Director of Public Prosecutions v Cassidy

[2018] VCC 2052

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

AT BAIRNSDALE
CRIMINAL JURISDICTION

CR 18-01621

DIRECTOR OF PUBLIC PROSECUTIONS

v

SPENCER CASSIDY

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Bairnsdale
DATE OF HEARING:
DATE OF SENTENCE:	4 December 2018
CASE MAY BE CITED AS:	DPP v Cassidy
MEDIUM NEUTRAL CITATION:	[2018] VCC 2052

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D.R. Cordy	Office of Public Prosecutions
For the Accused	Mr G Casement	Daniel Taylor Lawyers

1HIS HONOUR:  Spencer Cassidy, you have pleaded guilty to one charge of intentionally causing injury.  That crime carries a maximum penalty of 10 years' imprisonment.  You are 37 years of age and have no prior convictions or, as I understand it, any matters pending.

2You pleaded guilty at a reasonably early opportunity and you have expressed, within your quite obvious limitations, appropriate remorse.  You should also, and must get, the utilitarian benefit of that plea of guilty.  It is a situation where, on the material before me, despite the gross violence in which you engaged on this day, you are essentially not a violent person and I can safely proceed that when you are mentally well, this is out of character for you.

3The offending is that on 9 March 2018, your victim, who was a neighbour, was at home and you attended at his house when he had left for a short time in a motor vehicle.  He turned and drove past his house at approximately 5.15 pm and saw you in the driveway.  He parked and went up to you.  You approached him angrily.  He said, "You all right, mate?  What's the problem?"  You responded, "Yeah, you are, you're fucked."

4He said, "What's going on?"  And you replied, "Brad, you know."  You called him a "German cunt" and various other forms of abuse.  He began walking backwards with his hands raised to show you that he was not a threat.  You hit him by swinging your arm towards him with an open hand.  His hat and glasses were knocked off.  He saw your mother approaching and recognised her as a neighbour, which they had been for some years.  He then realised who you were and what the association was.  The victim's wife was going to call the police, and you, on the face of it, encouraged her to do so.

5You kept moving towards him in an aggressive manner, trying to hit him, swinging your arms and a few punches connected.  You continued to yell abuse at him and he continued to walk backwards.  A neighbour who saw the incident came in to try and intervene.  And you eventually were punched by your ultimate victim and the matter simply proceeded from there.

6You were bleeding and said to the victim, "You hit like a princess."  Your mother tried to intervene by grabbing your arm and you pushed her to the ground.  The victim tried to help her up and she was pushed down another two times by you.  Another neighbour tried to enter the scenario and was punched top the face and left.  The victim began walking backwards up his driveway.  He became cornered in the garage and had nowhere to go.  Up until this stage had been simply frightening but clearly at this point, it became very violent indeed.

7You punched him to the face and placed him in a headlock.  He slipped his shirt to get away.  He staggered down the driveway towards the road, you punched him to the face again, with considerable force knocking him to the ground.  He was dazed from the punch and was unable to put his hands out to break his fall.  His head hit the road making a loud noise as it connected with the bitumen.  He cannot remember the immediate events after his head connected with the bitumen and believes he was unconscious.

8While he was lying on the road, dazed and injured and unable to get up, you kicked him to the head with your right leg.  There was a crack as you kicked him.  He curled up into a foetal position and you kicked him to the head a further two times.  This was done with force, causing his head to jerk back.

9You then threatened the wife of the victim.  He was lying on the ground, bleeding from his nose and cheek.  His eyes swollen shut and his jaw was swollen.  Ambulance and police were called.  You continued to be abusive and you were physically restrained by your parents who ultimately were unable to hold you any longer.  The victim was transported to the Alfred Hospital in the early hours of 10 March.  The doctors at the Alfred confirmed he sustained multiple left side facial fractures and determined that surgery was needed.

10He spent seven nights in the trauma ward before discharging himself to seek plastic surgery privately.  Dr Tstarrin confirmed that he had sustained a zygomaticomaxillary complex fracture, being a fracture of the mid-face and lower and the upper jaw cheek bone and eye socket.  He said that the eye and vision were unaffected and said it was mild and displaced and that there should be no long term sequelae for the injury and that the victim's quality of life should be normal.  It is conceded that the victim's teeth had to be adjusted at a later time until it was felt that his bite was even. 

11In your interview, it became abundantly clear that you were florid.  The police used a third party and you were obviously quite delusional about what had occurred.  And I will be referring to all that again in a moment.  I have no doubt that in a situation that could be described as a "but for" circumstance, that your very severe mental illness caused this offending and that of course is a variable comfort to your victim.

