Director of Public Prosecutions v Cheney

[2013] VCC 1421

IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION Revised
Restricted
 Suitable for Publication

CR-13-01060

DIRECTOR OF PUBLIC PROSECUTIONS

v

SARAH CHENEY

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JUDGE:	HIS HONOUR JUDGE MEREDITH
WHERE HELD:	Melbourne
DATE OF HEARING:	17 September 2013
DATE OF SENTENCE:	20 September 2013
CASE MAY BE CITED AS:	DPP v Cheney
MEDIUM NEUTRAL CITATION:	[2013] VCC 1421

REASONS FOR SENTENCE
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Subject:  
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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr. S Devlin	OPP
For the Accused	Mr. Miller	VLA

HIS HONOUR:

Sarah Cheney, you have pleaded guilty to offences of intentionally causing serious injury and common assault.  These offences carry maximum penalties of 20 years and 5 years’ imprisonment respectively. 

The prosecution opening was tendered on the plea as Exhibit A and there was no dispute as to its contents.  I attach it to these reasons for sentence and, accordingly, will refer to the circumstances of your offending briefly. I refer to the various victims in this matter by initial only to safeguard any privacy concerns they may have.

Charge 1, intentionally causing serious injury, relates to an unprovoked attack on C. W.  C.W.  was working at the Dame Phyllis Frost Correctional Centre as a psychiatric nurse.  She had treated you over the preceding two years without any significant issues.

Approximately five minutes before your attack you were engaged in conversation with C.W. and were observed to appear calm and relaxed.  Shortly prior to your attack you were observed smiling at C.W. as she walked past you, at which time you then launched your attack upon her.  You strangled C.W., rammed her into a wall, punched her to the jaw and stomach.  You had C.W. on the ground and placed a hand over her nose and mouth whilst maintaining pressure around her throat with your other hand.  Other prison staff intervened and were able to pull you off C.W..

Charge 2, common assault, relates to you attacking L.W. whilst you were being escorted from your cell to receive medication.  You lunged at L.W.  grabbing at her head and neck area.  You grabbed her hair and whilst you were both on the ground smashed L.W’s head into the floor several times.  You were restrained by prison staff who were also engaged in escorting you.

Charge 3, common assault, relates to your striking another prison officer, G.R. to the head whilst you were wearing handcuffs.  You were then subdued by other prison officers.

I have had regard to the victim impact statement of C.W. tendered on the plea, it is eloquent testimony to the impact which your offending has had on her.  C.W. speaks of her ongoing fear, anxiety, and the associated emotional effects of your offending on her.  Whilst, understandably, C.W. speaks of her belief that you intended to kill her, as you are not charged with the offence of attempted murder I cannot and do not sentence you on the basis that you did possess such an intent.

You were interviewed by police on 19 November 2012 and made admissions in relation to your attack on C.W.  You stated that you had just had an interview with a psychiatric doctor and you were upset and unsettled by it.  You were on your way to get medication to calm down and you came across C.W.  You suddenly got an urge to attack her and acted on that urge, placing your hands around her neck.  You indicated you had had problems in the past and you were getting a sudden feeling of wanting to grab someone.  You stated C.W. was in the wrong place at the wrong time. 

You have pleaded guilty at an early opportunity and as the prosecutor correctly stated this is a “very early plea” and a sentencing discount is available to you for this.

Whilst your plea has certainly saved the victims the emotional trauma of having to relive the offences committed on them, facilitates the course of justice and stands as a public acknowledgement of the wrongfulness of your conduct, as an expression of remorse its effect is limited.  I say this given the comments contained in the report of Dr Owen, of 6 September 2013, to the effect that you do not feel bad about what you did.

You are now 29 years of age, and have a background of emotional distance from your parents.  In your formative years there was conflict of a verbal nature within the family home and you would retire to your room feeling unsafe.

