Director of Public Prosecutions v Delaney
[2022] VCC 791
•1 June 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR 22-00130
Indictment No. M12327634
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SCOTT DELANEY |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 May 2022 | |
DATE OF SENTENCE: | 1 June 2022 | |
CASE MAY BE CITED AS: | DPP v Delaney | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 791 | |
REASONS FOR SENTENCE
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Catchwords: Affray, Reckless Causing Injury x 2 (one victim an emergency worker on duty); Resist emergency worker and assault emergency worker. Summary offences: assault by kicking; commit indictable offence on bail and contravene conduct condition. Lengthy enough criminal history. Early guilty plea. Worboyes v The Queen [2021] VSCA 169; COVID-19, Verdins; Category 1 offence.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T Bourbon | Office of Public Prosecutions |
| For the Accused | Ms E Austin | Slades & Parsons Criminal Law |
HIS HONOUR:
1 Scott Delaney yesterday, you pleaded guilty to 5 charges on the indictment being one charge of affray, two charges of recklessly causing injury and one charge each of resisting and assaulting an emergency worker. The resist charge relates to three Protective Services Officers. You have also pleaded guilty to three summary offences being assault by kicking, committing an indictable offence on bail and contravening a conduct condition of bail.
2 You are 33 years of age, and you have a troubling enough criminal history. You were on bail at the time of these offences for a number of other similar offences including one charge of affray. There was a bail condition that you not enter the CBD other than for a specified purposes being either medical treatment or to access support services. You were also on a Community Corrections Orders from June of 2021 for similar offending. That order had a justice plan and judicial monitoring. So that recent chronology is the backdrop to the offending in November 2021.
3 You have been in custody since your arrest on 10 November of last year.
4 The summary correctly sets out the maximum penalties. I shall not repeat them all. It is accepted that Charge 3 on the indictment is what is described as a Category 1 offence. That is because the victim of that recklessly causing injury was an on-duty emergency worker (a PSO) and obviously he was; he was in uniform. You knew that he was. Unless a 'special reason' is established, I must send you to prison for at least 6 months on that charge and not in combination with a Community Corrections Order. It is a bit more complicated than that actually and I will deal with the legislative provisions a bit later in these reasons. Firstly though, I will turn to the facts.
Facts
5 There is an amended Summary of Prosecution Opening dated 22 May of this year. Your counsel Ms Austin told me it was an agreed statement. That document has been marked as Exhibit A on the plea. There were also some stills in the depositional materials and some footage which was tendered and which I have viewed. That footage was marked as Exhibit B and it contains three discs of footage of the event.
6 As it is an agreed summary, I do not see any need to set out the full sentencing facts. I will sentence pursuant to that agreed summary.
7
By way then only of a quite brief summary, in the early hours of
10 November last year, you were making a bit of a pest of yourself in the city. As you know, you should not have even been in the city. Your bail conditions prohibited your entry into the CBD. It appears from some of the defence materials that you were living in Oakleigh at the time. That is where you should have been.
8 You became involved in a verbal altercation with some roadworkers on the corner of Elizabeth Street and Flinders Lane. The situation escalated. You had pulled a bottle out of your bag and you were holding it upside down. The standoff went for some minutes. Plainly you were not leaving the scene. Mr Khan and Mr Singh were security guards or crowd controllers at a nearby venue and they tried to calm you down with no luck. You yelled abuse at them and went towards them saying you were going to smash them. You were pushed away by Mr Khan. It did not appear to me to be actually necessary for Mr Singh the other guard to chase you away from the entry of the premises out onto Elizabeth Street, which is what he did. It could have ended disastrously as a vehicle came pretty close to you. Happily you were not struck.
9
Mr Singh turned and headed back towards the footpath. You charged at
Mr Singh with what was obviously the makings of a haymaker punch and were correctly tackled to the ground by one of the roadworkers. There was a struggle. You would not see sense. Efforts to calm you or restrain you were not at all successful. It must be observed though that not everyone in that initial scene was acting to calm you. One of those roadworkers inappropriately stepped over and delivered a couple of kicks as you thrashed on the ground with the security guards. It should not have happened.
10 They eventually let go of you. You plainly were not going to leave the scene voluntarily. You began shouting abuse at all and sundry. You removed your shirt and you then approached the security guards and sprayed beer at them and you were rewarded by being wrestled to the ground again. I am not quite sure why anyone thought it was really necessary to wrestle you to the ground in response to being sprayed with a bit of beer. Mind you, as I say, you clearly were not leaving. I have no doubt you were employing some very unpleasant language and it is probably easy for me being wise after the event sitting away from the scene watching footage in the comfort of my own chambers. Those guards were not in such a setting as that and you were undoubtedly belligerent, unpredictable and aggressive.
11 Having been taken to ground another civilian made, what I take to be, some genuine efforts to actually calm you down. He clearly was trying to do that. In the midst of all of that you bit Mr Khan on the right hand above his wrist and broke his skin (Charge 2 Recklessy Causing Injury) and you kicked Mr Singh, the other guard, to the chest (that is the summary offence of assault by kicking). You were thrashing around on the ground. Some people tried to calm you down, again, to no avail. Again, that was some people but not by any means all who were at the scene. Others who were passing by intruded in a pretty unnecessary and unimpressive way. There was an aspect of some of the civilians at the scene seemingly enjoying the 'show' as it were and even participating in it with one young man dancing gaily around you taking footage on his phone, and one young woman sidling up to the scene and kicking some bins back in your direction. Why anyone thought that was appropriate is anyone's guess really. One would think they were affected by alcohol. You were clearly not in a good state and there was nothing at all amusing about your predicament, either for you or for those observing you.
