Director of Public Prosecutions v Carter
[2017] VCC 1188
•25 August 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-17-00660
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROBERT CARTER |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 August 2017 | |
DATE OF SENTENCE: | 25 August 2017 | |
CASE MAY BE CITED AS: | DPP v Carter | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1188 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – aggravated burglary – theft – false imprisonment – recklessly causing injury – persistent contravention of a family violence intervention order – plea of guilty
Legislation Cited: Sentencing Act 1991; Summary Offences Act 1996
Cases Cited: Verdins; Buckley; Vo (2007) 16 VR 269
Sentence: 5 years’ imprisonment with a non-parole period of 3 years imprisonment. 232 days pre-sentence detention. Section 6AAA declaration: 8 years’ imprisonment with a non-parole period of 5 years’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms R. Champion | Office of Public Prosecutions |
| For the Accused | Ms C. Woodward | Victoria Legal Aid |
HIS HONOUR:
1
Robert Carter, on 26 June 2017, you pleaded guilty to two charges of aggravated burglary, Charges 1 and 3; theft, Charge 2; false imprisonment, Charge 4; recklessly cause injury, Charge 5; and persistent contravention of
a family violence intervention order, Charge 6.
2 In addition, you pleaded guilty to related summary offences, being assault on Chontelle Papadopoulos, Charge 4 and unlawful assault of Gage Custance, Charge 5.
3 The maximum penalties for the offences to which you have pleaded guilty are:
· aggravated burglary, 25 years’ imprisonment;
· theft, ten years’ imprisonment;
· false imprisonment, ten years’ imprisonment;
· recklessly cause injury, five years’ imprisonment;
· persistent contravention of a family violence intervention order, five years’ imprisonment; and
· for the related summary offences of unlawful assault, three months’ imprisonment.
4 You admitted your criminal record.
5 Tendered as Exhibit A and read aloud in court, was the prosecution opening. In summary form, you had been in a relationship with the complainant for approximately 12 months, however that relationship ended about one month prior to your offending. At no time did you ever live with the complainant. The victim of one of the related summary offences is the complainant’s son, who was aged 13 years at the time of your offending.
6
You were subject to a family violence intervention order which was granted in the favour of the complainant on 25 July 2016. You were the subject of an involuntary treatment order which was in place until 16 February 2017. You had been an involuntary patient at the Dandenong Monash Medical Mental Health Service secure psychiatric ward for a period of approximately
12 months prior to your offending.
7 On 28 November 2016, you absconded from hospital, bought ice and injected it. You attended at the premises of your victim. You knocked on your victim’s front door. You pretended to be a member of the Victoria Police. When questioned by the victim, you smashed the glass front door and entered your victim’s home. Your victim tried to stop you from opening the door, but you pushed the door open and passed her and walked into the house. Charge 1, aggravated burglary.
8 Your victim threw her mobile phone to her son and told him to call the police. The boy went into the kitchen and you chased him and attempted to get the phone away from him. The complainant tried to stop you from doing this and you pushed her out of the way. Related summary offence Charge 4.
9
You approached your child victim and demanded the phone and then forcefully grabbed the phone from him, squeezing the child’s hand in the process.
Charge 2, theft, and related summary offence of unlawful assault, Charge 5.
10
The child ran out of the house to get his uncle who lived next door. The complainant tried to hold onto you for fear that you would chase her son and you pushed her away and tried to leave the house. She chased you and you pushed her away again and eventually ran away down the street.
A continuation of related summary offence, Charge 4.
11 The complainant got into her car and followed you and eventually recovered her mobile phone from you. You were screaming at her, saying that she had photographs of you. She gave you a lift to Glenfern Road.
12
The complainant returned to her home and called the police and found her son in a state of terror, holding a large kitchen knife to protect himself. Throughout the incident you kept saying to the complainant, “I know what you have done.
I know you have photographs.” I will return to this issue later in these reasons.
13 A little over four hours later, you returned to the complainant’s home. You knocked on the front door and yelled, “Open the door or I’ll open the door myself." The complainant told you that she had an intervention order in her favour, but you responded that if she did not let you in, you would open the door by reaching through the smashed glass. The complainant let you in because she had no choice in the matter and you walked straight by her to her bedroom. Charge 3, aggravated burglary.
