Director of Public Prosecutions v Cole
[2018] VCC 853
•12 June 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-14-00895
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LEOTA MARY COLE |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 & 12 June 2018 | |
CASE MAY BE CITED AS: | DPP v Cole | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 853 | |
IN THE MATTER of an application by Leota Mary Cole
for variation of a Community Correction Order
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Subject:
Catchwords: Application to vary Community Correction Order on the basis of material alteration of circumstances of offender – substantial health issues by way of strokes with sequelae making it difficult to complete remaining community work component – also, expressed wish to undertake training of a rehabilitative nature interstate – application to vary CCO successful
Legislation Cited:
Cases Cited:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms T Skvortsova | Office of Public Prosecutions |
| For the Accused | Ms J Perlman | First Step Legal Service |
HER HONOUR:
1 Leota Mary Cole, following your plea of guilty to one charge of driving in a manner dangerous causing death, on 3 November 2014, you were convicted and sentenced to a term of imprisonment of 16 months, together with a three year Community Correction Order.
2 Following your release from custody on 21 February 2016, you have complied with your Community Correction Order by undertaking assessment and treatment for alcohol dependence, as well as attending psychological counselling and attending supervision appointments. To date, you have completed 196 of the 300 hours unpaid community work component of the order. The order is due to expire on 20 February 2019.
3 A report dated 21 May 2018 has been filed from Mr Vincent Sackity, your case manager at Moorabbin Community Corrections Services (Exhibit “A”). It notes that you have been assessed as being within the low risk category of general re-offending and your overall attendance and presentation has been positive and honest. However, your capacity to undertake the unpaid community work component of the order has been compromised by a number of factors. In particular, on 20 September 2016, you were admitted to the Alfred Hospital for a cerebrovascular accident resulting in a 14 day inpatient stay. In April 2017, you were admitted to Cabrini Hospital for septicaemia and then, again, on 2 October 2017, you were admitted to the Alfred Hospital for another cerebrovascular accident. This is your third cerebrovascular accident, as you had suffered one back in 1999.
4 You have made an application to the Court to vary the Community Correction Order pursuant to s48M(1)(a) of the Sentencing Act 1991 on the ground that your circumstances have materially altered since the order was made and, as a result, you will not be able to comply with the community work component. You seek that the order be varied by:
(i) omitting the condition that you perform the balance of the 104 outstanding hours of unpaid community work; and
(ii) permitting you to leave the State of Victoria in order to undertake a course of study in New South Wales. This is a Masters Degree in Community and Social Wellbeing at the Nan Tien Institute in Wollongong, commencing on 9 July 2018 for a period of 52 weeks.
5 In your application, you note that, you have been undertaking ongoing treatment and rehabilitation in relation to alcohol addiction and your mental health conditions of Post-Traumatic Stress Disorder, depression and anxiety. However, you state that the strokes have resulted in a changed mental state and a physical deficit in your left leg, which requires ongoing physiotherapy and rehabilitation as you lose balance easily, such that you suffered a fall, fracturing your patella in 2017. You state that you have struggled to complete your unpaid community work obligations due to ill-health.
6 In your application, you state that you currently have an opportunity to study your Masters Degree in Community and Social Wellbeing at the Nan Tien Institute in Wollongong. You seek to be able to travel to New South Wales to complete that qualification, building on your other qualifications as a teacher and social worker. You believe that this will help you to obtain a new career in which you would like to work with elderly and disadvantaged people in the community, and that you consider that it will improve your confidence and mental and physical work as well.
7 Tendered as Exhibit “1” in support of the application are letters from your treating general practitioner, Dr Karen Price, of Moorabbin Medical Clinic dated 28 November 2017 and 20 March 2018 respectively. Dr Price is your long term treating general practitioner who knows you well. She notes that your stamina is still recovering from the recent stroke and you operate at a much lower level than previously. Dr Price’s report dated 28 November 2017 refers to you having a very medically complex situation and currently being unable to work, and lists some 10 prescription medications which you are currently taking.
8 In her report dated 20 March 2018, Dr Price notes significant domestic issues at home with ongoing severe emotional and financial abuse. I here note that in my sentencing remarks on 3 November 2014, I referred to you having led a worthy life where you were a teetotaller until you married at the age of 45 years. At the plea hearing, a quality of material contained themes of there being significant strains in your marriage by reason of your husband being domineering and controlling and regularly eroding your self-esteem through criticism. This context seemed to play a significant role in your developing anxiety and beginning to drink alcohol to help you cope.