12You have pleaded guilty to it and must be sentenced on the basis that it was an intentional act.  I am well aware that in this situation, mental impairment may have been available to you as a defence and I think that the appropriate course has been taken.  Mr Freitagg, in his victim impact statement describes having suffered six facial fractures, concussion, dizziness, a whiplash-type neck injury and a sore knee.  And feels that his body has lost the same range of movement it used to.  He feels his eyesight seems to have changed and will be needed to be treated again.  He finds that his concentration has been affected.  Sleep patterns have been changed and as is so often the situation in these essentially unprovoked assaults, he finds that he is not as confident in many areas of his private life as before.

13He says that he has now become, in my words, more paranoid about other people.  He is on high alert with an anxiety that something will be about to occur.  He points out that because you and your family and his family are in very much the same neighbourhood, he is concerned about what will happen upon your ultimate release if you do go back to live there.

14He says that the financial sequelae have been very significant indeed and I have no reason to doubt that.  His wife also put in a victim impact statement describing the changes in her husband, and that the change has in fact caused a strain in their relationship and that it has changed him in so many ways, that she worries about his emotional state.

15She also is very concerned about what will happen upon your ultimate release, as you stay in the area where they intended to retire and it is a massive anxiety, the fear of something like this happening again.  I take those victim impact statements very much into account in this sentencing situation, obviously.

16In a general sense, the offending has to be regarded as serious.  Of course, the normal course of events it would cause for the application of general and specific deterrence as well as denunciation and appropriate punishment.  Insofar as the level of the offending is concerned, I am loath to buy into these low/high/medium type concepts that seem to be pushed around, but I will simply say this.  That I would have thought that some years ago that injury would have been regarded as serious.  There has been a change in the legislation since, which makes it difficult for a sentencing judge, though, not to sentence you in the same way that I might have, say, four or five years ago.  It might seem odd, but it is the situation.

17This is not some passing trivial injury.  This is a man who has had a number of fractures to his head, who has suffered ongoing psychological difficulties in what can only be described as a grossly violent assault.  The normal situation here would be for a very significant gaol sentence indeed.

18That is where the problem arises in one sense, in this sentencing scenario.  I will say from the outset, that it is a situation where this should never have got to the point where something like this occurred.  You were diagnosed with schizophrenia when you were around about 18 or 19 years of age.  You were unable to work once you were into your 20s and this very severe illness has been managed over an extended period of time.

19I will be referring to the report of Mr Carroll, a highly respected psychiatrist, shortly.  The situation here is that you had been admitted to psychiatric institutions involuntarily on a couple of previous occasions over the previous two years.  You had expressed to health workers delusional perceptions of persecution from Mr Freitagg.  You had threatened previously that you would harm him or burn his house down and this had gone on for a significant period of time.

20As I indicated during the course of the plea, I find it astonishing that in such close proximity to a person and these sorts of threats being made, albeit by a man who was quite clearly, at the time of making them, floridly unwell, that no one was told, no one was warned, the police were not informed, and as I understand the material, neither was Mr Freitagg. 

21On the face of what is in front of me, this would appear to have come completely out of the blue to him in very terrifying circumstances.  The nature of your illness was such that during the course of this, you were clearly acting under extreme delusions and had been for some time.  You had been released from the PARC here in Bairnsdale only a few hours beforehand.  You had been a voluntary inpatient because of you were feeling unwell, and because of your delusional beliefs and fears.  You had apparently, on the material before me, assured them, just before you were released that you were not going to harm anybody, and this happened. 

22Having read the material and read the report of Ms Rogers and also of Mr Carroll, which I will go through in a moment, it is clear that the principles of Verdins are very much enlivened here.  Your moral culpability is very significantly reduced and I accept that your illness in fact caused this offending.  Someone in that state of mind is not going to be paying a lot of attention to general or specific deterrence and indeed in your situation, despite having these beliefs over a long period of time, on what is before me at least, it is the first time that you have confronted the man who was the subject of those beliefs.

23There is nothing to suggest that prison is harder for you than any other person.  You are in prison.  You have shown to be very sensible.  You are doing courses, you are working and you are endeavouring to get yourself well for your ultimate release.

24In terms of the sentence that we are looking at here, I do not think there is any risk of your illness getting worse in gaol.  In fact, it may be a safer bet in terms of being moderated.  As I made it clear during the course of the plea, this really should be a mental health issue, not a criminal courts one.  And I am not going to sit here and warehouse people.

25A number of references were tendered on your behalf from other neighbours who said that, by and large, you were quiet, kept to yourself, displayed no signs of anger or aggravation and as a very compelling reference if it can be called that, from your parents, which takes you through your life history.

26You had been under a psychiatrist since diagnosis and had been on a disability pension since 2003.  You had been a child who did quite well in school and who appeared to have been a healthy, normal individual, until the onset of schizophrenia.  It is pointed out in their reference that you had been unwell on occasions in the past, had major psychotic episodes and mental intrusions.  And they had been fighting for years, in their view, to have you put on the appropriate medication. 

