Director of Public Prosecutions v Correia

[2017] VCC 806

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-02139

DIRECTOR OF PUBLIC PROSECUTIONS

V

PHILLIP CORREIA

---

JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATES OF PLEA HEARING:	29 May 2017, 7 July 2017
DATE OF SENTENCE:	16 June 2017
CASE MAY BE CITED AS:	DPP v Correia
MEDIUM NEUTRAL CITATION:	[2017] VCC 806

REASONS FOR SENTENCE
---

Subject: Criminal law - sentence       

Catchwords: found guilty by jury of 2 charges of common assault, 2 charges of recklessly causing injury, one charge of making threat to kill, 2 charges of threatening to inflict serious injury, one charge of false imprisonment and 2 charges of breaching a family violence protection order – offending took place on two occasions three months apart – victim was former partner – injuries to hands, face and torso - very frightening  circumstances – criminal history including violent offending and some similar offending – offender aged 48 at time of offending – dysfunctional childhood – serious physical injuries suffered in adulthood – mental impairment – whether principles in Verdins apply – whether prison assault amounts to extra-curial punishment –general and specific deterrence - totality.   

Cases Cited: DPP v O’Neill [2015] 47 VR 395, DPP v Williams [2017] VSCA 130, R v Howell VSCA [2007]119 para 20, R v Daetz R v Wilson [2003] NSWCCA 216, Morgan v R [2013] VSCA 33 para 49, Kassab v R VSCA 327, Lord v R [2017] VSCA 29

Sentence:   5 years  6 months  non parole period 3 years 3 months

APPEARANCES:	Counsel	Solicitors
For the DPP	Ms A Moran	OPP
For the Accused	Mr T Fitzpatrick	Michael Brugman, Barrister

HER HONOUR: 

1Phillip Jose Correia, you have been found guilty by a jury of two charges of common assault, two charges of recklessly causing injury, one charge of making a threat to kill, two charges of threatening to inflict serious injury and one charge of false imprisonment.  In summary, you were found guilty of all charges on the indictment except the alternative charges which were numbers 3 and 10. 

2You have also pleaded guilty to two summary charges which are both breaches of family violence intervention orders. 

3Two incidents gave rise to all these charges: the first, on 25 January 2016 and the second on 18 April 2016.  These are serious offences for which the maximum penalties are as follows: for false imprisonment, making a threat to kill and common assault, ten years' imprisonment; for causing injury recklessly for making a threat to inflict serious injury, five years; and for contravention of a family violence intervention order, two years.

BACKGROUND TO THE CHARGES

4You had been in a relationship with the victim, the complainant, for a few months before she reported some incidents of violence by you and the police obtained an intervention order prohibiting you from contacting her.  The order had been made in your absence but you were served with the order and its meaning was explained to you.  The victim was living with her two children, aged 11 and 13 at this time, and you were prohibited from contacting or approaching her or committing family violence against her.  You were living elsewhere.

5On 26 January, sometime after the intervention order was made, she was at home with her son when you contacted her in a distressed state wanting to talk to her.  She left the house and met you nearby in your car.  You wanted her to go with you to the police station to withdraw her statement as to your previous violence. 

6The victim became concerned that you were in trouble with the police because of these circumstances and she agreed to do this but the police advised her not to withdraw her statement.  She vaguely remembered the car trip from the police station back to your home during which you became erratic and violent.  She tried to get out of the car a couple of times and she recalled you grabbing her and holding her in the car which she said scared her.

7Once at the house, you abused her verbally and physically. 
This behaviour continued for hours, from sometime during the day until late at night.  You ripped her ankle bracelet off, you grabbed her around the throat and you hit her on the top of her head with the flat blade of a knife.  She was scared and put her hands up to protect herself but did not say anything.  These events gave rise to Charge 2, the first charge of common assault.

8You said to her "We are going to die tonight" and you accused her of putting you in gaol for five years.  That is Charge 5, making a threat to kill.

9You told her you were going to "bleed her like a pig",  then later you grabbed her legs and tried to get them open while you waved a knife around, centimetres from her, and said you were going to cut her.  That is Charge 7, threatening to inflict serious injury. 