12 Police had been called and three on duty Protective Service Officer’s arrived being Reeta, Horn and Hung. All were clearly in uniform. All clearly were emergency workers and I am satisfied beyond reasonable doubt you knew they were. There is no question about that.
13 Your counsel concedes you were significantly affected by alcohol and drugs and there is just no doubt about that. You were 'off your head' and were plainly substance affected. You were very agitated. You were abusive and threatening and voicing various racial abuse and some pretty disgusting and unpleasant taunts to all and sundry. Saying you would bite that person’s nose off or rape that person’s mum or sister. On it went. Protective Service Officer Horn tried his best to reason with you and to calm you down but when that did not work, he tried to handcuff you. You did not want to be handcuffed. You writhed around to avoid that outcome. You bit him on the hand breaking his skin as well. The other Protective Service Officers and some members of the public tried to assist. You resisted forcefully and you bit PSO Reeta on the hand as well. Paragraphs 18 and 19 describe how this unpleasant incident ended.
14 Horn and Khan both sustained injury. They had puncture marks from your teeth breaking their skin. They both sought medical treatment for their wounds and to prevent infection. Happily neither were infected but the treatment involved blood tests, and for Horn a course of injections and advice as to alterations to his lifestyle in the window of infection until given the all clear. So Horn and Khan each received advice as to issues connected to Hepatitis B, HIV and COVID-19 for that matter. Mr Singh also sought medical treatment. The records are set out for the various treatments from pp175-205 of the Depositions.
15 You were taken to the Melbourne West police station, you were plainly not fit for interview.
16 You have been in custody since.
17 So much then for my brief summary of the summary. That is all it is. There are stills and the footage. I have watched the footage. The bodycam footage has audio and it is plain this was a very unpleasant setting. Had you abided by your bail conditions, none of this would have happened. You would not be facing any of these charges. You had no business even being in the city much less behaving in this fashion. Stating at the scene that you have an acquired brain injury is of no particular use. You did and you do but I am far from satisfied that the acquired brain injury or your intellectual impairment had a lot to do with these crimes.
18 I sentence pursuant to the more detailed agreed written statement which, as I say, was marked as Exhibit A on the plea.
Impact
19 There are no impact statements here. Your victims have declined the opportunity to provide one. It was however obvious that this was a nasty and unpleasant event. There is no indication of any long-term impact and the injuries were relatively slight. No doubt there would have been a nervous wait for the test results giving them the ‘all clear’ in terms of infection. I take into account the impact of the crimes.
In Mitigation
20 Your counsel Ms Austin conducted an excellent plea on your behalf. She had filed and relied upon some comprehensive written submissions that were dated 25 May of this year. She relied upon a report from a neuropsychologist Jane Lofthouse, a statement of intellectual disability, a functional assessment by Matthew Wong, a letter from Phoenix Youth Support and Disability Services as well as a letter from your brother and some various course certificates. There was also a letter from your General Practitioner, Dr Kozminski.
21 These materials in conjunction with the oral submissions informed the court as to your personal and family background, as well as your educational and employment history. Ms Austin made submissions about your rehabilitative prospects, the relative objective gravity of the various offences and the sentencing purposes which came into play in this case. She really could not have said more on your behalf.
22 She relied upon the following matters in mitigation:
· Your early guilty plea in the midst of the global pandemic;
· The presence of some remorse;
· The application of the first 5 limbs from the well-known decision of Verdins[1]; and
· The impacts of COVID-19 upon your custodial experience.
[1] [2007] VSCA 102; 16 VR 269; 169 A Crim R 581 (‘Verdins’)
23 She made submissions as to the impact of your acquired brain injury and the intellectual disability and the relevant statutory framework, arguing that I should find that a 'special reason' existed such as to permit me to consider releasing you onto a mandatory treatment and monitoring order. That there should be no further time in custody. Failing that there should be consideration of a straight sentence and failing that, perhaps a head sentence with a non-parole period.
Prosecution
24 The prosecutor Mr Bourbon had prepared some very measured and sensible submissions which were marked as Exhibit D on the plea. They conceded a number of matters. They conceded the relevance of your intellectual disability and accepted that the first 5 limbs from the case of Verdins would have some role to play. The issue as always was what weight. They submitted that it would be open to me to find a substantial and material reduction in your culpability such as to enliven the special reasons set out in s10A(2)(c)(i) of the Sentencing Act 1991. So they did not challenge that a special reason existed here and nor the suggestion that was made by your counsel that a mandatory treatment and monitoring order would be open in such a setting, though of course they conceded this was dependent upon the findings that made. That is the position. I am not bound by that sort of concession. What I have to do as the sentencing judge is to examine the materials myself and to do so with a degree of rigour.
25 I will come back to discuss these various matters later in these reasons.
Background
26 Firstly, though, I will turn to your background. I will do that briefly as there is much material before me as to that background and no reason at all for me not to accept it. I see no utility in just restating it all in these my reasons; you know your background.
