Director of Public Prosecutions v Dennerley

[2023] VCC 2375

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

Case No. CR-22-01232
Indictment No. N12172214.1

DIRECTOR OF PUBLIC PROSECUTIONS

v

ADAM DENNERLEY

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	3 and 23 November 2023; 1 December 2023
DATE OF SENTENCE:	14 December 2023
CASE MAY BE CITED AS:	DPP v Dennerley
MEDIUM NEUTRAL CITATION:	[2023] VCC 2375

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:            Sentence – Pleas of guilty – Recklessly cause injury – Armed robbery – False imprisonment – Conduct endangering persons – Damage property – Possess drug of dependence – Relevant criminal history – Delay - Offending unplanned and spontaneous - Confirmed and longstanding diagnosis of paranoid schizophrenia – Experiencing active psychosis at time of offending – Remote neural monitoring - Offending also occurred in context of methylamphetamine use – Inconsistent compliance with medication regime whilst in custody – Expert opinion – Indefinite psychiatric treatment necessary

Legislation:Mental Health and Wellbeing Act 2022

Sentence: Convicted and sentenced to Total Effective Sentence of 4 years’ imprisonment with a non-parole period of 32 months’ imprisonment – Pre-sentence detention of 788 days’ imprisonment declared as having already been served as part of the sentence imposed – s.6AAA Sentencing Act 1991 (Vic) declaration – Ancillary orders Forfeiture and Disposal

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms A. Dearman	Office of Public Prosecutions
For the Accused	Mr C. McLennan	Chris McLennan & CO

HER HONOUR:

1Adam Dennerley, you have pleaded guilty to one charge each of causing injury recklessly, armed robbery, false imprisonment, conduct endangering persons, damaging property, and possession of a drug of dependence. 

2The offences of recklessly cause injury, and reckless conduct endangering persons each have a maximum penalty of five years' imprisonment; armed robbery has a maximum penalty of 25 years' imprisonment; reckless conduct endangering persons and criminal damage each have a maximum penalty of 10 years' imprisonment.

3In your case the maximum penalty for possession of a drug of dependence has a maximum penalty of 12 months' imprisonment as I accept that the drug in your possession was for personal use.  In sentencing you, I must have regard to the maximum penalty as these reflect the seriousness with which Parliament regards each of the offences that you have committed.

4Your offending was opened by the prosecution as follows.

5I was told that at the time of the offending, you were living in a bungalow at the back of a property in Seaholme, Victoria.

6The first victim, Tyson Farrell, lived in Albion.  You and Mr Farrell had known each other for about four years before the offending.

7The second victim is Acting Sergeant Darren Baird.  You and Mr Baird were not known to each other.

8There were two incidents which give rise to the charges.

9The basis for Charges 1 to 3 is that on Friday, 15 October 2021, Tyson Farrell agreed over the phone to drive you from your address to a unit in Albion that you were renovating.  During the conversation, you said 'If you wanna have a puff' (apparently a reference to methylamphetamine), 'we can have a puff too'.

10The next morning, between 6.30 and 7.30 am, Mr Farrell drove his car, a Kia Cerato sedan, to collect you.

11Whilst in Mr Farrell's car, you told him that your car had been impounded. 

12After attending the property, you and Mr Farrell left between 8.30 and 9.30 am, returning to your bungalow where you smoked some methylamphetamine together.

13You asked Mr Farrell if you could borrow his car for a week.  However, Mr Farrell said you could not as he had some things to do and needed his car.  He offered to drive you around if you needed to.

14About an hour later, as Mr Farrell was about to leave, you asked him for another lift.  Mr Farrell said he could not help out as he had already committed to someone else, but he agreed to drop you off then come back later to pick you up.

15As Mr Farrell made to leave, you said something to him that he did not hear properly.  He asked you what you had said.  You responded by picking up a cordless power drill from the kitchen table and striking Mr Farrell to the left side of his face, which caused him to stumble from the impact.  This is the commencement of the conduct giving rise to Charge 1, recklessly cause injury. 

