Director of Public Prosecutions v Croucher
[2021] VCC 305
•19 March 2021
| IN THE COUNTY COURT OF VICTORIA CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01646
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PATRICK CROUCHER |
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JUDGE: | HIS HONOUR JUDGE DOYLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 January 2021 | |
DATE OF SENTENCE: | 19 March 2021 | |
CASE MAY BE CITED AS: | DPP v Croucher | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 305 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW - SENTENCE
Catchwords: Guilty plea – whether Verdins principles applicable – family violence offending – Personality disorders of offender – Aboriginal offender - Deprived background – Koori Court – relevant criminal history – specific and general deterrence moderated
Legislation cited: Crimes Act 1958 s 18, s 22; Sentencing Act 1991 s 18,
Cases cited:R v Verdins & Ors [2007] VSCA 102; Honeysett v The Queen (2018) 56 VR 375; Bugmy v The Queen [2013] HCA 27
Sentence:Four years imprisonment with a minimum non-parole period of two years and six months
Section 6AAA Declaration: Five years and ten months imprisonment with a minimum non-parole period of four years
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D. Cordy | Office of Public Prosecutions |
| For the Accused | Mr J. Lavery | Greg Thomas Barristers and Solicitors |
HIS HONOUR:
1Patrick Croucher, you have pleaded guilty to one charge of false imprisonment for which the maximum penalty is 10 years’ imprisonment, one charge of recklessly cause injury for which the maximum penalty is five years imprisonment, a charge of reckless conduct endangering life for which the maximum penalty is 10 years’ imprisonment, and a charge of attempting to pervert the course of justice for which the maximum penalty is 25 years’ imprisonment.
2You have also pleaded guilty to a summary charge of committing an indictable offence whilst on bail, that is summary Charge 7. The maximum penalty for that offence is three months imprisonment.
Background
3At the time of the offending you lived at an address in Mildura with the victim who was 32 years old. You were aged 32 at that time and you and the victim had been in a relationship on and off for many years. You have four children together now, three at that time. They were in the care of the victim's mother. You separated for three years and then rekindled your relationship in May 2019.
4At the time of the offending the victim was approximately 20 weeks pregnant to you. You were on bail to appear at the Mildura Magistrates' Court in May 2020 for driving matters. Bail was the result of an outstanding warrant, apparently for those matters that go back to 2018. The fact that you were on bail is the subject of summary Charge 7.
5
The prosecution opening was tendered on the plea and read into open court by
Mr Cordy and marked as Exhibit 1. I will summarise the circumstances of your offending.
Circumstances of the offending
6On Thursday, 23 January 2020 at around 12.10pm, you and the victim were driving in her vehicle. You were arguing because you thought she had cheated on you. You became paranoid and nervous about a police car driving behind you. You were headed to the Caltex service station at the intersection of Tenth Street and Ontario Avenue to pump up a tyre. The victim stopped the car at the Caltex. You became abusive when she pumped the wrong tyre. She said the relationship was over and went to walk off. You grabbed her, putting your arms around her. You said to her, 'I'm going to do us both in right here.' The victim knew you had a bumbag with a knife inside and you fumbled with your bag. The victim said this to the police:
'I looked down and saw he was already fumbling with his bumbag. That's all he needed to say to get me back in the car with him. I didn't wanna go with him when he is like that. I felt like I didn't have a choice.'
7
You pushed her and she hit her hip on the car as she got back into the driver's seat. When you got into the car, she accelerated towards the hedges at the storefront to attract attention. CCTV from the service station shows the vehicle hitting the hedges. She then drove towards the exit onto Ontario Avenue. The vehicle skidded to stop and slid sideways. The victim believed that you applied the handbrake. You then started punching and grabbing her as she sat in the driver's seat. She opened the driver's door, trying to get out of the car, but you pulled her back in. You threw her over the seats into the back seat. You climbed over the console into the driver's seat. CCTV shows you hitting
the victim and holding her down in the back seat as you drive down Ontario Avenue. You drove to Rennicks Street where you stopped the vehicle in the gutter.