9 The material before me indicates that whilst in custody for 16 months, you had undergone alcohol abuse programs and counselling. Since being released from custody, you have continued to engage in these treatments. A report from Gayle Wood, operations manager at First Step Addiction and Mental Health dated 22 May 2018 indicates that you have attended for treatment for alcohol dependence and counselling on 12 occasions between 14 December 2016 and 17 May 2018. (Exhibit “2”)
10 A report from Dr Michael Kozminsky dated 29 May 2018 (Exhibit “3”), states that he has seen you on referral from your general practitioner, Dr Price, in relation to your alcohol dependency since July 2017. He confirms that your second stroke in 2016, and your third stroke in 2017, required significant treatment and have led to a decrease in your physical functioning. He notes that you suffer from post-stroke epilepsy, which limits your functioning, although your neurologist is permitting you to drive. He also noted that, in January 2017 you suffered septicaemia which has caused anaemia, and this caused further confusion and slowing of your normal functioning and required an iron infusion, which limited the amount of time you could devote to your obligations under the Community Correction Order. He supports your attendance at the Nan Tien course as something which would be likely to benefit both your rehabilitation and society in general.
11 Also tendered in support of your application was a report from Mr Peter Howell, your treating psychologist, at LDS Family Services, dated 28 May 2018 (Exhibit “4”). He notes that, since your release from prison, you have attended 31 counselling sessions in order to manage adjustments after your release, a pattern of maladaptive alcohol use, challenges in your relationship with your husband and various manifestations of Post-Traumatic Stress Disorder. He considered that the sessions had been productive and focussed, but the relationship with your husband remains problematic. He noted that you had had counselling sessions focussed on the trauma arising from the offending accident whilst you were incarcerated, and he believes that you understand that you will never get over that trauma that you have caused to others or your reactions to it, and know that your aim is to live as effectively in the present as you are able.
12 Mr Howell noted that, following your release from custody, you had relapsed into alcohol use but, to your credit, had admitted yourself to inpatient alcohol rehabilitation services on at least four occasions, typically lasting for two to three weeks, as well as participating in some hospital day programs. In addition, you have been participating in Alcoholics Anonymous groups on a consistent basis for the last 18 months, often attending on more than three occasions per week. He noted that you continued to see Dr Kozminsky, who specialises in alcohol treatment, as well as being reviewed by a psychiatrist, who prescribes Effexor for anxiety, which you have taken consistently. He noted that over the past five months there had been a significant reduction in more severe alcohol consumption episodes. Although there had been three occasions when you had drank to excess, you had remained in the home. However, he remains optimistic that you can manage anxiety and the effects of trauma and have made progress.
13 Mr Howell supported your participation in the Master Degree in Buddhist Psychotherapy at Nan Tien Institute as a way of building on your training and skills but, also, helping you to continue to practice and master strategies for your own emotional management. In particular, he considered that it would be healthy for you and your husband to be away from one another during this study period as the relationship is not healthy for either party. He considered that you are strongly motivated to continue your progress and achieve recovery, but did note that carrying out unpaid community work at a Salvation Army shop, where you were not permitted to leave the shop during the day of work, had resulted in your feeling trapped and triggered possible trauma associated with your childhood and adolescence during which your were subjected to abuse from your brother.
14 A report dated 9 April 2018 from Dr Ewa Conroy of Nepean Health Care, who was acting as a locum for your usual general practitioner, Dr Price, was tendered as Exhibit “5”. Dr Conroy noted that you had tried to return to complete the obligations of your correction order, but compromise of memory, concentration and mobility following your strokes in 2016 and 2017 made you unable to cope, and she supported your being excused from the remaining hours of the Order as it affects you mentally and physically more than you can endure.
15 Tendered as Exhibit “6” was a letter to yourself from the Nan Tien Institute dated 20 April 2018, informing you that your application for admission to the Graduate Diploma in Health and Social Wellbeing had been accepted. The letter confirms that the course is to be conducted at the Wollongong campus in New South Wales for a period of 52 weeks, commencing on 9 July 2018 and concluding on 5 July 2019. It details the core subjects of study as being mind/body wellness, nutrition, research methods, social policy, health and welfare, and coaching and counselling for health and wellbeing, together with electives such as mindfulness and aspects of Buddhism. Your counsel indicated that no equivalent course was available in Victoria.