16You said to Mr Farrell, 'You pinched something from me'.  You then locked the front door to the bungalow to prevent Mr Farrell from leaving.  Mr Farrell feared for his safety and was worried about how he was going to escape.  Your locking
Mr Farrell into the bungalow marks the commencement of Charge 3, false imprisonment.

17You continued to assault Mr Farrell for about 20 to 30 minutes.  At one point, Mr Farrell raised his hands to protect his head, which resulted in his hands being 'crunched', as I believe he put it, by the drill.  He screamed at you to stop.  He said 'Bro, what are you doing?'  You struck him with the drill another four or five times.  Mr Farrell could see the blood rolling down his face.  This marks the end of the conduct which gives rise to Charge 1, recklessly causing injury.

18You then said, 'I'm taking your phone, I'm taking your car, I'm taking your money, I'm gonna get transfer papers and you're gonna sign the fuckin' car over to me'.

19At this point, Mr Farrell was on the floor but tried to run out the door.  You said, 'What, you're gonna fucking run off are you?'  You then grabbed a bladed machete approximately 70 centimetres long and threatened to 'chop' Mr Farrell with it.  Mr Farrell tried to reason with you in a bid to get away, but this did not work.

20You raised the machete towards Mr Farrell, then took possession of his shoulder bag which, at that point, was on the couch.  This gives rise to the first occasion comprised in the rolled-up charge of armed robbery, Charge 2.

21The bag contained a number of items, including some sentimental ones as well as two mobile phones, Mr Farrell's wallet containing $30 cash and a bankcard, as well as his car keys. 

22You directed Mr Farrell to log into his bank account via his mobile phone to show you his bank balance, which appeared as $200.  You told him that he was going to withdraw this sum for you.

23Mr Farrell was afraid and felt compelled to comply with your demands, as he believed he had no other choice.

24You then unlocked the bungalow door and you and Mr Farrell walked to his car, which was parked in the driveway. 

25You drove Mr Farrell to an IGA supermarket. 

26You armed yourself with a golf club.  At about 3.49 pm, you walked to the ATM inside the IGA supermarket and Mr Farrell withdrew $190 cash and gave it to you.  This marks the second occasion in respect of the armed robbery, Charge 2.

27At about 3.56 pm, Mr Farrell tried to leave the store when you, who were still armed with the golf club, instructed him to return and purchase a four-pack of Red Bull energy drinks.  Mr Farrell did this out of fear.  The purchasing of the drinks is part of the second occasion relating to Charge 2.

28You and the victim then went to the victim's car.  You drove him back to his home.  When you arrived, you got out of the car and walked away with an unknown male.  You did not return the victim's car keys.  This marks the end of Charge 3, false imprisonment.

29Ultimately Mr Farrell called for emergency assistance.  Subsequently, he went to the local police station where police took a statement from him and photographed his injuries.  I have viewed these injuries and they are most unpleasant and concerning.

30Mr Farrell was treated for his injuries at the Sunshine Hospital Emergency Department.  He had suffered lacerations to his face.  However, stitches were not required.  He also suffered mild soft tissue swelling to his right hand, representing a 'crush type injury', and a fractured right little finger.  Subsequently, he was discharged after several hours.

31Overall, the incident left the victim feeling very shaken, uneasy and anxious. 

Incident 2 – 17 October 2021; Charges 4-7

32I now turn to the second incident giving rise to Charges 4 to 7 on the indictment.

33On 17 October 2021, at about 7.10 am, Acting Sergeant Darren Baird had finished nightshift at the St Kilda police station and was driving home from work in his white Toyota Corolla.  He was stationary at a red light at the intersection of Fitzroy Street and Canterbury Road in St Kilda when he saw a car that you were driving approaching from Grey Street.  It slammed on its brakes at the red light.

34You were driving Mr Farrell's car at this time.

35When the lights turned green, Mr Baird said to you through his open window, 'Good driving, mate'.  You then reacted by conducting a U-turn and pursued Mr Baird down Grey Street at a fast rate of speed.  Mr Baird stayed in his lane.  You overtook him and cut him off by slamming on your brakes.  Mr Baird also had to brake heavily to avoid colliding with you.  You then started to open your door, so Mr Baird drove up a side street towards the St Kilda Road and Alma Road intersection.  At this point, you got out of the car and used a hammer to hit Mr Baird's passenger side window a couple of times, causing it to smash.  This conduct gives rise to the first occasion of criminal damage comprised in Charge 5.