8The victim got out of the vehicle and ran down the street away from you. She could not run far due to a previous knee injury. You tried to grab her. She told you to get away from her. You grabbed her from behind and she flopped to the ground. You told her to get back into the car. The two of you then shared a hug, looking upset and emotional. You then took her back to the car.
9
At approximately 12.20pm, police intercepted the vehicle in a nearby street. You were observed looking sweaty and exhausted. You told police that the victim had assaulted you a short time before. This was a version she supported.
The victim later said she was asked by you to cover up what had occurred. She said to police:
'I didn't know what he was capable of at that point … Pat told me to protect him and was pleading for me to not let them take him.'
10Police issued a family violence safety notice against the victim due to what had been disclosed. However, CCTV obtained by investigators from the Caltex service station at Tenth Street and Ontario Avenue, Mildura shows the incident. It matches the version ultimately given by the victim to the police in this matter. It is the circumstances that I have described that make up the basis of Charge 1, false imprisonment and Charge 2, recklessly cause an injury.
11On 24 January 2020, in the morning at home, the two of you continued to argue over your belief that she had cheated on you. This had been going on for weeks. You said to her, 'I can't do it, we're done,' and you said, 'I'm gonna go because if I don't go, I'm going to kill you and I don't wanna do that.'
12The arguing continued throughout the day. The victim believed that you had used methamphetamine earlier in the day. She said that, if she had known that, she would not have come home from an appointment, as you had told her one of your three personalities was coming out. She then left the address on foot and you followed her on a pushbike. You continually called her with your mobile phone. She smashed the phone to stop your calls.
13She sought refuge in the Ontario General Store. CCTV footage shows her inside the store with you riding on a pushbike outside, looking through the window inside at her and pointing your finger. She had urinated herself from walking due to the pregnancy. She went outside to the payphone nearby. As she was using the phone, you pushed her. She put her leg up to protect herself and her stomach. You hung up the phone. She then ran away at that point.
14The victim walked up and down the street and through the park, followed by you. She returned home with you right behind her. She tried to leave in her vehicle but you grabbed her. You said, 'You are not going. Just talk to me.' She pleaded with you to let her go. She then walked back into the house with you following. She went to the bedroom to change her pants. You went into the bedroom as she was getting changed. She said, 'If we're not together you shouldn't be in here while I'm getting changed.' You left the room but came back a short time later. You grabbed her by the throat with one hand, digging your fingers into her Adam's apple area. She could not breathe. You asked her, 'Are you going to be quiet?' She gave you the two thumbs up. You let her go for a second and she tried to cough. Your voice changed and you said, 'Nuh, that's it, you're a dead cunt.'
15You wrapped your arm around her neck from behind and your legs around her waist. She tried to move your legs off her stomach for the baby before everything went black and she lost consciousness. She then woke up and did not realise initially what had occurred. She said this in her statement:
'I didn't even know I'd passed out. As I woke up, he was, ah, putting me down on my back. It felt like it was the morning and I had just woken up. I even smiled at him. It was like being in a weird daze. Then I realised what had happened. I felt like I was all wet down below. I had wet myself again.'
16The victim realised what had occurred after you told her she attacked you. She felt her stomach and she was worried she had lost the baby. She said that she had a flash of not being able to breath. 'I put my hand down there and started to freak out about the baby. My tummy didn't feel hard or anything.' You grabbed her again and choked her until she passed out for a second time, aggravating an existing back injury in the process. She said this;
'He grabbed me again and we sort of rolled around on the mattress again. I was rolling with him. He choked me again and I was being flung around. I remember pleading with him about my back, which was hurting, and I felt like my nerves were being ripped out in my legs. It was excruciating. I couldn't breath again. I blacked out for a second time.'
17The two episodes of choking the victim to unconsciousness seemed to be a course of conduct that constitutes the basis of Charge 3, reckless conduct endangering life, and of course, the committing an indictable offence whilst on bail.