10At one stage, you picked her up and threw her into the room next to the bedroom.  That is Charge 6, the second charge of common assault.

11Towards the end of this episode, you waved the knife at her face and she put up her hands to protect herself, reaching out towards the knife as she did so to prevent it coming any nearer her face.  As you wielded the knife, you cut both her hands on the webbed area between her thumb and index finger on one hand and near the base of the index finger on the other hand. That is Charge 4, recklessly causing injury.

12While she was bleeding from these cuts, you told her to have a shower, which she did, and with only a towel around her, she escaped from the house and ran to a neighbour's front door where she asked for help.  The neighbour said in evidence that the victim appeared to be in severe distress, bleeding and fragile.  She looked fearful and perhaps in pain.  Soon after her arrival, while the neighbour was calling an ambulance, she collapsed on to the ground outside the door.  She was taken to hospital where the cuts to her hands were sutured and she was discharged very early that morning. 

13The other episode commenced on 18 April when the victim was staying at her brother's house.  You went there sometime that night and appeared upset.  After a brief conversation with her, you drove away but returned very soon afterwards.  You ordered the victim, who was wearing only a dressing gown, to get into the back seat of the car and you forced her by grabbing her around her head and forcing your thumbs into her neck, causing her pain.  This is the start of Charge 8, false imprisonment.

14Then you drove away at a fast speed and in an angry state, while she begged you to slow down and to stop.  You eventually stopped at an unknown, isolated location where there were paddocks on one side of the road and no houses or lights.  You told her you were going to cut her toes off.  That is Charge 9, the second charge of threatening to inflict serious injury.

15She did not attempt to get out of the car because she did not know where she was and she was scared that you would chase her.  That is the continuation of Charge 8, the charge of false imprisonment, which ended when the other car came along and she jumped out.  Whilst she was in your car, you beat her around the head with your open hands.  As a result, she suffered an abrasion above her eye, a bruised upper arm and a sore shoulder blade. That is Charge 11, the second charge of recklessly causing injury.

16After some time, the victim saw a car coming and got out of your car.  By this time, you had told her to get into the front seat and you were in the back. 
She ran to the other car and asked the driver for help.  She was driven to the Geelong Police Station and she reported the matter.  From there, she was taken by ambulance to hospital. 

17As I noted earlier, all these charges were committed in breach of the intervention order imposed on 12 January 2016 and this results in two breaches, one in respect of each occasion of offending, 26 January and
18th and 19th April.

THE VICTIM IMPACT STATEMENT 

18The victim provided a victim impact statement dated 15 March 2017 in which she described the physical and psychological effects of the assaults as well as the fact that her children were taken into care by the Department of Health and Human Services, ostensibly because they witnessed the earlier assaults.  There is no further information provided about this but I note that the children were living with her until this time and not thereafter.

19Certainly it seems to be the victim's perception that the children were taken because of your violence towards her, which is not to say that this may not have been caused by a combination of reasons including possible drug use by her.

20From the assaults you inflicted she still has visible scars on her face and hands, and she suffered bruising and soreness for a long time afterwards. 
Her pre-existing anxiety and depression was exacerbated and she suffers from chronic panic attacks, one of which caused hospitalisation for several days.  She became suicidal, but fortunately is recovering and understands that her children will be returned to her.

21At the end of her statement, the victim said "I lost my kids, my house, and my car.  I lost everything because of what he did to me".  She did not elaborate on this claim in her statement and without further information, I place less than full weight on this aspect of her statement.

PERSONAL BACKGROUND

22You are aged 49.  You grew up in an immigrant family in Geelong and according to what you told the psychologist, Ms Lechner, you found school difficult because English was not spoken at home, and you were bullied at school and treated harshly by other children, and indeed by their parents, because of your background.  You struggled to become literate and left school early.  
You qualified as a panel beater and worked in that industry full-time until 2000 when you suffered a back injury from a car accident, and part-time after that until you suffered a head injury in 2007.