36You got back into the car and drove in front of Mr Baird to cut him off again.  Mr Baird performed a U-turn and drove back towards Barkly Street at a fast rate of speed.  He could see you in the rear vision mirror, and you were close behind him.  He turned into a number of streets, making his way towards the police station.  Mr Baird sounded his horn to get the attention of other police members nearby.  You continued to pursue him and collided with his car numerous times, causing damage to Mr Farrell's car as well as to Mr Baird's.  This conduct gives rise to Charge 4, reckless conduct endangering persons, and also gives rise to the second occasion of criminal damage comprised in Charge 5.

37When a police car approached, you immediately drove off. 

38You were arrested fairly soon after, at a Bunnings carpark in Hawthorn.  You were removed from the car without incident.  Mr Farrell's car was towed to a towing depot.

39I saw some CCTV footage of the last 45 seconds of the driving incident at the plea hearing, an incident which lasted over about 2.4 kilometres.  Your driving made for most frightening viewing, Mr Dennerley. 

40After your arrest, you were taken to the Footscray police station.  You were searched, and Mr Farrell's wallet was found with $160 cash in it.  Also, in the wallet was found a Ziploc bag containing methylamphetamine with 85 per cent purity, weighing a total of .02 grams.  This gives rise to Charge 6, possessing drug of dependence.

41Mr Farrell's bankcard was also found, and you had one of his mobile phones.

42At about 10.00 am, you told police you wished to speak with the Victorian Aboriginal Legal Services, and you spoke to a representative at about 11.18 am.

43Subsequently, at 11.53 am, you were assessed by a forensic medical officer via telephone, and you were deemed not fit to be interviewed.

44Subsequently, police found traces of blood in the bungalow where you had been living which matched the DNA profile of Mr Farrell.  However, no machete was found.

45Mr Dennerley, your offending is objectively serious and deserving of a punishment which is just in all the relevant circumstances.  Your conduct must be appropriately denounced.

46The assault that you perpetrated against Mr Farrell was dreadful.  He was doing nothing more than being kind to you.  However, apparently because of your deluded beliefs, you somehow took a set against him as you thought he was stealing tools from you.  Also, you thought he was reading your mind, as I understand it.  Even if you had thought that this was happening, the way in which you attacked him was savage.  Further, you falsely imprisoned him and robbed him of items which were of value to him and the small amount of money that he had, using weapons in order to ensure his compliance. 

47As the learned prosecutor pointed out, your stature was a good deal greater than the victim's and no doubt the assault you had perpetrated on him without any warning would have added to his fear of you. 

48I also regard the conduct endangering persons and damaging property offences as serious examples of these offences.  You completely overreacted to a fairly mild remark, albeit it unwise, from Mr Baird, and you behaved in a most outrageous fashion.

49Although you were experiencing active psychotic symptoms at the time of each of the offences, you were also under the influence of methylamphetamine as I understand it which further disinhibited you, making you all the more dangerous.  Whilst your taking of drugs is not an aggravating feature, nor is it a mitigating one.

50Your offending was unplanned and spontaneous.  However, as the learned prosecutor pointed out, in your case this made it all the more concerning in some ways, as there was nothing of any moment, in reality, to warrant the reactions that you had in relation to each of the victims.

51However, I have factored in that there was no planning in relation to each of the offences that you committed, and although you did wear a mask into the IGA supermarket, this was in the context of COVID-19 restrictions, and otherwise you did little to conceal your identity.

52Your counsel submitted that each of the victims could not be described as soft targets. As I have said previously, Mr Farrell was of a stature that was a good deal slighter than yours.  Your counsel also submitted that no firearms or knives were used, which can be the case in offending of the nature in which you engaged in relation to Mr Farrell.  However, you did use a power drill to bludgeon Mr Farrell and you threatened him with a machete and a golf club.

53You have a concerning criminal history as follows.