18The victim woke up again to you holding her stomach. You said it was not your child and you spoke to the baby saying, 'I am sorry my son, my baby.' The victim was in and out of consciousness. When she woke again, you had hung a rope in the cupboard above her. You had the rope around your neck and said, 'Watch this, I'll never be able to hurt you again.' You then hung yourself in the cupboard while the victim watched. She struggled to help but she was in pain from her own back injury. She tried to prop up your feet as you turned blue, before getting to her feet and using scissors to cut you down. You then hit your head on the cupboard and an ambulance was called to assist. You were taken to the Mildura Base Hospital and placed in an induced coma. She was also taken to the Mildura Base Hospital and medically examined. There was no harm to the unborn child. From these incidents she suffered scratches to her back and face, along with soreness and redness to her neck.
19Police attended at your address on 24 January 2020. The victim told them what had occurred. An examination of the crime scene revealed a blue and yellow rope hanging from the cupboard, along with a pair of scissors nearby, as described by the victim. Police took photographs of the scene and seized the rope and the scissors.
Police interview
20You were interviewed on 28 January 2020 at Mildura. You made no admissions. You denied the assaults on the victim. You did have a large red mark around your neck from where you had hung yourself.
21Regarding the incident on the 23rd, you said the victim had a split personality and was going off about an earlier court hearing related to your son. You also said that she stopped at the service station to pump up a tyre but did the wrong one. You said you pumped up the right tyre before she tried to walk away. You denied having a knife and making her go back to the vehicle. You said she drove flat out in front of the building, causing you to put the handbrake on to stop her hitting the building. You said she was trying to kill both of you. You allege she was trying to assault you. You said that she walked away from the car as she was having a breakdown. You told her to get back in the car so you could go home. You denied dragging her back to the car.
22You said you had used methamphetamine the night before you hung yourself on 24 January 2020. You said you assume the mark around your neck was from hanging yourself. You said your life was not worth living anymore and the reason you did that was because you caught the victim cheating on you. You said you tried to hug her on the mattress before you hung yourself. You denied choking her at any point. You said that you then hung yourself before waking to lights at the hospital. You were highly emotional when told the victim had cut you down. You said hanging yourself in front of the victim was a bigger insult than any assault would be and said, 'It is sad and pathetic of me actually.'
23
Police issued a family violence safety notice against you and you were remanded in custody. You have been in custody ever since. On 28 January 2020, a full intervention order was made which prohibited you from contacting her. On
3 March 2020, police were monitoring your prison calls. On 29 February you had spoken to the victim via your sister who had her on speaker phone. You told her you never cheated on her and you thanked her for saving your life. Later on at 12.19pm, you had another phone call with her or with her present. You apologised for what had occurred on the day of the arrest. She told you that both of you nearly died. You discussed varying the intervention order and bail.
24Later, at 5.56pm that day, you were speaking to your mother and asked her to ask the victim to make a 'Stat dec,' that says you did not kidnap her and hurt her, so she can send it to your lawyer and you will get out of prison and everything will get thrown out. You told your mother you pulled the handbrake on and she tried to jump out of the car in front of a truck.
25Then on 1 March 2020 at 3.50pm, you again spoke to the victim via your sister. You said this, 'I need you to go to the chemist and do a stat dec for me saying that I didn't kidnap you for my lawyer.' The victim agreed to complete the request and you continued, 'Yeah, if you do a stat dec stating I didn't hurt you and didn't kidnap you, then I'll be coming home on the 27th.' The victim said, 'Okay, I'll make sure I do that tomorrow morning then.' You said, 'Thank you, baby, 'cause then I'll be coming home to you and it will all just get thrown and shit and I'll come home to you.'
26
At 4.04pm in another call to the victim via your sister you said, 'If you can do that Monday, I'll really appreciate it. The Mildura cops are trying to fuck me over.' The victim said, 'Yeah, I'll do it tomorrow first thing.' You said, 'Say it straight out that I didn't hurt you and I didn’t kidnap you. You know what I mean? I'll be home to you.' On 2 March 2020 at 6.49pm you made another call to
the victim via your sister. The victim confirmed to you that she had prepared a document to be witnessed the following day which she was to give to your solicitor that you had earlier requested. It is this series of phone calls attempting to have the victim exonerate you under statutory declaration which constitutes the basis of Charge 4, attempting to pervert the course of justice.
