner throughout Seaford. Specifically:
a)you drove along Fortescue Avenue towards Bardia Avenue and entered the roundabout on the incorrect side;
b)you entered the intersection of Moresby and Kirkwood Avenue, again entering the roundabout on the incorrect side;
c)you went through a red light at the intersection of Wells Road and Overton Road;
d)when you got to the intersection of Dandenong Road West and Overton Road, you went from the right turn lane, crossed onto the incorrect side of the road and turned right onto Skye Road, again driving on the wrong side of the road; and
e)you continued driving on the incorrect side of Skye Road and then stopped briefly before driving through a red light at the intersection of Frankston-Dandenong Road.
8Those circumstances constitute the rolled-up uplifted summary charges of failing to keep left of median strip and driving through a red traffic signal.
9At 7.30pm that night, you were seen driving the stolen van northbound along Frankston–Dandenong Road. Police tried to intercept you by activating their lights and siren but you failed to stop, accelerated and drove away.
10Just before 8.00pm, you were again seen on the Frankston–Dandenong Road. Police deployed stop sticks to try and stop you. You drove over them, puncturing both front tyres of the stolen van, but you continued driving, ignoring police directions to stop. You drove through a number of red lights, narrowly missing other cars.
11By this stage, the front tyres of the van were so damaged that you were driving on the front rims. You continued driving along Frankston–Dandenong Road, turned left onto the Princes Highway and then into Lonsdale Street in the Dandenong Central Business District. As you approached Clow Street there were several vehicles in front of you stopped at a red traffic light. You rammed the vehicle in front of you in an attempt to drive through the traffic and get away from the police who were still pursuing you.
12Police cars blocked the van in, but you still tried to drive away, colliding with a police vehicle in the process.
13There were, by then, numerous police vans, a police dog and officers armed with batons and capsicum spray. They approached the van and demanded you get out. You refused. The police then used batons to get in. You still would not get out and it was not until the capsicum spray was used that they were able to arrest you. It is that driving from Seaford until your arrest, together with being unlicensed and impaired by drugs, that constitute Charge 3.
14You told the police later that you had not only been under the influence of methamphetamine at the time you started driving, but you had taken some more which you had in your possession, at some stage during this episode.
15After your arrest, you were taken to Dandenong Police Station for questioning. You submitted to a preliminary breath test, which was negative for alcohol, but refused to undergo an oral fluid test. You were so obviously impaired by drugs that you were deemed to be unfit for interview.
16Mr Duke and Mr Chalatsis have both filed victim impact statements. They are only too aware of the danger that your driving placed them in. They both reported the shock they experienced when suddenly placed at such risk of injury by your conduct. Their sense of safety has been adversely affected and each reports being fearful when on the road. Each has also suffered financial loss. Both vehicles were written off. Both suffered losses over and above the insurance payout. Each of them had worked hard to buy their vehicles and each of them needed them for work. The wanton destruction of their property by your appalling driving makes their loss, including the loss of their sense of safety as well as their economic loss, harder to understand and deal with.
17The maximum penalties imposed for these offences are one indicator of the seriousness of the offences. The maximum for conduct endangering life is 10 years' imprisonment and, for aggravated carjacking, 25 years' imprisonment. The summary offences are punishable by a fine, a maximum of 10 penalty units for each (one penalty unit is currently set at $165.22). Aggravated carjacking is an offence for which parliament has directed a term of imprisonment must be imposed and a non-parole period of not less than three years must be fixed, unless special reasons exists.
18Factors relevant to assessing the seriousness of the offending apart from the circumstances which I have outlined, are these:
19This was a protracted course of conduct, over a period of hours. For Charge 1, you were seen speeding and weaving in and out of traffic in the lead-up to the collision and the risk that you posed to other road users was brought to an end only because you collided with Mr Duke’s car. You did not stop and you evidenced no concern for his welfare or acknowledgement of accountability for your conduct, the damage to his vehicle and the injury to him. The force of the impact was substantial, as evidenced by the photographic evidence and the fact that his car, a heavy Toyota Land Cruiser, was written off. Your driving imperilled not only Mr Duke, but all other people who had the misfortune to be on the roadway in that vicinity when you were at the wheel.