54On 16 April 2003, in the Sunshine Magistrates' Court, you were fined without conviction for attempted robbery, burglary and theft.

55On 4 August 2003, in the County Court, you were convicted and sentenced to a 12-month Community Correction Order, and you were fined in relation to one charge of intentionally causing injury.  I was not advised of the details of this offending. 

56All subsequent prior matters were dealt with in the Magistrates' Court.

57On 24 August 2005, you were convicted and fined in relation to possessing a dangerous article.

58On 15 December 2005, you were convicted of two charges of possession of cannabis and fined an aggregate of $600. 

59On 27 April 2011, you were convicted and fined an aggregate of $1,000 for cultivate a narcotic plant, being cannabis, use cannabis and theft.

60On 27 September 2012, you were convicted in relation to two charges of attempted theft, one charge of cultivate cannabis, one charge of possess cannabis and two charges of criminal damage. Overall, you were convicted and received a 12-month Community Correction Order with conditions for assessment and treatment, including testing for drug abuse or dependency as directed, and medical assessment and treatment as directed.  You were also fined.

61On 6 July 2015, you were convicted of criminal damage, six charges of obtain property by deception, five charges of theft, three charges of burglary, one charge of shop steal, one charge of driving in a manner dangerous, one charge of failing to stop vehicle on police request, 18 charges of commit an indictable offence whilst on bail, one charge of recklessly causing injury, two charges of threatening to inflict serious injury, two charges of false imprisonment, and you were breached in relation to the Community Correction Order previously imposed where you were re-sentenced in relation to the charges which were the subject of a Community Correction Order.  In relation to the breaching offences, overall, you were sentenced to an 18-month Community Correction Order and an aggregate term (or total effective term) of 173 days was declared as time served.

62In relation to the matters which had been the subject of the previous Community Correction Order, you were sentenced to three months' imprisonment which was wholly suspended for 12 months.  The Community Correction Order imposed on this occasion included a condition for mental health assessment and treatment as directed, as well as offending behaviour programs, judicial monitoring and drug assessment and treatment.

63On 7 March 2017, you were dealt with for two charges of driving whilst suspended, intentionally damaging property and unlicensed driving.  The criminal history simply records that your licence was cancelled, and you were disqualified from driving for nine months, but does not disclose what other penalty was imposed in relation to this offending.

64On 21 August 2017, you were dealt with for contravening the Community Correction Order imposed on 6 July 2015 and for the Community Correction Order imposed on 27 October 2015.  Overall, the Community Correction Order breaches were found proven and the original Community Correction Orders were confirmed. 

65On 27 November 2017, you were convicted of four charges of failing to answer bail, five charges of unlawful assault, one charge of make threat to kill, two charges of commit indictable offence whilst on bail, shop theft, dishonestly receiving stolen goods, intentionally destroying property, acting in a disruptive manner in police gaol, knowingly dealing or concealing proceeds of crime, four charges of criminal damage, one charge of threat to inflict serious injury, driving whilst authorisation suspended, driving vehicle causing loss of traction and entering an intersection on a red traffic arrow. In relation to the driving matters, you were convicted and fined an aggregate of $2,500 and disqualified from driving for two years.  In relation to the other matters, you were sentenced to an aggregate term of 105 days' imprisonment with a declaration that you had already served that period.  Notwithstanding your imminent release on that occasion, there was a custody management note in relation to you suffering psychiatric illness and a recommendation that all reasonable assessment and supervision be exercised to ensure safe custody.

66On 12 March 2019, you were convicted of two charges of intentionally damaging property, two charges of unlawful assault, one charge of recklessly cause injury, one charge of deal with property suspected to be proceeds of crime and one charge of committing an indictable offence whilst on bail.  You were sentenced to an aggregate term of six months' imprisonment with time held in custody declared to be 47 days.  Again, custody management issues noted your mental health diagnosis and custody management issues pertaining to this.

67On 18 December 2019, you were convicted of threat to inflict serious injury, two charges of commit indictable offence whilst on bail, make threat to kill, prohibited person possessing a firearm, recklessly causing injury and possessing cartridge ammunition without a licence or permit.  In relation to the last-mentioned matter, you were convicted and fined.  In relation to the other matters, you were sentenced to an aggregate term of 12 months' imprisonment with time held in custody declared as 50 days.  On that occasion, the custody management notations listed your psychiatric illness but also that you were withdrawing from methamphetamine.