Victim impact
27The material indicates that the emotional and psychological impacts, as well as the physical injuries to the victim, have been substantial.
28Victim impact statements were tendered from the victim, her parents and her daughter. There is inadmissible material in those statements that relates to other incidents and general observations about your conduct during the relationship that I have not had regard to. Nonetheless, the impact of this incident on the victim has been significant and ongoing and your conduct by this offending has had wider effects on her parents and your children with her. These matters are important in sentencing in this case.
Guilty plea
29
Mr Croucher, you pleaded guilty at an early stage in these proceedings. No witnesses were cross-examined. This matter proceeded by way of a hand-up brief. I accept your plea as an indication of some remorse and shows a willingness to facilitate the course of justice. You have spared the witnesses the experience of reliving these events and that is significant. I give you credit also for the utilitarian value of your plea in saving the court the use of the resources which would have been required for a trial. The utilitarian value is significant in this case and is heightened by the current trial delays occasioned by the response to the
COVID-19 pandemic.
Seriousness of the offences
30Your conduct was personal violence against your intimate partner and it was of a serious nature, particularly the actions which constitute the reckless conduct offence. The seriousness of the offending is reflected in the various significant maximum penalties to which I have referred. The first incident, involving an assault and a false imprisonment whilst serious was at the lower end of the spectrum in regard to false imprisonment offences; however, it does represent the commencement of your personal violence against the victim in this overall episode and in the context of this case merits a period of immediate imprisonment with some cumulation. The reckless conduct endangering life offence is, in my opinion, a serious example of that offence involving two incidents of choking to the point of making the victim pass out.
31She was pregnant and vulnerable at the time and fearful she had lost the baby because of your actions. This was a deliberate assault that carried a genuine and immediate risk to her life when she became unconscious. The second incident caused her great pain and aggravated her back injury. As I have said, the offence encompasses that the choking occurred on two occasions. Strangling or choking is inherently very dangerous and represents serious personal violence. I find that the level of danger to life in this case was high. This was a terrifying incident and has had ongoing psychological ramifications for her. Your efforts to persuade her to provide a statutory declaration exonerating you were calculated to avoid responsibility and incarceration for the serious criminal actions you had perpetrated against her and also represented further controlling and manipulative conduct towards her.
32You were precluded from contacting her by reason of the intervention order at the time you made the calls, which constitute the offence. Attempting to pervert the course of justice is a serious offence which is often described as striking at the heart of the justice system. Your conduct was persistent, involving several calls with a clear plan and intent. On the other hand, to make calls from the prison, which are recorded, is a hardly an operation of any great sophistication and the chances of detection were high. You did not make any threats to the victim. The incentive you held out to her was that you would return home.
33Indeed, the whole of the events giving rise to the charges paints you as a jealous, controlling and violent man towards the victim. Your prior convictions involving the victim reinforces this impression. It would be better for all concerned if you do not reconcile with her and resume the relationship. The prospect of a reconciliation gives rise to concerns of community protection. Offending such as yours of domestic violence is incredibly prevalent in the community and considerations of general deterrence are therefore important. An aggravating feature of your offending is that you were on bail at the time you committed these crimes.
Personal circumstances
34You are the second oldest of four children, with one older sister and a younger sister and brother. You also had an adopted brother as well. Your father worked as a mechanic and your mother worked for the Department of Human Services. You say your father was frequently in trouble with the police and, as a result, the family moved around a lot. Apparently, your father is now living in Queensland. As I understand it, your mother also lives in Queensland. You describe significant physical violence from your father in the family home when you were growing up, both towards yourself and your mother and your siblings.
35I have received a reference from your mother Marinella Diana who refers to you as witnessing your father's violence towards her. She says that you turned to drugs as a result, to block out your formative experiences. She suggests you have made efforts at rehabilitation in prison and have had psychological treatment. She remains supportive of you.