20In respect of Charge 2, when Mr Chalatsis tried to stop you stealing his van, you wrestled with him and tried to push him out. The manner in which you then reversed caused him to fall out and hit his head on the ground. He was knocked unconscious. Again, you evidenced no concern for his welfare, or acceptance of accountability for your conduct. You just drove off. Although I accept this was, in a sense, opportunistic, not pre-planned, it is, as the prosecution correctly submits, a bad example of this type of offending.
21In respect of Charge 3, on your own account, you had taken even more amphetamine, despite what must have been your already significant intoxication, before you stole the van and drove off. This was an extended episode occurring at a time of day, late afternoon and early evening on a weekday, when there were many people on the roads, who were placed at risk by your driving. You travelled a considerable distance and in a variety of heavily populated, occupied and built up areas, suburban streets, main roads and the main street of Dandenong. You drove at excessive speed, without regard for the safety of other road users, drove on the wrong side of the road, ignored right of way rules at roundabouts and ran red lights. You ignored police commands to stop, accelerated away from police, drove over stop sticks and, even when the front tyres punctured, kept driving on the rims, adding to the risk you would lose control of the van and imperil even more innocent people. You rammed a stationary car in an attempt to avoid apprehension and then collided with a police car as you still continued to try to drive away. Even then, a measure of how out of control you were was that a police dog and capsicum spray were needed before you could be removed from the van and arrested.
22You were clearly substantially impaired by drugs. Both your driving and your judgment were impaired. You were unlicensed and you were serving a sentence (the CCO component of a combination sentence) which had been imposed for an earlier episode of dangerous driving whilst being pursued by police.
23You, as a member of the community, must understand that you will be held accountable for imperilling other members of your community by driving as you did, by running away from that first collision as you did, by stealing (carjacking) another vehicle as you did and when you were as drug impaired as you were.
24People are entitled to expect that all road users will have proper care and respect for the safety of other road users, drive safely and obey the road rules, stop, assist, and identify themselves if they are involved in a collision, obey lawful police directions to stop and submit to arrest and that they will not be substance-impaired when driving, threaten and imperil people and steal their vehicles. Out of control behaviour of the type you engaged in must be roundly condemned and punished in a way that will send a clear message to all that such conduct is not acceptable.
25Clearly, subject to considerations personal to you, deterrence, both general and specific, denunciation and just punishment weigh heavily in the sentencing mix.
26You were 35 at the time and have a significant criminal history, covering the whole of your adult life. You were first before a court in 2002, at the age of 18 and your most recent appearance before this offending was in September 2017, just over 12 months before the commission of these offences. Your offending history includes many serious and repeated driving offences, including dangerous driving, on one occasion when police were in pursuit, driving at excessive speed, exceed prescribed content of alcohol and failing oral fluid tests, that is, driving whilst under the influence of drugs or alcohol, driving whilst disqualified, suspended or unlicensed, driving unregistered vehicles and fraudulent use of number plates. In addition, you have been dealt with on a number of occasions for offences of personal violence, threats to inflict injury and breach of a family violence intervention order, property damage, weapons offences, including possession of firearms and ammunition, and possession of firearms when, by reason of your criminal record, you were prohibited from possessing them. You have also been dealt with for offences of dishonesty, possession of drugs and commission of offences whilst on bail.
27As I have already noted, at the time of the commission of these offences, you were serving a two year community correction order component of a combined sentence, having served a term of nine months’ imprisonment. You have, over the years, been subject to the full range of sentencing orders, including a non-conviction bond in 2002, community based orders and community correction orders, fines, suspended sentences, straight sentences and sentences where provision was made for release on parole and, finally, that combination sentence. Along the way, you were resentenced for breaching a number of the conditional sentences. It is clear that no individual sentence, or type of sentence, has been effective in deterring you from further offending.
28Weight therefore must be given to specific deterrence and the history of repeat and like offending is clearly relevant also to the weight to be given to denunciation of your behaviour on this occasion.
29What then are the matters relied on in mitigation? You are a man, now 36, who experienced considerable disadvantage in childhood. Your childhood was described by the psychiatrist, Dr Rakov, whose opinion I will refer to in more detail later, as chaotic. Following your parent’s separation when you were five, you lived with your father and paternal grandmother before returning to your mother for a short period at the age of 12. You were then placed in foster care. You had a number of different foster care placements, none, it would appear, of benefit to you, and some, positively harmful. You ran away from your last foster home just before turning 16 and, although two years short of legal adulthood, you fended, or were left to fend for yourself after that.