68On 15 September 2021, you were convicted of theft of a motor vehicle, two charges of committing an indictable offence whilst on bail, retention of stolen goods, going equipped to steal or cheat, criminal damage, theft, possession of an unnamed drug of dependence and possession of a prescription drug of dependence.  Further, you were dealt with for failing to have proper control of a vehicle, failing to comply with the direction of an authorised officer and another traffic offence.  In relation to the last three matters, you were convicted and fined.  In relation to the other matters, you were sentenced to 18 days' imprisonment with time declared as already served and you were further sentenced to a Community Correction Order for 12 months with assessment and treatment conditions, including for mental health, drug addiction and offending behaviour programs.

69I was not given full details in relation to any of your prior matters.  However, I note that you have a number of prior matters in relation to violent offending, including for recklessly causing injury and false imprisonment, as well as some relevant driving matters.  I note that you have previously been placed on Community Correction Orders.  However, it does not appear that any of these have served to properly address your difficulties and offending behaviour.

70Your criminal history is relevant to my assessment of your prospects for rehabilitation and the weight that needs to attach to other sentencing considerations – in particular, protection of the community. 

71In sentencing you, I take into account your background:

72Your mother, who was in court to support you at the plea hearing, and I see is in court again today in support of you, is an accountant, and your father was a self-employed plasterer/renderer.  You have a younger brother who works in the building industry.

73You have described your childhood as generally good, although your father did have a drinking problem and was occasionally verbally abusive. 

74You struggled at school and attended two different primary schools and three different high schools.  Sadly, you were teased at school, and you were often called 'dumb', which is most unfortunate, and this should not have occurred.

75You left school towards the end of Year 9 and began a rendering and plastering apprenticeship with your father.  You enjoyed this work, and you completed your apprenticeship, as well as a Certificate IV in Building and Construction.

76You worked with your father until he retired and then you worked for  yourself.

77In about 2005 or 2006, you were a passenger in a car that was involved in an accident.  You suffered serious injuries, including a fractured leg and back.  You underwent several surgeries to insert metal plates, and you still suffer from stiffness and soreness.

78Your father died unexpectedly in August 2019 from a heart attack.  However, you have the support of your family – and particularly, your mother, who visits you in custody. 

79You were placed on a Community Treatment Order in 2015.  However, I was told that otherwise your mental health has largely been untreated in the community- at least, since that time.

80In sentencing you, I accept that whilst drugs may have further disinhibited you on the occasions that you offended for which I now sentence you, the primary cause of your offending was your paranoid schizophrenia.  You have a longstanding diagnosis of this condition and, according to expert reports I have received, you also have a likely personality disorder as well as a chronic polysubstance abuse problem. 

81You have an ongoing belief that other people can access your thoughts using 'remote neural monitoring' (‘RNM’), and that the government, police and others, including the victims of your offending on this occasion, are using this technology to harass and persecute you.  According to your report to Mr Armstrong, psychologist, and Dr Deacon, consultant psychiatrist, you believed that Mr Farrell was using RNM to read your thoughts and to steal your property.

82You were released from custody on 15 September 2021 and, despite being assessed as warranting antipsychotic medication, I was told that you were not referred to a community mental health service for follow up or assessment for a Community Treatment Order (CTO).  This is most unfortunate.

83On the basis of the reports from Mr Luke Armstrong, psychologist, dated 23 May 2022, and Dr Adam Deacon, dated 17 February 2023, I accept that at the time of the offending for which I now sentence you, you were experiencing active psychotic symptoms which significantly compromised your capacity to think rationally and to appraise the situation that you were in, in a considered manner and to exercise reasonable judgment. 

84Having said this, I do note that your thoughts were not so disordered that you were not able to take valuables from Mr Farrell and to keep him under your guard in order to secure his cash from the ATM at the IGA supermarket, without drawing too much attention to yourself in this regard.