36Your father apparently suffered from schizophrenia and was an alcoholic. As I have said, you witnessed his violence. You also say your father sexually abused your sisters. You say you have not seen your father since you were aged 14. You do speak positively about your mother. On several occasions, apparently your family was forced to leave the family home and go to women's shelters. Child Protection was involved with your family when you lived in Alice Springs.
37You struggled at school and you were diagnosed with dyslexia. Because of your learning difficulties, you were bullied. You were expelled from school aged approximately 11 and sent to special school and you left school at age 12 during year 5 apparently. You later tried to complete a literacy course but some form of altercation involving your partner put an end to that. After leaving school, you worked in a number of manual labour jobs, the longest for approximately one year performing garden and maintenance in Melbourne. You often lost employment due to using drugs and being absent from work.
38You have had two serious long-term relationships in your life and you have six children. You became a father for the first time at the age of 14. Your first child was a boy. He is now aged 19 years old and lives in Adelaide. You have no contact with him. You started a relationship the victim when you were aged approximately 15. You have been together on and off since that time. You have four children together. Your other significant long-term relationship was with a woman named Rowena with whom you have a three-year-old child. You said to the psychiatrist who assessed you that there were no issues with violence in that relationship.
39Finally, in terms of your personal background, your younger adopted brother committed suicide approximately four years ago, which you found deeply distressing as you had a close relationship with him. He also had problems with substance abuse prior to his death.
Prior criminal history
40You have a relevant criminal history, including three intervention order contraventions which occurred in 2011, 2012 and 2015, all of which, I am told, related to the victim. You have a prior conviction in 2013 for an offence of recklessly causing injury which also related to her. These prior convictions are indicative of a relationship characterised by a level of violence and they are relevant to considerations of specific deterrence and community protection. You have prior convictions for a range of other offences, including affray, reckless conduct endangering life and repeated traffic offences. You have received community-based penalties in the past, which you have breached.
41Whilst your history is unimpressive, you have not, on my reading of the prior convictions, received any immediate terms of imprisonment, although, I note that you told Dr Clarkson, the psychologist from Forensicare, that you served three months in 2013 for an assault. I suspect that was a period on remand before the final sentence. However, the sentence I impose will be the first significant sentence you have received and the first with a non-parole period.
Drug and alcohol history
42You began using cannabis at the age of 12 and you have used cannabis ever since. You started using amphetamines at the age of 16 and methamphetamines at the age of 22. You have experimented with heroin and were using it up to around three weeks before your arrest. You describe the occasional use of cocaine up to a month before your arrest and you have been a heavy drinker in the past, but you indicated you stopped drinking between 2013 and 2019.
Psychiatric history
43You were diagnosed with ADHD at the age of 10. You had a contact with public mental health services at the age of 15, said to be related to excessive cannabis use and you recall being hospitalised at a psychiatric unit in Mildura. Apparently, you again came into contact with mental health services at the age of 16 and were seen by the CAT team in Mildura. As I said, these episodes are said to be connected with cannabis use. You have seen a psychologist, a Mr Sam De Luca, for psychological treatment over a number of years with a focus on relationship counselling, anger management and cognitive counselling being behaviour therapy. You saw a general practitioner after your stepbrother committed suicide. You were prescribed olanzapine by a psychiatrist at Mildura Hospital after you were discharged in respect of this offending. You were not surprisingly considered a high risk of self-harm.
44On 3 February 2020, you were transferred to the Metropolitan Remand Centre and you were referred to Forensicare's mobile forensic mental health service and, following a nursing assessment in February 2020, you were placed on regular observation.
45A psychiatric report from Dr Prashant Pandurangi was tendered on the plea. You told Dr Pandurangi you got no sleep the night before the offences and you had not slept for about 10 days due to the use of drugs. You told him you got back with the victim and she was rubbing it in your face that she was sleeping with other men and was running off and would go missing for several hours. Your recollection of the incident on 24 January was that you and the victim had another argument, following which you grabbed her by the neck, then let go of her. You told Dr Pandurangi, 'I was tripping out and so I'd hurt her. Didn't wanna be like my dad, so I grabbed a rope and hung myself in the bedroom.'