You had commenced to experience difficulty in school by end of Year 7.  By Year 10 you were reported to have become changed, that is withdrawn and unsociable.  In later high school years you spent increasing amounts of time isolated from others, studying, playing violent computer games, watching horror movies and accessing the internet.  The isolation which you experienced became increasingly distressing for you and this continued on when you were at university.  At university you reported minimal social contact.  You had had fantasies about violent actions perpetrated by yourself on others for some time prior to this.

You have a concerning prior history of violence. 

When you were 16 years of age you stabbed a stranger with a pocket knife whilst he was walking down the street.  He was unknown to you.  Whilst this is not capable of being alleged against you as a prior conviction, it is relevant in terms of your forensic and treatment history.

You were admitted to the adolescent unit of the Alfred Hospital and were diagnosed with a Schizoid Personality Disorder with Narcissistic traits. These traits made it difficult for you to exercise empathy.

You were dealt with on 11 July 2002 in the Magistrates’ Court for charges of recklessly cause injury and recklessly threaten injury.  You were 17 years of age at this time.  You had been bullied and disparaged at school and your offending related to a fellow school student.  You engaged in punching and kicking her.  When this fighting had been broken up, you obtained a steak knife and returned to your victim and confronted and threatened her with it.  You were restrained from any further conduct at that stage.

To your credit in April of 2006 you self presented to the emergency department at St Vincent’s Hospital.  You complained of thoughts of harming others.  You were hospitalised for 12 days and diagnosed with “psychosis low level with schizoid personality traits”.  You were then treated by a private psychiatrist for several weeks until you discontinued treatment.  You reported feelings of rejection and isolation.  Your presentation was consistent with schizoid personality disorder.

King J, of the Supreme Court of this State, sentenced you to a total effective sentence of eight years with a non-parole period of four years and six months for the crime of attempted murder.  That sentence was delivered on 22 April 2009 and you have been in custody since you were placed on remand for that offence on 8 May 2007.

That offence involved you stabbing a fellow student at Latrobe University.  The victim in that matter was unknown to you and your conduct occurred in the context of your having had longstanding fantasies about inflicting violence on randomly selected members of the community.  In the course of her sentencing remarks, King J, at paragraph 40, made reference to the diagnosis provided by Professor Ogloff of you at the time; this diagnosis was:

“There was consistent evidence that you suffer from a longstanding and profound personality disorder.  This disorder is particularly debilitating and contributes significantly to your expressions of anger and self-harm.”

At paragraph 45 of Her Honour’s sentencing remarks, Her Honour makes reference to Professor Ogloff’s opinion that you have a lack of empathy, social connection and factors which inhibit your aggressive outbursts.

Whilst I accept and recognise that the observations I refer to above were made at the time of the imposition of Her Honour’s sentence, your continued reoffending, whilst in the custodial environment, and the content of Dr Owen’s report is not suggestive of a positive prognosis for you.

You have been dealt with on four separate occasions since the imposition of Her Honour’s sentence for offences occurring within the prison system.  Whilst these offences are not at the upper end of the range of violent offending, they nonetheless, in the context of your history, are of great concern.

Tendered on your plea were a variety of reports.  These were reports of Dr Nicholas Owen of 6 September 2013; letters from Dr James Ogloff of 8 November 2011 and 5 May 2008; reports of Dr Michael Welham of 11 April 2002 and 24 January 2002; and a report of Reshima Sood and Sabine Wingenfeld of 7 April 2001.

The most recent of these reports is that of Dr Nicholas Owen.  Dr Owen makes reference to your restrictive regime of custody, amounting to solitary confinement within your cell for 22 hours per day and the difficulty of mitigating the risk of further violence by you, by containing you in a less restrictive setting.

Not surprisingly, Dr Owen reported that there were concerns shared by a number of Forensicare clinicians as to the ongoing detrimental effect that this custodial regime has on your mental state.  It is said to be difficult to envisage accommodating you elsewhere given the risk you pose to others.