23Your father was violent and an alcoholic, and your relationship with him was turbulent, but you had a close relationship with your mother who died recently, after the first episode of violence that I have described and before the second.

24You began drinking alcohol at the age of 13, supplied by your father and continued to drink in harmful amounts and frequency, using it as a coping mechanism until about five years ago.  However you have not been a user of illicit drugs.

25You have been appearing before the courts all your adult life in relation to a large number of driving offences and several offences involving violence. In addition you have been dealt with for two charges of breaching a family violence order in 2002 and 2012.  Many of these offences resulted in you spending time in prison.  These offences, the ones for which I am sentencing you today, represent an escalation in the seriousness of your offending. 

26After your arrest on 4 May 2016, you were remanded in custody and on
27 June, you were sentenced in the Magistrates' Court for unrelated matters to imprisonment for one year with a non-parole period of five months. 
You therefore spent 54 days in custody for these matters at that time.  Without bail having been granted because of the present charges, the one year sentence expired on 4 May this year.  From that date until your sentence today, you have spent a further 42 days in custody resulting in, my calculation, a total of 96 days in pre-sentence detention.

APPLICATION OF VERDINS’ PRINCIPLES

27I have been provided with four psychological reports which in combination inform me, in considerable detail, about your life and mental health history.  The first in time is a report from Dr Simon Kennedy dated 7 July 2008; the second from Mr Ian Joblin dated 16 December 2011; the third from Dr Aaron Cunningham dated 24 June 2016; and the fourth and most recent from Ms Carla Lechner dated 18 May 2017.

28Dr Kennedy's report was close in time to two serious injuries you suffered; a back injury in 2000 as a motorcycle accident, which required long rehabilitation, and a head injury resulting from an assault in 2007.  Dr Kennedy diagnosed an Adjustment Disorder with mixed anxiety and depressed mood and with some symptoms of Post-Traumatic Stress Disorder falling short of such a diagnosis.

29As a result of the head injury you underwent many operations, the last occurring in 2011, as you reported to Mr Joblin who saw you soon afterwards.  You reported to him some cognitive difficulties and memory dysfunction. 
He formed the opinion that your pre-existing psychological instability and fragility was accentuated by your brain injury, which contributed to the acting out of anti-social impulses. 

30Dr Cunningham diagnosed a major depressive disorder to which you were predisposed by, as he put it, the emotional disconnection and trauma in your childhood environment.  Dr Cunningham gave an account of your three main partnerships, each of which ended badly. 

31Your first relationship was unstable and ended with you being shot following the break-up.  Your second relationship ended tragically when your baby son died following which your partner became very ill.  You parted sometime after that.  Your third relationship ended amidst a serious assault after your partner left you.  Dr Cunningham noted that since then, on your report, you had not been able to maintain stability in the community and as your mother's health declined you became increasingly reckless, lonely and helpless.

32Ms Lechner was able to add further detail to this history in that you discovered that your two sons of your first relationship, who are now aged 19 and 21 were not your biological children, a matter of sadness for you.  You experienced an assault in prison requiring a short hospital stay, and medication to treat seizures which occurred since then.  Ms Lechner recommended a neuro-psychological examination, which has not been done since 2008.

33You reported to Ms Lechner that your depression had improved since you saw Dr Cunningham last year, but she confirmed the diagnosis of major depressive disorder.  She expressed her opinion that "In the face of inter-personal stress, with attendant feelings of loss of control and pending separation, he tends to act impulsively and potentially aggressively".

34Ms Lechner noted that your history of offending has occurred and I quote again: "… in the context of poor emotional and behavioural regulation, secondary to complex childhood trauma, experiences of loss and a serious head injury". 
She went on to state "He does admit to being emotionally distressed at the time of the offences, this no doubt adversely affecting his capacity for sound judgment and impulse inhibition". 

35From her examination of you, Ms Lechner distilled an explanation of your offending in these terms, that hoping to make a relationship work, you bring about the opposite result by becoming controlling and aggressive. 