85Also, in relation to the offending against Mr Baird, your thoughts were not so disordered that you continued to pursue him when you saw a police car, but you desisted from offending at this stage by driving away to a fairly distant location.  Also, throughout the offending you had the use of Mr Farrell's car, which is something that you apparently did need to get yourself around in at that time.

86Your supposed belief that Mr Baird was part of Victoria Police's constant monitoring and persecution of you could only have been a hindsight reflection in view of the fact that, at the time you offended against him, you did not know that he was a police officer.  Your counsel told me that when you subsequently found out that he was, by way of learning this from the hand-up brief, this confirmed your distorted beliefs.

87I was told that you believe that RNM continues whilst you are in prison and that others in the prison can read your mind and monitor you.  According to Dr Deacon's report, you believe that the prisoners and staff know things that they should not know about you.

88You have spent significant periods of your time in custody in protection units, which have limited your work opportunities.  I was told you would like to work in a prison industry, but these are not available to you – in particular, you have wanted to work in sheet metal.  However, you have been unable to succeed in obtaining any such work.   You apparently believe that you have been kept in protection due to your 'high profile', which is caused by the RNM.

89I was told that you are not receiving appropriate mental health treatment whilst in custody.  I have received documentation from Forensicare indicating that you require treatment in an inpatient setting. 

90In the most recent advice from a Lidia Williams, Senior Clinician, Forensicare Mental Health Advice and Response Services (MHARS), I was told that the mental health treatment team at Ravenhall Correctional Centre have requested that MHARS convey to the court their recommendations regarding your mental health and emotional wellbeing:

'MHARS have been informed that Mr Dennerley requires compulsory mental health assessment and treatment and have therefore placed him on an inpatient assessment order, under the Victorian Mental Health and Wellbeing Act 2022'.

91Further, the letter says that the inpatient assessment order comes into effect if you are released from custody.  In that event, you would be conveyed via ambulance to Werribee Mercy Hospital Emergency Department, where you would be assessed by a consultant psychiatrist, who would determine if they concurred that you meet with the criteria for compulsory admission to their acute mental health inpatient unit. If the consultant psychiatrist does not agree with the compulsory order, they would revoke the order.  They may offer you a voluntary inpatient unit admission or discharge you and may recommend an alternative pathway.  Such alternatives could be CATT, community mental health, general practitioner or another service provider.  'Unfortunately, MHARS cannot predict what the likelihood of the outcome may be or have any influence on the outcome'.

92The letter indicated that if you were to be required to serve further time in gaol, you would continue to receive mental health treatment by prison mental health services.  'It is important to note, that mental health treatment in prisons is voluntary, unless transferred to Thomas Embling Hospital and treated on a Secure Treatment Order (STO)'.

93In this regard, I understand that you have been removed for a period to Thomas Embling Hospital due to the state of your mental health.  Whilst in prison, you have not been willing to regularly take antipsychotic medication, although you have sometimes done so.  In the past, you have been treated with Olanzapine, but you have said that you do not like to take this as it makes you feel tired.  Further, you do not believe you have a mental illness, so you have no insight in relation to it or the seriousness of your offending.

94Your formal psychiatric history goes back to 2015.  You have experienced multiple psychotic episodes which then led to the schizophrenia diagnosis.  According to the report of Dr Deacon, you have required treatment with community mental health, including multiple inpatient psychiatric admissions.  You were previously managed on a Community Treatment Order for 12 months.

95Dr Deacon noted that whilst you have been in custody and have been noted to be actively psychotic, as at the time of his report, you had not warranted admission to Thomas Embling Hospital, such was your presentation.  However, since this report, evidently you have been treated at Thomas Embling.  Although you are currently at Ravenhall, I was told today that you have been in the hospital section at that prison for three to four weeks.