27 You were born in Australia in 1988 and you are 33 years of age. You have an older brother who has written a supportive letter on your behalf. You grew up in Hampton Park and aside from your low level of functioning, you had a relatively usual childhood and that was until your mother died when you were about 15. That had a big impact upon the family which is to be expected. You say that you started using drugs and alcohol really from that point. You were sent to live with a cousin out in Cranbourne. You never went to a mainstream secondary school. You have only a Year 7 level education. In fact, you had been at a special school in Grade 6. You have the literacy skills of a young child. Plainly enough on the materials before me you have had a lifelong intellectual disability and that was the position well before you were struck as a pedestrian by a car back in 2007. That later serious event itself led to very serious injuries and resulted in an acquired brain injury as well as traumatic epilepsy. On the employment front you had worked prior to then at some horse stables and also as a process worker at one point, but you really have not worked since that accident. You have been in receipt of the disability support pension. You live a relatively isolated and lonely existence. You have never had a relationship with a member of the opposite sex and you say that you have no friends. You have support from your brother and also now from the NDIS. That support from the NDIS may hopefully improve your condition significantly down the track. I hope it can. In that regard, there are the useful materials from Matthew Wong and from Cindy Taylor-King. See Exhibits 4 and 5.
28 You have a lengthy enough criminal history. The written submissions at paragraph 28 go to some of those matters. There is little point my working line by line through your criminal history. It is plainly of relevance to my task and that much is conceded. You have been before the Courts on many occasions over the years, including once for attempted armed robbery. That was quite some time ago and that is a bit of a standout in the history. Most of the offending has been far less serious but it has been persistent. There are many offences of a similar nature and regrettably many of those were quite recent appearances, in May 2019, July 2020 and then June 2021. Exhibit C has the three summaries for those court dates. That last appearance related to a range of similar offences and on 3 June of last year (2021), you were released onto a Community Corrections Order with monitoring and a Justice Plan and I note that by July of that same year, you had been charged and bailed for a variety of fresh offences said to have taken place in July including an affray. I note that the affray has subsequently been dropped. There is a consolidated plea listed in late June where the breach of the June 2021 Community Corrections Order and the fresh offences committed in July 2021 (being wilful damage and riotous behaviour) and some older offences from August 2020 (being three assaults and assault with a weapon and offensive behaviour) will all be dealt with.
29 You were on that July 2021 bail undertaking as well as the Community Corrections Order at the time of committing the offences that I must deal with. In your past offending then, there are many offences of assault or resist police or emergency workers, a number of assaults, and some Recklessly Causing Injuries. You have breached a number of court orders in the past, but you have complied with some others.
30 This criminal history is obviously relevant to my task but of course what I must do is pass proportionate sentences here and you do not fall to be sentenced a second time for any of that past offending. You received those sentences and you served them. Undoubtedly though, those matters have some relevance to my task as I have to make judgements about your risk of reoffence and your prospects of rehabilitation. I also have to make judgements about the need to deter you from future offending as well as the need to protect the community from you.
31 I turn then to consider the other matters raised by Ms Austin on your behalf.
Guilty plea
32 The first of those matters is your guilty plea. (see paragraph 34 of the plea submissions). This was a plea at the earliest opportunity. By pleading guilty you have taken this early responsibility for your offending.
33 As a result, the time, the cost and the effort of a committal hearing in the Magistrates' Court or a trial up in this court has been avoided. Witnesses have not been required to give evidence. They have been spared that experience.
34 So you have in these various ways facilitated the course of justice and you must be rewarded for that.
35 Your guilty plea is worthy of extra weight for the many reasons set out in the decision of Court of Appeal decision of Worboyes.[2] You may or may not be aware, but there has been an ever-growing backlog of cases waiting for a hearing in this court as a result of the global pandemic and the delays in the process. Your case is not one of them.
[2]Worboyes v The Queen [2021] VSCA 169
36 So I take these various matters into account in mitigation.
Remorse
37 Your counsel also pointed to your guilty plea and argued that remorse could be inferred from it. Also, that there was remorse on offer in your discussions with Ms Lofthouse and in the letter from your brother. I am prepared to accept those submissions. On the morning of these offences, you were behaving like a maniac and you may well have thought that everyone else was at fault. You have had much time to reflect on your behaviour. I do not doubt that in the cold hard light of day many months removed from the offending you recognise how badly you behaved and the impact that this would have had on others.
38 So I take the existence of remorse into account in your favour.
Rehabilitation
39 I turn then to your prospects of rehabilitation. I am not going to set out the various materials placed before me in any great detail. I have read them all again since the plea yesterday. Your counsel argued that your prospects should be viewed as guarded. No doubt that was owing to the nature of this offending occurring whilst on bail, your age and past offending and the impairments which will not abate. She argues that at least you have support from your brother and also from the NDIS. You have also done some courses and programs whilst in custody. They are referred to in Exhibit 8.
40 One would hope that the difficult time you have served in prison to this point and any time that lies ahead would have some role in deterring you from future offending. The trouble is you have not been deterred in the past. You continue to offend notwithstanding orders that have been designed to assist your rehabilitation. Your counsel concedes there are difficulties in deterring you and that is a problem.
41 You are an isolated individual and you function at a very low level. You have no control over that. You are a long-term user of illegal drugs and that is something you can absolutely control. Stable accommodation has been an issue over the years. Hopefully the NDIS arrangements will assist in that regard. You have no job. You suffer from epilepsy. That is a serious condition. It is imperative that you actually take your medication. You have sometimes lapsed in that regard in the past.
42 Having considered all of the materials, I am prepared to accept your counsel's submissions. I accept that I can only be quite guarded as to your rehabilitative prospects but there are certainly some prospects of rehabilitation. I do not judge them to be illusory at all and those prospects, are nowhere near extinguished in this case. There is however a decent enough risk of your reoffending in a similar way. That is pretty obvious.