36These professional opinions form the basis for an analysis of the submission by your counsel, Mr Fitzpatrick, that the principles in the decision of Verdins apply in your case.  Ms Moran, for the prosecution, conceded that the principles in Verdins might apply, but she submitted that those principles should be applied cautiously because you had already demonstrated a violent propensity before you suffered the head injury and major depression. 

37The decision in the case of DPP v O'Neill[1] represents the current state of law in regard to these principles and it was recently discussed further in DPP v Williams[2].  The defence submission in this case was that because you are person with a long standing major depressive disorder, I can take into account the effect of the disorder at the time of the offending and at the time of sentencing to moderate the need for both general and specific deterrence.  It is not necessary for there to exist at the time of the offence a serious psychiatric illness, but a mental disorder or abnormal or impairment of mental function.  The evidence in your case does establish that you were suffering from a mental impairment at the time.  The question is whether or to what extent it affected your mental capacity and therefore your behaviour so as to enliven the Verdins principles. 

[1] [2015] 47 VR 395

[2] [2017] VSCA 130

38The correct application of the decision in Verdins appears to have been clarified in R v Howell[3] in these terms

"As was explained in Verdins, impaired mental functioning may reduce the offender's moral culpability in any number of ways, including, without limitation, if it has the effect of impairing the offender's ability to exercise appropriate judgment or make calm and rational choices, or if it makes the offender disinhibited, or if it obscures the offender's intent to commit the offence."

[3] [2007] VSCA 119 per Nettle J para 20 page 14

39Although the decision in O'Neill has refined the application of Verdins since the decision in Howell, specifically by excluding personality disorders, the passage just quoted suggests how impairment is to be assessed. 

40The reasoning relied upon by Ms Moran, is that your prior offending demonstrates a violent propensity regardless of any mental impairment you are suffering, and so a causal connection between the offending and your mental impairment does not exist.  Moreover, she submitted, general deterrence looms large in this case and so should diminish any reduction in your sentence with the same logic applying to the need for specific deterrence. 

41After the plea hearing on 29 May, the case was listed for further plea following the decision in Williams on 5 June.  I heard further submissions on 6 June.  In Williams, the offender was a man with a long criminal history as is the case here.  The sentencing judge found that the offending was "…a  consequence of the appellant being unable to control his anger, combined with [his] use of alcohol and drugs …".  The judge found that there was nothing in the material to support a link between mental impairment and the offending, so Verdins did not apply. 

42The Court of Appeal came to a different view.  Whilst acknowledging that the psychological opinion was not firm, but rather was a suggestion, when the psychologist's report was read as a whole, there was clear attribution of some contribution towards the offending, to the appellant's mental condition[4]; hence the necessary link was established.

[4] Williams para 47

43To use similar reasoning in your case, and taking into consideration the combination of professional opinion, is to conclude that there was some contribution to your offending by your mental condition.

44In addressing the findings in Williams, Ms Moran took the view that the decision in that case should be distinguished by the fact that the psychologist had found a causal link which the sentencing judge had not acted upon, and that the psychological condition was of a very different nature.  That is important, Ms Moran submitted, because whether there has been an impairment depends on symptoms in the particular case and there is no cogent evidence in your case, as required by the decision in O'Neill.

45Ms Moran referred to paragraph 84 of the judgment, which read together with paragraph 85 states that a personality disorder does permit the application of Verdins.  Indeed, paragraph 84 contains an excerpt from the psychological report of Dr Barth, describing the offending as follows:

"…the offending which brings Mr O’Neill before the court can be viewed as a culmination of his poor emotional awareness, limited coping skills, impulsive decision making, the accompanying propensity to engage in reckless behaviour and his limited conflict resolution skills. In the context of his significant personality pathology, particularly his intense interpersonal dependency combined with feelings of inadequacy and failure, these factors underpinned the devastating act of interpersonal aggression and violence which he perpetrated against Mr Rattle."

46Verdins was held not to apply in those circumstances.  The foregoing paragraph contains two parts; the first detailing the offender's behaviour attributes and the second describing his personality disorder.  It was that condition that excluded the application of Verdins.  Your behavioural attributes are very similar to those of Mr O'Neill but yours have been described as operating in the context of a major depressive disorder.