96Dr Deacon concluded in his report:

'Mr Dennerley will require indefinite psychiatric treatment.  Upon his release from prison, he may require an inpatient admission to stabilise his psychotic condition.  He will likely require a depot injectable antipsychotic medication to ensure consistent and reliable treatment.  He will also likely require treatment under a community treatment order.  Based on his response to treatment thus far in prison, it is possible that his treatment needs will be more effectively met under an involuntary treatment order managed in the community.' (Page 9)

97Previously, Dr Deacon noted that it had been difficult to psychiatrically manage you, both in the community and in custody.  He said that while there was clear evidence of enduring psychotic illness, that you appeared to have managed to preserve reasonable day to day functioning despite persistent symptoms.  He said that your mental illness had been difficult to stabilise whilst you were in prison as you had not reached the threshold for involuntary treatment (as at the time that he had seen you, of course). 

98He said that you had been inconsistently agreeable to taking antipsychotic medication in prison, but that the capacity for mental health staff to closely supervise your compliance had likely been limited.  He then said:

'He has similarly been very difficult to manage in the community due to his lack of insight and lack of coordination of treatment with community mental health services.' (Paragraph 17, page 9)

99Your counsel submitted that the best place for you to be managed was in the community by virtue of inpatient treatment.  Whilst this may well be the case, there is absolutely no guarantee that a psychiatrist would assess you as suitable for inpatient care, and I cannot speculate about this. 

100Having considered all of the evidence and submissions before me, I am satisfied that Verdins principles apply in your case such that there was an impairment of mental function operating on you at the time of the offending in a relevant way so as to substantially reduce your moral culpability.  I note that your mental state was further disinhibited, however, by methamphetamine use, although your decision to take methamphetamine ought to be seen in the context of your mental health issues to some extent.

101In view of your substantially reduced moral culpability, I substantially reduce the weight which would otherwise attach to the imposition of just punishment and general deterrence, as well as specific deterrence.  However, I must be very concerned about protection of the community in your case, and I give this consideration strong weight.  Also, I reduce the weight which would otherwise attach to denunciation as you are not a vehicle for this in the same way as someone without your mental health difficulties would be. 

102In assessing your prospects for rehabilitation, I have factored in that you do have a trade and it is one that you wish to return to.  Also, your family supports you and you have accommodation to return to upon your release from custody.  Having said this, it appears to me that although you do have the support of your mother in particular, your behaviour towards her and others is such that it is unlikely that her influence could be overly protective in terms of you committing further offences.

103I accept that imprisonment has and will weigh more heavily upon you than for someone in a state of normal mental health and that there is a risk that your mental health might well deteriorate because of your symptoms.

104I also allow for the fact that time in custody has been, and might well be, harder due to COVID-19 restrictions being in place from time to time, as well as the fact that you have missed a number of opportunities due to you being in the protection or other units of the prison.

105Although delay has been caused to a significant extent by your mental health difficulties, as I understand the situation, and the difficulty of obtaining representation, it is still the case that there has been delay and, during this, you have had the anxiety of the matters hanging over your head which is a matter I also take into account.

106I am prepared to make a palpable allowance in your favour in circumstances where you indicated in July this year that you would be prepared to plead guilty in respect of the matters now before me.  In doing so, you have contributed to the reduction of backlog in trials which has been caused by the pandemic and which this court has faced.

107I also allow for a fairly substantial discount in the sentence you would otherwise receive due to the stage at which you pleaded guilty in all the relevant circumstances.  Although you did conduct a contested committal hearing, I understand that a real question in relation to matters at that time was the state of your mental health.

108In taking the course that you have in relation to pleading guilty, you have saved the witnesses, especially the victims, the time and trouble of giving evidence at a trial, and you have saved the community the time and cost of running a trial.  As I have said, in view of all the relevant circumstances which have led to you pleading guilty, I allow for a significant discount as if it were an early plea.

109Unfortunately, you do not have much in the way of remorse, which is really a creature of your mental health difficulties and lack of insight in that regard. 

110Your counsel submitted that in the past, your condition and difficulties had fallen through the cracks and that the most appropriate way to address your symptoms would be to have you released so as to undergo the assessment referred to in the Forensicare documents to which I have referred.

111Whilst it does appear that you have fallen through the cracks in some ways, it is also apparent that you have had mental health treatment from time to time or the opportunity to engage in it.  However, if this is voluntary, it seems that you are not willing to comply, which concerns me.  It is a relevant matter in assessing your prospects of rehabilitation and protection of the community.