43 You plainly need to completely abstain from illegal drug use and take your prescribed drugs. You have enough problems in your life without adding to them with illegal drugs and all the problems that they cause. You need to accept such assistance as is offered to you upon your release by whoever is offering it. If you keep using illegal drugs it is plain you will continue to come before the courts as you have so frequently in the last few years. You will have almost no prospects of rehabilitation if you keep using drugs of dependence.
COVID-19
44 I turn to the issue of COVID-19 and its impact upon you. I accept the submissions made by your counsel (in paragraph 35) as to the impact of the COVID-19 restrictions on your custodial experience.
45 It is clear enough that the COVID-19 virus and the response to it by those running the prisons has increased your prison burden. Prison has undoubtedly been a more stressful environment in the time that you have been there since November of last year. No doubt there has been worry about catching the virus in such a setting where, unlike someone in the community, there is really no level of autonomy. There have been some lockdowns and you have also experienced the increased burden of quarantine or lockdown on a number of occasions as set out in the submissions.
46 There would also have been limitations to visiting and to the full range of courses in much of the period in which you have been held as a prisoner.
47 It has not been a good time to be locked up.
48 Things have looked up in recent times both in the community and in a prison setting and personal visits resumed from about March of this year.
49 As to what lies ahead in the future that is really impossible for me to determine. I cannot really speculate about that. Those whose job it is to run the prisons will be able to reflect on the impact of any past and ongoing limitations on a case-by-case basis. They will have the power to address any increased burden in your case by way of conferring emergency management days upon you. I cannot know if that will take place or not and I do not proceed on the assumption that it will. I cannot take that into account, for to do so would be to contemplate 'executive action' which is prohibited. Case numbers are on the march again in the community and it is not that unreasonable to think that prisoners may yet have some issues thrown up by COVID-19 in the coming months. I take that into account as well.
50 So I take into account the increased burden posed by the response to COVID-19.
Verdins
51 I now deal with the Verdins submissions. I could spend the next half an hour trawling through the report of Ms Lofthouse and some of the other materials and setting out portions of them and my conclusions as to the application of the various Verdins principles. I see no need to. I am dealing with an established intellectual disability in your case and Ms Austin referred to the High Court decision of Muldrock.[3] The application of these principles is a far easier exercise when dealing with this sort of intellectual incapacity. They will usually have some application in such a setting and they do here.
[3]Muldrock v The Queen [2011] HCA 39 (5 October 2011); (2011) 244 CLR 120 (‘Muldrock’)
52 It is quite uncontroversial that you have had a longstanding mild intellectual disability which predated the accident in 2007. You had been at a special school at the tail end of your education, never graduating into a mainstream high school. Further, clearly enough the accident in 2007 had significant impacts upon you as well. It has worsened your intellectual condition. How much of your current residual issues predated the accident and how much can be put down to the accident is quite unimportant. The end position is what is important to me for that is the state you laboured under at the time of the offending and now and into the foreseeable future. You function at a very low level. You have a low IQ and you have a variety of weaknesses in your level of functioning. The accident itself led to traumatic epilepsy and that has been problematic, more so given you have chosen on occasions not to consistently take your medication. You have poor memory. You have poor problem-solving skills and the risk of a level of impulsivity and poor emotional control. There can be heightened impulsive and aggressive responses to real or perceived threats. Now the report of Ms Lofthouse unfortunately relates to three separate sets of offences including the ones I am dealing with and she gives her opinion based on your accounts. Neither she nor you seem to differentiate between any of the offending. It is almost a global view of it. Well, that is not my task at all. I am not greatly assisted by that in terms of the extent of any contribution of those various conditions in relation to this offending that I am dealing with. Plainly enough alcohol and drugs played a very significant role in the offences I am dealing with. You told her that in a general fashion and she is of that view. Well, the footage and the audio speaks for itself. I have seen it. She has not.
53 The first Verdins principle says that if a mentally impaired offender is less morally culpable for their actions, then it may not be appropriate to punish them as harshly as someone who is fully responsible. That makes good sense. Moral culpability may be reduced if, at the time of the offence, the impairment reduced an offender’s ability to exercise appropriate judgment, make calm and rational choices, think clearly, or appreciate the wrongfulness of their conduct or if it made them disinhibited or even obscured the intent to commit the offence or contributed causally to the commission of the offence.
54 The effect of an impairment on moral culpability will always be a matter of degree. What a court must do is assess the gravity of the offending and examine the offender’s conduct before, during, and after the offending in order to determine the extent of the impairment's contribution to the offending.
55 You do not have the same control over your emotions as many others. You do not have the same ability to exercise appropriate judgement or to make calm or rational choices. I accept Ms Lofthouse's opinion that there likely was some level of contribution to the offences arising from your impairments. That conclusion is sufficient to lead to some level of reduction in your moral culpability.
56 It is really quite impossible though to determine to what extent those issues you have no control over actually contributed. I am not satisfied on the balance of probabilities that it is sizable or substantial and material. Plainly alcohol and drugs were a very significant factor in this offending. They often are, both for people with and without impairments such as yours. I have no doubt that they had a strong role to play here. You were totally out of control. You were off your head on drugs and alcohol and that sort of thing is not mitigatory. It is very much explanatory of these offences.
57 Your disabilities would play little if any role in the ability to recognise that the Protective Service Officers posed no threat at all to you. That can be contrasted with how you may have perceived the civilians and even perhaps the crowd controllers in the earlier phases of the incident. You continued behaving in the same way you had previously behaved. It was not a matter of being under threat at that late stage at all and nor am I satisfied that you perceived that you were. You were belligerent and aggressive and highly disinhibited by drugs. I am quite unable to find that your acquired brain injury and intellectual disability and personality traits had any particularly sizeable role in this offending. But some contribution is sufficient to enliven this first limb of Verdins and it is a conclusion that is generally to be reached in relation to the sorts of disabilities that you were labouring under. See the case of Muldrock.