47True it is that you demonstrated these behavioural attributes long before the current offending and that gives strength to Ms Moran's submission that I must take your mental condition into account as having impaired your judgment and therefore as enlivening the Verdins principles, those numbered 1 to 5. I must then determine what weight should be given it.

48Ms Moran submitted that consideration of your forensic history effectively overshadows your mental condition to exclude the principles in Verdins.  Alternatively, she submitted that if Verdins does apply, your criminal history still indicates a need for specific deterrence and any reduction in your sentence should be of little weight.

49I consider that moderate weight should be given to it and I take that into account with the other mitigating factors to which I shall turn now. 

50I have mentioned the assault which occurred in prison on 16 May last year.  It was a bad assault in that you had a tooth knocked out and had two days in hospital followed by three weeks in the prison hospital.  You were then separated from the prison population and have therefore had a difficult time in prison.

51Your counsel submitted that this should be regarded as extra-curial punishment, a submission that was opposed by Ms Moran who submitted that although the assault occurred in custody, it was not carried out for a reason linked to the offending and so it should not be classified as extra-curial punishment.

52The decision in R v Daetz[5] was quoted as authority for the proposition that while there is no general rule that an assault such as a revenge attack on an offender be regarded as mitigation, it can apply in a particular case.  The court in that case considered a large number of cases in which such punishment had occurred.  In all of them, unlike in this case, the circumstances related to an attack linked to the actual offending.

[5] R v Daetz R v Wilson[2003] NSWCCA 216

53I do not consider that the attack on you in prison, lacking any direct relation to this offending, should be mitigatory as extra-curial punishment.  However it carries some weight as having made your time in custody more difficult, not only because of the assault itself but also because it resulted in your separation from the prison population.  A further mitigatory matter is that of totality.  You were arrested for these matters on 4 May 2016.  As I said earlier, on 27 June in Geelong Magistrates' Court, you were sentenced to 12 months imprisonment for other matters, with a non-parole period of five months, to be a followed by a 12 month Community Correction Order.

54Those offences, dealt with in a consolidated hearing, were committed at around the same time as the offences for which I am sentencing you now.  You have not been able to apply for parole because of awaiting trial for these offences and since the trial you have been awaiting sentence pending the obtaining of an up-to-date psychological report.

55The two periods to be taken into account as detention already served are the period of 54 days between 4 May and 27 June 2016 and 42 days between 4 May 2017 and today, 16 June 2017 which I have calculated to be 96 days.  Subject to any correction about that, I declare that time to be reckoned as already served and I shall cause that be noted the court record.

56But for the current offending, you would have been eligible to apply for parole in November 2016 and so the approximate period of six months between then and now is a period to be considered when determining the length of the sentence.  Despite the fact that the granting of parole is an administrative decision, as the court in Morgan v R[6] said if time has been served, that is a fact that must be taken into account by way of some reduction of the sentence being imposed.  It must also be considered in order to avoid imposing a crushing sentence.

THE GRAVITY OF THE OFFENDING

[6] Morgan v R [2013] VSCA 33 para 49 - 61

57Through your counsel you do not dispute that your offending amounts to serious examples of serious offences, and taking into account your criminal history it is also conceded that a prison sentence is warranted.  The victim was very scared by your treatment of her.  You hurt her and frightened her badly on both occasions.  Indeed, on each occasion she was forced to ask a stranger for help, taking the risk of knocking on a stranger's door on the first occasion and getting into a stranger's car on the second occasion.  Each time you threatened to injure her in a horrific way.  It is hard to understand why you did these things, let alone to a woman with whom you wanted to pursue a relationship.

58The offence of false imprisonment is one of the most serious of charges according to the ten year maximum penalty applicable which also applies to several of the other offences.  Over objection by Ms Moran, Mr Fitzpatrick has submitted that this instance of that offence fell within the range of seriousness represented by two cases, Kassab v R[7] and Lord v R.[8]  The terms of imprisonment imposed in those cases were one year and five years respectively.  I understood Mr Fitzpatrick's submission to imply that those sentences represented the seriousness of the offending in each case, a shortcut by him to avoid the need to examine the circumstances of the offending in each case.