14 You lay on the complainant’s bed and apologised for smashing her front door. You told her that you still loved her and you wanted to get back together. The complainant offered to drive you back to hospital. After showering you returned to the bedroom and suggested that you have sexual intercourse with the complainant, however she refused. You became upset and raised your voice at the complainant, telling her that it was because her son was in the house that she was not interested. You remained in the complainant’s bedroom with her for approximately two to three hours. Charge 4, false imprisonment.
15
During the period that you were in the complainant’s bedroom, you went to the toilet and returned. You grabbed the complainant about her neck. You pulled her head back and squeezed her throat until she lost consciousness.
Charge 5, recklessly cause injury.
16 After the complainant regained consciousness, she was lying on the bed with you over the top of her. She felt you putting something in her mouth, which she subsequently realised was your faeces. She became hysterical and vomited. The assault and your subsequent conduct was witnessed by the complainant’s son. You left the house and the complainant’s son called the police.
17 Police arrived at the complainant’s address at about 3.20 am and searched for you, but were unable to find you.
18 At about midday on 29 November 2016, some nine or so hours after your second lot of offending, you attended the Melbourne East Police Station. You told the police that you had been assaulted and needed to speak to the police. You were irate, rambling and not making sense. Police were concerned about your mental health and took you to the psychiatric ward of the Dandenong Monash Medical Mental Health Service.
19 In support of Charge 6, persistent contravention of a family violence intervention order, the Crown rely upon your conduct on 28 November 2016, as well as your conduct on 29 November 2016. In addition, on 30 November 2016, you telephoned the complainant on more than one occasion, in breach of the family violence intervention order. On 26 December 2016, you telephoned the complainant on three occasions, again in breach of the family violence intervention order.
20 On 5 January 2017, you were arrested at the Maroondah Psychiatric Hospital. You were taken to the Melbourne Remand Centre, where you were deemed unfit for interview, due to your state of mental health. You were remanded in custody.
21 Tendered as Exhibit B on the plea was the complainant’s victim impact statement. Your actions have had a profound effect upon her. The complainant found herself so traumatised, that even with the aid of medication, she was unable to continue to work. As a consequence, she is on social security benefits and is in financial straits. At the time of your offending, the complainant had what she described as mental issues of her own, which she was managing. She has suffered a major setback in her mental health. She suffers from panic attacks, anxiety, sleep disruption, flashbacks, and lost 15 kilograms in weight as a result of the worry that she suffered immediately after your criminal conduct. She is depressed and lacks motivation and energy. She is struggling in all aspects of her life. She is worried for her son. In her words, you have turned her life upside-down.
22
Ms Woodward of Victoria Legal Aid, who appeared on your behalf, acknowledged that your conduct was extremely serious. However, she submitted that your conduct must be viewed in the circumstances of a complex history of psychiatric illness which caused you to be an inpatient in a secure psychiatric ward. As well, coupled with your compromised mental state, was
a history of substance abuse in your early years, as well as the misuse of drugs which underpinned your offending behaviour.
23 You were born in Melbourne and are currently 29 years of age. Your parents married, each for a second time, bringing to the family, so far as your father is concerned, three children, Shane, Christian and Nick, whilst from your mother’s side, there was Tamara and Patrick. Later you and your brother, Rory, were born of that union.
24 Your father is a retired public servant and your mother is deceased. You were 12 years of age when your mother died and her death was a traumatic experience for you.
25 As fate would have it, at about the same time, your mother and father were each diagnosed with a form of cancer. Your father with non-Hodgkin lymphoma and your mother with breast cancer. Your mother nursed your father and he, with treatment, went into remission. However, your mother’s illness proved more virulent and in the weeks prior to her death, she returned from hospice care into the family home to be nursed by your father until she died. As a child, you were present and aware of these traumatic events.
26 You attended Marcellin College, before transferring to Whitefriars College, completing Year 10. Thereafter you completed a multimedia course at a TAFE, however you have never been employed in that field.
27
Your father was called on the plea. He described you as a child, as being bright, both in personality and intellectually and a good sport. However, as you developed into your teens, your conduct became problematic and you had
a number of "run‑ins" with the police. I use that term because your antecedents as a child are not before me, as they are over ten years old. However, the fact that you increasingly got into trouble in your teens was before me and was linked, in my view, to both your abuse of illicit substances, as well as the onset of schizophrenia. From the criminal history filed by the Crown, your first appearances in the Magistrates’ Court resulted in terms of detention at youth training centres. It came as no surprise then, that you had a lengthy history of criminal behaviour as a child.