30Although speaking fondly of your grandmother, you reported otherwise that your childhood was marred by neglect and abuse. Your father abused alcohol, was violent and erratic. You experienced and were exposed to physical and verbal abuse and you reported being subject to verbal, emotional, physical and sexual abuse in foster care.
31Not surprisingly, your schooling was disrupted and you left school at year 8. You reported behaving badly at school and had been expelled multiple times before you finally left. On leaving school, you were, and you remain, functionally illiterate. Despite that, you obtained employment as a bricklayer and apparently maintained that employment until age 19. That apparently was brought to an end when you were hit by truck whilst skateboarding and sustained multiple fractures. Although you reported sustaining a brain injury, a neuropsychological assessment conducted for the purposes of this plea has, for reasons I will refer to later, not been able to confirm that.
32You report having had another period of sustained employment as a concreter for some years in your early 20s. During that time, you were in a stable relationship. You and your partner were buying a house and looking forward to forming your own family. A child was conceived but was stillborn. The grief of that loss triggered a destructive spiral, in which substance abuse featured heavily. The relationship with your partner came to an end, you became unreliable and ultimately unemployable and your life since then, has been a cycle of substance abuse, criminal offending, imprisonment, release into the community and return to imprisonment.
33I take into account therefore a childhood of deprivation and disadvantage, the absence of a stable loving family, parental guidance and the support and meaningful engagement in education which every child in this community should be able to experience. It has made you less equipped, than others better advantaged, to deal with the disadvantages and setbacks that adult life presents. It also provides a context for your significant history of substance abuse in adult life. As an adult you must be responsible for your behaviour. However, the weight to be given to denunciation, general deterrence and to the assessment of your moral culpability must be lessened by what is known to be the enduring effects of childhood abuse.
34You have pleaded guilty and did so at an early stage. You are entitled to a reduction in the sentence otherwise appropriate for the utilitarian value of the plea in advancing the interests of justice. You have saved the time and cost of trial and have spared the victims the ordeal of having to relive the events in the way they would have had to if there had been a trial. I take it as an acceptance of responsibility for your conduct, something conspicuously lacking at the time of the offending itself.
35There has been considerable delay in the hearing of your plea. You have been in custody since your arrest on the day of offending, eight months before the plea was listed. You have spent a further eight months on remand since your case was first listed. The delay of the last eight months has not been your fault.
36The plea was first listed before me in August last year. On the day of hearing, your then-counsel sought an adjournment to follow up the recommendation in the report commissioned from a psychiatrist, Dr Turnbull, to determine whether you were impaired by an acquired brain injury. As that was potentially relevant to sentencing, particularly having regard to the mandatory sentence provisions in relation to the aggravated carjacking charge, I allowed the adjournment.
37I was, and remain, critical of your lawyers for failing to pursue that before the hearing and for their failure to identify and seek to address the manifest deficiencies and non-compliance with the practice note in relation to psychiatric reports intended to be relied on for sentencing hearings in Dr Turnbull’s report. The deficiencies were of particular concern in a case like this, where mandatory sentencing provisions apply.
38When the matter came back on three months later, although Dr Turnbull had provided a supplementary report and despite specific reference to the practice note, in my view the deficiencies in his original report were compounded, not remedied.
39I was, and remain, critical of him for failing to provide a report that conformed with the practice note and of your legal advisers for failing to ensure that a psychiatric report on which they intended to rely conformed with the practice note before filing it with the court.
40In particular, as I pointed out then, the report, even as supplemented, did not set out the basis for Dr Turnbull's opinion that you suffered from schizophrenia, what was relied on for the diagnosis or whether he had made that diagnosis himself or was simply repeating somebody else's. The report did not address the differences between the history provided by you and the prosecution plea summary and, troublingly, the supplementary report did not address the findings in the neuropsychological report which had been commissioned or the contents of the Justice Health records.
41Dr Bourke, who had conducted the neuropsychological assessment, reported you had failed multiple measures of symptom validity, recording results well below those expected of people with a range of cognitive impairments, and reflective of pure guessing.