[7] [2016] VSCA 327

[8] [2017] VSCA 29

59In that sense, his submission did not offend against any law but merely endeavoured to reflect current sentencing practice, an exercise which is entirely proper and to which regard should be had.  However, my attention was not drawn to the circumstances of those two cases and for that reason, I put that submission to one side.

60In any event, Mr Fitzpatrick submitted that the offence of false imprisonment was of a less serious nature than the offending on the first occasion - I should add there that the first episode also led to a charge of false imprisonment resulting in an acquittal.  Injuries were inflicted on both occasions, the more serious being on the first occasion when the victim's hand was cut in several places.  The fear to which she was subjected was very grave on both occasions, and the circumstances on the second occasion subjected her to considerable risk as well.  For those reason, I regard the offence of false imprisonment as being the most serious of the offending.

61I will ask you to stand, Mr Correia and counsel will be given a summary to follow the sentence. 

62Mr Correia, I sentence you to the following terms of imprisonment:

Charge 2, common assault, two years

Charge 4, recklessly cause injury, two years and six months

Charge 5, making a threat to kill, two years

Charge 6, common assault, 1 year

Charge 7, threat to inflict serious injury, two years

Charge 8, false imprisonment, three years

Charge 9, making a threat to inflict serious injury, two years

Charge 11, recklessly cause injury, 18 months

for each of the two charges of contravening a family violence intervention order, 12 months.

63The sentence imposed for Charge 8 will be the base sentence for purposes of cumulation and I order that six months of the sentence for Charge 4, three months for each of the sentences for Charges 2, 5, 6, 7, 9 and 11 and three months for each of the summary charges, contravening the family intervention order, be served in cumulation upon the base sentence. 

64The breaches of the family violence order are serious and you have two prior convictions for the same offence in 2011.  Accordingly, the sentences for those two charges deserve a significant degree of cumulation relative to the maximum penalty applicable.  It is an important point of general deterrence, and in your case also specific deterrence, that it be understood that such breaches will be dealt with severely.

65This results in a total effective sentence of five years and six months.  I order that you serve three years and three months before eligible for parole.

66Under the provisions of s.6C of the Sentencing Act, you are to be sentenced as a serious violent offender for Charge 5, but the prosecution does not seek a sentence that is disproportionate to the gravity of the offending.  Your status in this regard shall be noted on the court record.

67The prosecution seeks an order for a forensic sample of saliva to be obtained under s.464ZF of the Crimes Act and through your counsel that is not opposed.  I make that order and must advise you that the police have the power to use reasonable force to obtain the sample but I trust that won't be necessary

68In relation to the two summary charges, s.6AAA requires me to state the sentence that I would have imposed if you had pleaded not guilty.  The sentence would have been a term of imprisonment of 15 months for each of those two charges.

69Are there any other matters that I have neglected or omitted, Ms Moran?

70MS MORAN:  Your Honour, I don't think the PSD was correct.

71HER HONOUR:  All right.

72MS MORAN:  With respect, Your Honour counted, as I understood it, the 54 days of detention that had been declared already on the previous sentence, so it's - my calculation is 47 days.

73HER HONOUR:  I see.  All right.  In total?

74MS MORAN:  In total, yes.

75HER HONOUR:  It was that earlier period, was it, that had already been declared in relation to- - -?

76MS MORAN:  It had been already been declared, that 54 days.

77HER HONOUR:  I see, all right.  So it's 47 days pre-sentence detention?

78MS MORAN:  Yes, it was 25 days as at 29 May, not including the 29 May and then 18 days since.

79HER HONOUR:  All right, I'll correct that.

80MS MORAN:  Thank you.

81HER HONOUR:  Mr Northeast, do you agree with that.

82MR NORTHEAST:  No issue, Your Honour.

83HER HONOUR:  All right.  Nothing further?

84MS MORAN:  No.

85HER HONOUR:  Thank you, Mr Correia may be taken now. 

‑ ‑ ‑