28
Of particular relevance is an incident described by your father when he visited you at the Malmsbury Youth Training Centre. Whilst consulting with the resident psychiatrist, you were outside the room, banging your head against the glass wall and conducting yourself in an irrational way. Your father said the incident was allowed to continue by the psychiatrist, so that the psychiatrist could explain and demonstrate to your father the extent of your mental illness. You were prescribed the drug, Clozapine. This drug has very serious
side-effects, which include reducing one’s white blood-cell count, as well as causing inflammation of the heart and damage to the heart. For the period between 2007 and 2016, you remained crime-free while on Clozapine. Despite this, you had many inpatient admissions to psychiatric wards.
29 In his evidence, your father described the effect of Clozapine on you. You gained weight, you slept a lot and you appeared to be dulled by the drug. You demonstrated no interest in progressing in life. In order to get you out of this malaise, your father took you for a period of four years, to the gymnasium at the Box Hill swimming centre. Through exercise, you reduced your weight from 130 kilograms to 100 kilograms. With the improvement of your body image, your attitude to life improved. In part, this contributed to a change in your medication. Initially, with the change in your medication, you appeared to your father to improve and he saw a glimmer of hope for your future, because he saw, at times, the bright 12-year-old boy he had once known. However his hope was soon snuffed out. You commenced to re-offend and eventually you were confined in the psychiatric ward at Upton House at Box Hill Hospital and then eventually at the secure unit at the Dandenong Monash Medical Mental Health Service.
30 According to your father, you met the complainant whilst you were at Upton House where she worked as a cleaner. A romantic relationship blossomed and was maintained for a period of 12 months or so, including during the time that you were housed at the secure facility at Dandenong.
31 Your father swore that your mood whilst at Dandenong was dependent upon the state of your relationship with the complainant. If you were of the view that the relationship was good, your mood was correspondingly good. If, however, your view was that the relationship was deteriorating, your mood also deteriorated, to the point where your father swore that there was little point conversing with you.
32 You absconded from each of Upton House and the Dandenong secure unit on a number of occasions and your father swore that it was his belief that this took place so that you could meet with the complainant outside those environments.
33 It is noteworthy that your half-brother, Patrick, also suffers from schizophrenia and lives at home with your father.
34 Your father swore that you had a strong bond with your half-brother, Christian, who was 11 years your senior. He was a mining engineer and a successful one. However, in 2015, Christian took his life, apparently because of personal pressures that he was unable to endure. As with the death of your mother, Christian’s death was a psychological blow to you.
35 Tendered as Exhibit 1 on the plea was the report of Dr Turnbull, psychiatrist, dated 17 March 2017. This report was commissioned to investigate whether the defence of mental impairment was open to you. You told Dr Turnbull that whilst at Dandenong, you were treated with the anti-psychotic medication, Olanzapine and were unsure if there were other medications prescribed for you. You told Dr Turnbull that you began using marijuana in Year 9 and then injecting heroin by your late-teens and thereafter you took drugs in increasing amounts and frequency. You told him, “If I see drugs, I’ll use them.”
36 When this matter was raised with your father in evidence, he said that he was unsure as to your level of drug abuse, but suspected that you were abusing drugs as a teenager, but that it was hard to determine this as a fact because of the secrecy that surrounded your drug abuse.
37 You told Dr Turnbull that you left the Dandenong secure extended-care unit to use ice, that you obtained two points of the drug and injected the bulk of it and then attended at the complainant’s house. You told Dr Turnbull that it had not been your intention when you left the secure unit to attend at the complainant’s home, but that after using ice, you felt it necessary to confront her.
38 Well prior to leaving the secure unit, you held a delusional belief that the complainant somehow had committed an offence against you in respect to the administration of your medication and that she had acted in concert with staff at the secure unit to do so. With the ingestion of the ice, this delusional belief took over your thinking and caused you to go to the complainant’s home to confront her about her conduct towards you. That this is so is confirmed by you repeatedly saying to the complainant during the course of the first aggravated burglary that, “I know what you have done. I know you have photographs” and the fact that you stole her mobile phone.
39 The second aggravated burglary and your assault on the complainant is qualitatively different. Your motivation appears to have been to reconcile with the complainant and in a drug-affected state, you insisted on sexual relations with her. You became angry with the complainant because of her refusal and ultimately you assaulted her by choking her to the point of unconsciousness and thereafter forced your faeces into her mouth. As previously noted, this assault occurred in the presence of the complainant’s teenage son.