58 So, I give some weight to the first 5 limbs of Verdins. I do not see any basis on the materials to conclude that there is a significant risk of prison having a serious impact upon your condition. Nor was your counsel suggesting that the sixth limb of that case was in any way operative here. It is not. These conditions are static. I am though prepared to find that your prison burden is increased. The expert report does not suggest that it is in any way a sizeable increase. Whilst I can moderate the weight to be given to general and specific deterrence, they are far from eliminated in this case. Again, I observe it seems clear to me that alcohol and illegal drugs had a very large role to play in your conduct on the morning in question. You can and you must be deterred. General deterrence is still of some importance given the nature of the offences especially those involving serving members where general deterrence is usually a pretty weighty consideration.
59 Before leaving this topic, I should say I do not accept the validity of the opinions of Ms Lofthouse where she bases them on the DASS test results. It is of note that a week after you provided those answers to her in connection with a report you knew would be written and used in your court case, the very same test was administered in a setting where you would have had no expectation that those later results would see the light of day in these proceedings. Rather than scoring on the extremely severe scale for depression and anxiety and the severe range for stress, when that same test was administered a week later you scored on the mild range for depression and on the normal for anxiety and stress. It casts some real doubt upon the validity of your responses on one occasion or the other, more likely the first occasion in my view. Either that or doubt as to the persistence of or the residual nature of any state disclosed. I note that Ms Lofthouse suggested you did not appear depressed and that your level of anxiety, presumably as disclosed in the tests that she administered, was 'somewhat beyond' what she expected.
Special reasons - s10A Sentencing Act
60 This is an appropriate time to state my conclusions on the issue of whether or not you have established a special reason under s10A of the Sentencing Act 1991. The short answer is that no special reason has been established. I must say more than that though. I am sorry that I have to descend to this level of detail and I recognise you may not follow much of this portion of my sentencing reasons, but again, I must explain my findings so that others know why I am doing what I am doing.
61 So I turn to those various provisions: ss10AA(4), 10A, 5(2G), 5(2GA), 5(2GB), 5(2GC) of the Sentencing Act 1991. I am certainly not going set them all out. Your counsel in her written submissions referred me to the case of Haberfield.[4] Well, I was the unfortunate judge in that case and so I am very familiar with the provisions as they then existed. I should say that following on from that decision, amendments were made to make it harder still to establish a special reason. At the time of Haberfield the accused had to establish on the balance of probabilities that the mental impairment was not caused solely by self-induced intoxication. That has now been tightened up with the requirement to prove on the balance of probabilities that the impairment was not caused substantially by self-induced intoxication. Further as to section 10A(2)(c)(i) that too has been tightened up with the word 'materially' added to the provision.
[4]DPP v Haberfield [2019] VCC 2082 (‘Haberfield’)
62
In the absence of a special reason, I must send you to prison for at least
6 months on the recklessly causing injury charge where the victim was an emergency worker (Charge 3) That is the effect of s10AA(4). No such requirement exists for any of the other charges.
Special reasons
63
Section 10A(2) of the Sentencing Act 1991 provides that a Court may find a special reason only in a small number of specified circumstances.
Ms Austin argued that two of those subsections are established here, namely section 10A(2)(c)(i) and (ii). The first of those provisions, 10A(2)(c)(i), relates to impairment of functioning at the time of the crime, the second, 10A(2)(c)(ii) relates to impairment of functioning at the time of sentence and beyond. Ms Austin recognised the difficulties associated with the second special reason s10A(2)(c)(ii)] given the state of the evidence in the report of Ms Lofthouse.
s10A(2)(c)(i)
64 As to Section 10A(2)(c)(i) the Court may make a finding that a special reason exists if the offender proves on the balance of probabilities that subject to s10A(2A), at the time of the commission of the offence he had impaired mental functioning that is causally linked to the commission of the offence and substantially and materially reduces the offender's culpability. As I say, the word 'materially' was introduced following that decision of Haberfield.
65 The proviso introduced by s10A(2A) is that this special reason will not be available if the impaired mental functioning was caused substantially by self-induced intoxication. Not 'solely' as existed at the time of Haberfield.
10A(2)(c)(ii)
66 The other special reason relied upon by Ms Austin is found in s10A(2)(c)(ii)
67 That provision provides that a Court may make a finding that a special reason exists if the offender proves on the balance of probabilities that he or she has impaired mental functioning that would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment.
Impairment of mental functioning
68 Each of these provisions requires proof of impairment of mental functioning. That is defined in s10A(1) and includes a 'mental illness' within the meaning of the Mental Health Act2014. That definition section in s10(A)(i) includes an intellectual disability and also an acquired brain injury. Plainly you have now and had at the time of the offending a mental illness as so defined. So impairment of mental functioning is a given in this case.
Increased custodial burden - s10A(2)(c)(ii) - impairment now
69 Let me deal firstly then with the special reason relating to your impaired functioning now and how your prison burden would be increased. Well on the materials before me, as I have said, I accept that you have an increased custodial burden and risk produced - and that is by virtue of the matters spoken of in Ms Lofthouse's report (see p19). I am satisfied of that on the balance of probabilities. That however is not the test. It is far higher than that. Having read all the material, I am not satisfied on the balance of probabilities that you have impaired mental functioning that would result in your being subject to substantially and materially greater than the ordinary burden or risks of imprisonment. That is simply not the state of the evidence in the expert report or elsewhere in the materials and I believe that Ms Austin recognised the difficulties in that regard.