46Dr Pandurangi described issues related to your mental health as beginning in early childhood due to witnessing and being a victim of violence perpetrated by your father, which traumatised your mother who, due to her own potential mental health issues, may have been unable to provide the basic emotional needs which are required to form secure attachment figures. He said you also experience attentional problems and possible learning difficulties, being unable to read or write at age-appropriate level. You also displayed significant behavioural problems which collectively led to an early exit from education. He said that you do not currently present with any symptoms suggestive of a serious mental illness, either a psychotic illness, a mood disorder or a significant anxiety disorder. He said that your conduct at the time of the offending was significantly influenced by several facets of your underlying personality disorder, along with the use of illicit drugs that would have affected your ability to make calm, reasoned decisions or control your emotions.
47He says that your prospects of psychosocial rehabilitation are reasonable if you are able to manage these above risk factors, engage in regular psychological treatment and desist from use of illicit drugs. He says that although a personality disorder can be pervasive and disabling, treatment can improve an individual's interpersonal functioning and their underlying maladaptive behaviours.
48He says there is no indication your mental health has significantly deteriorated by reason of incarceration or that incarceration has been more onerous on you compared to others. You do not suffer from an acute mental illness, which would be expected to deteriorate in a custodial setting, but current restrictions, he thought, would likely mean reduced access to psychological treatment in custody and he felt it was prudent you should be offered such a treatment in the event of an ongoing custodial sentence.’[1]
[1]Paragraph 63 of Report of Dr Pandurangi
49Having regard to Dr Pandurangi’s diagnosis of personality disorder, post-traumatic stress disorder and drug use, Mr Lavery your counsel, submitted that I should obtain a Forensicare psychiatric report in this matter to deal with the issues of your personality disorder, the post-traumatic stress disorder and the application of the principles of Verdins[2]. The report received is from Dr Rose Clarkson, a consultant psychiatrist at Forensicare.
[2]R v Verdins & Ors [2007] VSCA 102
50Her report sets out that you have various issues which may have contributed to your offending behaviour, including your substance use, your personality disorders and your post-traumatic stress disorder. She said that you describe symptoms that would meet the criteria for post-traumatic stress disorder with dissociative symptoms as a result of abuse you experienced in childhood. She describes you as displaying a longstanding pattern of personality traits that meet the criteria for antisocial and borderline personality disorders. She says post-traumatic stress disorder is a disorder which can be associated with negative alterations in cognition and mood, for example, persistent and exaggerated negative beliefs or expectations about oneself, others and the world. She said it could lead to, for instance, irritable behaviour and angry outbursts with little or no provocation, leading to verbal or physical aggression. She said:
'As Mr Croucher experienced traumatic events at a young age, distinguishing between the effects of these events and the development of maladaptive personality functioning is challenging.'[3]
[3]Paragraph 53 of Report of Dr Rose Clarkson
51She says that further illicit substance use would increase your risk of re-offending. She offers the view that your substance use, your personality disorders and your post-traumatic stress disorder may have contributed to the offending. She said separating the causal contribution of each is extremely difficult, as these issues are longstanding, interrelated and exacerbate each other. A further difficulty in assessing the respective contributions to the offending of your personality disorders, your post-traumatic stress disorder and your drug abuse is that, in her view, you did not provide a detailed account of your perspective on the offending behaviour.
52She says in her report you remain at risk of self-harm or suicide in the future due to your impulsivity and difficulties in regulating emotion. Your previous suicide attempts seem to have occurred in the context of acute emotional distress and possible substance intoxication/withdrawal. It was her view that this is likely to persist in the community or a custodial setting and noted that you do not seem to be at increased risk of experiencing hardship in prison due to your mental health concerns or to have an increased risk of significant adverse effects from imprisonment.