42One of the concerns raised in the Justice Health notes, to which Dr Turnbull had made reference but which had not been provided to the court, was whether you were feigning or exaggerating symptoms for exculpatory purposes. The failure of the supplementary report to address that was of great concern, having regard to Dr Bourke’s experience.
43Again, I raised my concerns about the deficiencies in the materials, having regard to the potential significance of both a schizophrenia-related paranoid delusional state and an acquired brain injury to a mandatory sentencing offence and sentencing generally.
44Again, I granted an adjournment, so a further psychiatric assessment could be obtained which complied with the practice note and, in particular, which took into account the Justice Health records and detailed the basis for the psychiatrist’s opinion that you suffered from schizophrenia and your likely mental state at the time of the offending.
45The matter was adjourned until February 2020. Again, it had to be adjourned when it returned on that date. A further psychiatric report, prepared by Dr Rakov, had been filed. It provided a sound basis for a diagnosis of schizophrenia and an opinion which, if accepted, could support an argument for special reasons, bringing you outside the mandatory sentence otherwise prescribed.
46The original plea counsel had been replaced by Mr Sonnet. He foreshadowed a special reason submission. However, the night before the hearing, it was discovered that he was conflicted. I am satisfied that both he and the Crown had made reasonable inquiries when he had first been offered the brief and it was an unforeseen set of circumstances that led to the further inquiries which revealed the conflict.
47Unfortunately that led to a further adjournment and then coronavirus hit and when the matter was due to be finally heard last week, technological difficulties (in what was in any event one of the first remote hearings being conducted by this court) prevented me from being able to connect to the remote hearing in which all parties were then present.
48So it is, a week after that and eight months after your matter was first listed for plea, that you finally come to be sentenced.
49I take that additional eight-month delay as an added burden of imprisonment to which you have been subjected, and to which you should not have been. This is due to the uncertainty you experienced about your fate during that time, the lost possibility of being accommodated in a less restrictive environment during that time and the fact that you have been unable, during that time, to be classified and dealt with as a sentenced prisoner, which would have allowed you to access the additional facilities and benefits available to sentenced prisoners. The effect of the delay in respect of the latter is compounded now because the measures in place to address the coronavirus pandemic will likely restrict reclassification between prisons and the provision of courses and services for some time to come. That lost time between August last year and the coronavirus lockdown cannot be restored or compensated for.
50Apart from these matters, the principal matter advanced on your behalf related to your mental state and cognitive functioning. I referred to the fact that I consider Dr Rakov's report as comprehensive and helpful. She relied not only on what you told her, but on what was contained in the extensive Justice Health records, which had been compiled over the years and which were belatedly subpoenaed by your legal advisors and made available to Dr Rakov. The Justice Health records contain the following information.
51Apart from one involuntary admission in 2009, apparently following a request by you to police to shoot you when you were arrested for breaching an IVO, all other mental health assessment and reports relate to your various periods in custody. In 2011, when remanded in custody, you reported having seen a psychiatrist in the past for a drug induced psychosis and having previously been diagnosed as bipolar. In 2012, your mental health intake screening assessment noted a long history of treatment with antipsychotics. The diagnosis, or reason for treatment with antipsychotics was not clear. Differential diagnoses of borderline personality disorder, schizoaffective disorder or likely drug-induced psychosis were noted. You also reported a history of depression. In 2014, the records reveal that you sought a psychiatric review, citing worsening anxiety and trouble sleeping.
52Upon readmission to custody in 2017, a psychiatric registrar noted that, against a vague history of anxiety and depression that needed clarification, you then presented as acutely psychotic with significant polysubstance abuse (primarily methamphetamine and cannabis). That note concluded, ‘given his description and the report in GP notes, coupled with the nature of his symptoms today, persisting over weeks since incarceration, schizophrenia must be considered.’