40 Returning to the report of Dr Turnbull, he opined that you continue to believe, albeit at a minor degree, that the complainant has acted inappropriately towards you. However, you expressed no intention to exact revenge on the complainant in the future. However, Dr Turnbull did not have full confidence in those statements and opined that any future psychiatric treatment in respect of you will need to take the complainant’s safety into account in deciding on where and how to treat you. See Exhibit 1, p.6.
41
Dr Turnbull reported that at the time of his consultation, you were not in the psychiatric unit at the Melbourne Assessment Prison, but were being medicated with two anti-psychotics. It also appears that you were also prescribed lithium. However, on a perusal of Exhibit 4 on the plea, the remand report of Corrections Victoria, it is plain that you spent the period between 17 January 2017 and
14 March 2017 at the Melbourne Assessment Prison’s acute assessment unit and you were returned there from time to time until 3 May 2017.
42 When speaking with Dr Turnbull in respect of your offending, you said that you were, “Disappointed in myself” and further that you, “Acknowledged what I’d done. I did something to her that’s going to affect her.” You were embarrassed in respect of the incident with the faeces and told Dr Turnbull, “I can’t believe that part.” To my mind you are remorseful for your actions.
43 At the time of your consultation with Dr Turnbull, you told him that you were hearing voices and that they were distressing and instructive. However, these delusions did not appear to affect your understanding and ability to intelligently describe the charges and the court and plea processes. Plainly at the time of consulting Dr Turnbull, you were very unwell.
44 Complex issues arise out of your psychiatric illness, abuse of drugs and the nature of your offending and how each of these impact upon the exercise of my sentencing discretion.
45 In respect to the issue of your mental illness, the evidence of your father, Michael Carter, was supplemented by a letter he wrote which became Exhibit 5 on the plea, which details in written form, many of the matters he dealt with in evidence, although it is not limited to those matters.
46
Ms Woodward, on your behalf, submitted that Limbs 1, 3, 4 and 5 of R v Verdins had application to the application of my sentencing discretion. Ms Champion, who appeared on behalf of the Crown, submitted that only Limb 5 had any relevance. Further, Ms Champion submitted that you represented a continuing threat to the complainant and to the public at large and that, as no assessment of the risk that you present generally had been made by a psychiatrist, that
a pre-sentence report should be sought in this respect, so as to inform the sentencing exercise.
47 I accepted Ms Champion’s submission and ordered a pre-sentence report.
48 A report, dated 14 August 2017 of Dr Carolyn Simms, consultant psychiatrist, employed by Forensicare, was provided to the court and made available to the parties.
49
Of concern is that you made mention of hearing voices at the time of your offending to Dr Simms, but did not do so during your consultation with
Dr Turnbull. Furthermore, you maintained to Dr Simms that the voices told you to do, “Awful things to people, because it happened to me.” You were, however, consistent in your instructions to both psychiatrists about the effect that ice had on you and your offending conduct.
50 Prior to your escape from the secure psychiatric unit on 28 November 2016, you were seriously unwell. You held a delusional belief in respect to the complainant for some time. However, your motive for leaving the secure facility was to obtain and use ice. It appears that the ingestion of the drug, ice, brought your delusional thoughts to the forefront of your mind and you acted on them. But for the ingestion of ice, you would not have committed the first aggravated burglary and associated offences. However, the ice acted on the mind of a man who was seriously psychiatrically ill, one who was compliant with medication, but who continued to hold a delusional belief concerning the complainant.
51 There is an absence of evidence as to your awareness of the effect ice would have had on you, as at 28 November 2016, although you had a long history of drug abuse. Ultimately, I am of the view that your moral culpability is reduced in respect to the first aggravated burglary, to some degree, because of your serious psychiatric illness and the role that your delusional belief, a symptom of your illness, played in the commission of that offending.
52 Your romantic preoccupation with the complainant led to the second aggravated burglary and associated offending. This preoccupation was of long standing and was, for a time, based in fact, however, at the time of your offending, you were the subject to a family violence intervention order. It is clear that ice contributed to the commission of the second aggravated burglary, as your offending was characterised by extreme violence. Ultimately I am not satisfied that your moral culpability for the second aggravated burglary and assaults should be reduced by reason of your serious psychiatric illness.
53 I am of the view that the application of the sentencing principle of general deterrence should be moderated to some extent, because of the nature and severity of the symptoms which you suffered as a result of your serious psychiatric illness at the time of your offending and presently.
54 I am satisfied that you need to be specifically deterred from future offending, because of the connection between the instant offending and your drug use, which appears to be a recurring theme in your life.