Verdins
53Mr Lavery on your behalf relied on the reports of Dr Pandurangi and the Forensicare report of Dr Clarkson to argue for a reduction of moral culpability and moderation of general and specific deterrence. He submitted that paragraphs 56-59 of Dr Clarkson’s report provide a basis for concluding that your post-traumatic stress disorder and anti-social personality disorder enliven the Verdins principles. He submitted that a reduction in the assessment of your moral culpability was called for and moderation of general and specific deterrence.
54The prosecutor Mr Cordy argued that the evidence falls short of establishing a realistic connection between your disorders and the offending in the case. He emphasised the contribution of your drug use to your offences and submitted it is unrealistic to think that you did not understand the effects of your drug use on your behaviour.
55The Verdins principles do not depend on diagnostic labels. What matters is what the evidence shows about the nature, extent and effect of mental impairment experienced by the offender at the relevant time. In the recent case of Brown[4] the Court of Appeal decided that personality disorders, previously excluded from the operation of the Verdins principles, may now enliven those principles, depending on the nature of the condition and the evidence establishing a connection to the offences.
[4] Brownv The Queen [2020] VSCA 212
56In Brown, at paragraph 61 the Court said:
'Evidence-based decision-making is, of course, precisely what Verdins both authorises and requires. What the sentencing judge needs is not a diagnostic label, but a clear, well-founded expert opinion as to the nature and extent of the offender's impairment of mental functioning and, so far as it can be assessed, of its likely impact on the offender at the time of the offending and/or in the foreseeable future.'
57It was submitted that your personality disorders and your post-traumatic stress disorder reduced your ability to exercise appropriate judgment, make calm and rational choices and think clearly at the time of the offending. The relevant question is whether the evidence establishes that the impairment contributed in a way that makes you less blameworthy as a result.
58In my view, the evidence falls short of establishing the type of connection between the diagnosed conditions and the offences required for a reduction of moral culpability and moderation of general and specific deterrence pursuant to the Verdins principles.
59The motivation for Charges 1-3 seems to me to have been jealousy; a belief that the complainant was having an affair. Your offending behaviour occurred against a background of substantial drug use over an extended period. This seems to me to have been clearly connected to your behaviour. You have a long history of drug use and both psychiatrists regarded it as a potential contributing factor to the offences.
60Given your history, it is my view that you must have understood the deleterious effects of drug use on you and its contribution to serious problems in your relationship with the victim. It is also very difficult in this case to disentangle the contribution of the drug use from the effects of the post-traumatic stress disorder and the personality disorders. Further difficulties arise in the analysis of your disorders and the offending, given your false account of the circumstances in your record of interview, and to Dr Pandurangi, and Dr Clarkson's view that you have failed to provide a detailed perspective on the offences. In what you have said about the offences in the various accounts you have given, you have sought to divert responsibility to the victim and the attempt to pervert the course of justice which involved reasoned and calculated actions on your behalf to avoid consequences.
61Dr Clarkson was careful to couch her opinion in terms of whether your psychiatric state may have contributed to the offending.
62Having regard to all these matters, in my opinion, the material does not establish that Verdins principles relied upon by Mr Lavery are applicable.
63However, your personality disorder and your post-traumatic stress disorder are plainly relevant in a general way as matters personal to you. Additionally, your deprived background, about which no issue is taken by the prosecution, growing up as a witness to serious domestic violence, seems to me relevant to the way in which you negotiated your relationship with the victim. Whatever label your psychiatric issues are given, the experts agree arise from your upbringing. You are a product of your formative experiences. I accept your ongoing problems with drugs stem from your dysfunctional upbringings. Your conduct in attempting suicide by hanging reflects the emotional distress you immediately experienced from your own behaviour and reflects some insight and remorse at least at that time.
64Your statement to Dr Pandurangi that you did not want to be like your father, seems to me to underline the enduring effects of your upbringing. The principles set out in the case of Bugmy[5] have some application in these circumstances. In my opinion, some moderation in the assessment of your moral culpability is called for by reason of your background and also some limited moderation of general deterrence.