53Ten days later, Dr Pang, a different psychiatric registrar, noted, ‘first episode psychosis with persecutory delusions and auditory hallucinations, possibly schizophrenia.’ A differential diagnosis of prolonged methamphetamine-cannabis induced psychosis was recorded. Two weeks later, Dr Pang noted that, although you were compliant with olanzapine, you remained floridly psychotic and again noted this as first episode psychosis. He or she also noted, ‘ongoing systematised persecutory delusions and auditory hallucinations’, which had possibly been ongoing since September 2016. Five weeks later, another psychiatric registrar, Dr Joynt, recorded you were suffering ‘psychotic illness with atypical presentation’. He noted there were signs of improvement, namely some acceptance that the phenomena may be unreal and part of the illness. A month after that, Dr Pang again assessed you and noted that your case was ‘diagnostically difficult.’ He or she was still of the view that it was a likely ongoing first episode of psychosis, likely due to minimal medication adherence, although noting again some unusual aspects to your presentation.
54On review a fortnight later, consultant psychiatrist, Dr Pandurangi, noted a plethora of psychotic symptoms, the possibility that medication may have had a moderating effect on your mental state and expressed the clear view that this was not a drug-induced psychosis, given the period that you had been in custody and prescribed a high dose of olanzapine. He concluded that, at this stage, he considered your presentation was genuine and would treat you as a person with psychosis.
55Two weeks later, you were reviewed by Dr Bell, who recorded paranoid psychosis consistent with schizophrenia. He noted that he was persuaded that your account of symptoms was genuine and that you were ‘a very distressed and fearful man.’ He also noted a report from your then-lawyer that you were significantly more organised since you had commenced antipsychotic medication.
56That appears to be the end of your psychiatric assessment in custody during that period.
57You were assessed again by Dr Bell on 13 December 2018, that is two days after you were remanded in custody following the commission of these offences. Dr Bell then noted,
At face value his presentation is of paranoid psychosis as before, with symptoms consistent with a well-organised schizophrenia/protracted ice related paranoid psychosis. I am a little concerned with the possibility that some of his reported symptoms may have an exculpatory function when it comes to court and therefore the possibility of elaboration of symptoms can't be completely discounted. Nevertheless he is clearly a very distressed man and in need of treatment.
Dr Bell confirmed that opinion on review two weeks later. Reviews by a different consultant psychiatrist, Dr Jindal, and yet another psychiatric registrar, Dr Ting, over the next two weeks confirmed the continuing active symptoms of psychosis. Dr Jindal also pointed to the need to observe the potential for the feigning of symptoms, noting Dr Bell's concern in relation to the potential exculpatory motivation. By late January, Dr Ting noted vague descriptions of psychotic symptoms, a possible underlying low-grade psychosis without functional impairment and continued to flag the need to consider the possibility of a factitious disorder.
58Subsequent assessments in March, April and May of 2019 recorded a gradual diminution in symptoms, apparently responsive to medication, but with some medication-seeking behaviour. By then it seems a diagnosis of schizophrenia, against a history of psychosis and polysubstance abuse, had been accepted.
59Dr Rakov noted that the history given by you was largely consistent with the reports in the Justice Health notes.
60Based on the history provided by you, her assessment of you and the review of the Justice Health notes, she was of the opinion that your symptoms did meet the diagnostic criteria for schizophrenia. She came to that view having regard to the prominent psychotic symptoms that you reported to her, consistent with the reports of delusions and hallucinations which were reported in the Justice Health notes I have summarised and what she characterised as, in her opinion, the absence of evidence of secondary gain.
61Against the possibility that the reported symptoms might have been for exculpatory purposes or secondary gain, she noted that you reported that the side-effects of the anti-psychotic medication with which you had been treated included a significant weight gain of 35 kilograms since being brought into custody, that is half your bodyweight as it was at the time of your admission into custody, and reports of lethargy, feeling sedated or 'dumber', which you reported as distressing.
62Dr Rakov also noted that Dr Bell, the psychiatrist who had first raised the possibility of secondary gain, had still expressed the view during your 2017 period of imprisonment that your account of your symptoms was genuine. He described you as a distressed and fearful man and upon your readmission in 2018, Dr Bell again noted that you were distressed and in need of treatment.
63At most, it would appear to me that there is a concern that there may have been an exaggeration of your symptoms, rather than a fabrication of them, but whether it was related to an exculpatory purpose, as Dr Bell queried, or whether it was for medication-related purposes, as other psychiatrists who assessed you whilst in custody queried, clearly is difficult to say and impossible for me to resolve.
64I proceed therefore on the basis that the evidence establishes, on the balance of probabilities, an established diagnosis of schizophrenia predating the commission of these offences.