70 The fact is, even had that special reason set out in section 10A(2)(c)(ii) been made out, though the 6-month minimum term would no longer be required, the establishment of that special reason would not make available a Mandatory Treatment and Monitoring Order. In the absence of the other special reason [s10A(2)(c)(i)], I would still have been required to send you to prison, just not necessarily for a period of 6 months. That is the effect of ss5(2G) and (2GA). In any event I do not believe that that special reason under s10(A)(2)(c)(ii) is established on the materials. Yes, there will be an increased burden and one which I do take into account in a Verdins fashion, as I have announced, but it does not fall at that higher level. That Verdins finding is not dependent on my reaching a conclusion that the burden and risks were substantially and materially greater. In fact, I am not satisfied on the balance of probabilities that they are.
10A(2)(c)(i) - Causally connected mental impairment (Impairment at time of offence)
71 What then of the proof that at the time of the offence you had impaired mental functioning that was causally linked to the commission of the offence and which substantially and materially reduces your culpability? If that is established and if I am satisfied that it was not caused substantially by self-induced intoxication, that would be a special reason and one then paving the way at least for consideration of a Mandatory Treatment and Monitoring Order ('MTMO') subject to satisfying the s5(2GA) provisions. Again, I apologise going into this level of detail, but I have to. You may not follow what I am saying but your counsel needs to understand the reasons for my decision.
72 What it amounts to is this: Without such a finding, no MTMO is even open to me. As I have said, even had there been a positive finding on the other ground, that could not save you from a prison term of some duration, though there would be no requirement to impose a minimum period of 6 months. That is the effect of s5(2G) and 5(2GA) of the Sentencing Act.
73
Though section 5(2GA) sets out what a court can do if a special reason is established, the provision then makes clear that the only route to a
non-custodial option is if it is established that there is that causally linked impairment which was not caused substantially by self-induced intoxication. See s5(2GA)(b)(i).
74 In other words, the availability of a Mandatory Treatment and Monitoring Order is dependent on a positive finding under section 10A(2)(c)(i).
75
Well, I have in reality previewed my findings on this topic when dealing with the Verdinsmatters and I see no need to repeat all that I said then. I have made some allowances on limb one of Verdins so I find there is likely to be some contribution provided by your intellectual disability and the acquired brain injury and the other factors mentioned by Ms Lofthouse. So I accept, and have accepted, there is a reduction in your culpability and I make allowance for that. However, I have also indicated that I am not satisfied on the balance of probabilities that that contribution was large. I am not satisfied to the requisite degree that those matters substantially and materially reduced your culpability for this offence: being Charge 3.
76 Ms Lofthouse speaks globally of a number of separate offences on separate days and says that there were a combination of factors at play including intellectual impairment, psychological issues together with the significant impact of drug and alcohol intoxication and they would all negatively impact on your ability to appreciate the wrongfulness of your conduct and obscure your intent to commit the offence. It is impossible to disentangle the effect of alcohol and drugs.
77 I am of the view that self-induced intoxication was a very significant causative factor here in relation to Charge 3 on the indictment. Whatever might be said as to the impact of your level of functioning and the perception of threat arising from the civilian interactions in the earlier phases of the incident, that was not the position in relation to the offence involving the biting of Protective Service Officer Horn. You knew he was a Protective Service Officer. He was in uniform. He was trying to calm the situation down. He was trying to find out from you what had been happening. He was posing no threat to you at all, either real or perceived. You just did not want to be restrained.
78 There is some reduced culpability flowing from your acquired brain injury and impairment. I have already dealt with that earlier in my reasons when dealing with the application of the first limb of Verdins. I am however not satisfied on the balance of probabilities that the 'mental impairment' (or impaired mental functioning) substantially and materially reduced your culpability for this particular offence. I believe that your self-induced intoxication was a very substantial factor in play here. I am not by the way suggesting that that brings into play s10A(2A) as there is no suggestion of any psychosis or disturbance of thought which would qualify separately as a mental impairment. Your mental impairment was the ABI and the intellectual disability, and that 'impairment of functioning' has not been caused substantially or otherwise by self-induced intoxication. At the end of the day though, I am simply not satisfied that s10A(2)(c)(i) is made out here.
79 It follows then that there is no special reason, and it follows that I must imprison you in relation to Charge 3 and not in combination with a Community Corrections Order and that there is a mandatory minimum period of at least 6 months imprisonment for that particular offence.
General
80 I turn then to some general matters. I am required to take into account a large range of matters including the maximum penalty and the nature and the gravity, as well as the impact of any crimes committed by you.
Current Sentencing Practice
81 I am required to take into account current sentencing practices. Current sentencing practices are only one factor amongst many, and they are not a controlling factor in my task.
82 I have looked at various sentencing statistics as well as examples of other sentences imposed as can be found in the Judicial College of Victoria Sentencing Manual case collection. As to the statistics, well they have inherent limitations. They say nothing at all about the individual features of any case. They are silent as to all of the many features of aggravation or mitigation which will exist in a given case and which will go some way to explain a particular sentencing outcome. They are of even less use here given that most examples of recklessly causing injury and affray which come to this Court are far more serious than these ones. As to recklessly causing injury, when dealt with in this Court, it is generally because the injury is of such a nature that a concern existed as to the adequacy of the powers that a Magistrate had to deal with the matter, given the jurisdictional limits in the court below. Either that, or the matter has come up in relation to a serious injury and there has been either a settlement of the matter, or a jury verdict to the lesser alternative.