55 Dr Simms opined:
“Mr Carter does have an enduring mental illness and as such, may find ongoing incarceration more onerous than those without a severe enduring mental illness.”
Whilst Dr Turnbull is more adamant in his opinion in this respect:
“His having a major mental illness in custody does make the experience more onerous, as was on display at assessment today.”
It is to be noted that Dr Turnbull saw you some four and a half months prior to your consultation with Dr Simms.
56 I am satisfied that your time in custody will be more onerous for you.
57 You appear, upon the reports, to be properly treated whilst in custody and you are presently within the mainstream prison population at Port Phillip Prison.
58 Dr Simms assessed you as a moderate risk of re-offending, but that this would increase, should you suffer a relapse of your mental illness and return to substance use with its associated disinhibiting effect on your behaviour. This assessment was made in the context that Dr Simms was of the opinion that your prognosis for remission was poor.
59 On the materials before me, I am satisfied that the community needs to be protected from you and that you are a real risk of re-offending in the future.
60 You entered your pleas at the committal mention and accordingly, they must be taken as having been entered at the earliest opportunity. You are entitled to the benefits that flow to you from your plea, being its utilitarian benefit and that it is some evidence of your remorse.
61 The offences that you committed are serious examples of crimes of the kind. In a drug affected state, you entered your victim’s home twice at night and committed acts of violence on her in the presence of her adolescent son and you also assaulted him. Additionally, you persistently breached a family violence intervention order granted against you.
62 Would you please stand.
63 Doing the best I can to balance the competing sentencing factors as they apply to you and your offending, I sentence you as follows:
· On Charge 1, two years’ imprisonment;
· On Charge 2, three months’ imprisonment;
· On Charge 3, three and a half years’ imprisonment;
· On Charge 4, one years' imprisonment;
· On Charge 5, one and a half years’ imprisonment;
· On Charge 6, three months’ imprisonment;
· On the summary offence, Charge 4, two months’ imprisonment;
· On the summary offence, Charge 5, three months’ imprisonment.
64 I order that nine months of the sentence imposed on Charge 1, together with six months of the sentence imposed on Charge 4, together with nine months of the sentence imposed on Charge 5, together with one month of the sentence imposed on Charge 6, and one month of the sentence imposed on the related summary offence, Charge 5, be served cumulatively upon each other and upon the sentence imposed upon Charge 3.
65 This results in a total effective sentence of five years' and eight months’ imprisonment.
66 I fix the period of three years’ imprisonment before you will become eligible for parole.
67 I declare that you have spent 232 days by way of pre-sentence detention, not including today.
68
Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to eight years’ imprisonment, with
a non-parole period of five years’ imprisonment.
69 You may be seated.
70 There was an application for a compensation order in favour of the complainant and I have signed three copies of that order.
71 Are there any other matters to attend to?
72 MS WOODWARD: Your Honour, if I may just direct your attention to one matter very briefly?
73 HIS HONOUR: Yes.
74 MS WOODWARD: I am not sure that it makes a significant difference, Your Honour, but with respect to the related summary offences, Charge 23, unlawful assaults, the Summary Offences Act. The maximum penalty is three months.
75 HIS HONOUR: Thank you.
76 MS WOODWARD: Your Honour indicated six months. That is the only issue.
77 HIS HONOUR: Thank you very much for that, I will correct my reasons.
78
MS CHAMPION: And just to be specific about it, Your Honour, it should be three months in relation to the charge concerning Ms Papadopoulos and her son, Gage. Ms Woodward and I discussed this just a few moments ago.
I had particularised it in the opening as six months, given a particular provision in the Summary Offences Act, to do with assaults against male children.
79 HIS HONOUR: Yes.
80 MS CHAMPION: But, Ms Woodward and I have discussed it and have agreed that it should be three months maximum in relation to both those charges concerning the mother and the child.
81 HIS HONOUR: And the sentence will be amended in respect of Charge 5, to two months. And the order for cumulation will remain the same. I would have appreciated if counsel had informed me of the change in the maximum penalty from the time when the plea was conducted to the time of sentence.
82 MS CHAMPION: Yes, Your Honour.
83 MS WOODWARD: Again, Your Honour, I apologise for that.
84 HIS HONOUR: Thank you. Are there any other matters?
85 MS WOODWARD: No, Your Honour.
86 MS CHAMPION: No, Your Honour.
87 HIS HONOUR: You may remove the prisoner.
88 Thank you for attending, Mr Carter.
89 I will stand down until the next matter is ready.
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