65I accept Dr Rakov's opinion that, at the time of engaging in the conduct constituting the offences, you appear to have been experiencing significant symptoms of psychosis. She notes that you have consistently, since you were remanded in custody, reported intrusive delusional ideas about others and auditory hallucinations, although the records and your reports suggest that they have improved somewhat over time with medication.
66The delusional ideas and auditory hallucinations you reported included a belief there was a task force out to get you and a cult of people trying to convince you to hang yourself. You told Dr Rakov that, on the day before offending, after sleepless days and nights of methamphetamine use, you believed that you were being followed by off-duty police. You told her that, on the following day, when you collided with Mr Duke's car, you recalled thinking that if you stayed there they would get you and that you had an urge to run despite your better judgment. You described your subsequent conduct to her as being informed by significant fear for your life due to the cult. You also told her that, after waving Mr Bradshaw down and being dropped by him at a service station, you panicked when you realised you had methamphetamine on you, so you swallowed it.
67You reported then that everything became more intense and your ideas about people getting you were heightened. You told Dr Rakov that your actions were out of character and, should you be in the same situation today, you would act differently.
68It was based on that that she formed the opinion that your reason for acting as you did was secondary to your paranoia and fear and not out of pre-meditation or malice.
69I find that somewhat difficult to accept having regard to your criminal history generally and, in particular, the most recent driving-related matter for which you had served a term of imprisonment and were still subject to the conditions of a community correction order at the time of this offending.
70Significantly, in terms of the assessment of the correlation between your substance abuse, your paranoia and your schizophrenia at the time of the offending, Dr Rakov said:
Given his diagnosis of schizophrenia it remains indistinguishable as to whether Mr Barlow was acutely intoxicated and psychotic as a result of methamphetamine use at the time of the alleged offending or experiencing a relapse of schizophrenia precipitated by the use of amphetamine. These are essentially impossible to disentangle. On the balance of probabilities, it is likely to have been a relapse given the pre-existing psychotic illness first diagnosed in 2017.
71It is clear that a person's moral culpability and therefore the weight to be given to general deterrence is reduced if there is a real connection between a mental illness and their offending.
72It is equally clear that self-induced intoxication is no mitigator. In fact, it can be, and I consider in these circumstances that it is, an aggravating factor. The correlation between your substance abuse and psychosis was, it would appear, abundantly clear during your previous term of imprisonment when you were under psychiatric care and receiving treatment for psychosis. That you were substantially impaired by substances that you had taken is evident not only on your own report as recounted by Dr Rakov, but also by the fact that you were unfit to be interviewed on arrest. You clearly were aware enough of what was going on to agree to submit to a breath test to test for alcohol, but you refused to undergo an oral fluid test.
73You also reported that, as a result of being hit by a truck as a 19-year-old, you sustained an acquired brain injury. A neuropsychological assessment was conducted by Dr Bourke. As I have already stated, you failed several major measures of symptom validity which led to Dr Bourke abandoning formal testing, due to its limited utility.
74In his report, he concluded:
Consequently, no valid or reliable measure of cognitive function was obtained and further in-depth testing was not pursued. The reason for Mr Barlow's poor performances on measures of symptom validity is not clear but may well be reflective of motivational factors secondary to his recent diagnosis of schizophrenia.
… Mr Barlow clearly presents as an individual with longstanding learning difficulties/poor literacy and low levels of cognitive function. Mr Barlow's history of learning difficulties raises the potential of an underlying specific learning disability. His past alcohol and illicit substance use that commenced during sensitive periods of brain development, however certainly places him at risk for an acquired brain injury and may well have exacerbated his learning difficulties. Although Mr Barlow reports being hit by a truck when he was 19 years of age, there was no convincing history of head injury or post-traumatic amnesia to suggest he sustained an associated traumatic brain injury. Mr Barlow also returned to work following his accident with no seemingly resultant cognitive change.
A review neuropsychology assessment could be considered at a time when Mr Barlow's mental health treatment is optimised.
75What follows from that is that there is no evidence of an acquired brain injury or cognitive impairment which would operate so as to mitigate your moral culpability or to be taken into account in considering the burden of imprisonment or, for that matter, in diminishing your prospects for rehabilitation.