[5]Bugmy v The Queen [2013] HCA 27
Prospects of rehabilitation
65I have had regard to the material set out in the psychiatric reports. My view is that your prospects of rehabilitation are guarded, but you have not had any extended supervision or any significant period of imprisonment in the past, although, as I said earlier, you say you spent three months in gaol in 2013. With supervision on parole, there is certainly some reason for optimism you can overcome the issues with drug use and your background that caused you to offend, and I note the observations of the two psychiatrists in relation to counselling that is required.
66In coming to this view when assessing your prospects of rehabilitation, I have had regard to the certificates tendered from prison courses you undertook before the onset of the pandemic. In relation to the pandemic, you have been on remand during the period of restrictions within the prison system as a response to
COVID-19. Visits during that period have been suspended and, as I understand it, rehabilitative programs have also been suspended. This situation is likely to persist into the future and I take these matters into account in mitigation as increasing the burden of your imprisonment.67In accordance with the decision of Honeysett v The Queen[6], I accept your participation in the sentencing conversation in this case is mitigating. Participation is voluntary and it was confronting for you. You were emotional during the sentencing conversation. The elders made it very clear to you that domestic violence of this nature is entirely unacceptable in your community. You appeared to take your participation in the process as an opportunity to demonstrate some remorse and some insight into the seriousness and the effects of your offending. You did express an intention to reform. You attempted to explain, as best you could, how you will try and do that and I have had regard to your participation as a mitigating factor in this case.
[6]Honeysett v The Queen (2018) 56 VR 375
Sentencing principles
68Mr Croucher, in sentencing you in this matter, I have attempted to balance the objective gravity of your offending, the need for general and specific deterrence, denunciation, just punishment, and community protection against the mitigating factors that apply and the need to promote your rehabilitation back into the community.
69In formulating the sentence, I have had regard to the totality principle which requires me to ensure that your overall sentence remains just and appropriate for the whole of your offending and I have moderated the orders for cumulation to the extent necessary to give effect to the principle of totality.
Sentence
70In fixing the non-parole period I have had regard to the fact that this is your first substantial sentence and the first time you will be eligible for parole.
·In relation to Charge 1, Mr Croucher, you are convicted and sentenced to nine months’ imprisonment.
·In relation to Charge 2 of recklessly causing injury, you are convicted and sentenced to four months’ imprisonment.
·In relation to Charge 3 of reckless conduct endangering life, you are convicted and sentenced to three years’ imprisonment.
·In relation to Charge 4 of attempting to pervert the course of justice, you are convicted and sentenced to 12 months imprisonment.
71I make the following orders with respect to cumulation. Four months of the sentence on Charge 1 and eight months of the sentence on Charge 4 will be cumulative on each other and on the base sentence which is Charge 3. With respect to the summary offence of committing an indictable offence on bail, you are convicted and discharged, given that I have taken that matter into account as an aggravating feature of your offending.
72That makes a total effective sentence of four years. I fix a non-parole period in this matter of two years and six months.
73Pursuant to s 18 of the Sentencing Act, 420 days is to be deducted administratively from your sentence as a period to be reckoned as served. Pursuant to s 6AAA of the Sentencing Act, but for your plea of guilty, the sentence I would have imposed is five years and ten months, with a minimum of four years.
HIS HONOUR: Now, there's a forfeiture order, Mr Cordy, I think?
MR CORDY: Yes, it was just for some miscellaneous items. I think the rope and those sorts of things, Your Honour.
HIS HONOUR: All right, I'll make that order. There are no other orders required?
MR CORDY: No, Your Honour.
HIS HONOUR: All right. All right, I will now - Mr Croucher, I'll terminate the video link now. You followed what I said. It's four years with a minimum of two-and-a-half years with 400 and - what was it, Mr Cordy?
MR CORDY: 420, Your Honour.
HIS HONOUR: Yes, 420 of pre-sentence detention, all right? Thank you, I'll adjourn the court.
MS O'NEILL: As the court pleases.
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