27It seems from the report of Dr Carroll, that there is medication which could be used, which would give the community a far safer perception of what might occur.  On the Depo medication, your mood would become irregular and difficult towards the end of that.  And I note that this offending occurred in the fourth week of that Depo period.

28Their report goes on to explain the difficulties that they see, themselves, as having had with health care workers.  This is the situation.  I am not conducting a Royal Commission and people have not got the opportunity to defend themselves.  The simple fact of the matter is that, I must say, I just find it incomprehensible that a man who, over a period of time, when floridly unwell has made threats against another person, that nothing had been put in place by the authorities to alleviate that threat or to be assured that it would not be carried out.

29The report of Dr Carroll is a relatively lengthy one and I do not propose to go into detail in respect of it.  He firstly goes through your history.  He goes through the involuntary admissions in July 2016, April 2017 and describes a voluntary admission prior to what occurred on this occasion, where you have been in for a month, from 9 February to 9 March.  He points out that you have been treated with various oral and anti-psychotic agents and clozapine was mentioned as an option but was never trialled.  In prison, you are seeing the psychiatric nurse every week and the present consultant psychiatrist every month.  He goes through your history, which describes you as a "social, happy boy" at school.

30He describes that you have a chronic severe psychological impairment consistent with high schizophrenia.  He said you had long-standing severe psychotic symptoms including persecutory delusions, auditory hallucinations, disorders of thought and possession that often focussed upon your neighbour.  He goes through specific dates, and again, I do not need to do that.  I will make sure that this report is contained within the file.  And as I indicated the other day, in this situation I will be sending all this material to the Parole Board to endeavour to ensure that your ultimate release is in the best interests of everybody.

31From 26 February 2018, which is something around ten or 11 days before this happening, he quotes from the Park record, that, "Reviewed by his case manager, he continues to be preoccupied by bizarre delusions and observed responding to auditory hallucinations."  He then points out that some 11 days later you were released at the end of a Depo cycle.  He points out, as is obvious to anyone who has read it, that your responses to the policeman being really indicative of you being florid.

32You are gaining insight into the nature of your illness.  You find it difficult in determining what is real and what is not.  And it is to be noted that your parents are very much aware of the potentialities of what could occur.  In fact, he has described your chronic schizophrenic illness as "devastating".

33In all those circumstances, clearly it is not a situation where you are to be punished for what is a mental illness, and it is a serious situation where you are not to be – where there is not to be public denunciation for what has come about because of a mental illness.  However, the fact remains that you have committed a very significant assault on a totally innocent person.  And if your regime is not maintained to a satisfactory level, it will be clear that there will always be a risk of that occurring again.

34On the material before me, bearing in mind your 20 or nearly 20 years' schizophrenia without violence, I am sure that if it is properly managed, that the neighbours would be safe.  There is an intervention order in place.  Whether you take much notice of that when you are florid, I have got no idea.

35I have heard the submissions from your counsel about release and as I indicated this is a situation where I do not believe that a combination is the appropriate order.  I think a CCO, whilst technically available, the responses to it, if things went wrong, would simply be, in my view, not quick enough.  I think this is a situation where a period of parole is essential, that you can be released into the community in safe circumstances.  They have a far greater capacity to act quickly if things go wrong - and I sincerely hope that they do not – but they have the capacity to act quickly.  In terms of the time you have served, it is my view after thinking of it carefully and discussions with counsel the other day, that you have done enough for a minimum term, but I think, in these circumstances, bearing in mind community protection in this situation, it is one particular man, that that aspect of the sentencing demands that I impose a sentence which ensures, as best as I can, though it is not my ultimate decision, as I have said, that you are released into an environment that is safe for everybody.

36Accordingly, the prospects of your rehabilitation are obviously problematic in a situation like this.  Rehabilitation is up to you, but it does appear at the moment, at least, as if you are very directed towards doing that.  And you clearly have very strong support from your parents and other people.

37On the charge of intentionally causing injury, you are sentenced to be imprisoned for a period of 18 months and I direct that you serve a minimum term of nine months before becoming eligible for parole.  I note that 270 days be directed as having been served under that sentence.  That means that you are now eligible for parole, but that does not mean that that is what will occur.  That can now be put into place and I can simply do this on the trust and hope that the parole board are able to integrate you back into the community in a way which protects everybody. 

38As I say, I think that it is tragic that matters like this get to a stage where they end up in front of a criminal court.  They should somehow or other be dealt with before that happens.  All right.  Thank you, gentlemen.  You can take him now. 

39The 6AAA, too, was two years with an 18-month minimum.

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