76In his plea submissions, Mr Kozlowski submitted that special reason existed under s 10A of the Sentencing Act 1991 (Vic), thereby removing you from the otherwise mandatory requirement to impose a term of imprisonment for the offence of carjacking and to fix a period of three years as the minimum term you must serve before being eligible for parole.
77He relied on the opinion of Dr Rakov in relation to the diagnosis of schizophrenia and the continued presence of distressing delusional ideas and auditory hallucinations reported in the Justice Health notes, notwithstanding the improvement in your mental state as a result of the medication that you have been prescribed under the regular psychiatric reviews to which you are subject whilst in custody. He also relied on the distressing side-effects of the antipsychotic medication to which I have already referred, namely significant weight gain and a sedating effect which makes you feel “dumber”.
78He submitted the diagnosis of schizophrenia supported a finding that you have impaired mental functioning that would result in your being subject to substantially and materially greater than the ordinary burden or risks of imprisonment, enlivening s 10A(2)(c)(ii).
79In the alternative, he submitted that it was open to find that you had impaired mental functioning, causally linked to the commission of the offence, and which substantially reduced your culpability thus enlivening s 10A(2)(c)(i).
80Mr Kozlowski properly drew my attention to s 10A(2A), which notes that the ground of special reason does not apply to impaired mental functioning caused solely by self-induced intoxication. He noted Dr Rakov was unable to distinguish whether you were psychotic as a result of drug use or because you were experiencing a relapse of schizophrenia precipitated by your drug use at the time of the commission of the offences, before she concluded on the balance of probabilities that you were experiencing a relapse of schizophrenia precipitated by your drug use at the time.
81Mr Kozlowski submitted therefore that it was open to conclude that your drug use was not the sole contributor to your impaired mental functioning, but rather was a latent condition.
82Mr Raimondo for the prosecution submitted the defence had not discharged its onus of establishing, on the balance of probabilities, that you suffer from schizophrenia. He relied particularly on the concerns raised by Dr Bell and Dr Ling from the Justice Health records that you may suffer from a factitious disorder or may have falsified or exaggerated your symptoms because you perceive there to be some exculpatory gain.
83However, for the reasons I have indicated, I accept the diagnosis of schizophrenia. I also accept Dr Rakov’s opinion that it is impossible to disentangle whether you were acutely intoxicated and psychotic as a result of methamphetamine use at the time of the offending or experiencing a relapse of schizophrenia precipitated by your use of amphetamine. It is in that context that the question raised by Dr Bell as to whether you were exaggerating your symptoms for perceived exculpatory gain and your performance on the tests of symptom validity administered by Dr Bourke are, in my view, relevant. Despite the deference properly to be afforded Dr Rakov’s expertise and opinions, I am not satisfied on the balance of probabilities that your impaired mental functioning was more likely than not to be by reason of a relapse of schizophrenia brought about by your drug use at the time.
84In any event, whether you were psychotic as a result of your drug use or experiencing a relapse of schizophrenia precipitated by your drug use at the time of the commission of the offences, I am not satisfied that your culpability is substantially reduced by your impaired mental functioning. As I have noted, you had in your previous period in custody been diagnosed with schizophrenia, been treated with anti-psychotic medication and would have been well aware of the correlation between substance abuse, particularly methamphetamine abuse, and a return of psychotic symptoms. It was a condition of the community correction order you were subject to at the time of the offending that you engage with drug rehabilitation and mental health rehabilitation and treatment. In those circumstances, regardless of whether you were suffering a relapse of schizophrenia brought on by your drug use or were in a drug-induced psychosis, I do not consider your culpability is substantially reduced by your mental state so as to bring in the special reason exception in s 10A(2)(c)(i).
85Nor do I consider that your impaired mental functioning would result in your being subject to substantially and materially greater burden or risk than the ordinary burden or risk of imprisonment so as to bring in the special reason exception in s 10A(2)(c)(ii).
86In fact, sadly yours is a situation where it would appear the loss of liberty, the regime of medical and psychiatric treatment which has now been set up around you, the prescription of and monitoring of appropriate anti-psychotic medication to control or manage your symptoms and the loss of easy access to illicit drugs, has reduced your symptoms significantly and the resultant distress and fear recorded by so many of the psychiatrists and psychiatric registrars who have assessed and treated you whilst in custody in 2017 and again, since late 2018, has abated.