16 Tendered as Exhibit “7”, were two references dated 31 May 2018. One is from your brother, Patrick Houlihan, who describes your remorse and ongoing commitment to try and overcome your problems with alcohol in attending treatment to which I have already referred, as well as the fact that your two major strokes since release from prison have affected your ability to work, such that you suffer debilitating migraines and other health complications. He considers that you are very motivated to pursue your education in the course in New South Wales, which could be of great benefit to your personal, psychological and physical progress. The other letter is from your friend of ten years, Ms Lindsay Castle. She confirms that, since your strokes following your release from prison, you have had ongoing issues with migraines and trouble working in confined spaces, but have continued to try to seek psychological and psychiatric help for your alcohol addiction. She is strongly supportive of you and believes that the Graduate Diploma course in which you seek to enrol will give you a sense of purpose and structure in life and will improve your psychological and physical wellbeing.
17 Your case manager, Mr Vincent Sackity, appeared via videolink at the hearing of the application. He confirmed that you had done your best to comply with the order and was supportive of the variations. However, the matter was adjourned so that he could discuss with his manager whether it might be possible to continue supervising you via videolink or telephone calls if you were permitted to undertake the course in Wollongong. He also needed to discuss with his manager your being given permission to leave Victoria for the balance of the order whilst you would be undertaking the course. For this reason, the matter was adjourned to today, 12 June 2018.
18 Today, a memorandum from Moorabbin Community Correctional Services signed by your case manager, Vincent Sackity, and co-signed by Isobel Sanderson, supervisor court case management, dated 7 June 2018, was tendered as Exhibit B. The report states that as you are at low risk of general reoffending, there is no longer a necessity for you to engage in supervision appointments. The report indicates that you will be given permission by the Office of Corrections to move interstate in order to undertake the course on condition that you provide the Office of Corrections with your intended New South Wales address prior to leaving Victoria, confirmation of your enrolment in the course prior to leaving Victoria and that you engage in regular reporting appointments via phone on approximately a monthly basis. Tendered as Exhibit “C” was an email from your counsel, Ms Perlman. I note that you have sent a cheque for payment of the course fees but had been awaiting the outcome of this application to the Court before being in a position to finalise enrolment. I understand that all relevant contact details in relation to the course have been provided to the court and will be made available to your Corrections officer.
19 Conditions also include you be required to engage in both mental health and alcohol treatment in New South Wales to be facilitated by a general practitioner. It is a condition of the permission that you provide an authority to exchange information between the Office of Corrections and treatment providers as well as provide an authority to enable the Office of Corrections to exchange information with two emergency contacts, at least one of which should be located in New South Wales.
20 Also tendered today as Exhibit “8” was a further letter from your treating psychologist, Mr Peter Howell, indicating that he intends to provide ongoing counselling to you after you move to Wollongong and that this will be conducted via Skype or Face Time. In addition, tendered as Exhibit “9” was a letter from Bellambi Medical Centre near Wollongong confirming that you have made an appointment with Dr Siddiqui of the practice on 2 July 2018. Also, you have provided that practice with a signed consent addressed to your general practitioner in Melbourne, Dr Price, authorising her to provide a patient summary or medical record to help with your ongoing care.
21 In the light of the material before the Court, I am satisfied, pursuant to s48M(1)(a) that your circumstances have materially altered since the order was made and, as a result, you will be unable to comply with the remaining unpaid community work component. Accordingly, I propose to vary the order by deleting that condition. As you are deemed by Community Corrections to be no longer in need of supervision, I also propose to delete that condition. I note that your treating psychologist regards it as in the interests of your rehabilitation to undertake the course which you propose to undertake at Nan Tien Institute in Wollongong in the circumstances, provided you fulfil the conditions stipulated by the Office of Corrections in Exhibit “B”. You have the permission of the Office of Corrections to leave the State of Victoria for the balance of the term of the Community Correction Order, which I note will expire on 20 February next year. I am sure you will be mindful of the need to comply with these conditions as well as to engage in telephone reporting with your Community Corrections Officer, otherwise you will be in contravention of the order.
22 Ms Cole, this Court sincerely wishes you well in your rehabilitation. I hope that the course will be fulfilling and beneficial to you and that, after the end of the term of this Community Correction Order, you can begin to move on with your life.
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