You are presently treated with the antipsychotic medications haloperidol and fluoxetine. You reported sleeping up to 15 hours per day.  Notwithstanding this I was told on your plea that you are currently studying part-time to complete a Bachelor of Arts, and use this to occupy some of your time while you remain in relative isolation.

Dr Owen opines that the current primary diagnosis of you is of a personality disorder with predominantly schizoid features; “that there is some evidence that you have experienced psychotic symptoms in the past, but there is less certainty as to whether you have an independent schizophrenic illness”; that the progress of treatment for your personality disorder has been slow, the prognosis of any significant change in your behaviour remains guarded, and you remain, according to Dr Owen, at high risk of further violent offending.

The prosecution submit that a total effective sentence in the range of a head sentence of between 6–8 years and a non parole period of 4–6 years is appropriate.  The defence contend this is excessive.  Both prosecution and defence submit that an opportunity for a lengthy period on parole to allow your monitored re-integration into the community ought be allowed.  Of course the fixing of a non-parole period is no guarantee that parole will be granted, and you remain liable to serve every day of the sentence which I fix.

Yours is a difficult sentencing exercise.  On the one hand your conduct is linked to the mental health difficulties that you experience, and, accordingly your moral culpability is reduced, and deterrence, both specific and general, ought be moderated in their operation on you.  Your ongoing regime of confinement is detrimental to your mental health and recovery and this must be factored into the sentencing equation also.  You, however, appear to have a guarded prognosis and; accordingly, community protection must be given emphasis in the synthesis of the various sentencing factors.

As a result of your prior conviction for attempted murder, on the offence of intentionally cause serious injury you are subject to Part 2A of the Sentencing Act. On this offence you are to be sentenced as a serious violent offender. Pursuant to s6D Sentencing Act, as I consider that a term of imprisonment is justified on the charge of intentionally cause serious injury, in determining the length of that sentence I must regard community protection as the principal purpose for which the sentence is imposed. The Crown does not urge that that requires a sentence longer than that which is proportionate to the gravity of the offence, and I agree. The sentence on this charge is required to be served cumulatively on other sentences imposed, and being undergone by you unless I direct otherwise. Thus, the serious violent offender provisions qualify the totality principle in the sense that a sentencing judge cannot rely on totality in a way which undermines the legislative policy in s6E of the Sentencing Act.

I do however, propose to order concurrency with the sentence you are currently undergoing to reflect the fact that you have been in custody continuously since 8 May 2007.  You are still, comparatively speaking, young at age 29.  Your present custodial regime is less than optimal so far as your accessing treatment is concerned, and, more generally, periods of prolonged solitary confinement represent onerous conditions of confinement. 

Balancing all matters as best I can:

On Charge 1, of intentionally causing serious injury, I sentence you to five years and six months’ imprisonment.

On Charge 2, common assault, I sentence you to twelve months’ imprisonment.

On Charge 3, common assault, I sentence you to six months’ imprisonment.

I direct that the sentence of five years and six months imposed on Charge 1 is to be considered the base sentence and I direct that six months of the sentence imposed on Charge 2 and one month of the sentence imposed on Charge 3 be served cumulatively with the sentence imposed on Charge 1 and with each other.  This makes a total effective sentence of six years and one month and I direct that this sentence be served wholly concurrently with the sentence that you are currently undergoing.  I fix a period of four years before you are eligible to be released on parole to commence from today. 

I direct that it be noted in the records of the Court that I am sentencing you as a serious violent offender on Charge 1.

But for your plea of guilty I would have imposed a total effective sentence of 8 years with a 6 year minimum.

Are there any other orders required?

COUNSEL:No, Your Honour.

HIS HONOUR:  Very well.  As I indicated earlier, there is copies of that material available to be disseminated and if there is nothing further I would ask you to take Ms Cheney down to the cells, please.  

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