87That is not in any way to devalue the seriousness of the condition of schizophrenia from which you suffer or to minimise its likely lifelong effect on you and the burden of living with a mental illness as serious as that. Nor is it to minimise the side-effects that you experience. They are clearly relevant factors to take into account in sentencing you, consistent with the fifth limb of Verdins.[1] But it does not satisfy the high and stringent test for special reason for the purposes of s 10A2(c)(ii).
[1]R v Verdins; Buckley; Vo (2007) 16 VR 269.
88Mr Kozlowski acknowledged that, given the circumstances of this offending and your substantial criminal history, your prospects for rehabilitation were properly described as guarded. I agree. He submitted that should be reflected by the imposition of an appropriate non-parole period. Again, I agree and accept that submission. Your prospects for managing your substance abuse and your mental illness and so from refraining from further offending, thereby protecting the community, will be best served by your release under supervision. I urge those responsible for your care and management in custody to give you access to suitable programs and treatment to prepare yourself for release on parole. I urge the Parole Board to consider granting you parole in order to provide a structured and supported return to the community to maximise those prospects for building a better substance-free, mentally stable and offence-free life on release. I have already mentioned the effects of coronavirus on your experiences or opportunities in custody to date. I also take into account the likely future effect of it whilst you remain in custody.
89Those of us who are able to live in the community are facing significant restrictions on our daily life and activities, but we are much better able to make and implement our own choices as to how to isolate ourselves and minimise our risks. The very fact of incarceration means you are deprived of the opportunity to make those choices yourself.
90I take into account what the Court of Appeal said in Brown v The Queen [2020] VSCA 60, where at [48] the Court held:
In the absence of any adequate material concerning the impact of the virus upon the Corrections system, as matters stand, and given that the situation is one that is rapidly evolving, we are hesitant to express a general statement of principle regarding how this Court (and others) should deal with this crisis as regards its effect upon relevant sentencing principles. We do accept, however, that the situation is causing additional stress and concern for prisoners and their families, as it is for every member of the community. The extent to which that may be taken into account, if at all, will be a matter to be resolved on the particular facts of any individual case.
91Finally, I take into account that I must, although there are three separate indictable offences and two rolled up summary charges, reflect the principle of totality in the overall sentence.
92Although the offence of aggravated carjacking carries a significantly higher penalty than that of conduct endangering life, the circumstances of the driving in both cases is so bad, particularly in the second of those, Charge 3, that, in my view, the sentences for those charges should reflect a different and greater correlation to the maximum penalty than is the case for the aggravated carjacking.
93I have allowed for a significant gap between the head sentence and the non-parole period. In my view, encouraging you to work towards a supervised return to the community is the best way of serving the needs of specific deterrence, protection of the community and encouraging your rehabilitation, having regard to the correlation between your substance abuse, psychotic symptoms and schizophrenia. It also reflects the need to give weight to Verdins, particularly to the added burden of imprisonment of a person suffering mental illness of the sort that you suffer. I now proceed to sentence you Mr Barlow.
94On all charges to which you have pleaded guilty, you are convicted.
95On Charge 1 of conduct endangering life, you are sentenced to be imprisoned for a period of two years.
96On Charge 2 of aggravated carjack, you are sentenced to be imprisoned for a period of four years.
97On Charge 3 of conduct endangering life, you are sentenced to be imprisoned for a period of four years.
98On the uplifted Summary Charge 24 of fail to keep left of median strip, you are fined an amount of $1,500.
99On the uplifted Summary Charge 26 of enter intersection against red arrow, you are fined an amount of $1,000.
100In respect of the terms of imprisonment, I make Charge 2, the aggravated carjack charge, the base sentence.
101I direct that one year of the sentence on Charge 1 and 18 months of the sentence on Charge 3 be served cumulatively upon each other and upon the base sentence.
102That makes a total effective sentence of six years and six months. I fix a period of four years as the time that you must serve before being eligible for parole.
103I declare that you have spent 500 days in pre-sentence detention and order that be counted and reckoned as part of the sentence already served.
104I declare pursuant to s 6AAA that, but for your pleas of guilty, I would have sentenced you to a total effective sentence of ten years with a non-parole period of seven years and six months.
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