83 This case is in this Court courtesy of the status of the victim of Charge 3, not owing to the objective seriousness of that or any of the other offences that are before me.
84 Other cases, even comparable ones, have significant limitations as well.
85 There is no such thing as one correct sentence and of course what I must do is pass an appropriate sentence in your case taking into account the matters in aggravation and the many matters in mitigation in your case.
Purposes
86 I have to take into account the various purposes of sentencing.
87 Now rehabilitation is one of those purposes and I do not ignore that. You do have some prospects of rehabilitation Mr Delaney. I am confident of that.
88 But rehabilitation is not the only purpose of sentencing.
89 I have to punish you and of course that is a relevant purpose of sentencing in this case. I have got to punish you justly and proportionately.
90 I must also denounce your conduct and I do.
91 Community protection is another purpose of sentencing. It has some relevance to my task given the offending and the chronology.
92 Then there is specific deterrence, which is the need to deter you or dissuade you from offending in the future. That is obviously of some importance in this case. I cannot just throw my hands up in the air and say that you just cannot be deterred. If that were so, well of course there would be an increase in the weight given to community protection in this case. You must be deterred from offending in the future. I have moderated this purpose owing to my Verdins findings, but it is still of some relevance here. As you know, Courts have tried in the past to deter you with limited success. Biting an emergency worker who was trying to calm and then restrain you, it is just not on. It just will not be tolerated by the Courts. You need to get that into your head. You were on bail at the time. You were also on a Community Corrections Order at the time. It is obvious, that I must try to deter you from the unpleasant interactions that you seem to have with emergency workers.
93 General deterrence is another purpose of sentencing here. It relates to the need to deter other offenders in the future. Well again, there is some Verdins moderation, but it is far from eliminated in this case. It still has some importance to my task.
94 Emergency workers be they police, or protective service officers, or paramedics or others, they often have a difficult job to perform. They come into contact with members of the public. They must be respected and they must be protected. The Courts must protect them. The legislation that I have discussed at great length has been quite deliberately enacted by the Parliament in response to the disturbing frequency of violent conduct against emergency workers. It was deliberately inserted to fetter the sentencing discretion for such offences as are covered by the provisions. Here it is only Charge 3. This legislation gives very strong directions to judges. Indeed, it upends a number of key sentencing considerations including parsimony and proportionality and the notion that prison exists only as a disposition of last resort. Now those fetters to my discretion exist only in relation to Charge 3.
95 But I have to try to deter likeminded offenders from engaging in this style of conduct. The courts do have a role in deterring other people in the community who might be minded to commit these types of offences. As I say though, I recognise you are not an appropriate vehicle for the full weight to be given to this sentencing purpose. There really must be some sensible moderation.
Gravity
96 I have to pay regard to the gravity of the offences before the court.
97 No weapons were used and there have been no ongoing serious impacts.
98 The affray was relatively brief and it is a mile removed from the most serious examples of the offence. It was, relatively speaking, a low-level example of the crime and can be contrasted with serious examples, for instance of warring armed groups coming to blows in a public place with serious injuries occasioned. That is not what I am dealing with here.
99 I have already spoken of the unpleasantness of the other offences. It was a scene mostly of your making but I must say, with a few unpleasant contributions from passers-by which no doubt fuelled your anger. Biting three people, breaking the skin of two of those victims with your teeth was nasty enough. You had no weapon but you were using your teeth. It was a pretty incredible choice and it carried with it the risk of infection and disease. Three of your victims sought medical treatment and two had to get advice as to avoiding infection and went for blood tests and the like. The Recklessly Causing Injury offences are however a very long way removed from the top of the tree. The physical injuries were quite slight though of course the impact went a little bit beyond that obviously for those who were waiting for the all clear on infection.
100 They were low level examples of that crime. Charge 4, the charge of resist, rolls up three separate victims into the one charge of resisting. Again, all were in unform. They were just doing their job. None were in any way threatening to you. All of them treated in a pretty hostile manner by you.
101 As to Mr Khan, the crowd controller, well he tried to calm you down initially. You bit him. You kicked his offsider Mr Singh into the chest. You bit the female Protective Service Officer Reeta and as I have said, you were on bail and a Community Corrections Order at the time. You had no business even being in the city. Of course I accept your counsel's submissions as to the absence of any premeditation here. This was offending that arose really quite spontaneously. I am confident you would not have been behaving in such a way had you not been significantly affected by drugs and by alcohol. Now that is not mitigatory, but nor is it in any way an aggravating feature. It is just the reality here.
102 I take into account the principle of totality. This offending occurred in a tight episode though of course it related to a number of separate victims. I cannot ignore either fact actually. There must be some cumulation of sentences to adequately reflect the individual victims but there must be moderation of that cumulation to recognise the tight episodic nature of the event. I have engaged in a last look at the effect of the sentences to satisfy myself that the overall effect of these sentences is appropriate and commensurate with your overall criminality. Prison is a disposition of last resort. I have no alternative here. I will moderate the sentences and I will moderate the extent of cumulation.
103 Again, I apologise for taking so long to get to this end destination but as I say I had to explain, if not to you, to others, why I am doing what I am doing. I will now pass sentence upon you but I think I will simply have you remain seated, in the circumstances.
Sentence
104 On Charge 1, which is the charge of affray, I convict and sentence you to 5 months' imprisonment.
105 On Charge 2, which is the charge of Recklessly Causing Injury to Mr Khan, I convict and sentence you to 3 months' imprisonment.
106 On Charge 3, which is the charge of Recklessly Causing Injury to Protective Service Officer Horn, I convict and sentence you to 6 months' imprisonment. That is the minimum sentence that I can impose given that I have found no special reason to exist here. So I will make that the base sentence.
107 On Charge 4, which is the charge of resisting relating to the three members, you are convicted and sentenced to 3 months' imprisonment.
108 On Charge 5, the charge of assaulting Protective Service Officer Reeta, I convict and sentence you to 3 months' imprisonment.
109 On the summary offences, for the two Bail Act 1977 offences, I believe an aggregate sentence is both open and appropriate. On those two charges, you are convicted and sentenced to an aggregate term of 1 months' imprisonment.
110 Finally on the summary offence of assault of Mr Singh by kicking, you are convicted and sentenced to 2 months' imprisonment.
Cumulation
111 So let me now explain the orders for cumulation, for only then will you understand the true nature of the sentence. The base sentence is the 6 months that has been imposed on the charge of Recklessly Causing Injury to Protective Service Officer Horn. I direct that:
· 2 months of the sentence imposed on Charge 1;
· 1 month of the sentence imposed on Charge 2;
· 1 month of the sentence imposed on Charge 4;
· 1 month of the sentence imposed on Charge 5; and
· 1 month of the sentence imposed on the summary assault by kicking
is to be served cumulatively upon the base sentence and upon each other.
112 The aggregate term imposed on the Bail Act 1977 offences will be served concurrently upon the base sentence and these part concurrent sentences and that is because I have treated it as a matter of aggravation that you were on bail. I do not want to doubly punish you by cumulating on the Bail Act offences.
Total Effective Sentence
113 Now you will not have been able to do the sums, I suspect, but what this all results in then is a total effective sentence in your case of 12 months' imprisonment.
Non-Parole Period
114 Now I am going to fix a non-parole period in the circumstances. I fix a period of 6 months during which you will not be eligible for release on parole. I can make no assumptions as to whether you will be released on parole. I am prohibited from speculating on that issue. It will be entirely in the hands of the Adult Parole Board. It is obvious to me that a structured release would have more chance of success than a straight release upon the lapse of this sentence. In theory, you will be free to make your application immediately and that is because your current level of pre-sentence detention exceeds the 6 month non-parole period that I have fixed, though there may well be some impediment arising from the outstanding matters, or for that matter any sentence which is received on the consolidated plea date.
115 I will make my reasons available to the Adult Parole Board. One would hope they can liaise with the NDIS and your appointed NDIS agent, as a stable home and provision of in-home services will be important, if not critical to your ongoing rehabilitation. Further, once revised, and that will be happening reasonably swiftly, my reasons for sentence would also be available to be utilised by your counsel on the consolidated plea date in what I assume would be a quest for a high degree of concurrency.
Section 18 pre-sentence detention
116 You have been in custody already for a period of 203 days and you get credit for that. You have already served that amount of time under this sentence, so that s18 declaration is entered into the records of the court.
6AAA
117 I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of these offences by a jury, I would have sent you to prison for 2 years. I would have fixed a non-parole period in that setting of 12 months and that declaration made pursuant to s6AAA of the Sentencing Act is also to be entered into the records of the court.
118 Let me just see if there are any other matters that I need to deal with. Any other matters from your perspective, Mr Bourbon?
119 MR BOURBON: No, there is not, Your Honour.
120 HIS HONOUR: Ms Austin, any matters from your perspective?
121 MS AUSTIN: No, Your Honour.
122 HIS HONOUR: All right. Well look, you will understand the structure of that sentence. It adds up to a 12 month term with a 6 month non-parole period. He has already served the non-parole period so really it is a matter for him as to where to from here really, and I guess it is in his interests to have the other matters wrapped up reasonably speedily, but they are listed in June anyway, are they not?
123 MS AUSTIN: Yes, on the 22nd.
124 HIS HONOUR: Are you going to do the appearance for that or not?
125 MS AUSTIN: I am intending to, Your Honour.
126 HIS HONOUR: Well look as I say, I can make available my revised reasons if that might be of any assistance to you and that is a matter for you though. You can use them or not as you see fit.
127 MS AUSTIN: Thank you very much, Your Honour.
128 HIS HONOUR: Yes, very well. No other matters then from you?
129 MS AUSTIN: Nothing further, Your Honour.
130 HIS HONOUR: Will you go down and - I know we were not expecting Mr Delaney to be here and I will - just bear with me. Look we have apparently got a contact number and a name and I will have my associate make contact with Port Phillip to try and get some sort of exemption from any sort of quarantine requirements in the circumstances, given he was brought out in error today. Will you go downstairs and have a chat to him downstairs?
131 MS AUSTIN: I will, Your Honour.
132 HIS HONOUR: Well thank you very much for your assistance. Indeed, from each of your perspectives, your written submissions were of a very high calibre and so too the presentation of the matter.
133 All right, Mr Delaney, Ms Austin is going to come down and see you downstairs, all right. I am sorry to have spoken for so long.
134 ACCUSED: Yeah, no, thank you.
135 HIS HONOUR: And dealing with all these legislative provisions, it is terribly difficult for you to follow, difficult for most people to follow actually. She will come down and have a chat to you about it but essentially it is a 12 month term with a 6 month non-parole period. You have already served the 6 months, all right.
136 ACCUSED: Yeah.
137 HIS HONOUR: So, it will be a matter for you and the Adult Parole Board as to making an application for parole, but she will come down and have a chat to you about that and your rights in relation to this sentence as well, all right.
138 ACCUSED: All right, thank you.
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