112I have taken into account your history in relation to drug use, as recorded by
Dr Deacon.  You started smoking cannabis when you were 13 years old, maintaining a consistent pattern of cannabis use until you were arrested.  You told Dr Deacon you had also had periods of months when you did not smoke cannabis in your twenties and thirties.  You said that you had smoked cannabis on the day of your arrest.

113You started using methamphetamine when you were 18.  You continued to use this up to twice weekly until you were arrested.  You said that you felt more productive when you were working and using methamphetamine.  You told
Dr Deacon you were using ecstasy on weekends.

114You have also used benzodiazepine medications, including Oxazepam, Diazepam and Clonazepam over a few years before your arrest.  You apparently used these medications to help you with sleep difficulties secondary to methamphetamine use.  You reported that on occasion you consumed up to 25 Diazepam tablets over the course of two days.

115You have said that you learnt through the media that cannabis was not good for mental health in adolescents and that you understood that methamphetamine was also not good for mental health, but you limited its impact to affecting sleep.  You attributed past psychotic episodes to traumatic events, which created stress and fear, but did not elaborate on what these were.  You did not think methamphetamine contributed to psychosis.  You have not engaged in alcohol abuse as an adult.

116I understand that you were using methamphetamine at the time of the offending, as I have said.

117Unfortunately, I assess your prospects of rehabilitation as being rather poor.  Much will depend on your preparedness to engage in appropriate mental health treatment or undergo it as an involuntary patient if necessary.  Secondary to this is your methamphetamine abuse, which needs to be addressed.  As things currently stand, I have grave concerns about your ability to successfully deal with your mental health issues or drug abuse due to your lack of insight in relation to each of these, which appears to be fairly longstanding. 

118I cannot speculate as to what would occur if you were released from custody insofar as assessment by a psychiatrist is concerned, as I have said, in reference to the Forensicare letter or letters that I have received. 

119Whilst your counsel had initially submitted that a head sentence with a non-parole period was appropriate, with the non-parole period reflecting time served to enable you to undergo the necessary assessment and hopefully appropriate treatment, she submitted at the plea hearing that I might defer sentencing you after releasing you on bail, to see how you went in this regard. 

120The prosecution sought instructions in respect of this submission and indicated via email to defence and the court that deferral of sentence in your case was not appropriate in your case.

121Ms Farrell sent a replying email seeking to re-iterate that a treatment order was compulsory unlike treatment in custody unless your mental health deteriorated to a point where you were taken to Thomas Embling.  She submitted that bail conditions could be made subject to your compliance with any treatment order made, whether this were to be as an inpatient or in the community.  She further submitted that the bail conditions could be made subject to you being placed on a treatment order so that if you were assessed as unsuitable for compulsory treatment, you would return to custody.  She said that this would therefore be a real chance for you to be placed on a treatment order for the first time since 2015, having had a period of stability in prison.

122I must say that your mental health does not appear to have been overly stable whilst in prison, and the submission in respect of returning you to custody if you were not assessed as requiring compulsory treatment, which I must say would presuppose instability in some ways, has a potential to further destabilise you in my view.

123I am afraid that I am unable to accept that deferral of sentence is appropriate in this matter, and that the only appropriate sentence is one of a head sentence with a non-parole period. 

124In imposing sentence, I am well aware that you are not to be warehoused and that appropriate weight must be given to all relevant sentencing considerations.  In the end, I have arrived at a sentence which, in my view, does justice to all relevant sentencing considerations in your case, having considered the various submissions put by each of the parties and all the material in this matter.

125You are convicted of each of the offences.

126I make the disposal and forfeiture orders sought by the Crown and not opposed by you.

127I also cancel all driving licences and you are disqualified from driving for a period of 18 months.

128You are sentenced to the following periods of imprisonment:

Charge 1, two years.

Charge 2, two years and six months.

Charge 3, 18 months.

Charge 4, 12 months.

Charge 5, 20 months.

Charge 6, two months.

129The sentence on Charge 2 will be the base sentence.  I direct that six months from the sentence on Charge 1, six months from the sentence on Charge 3 and six months from the sentence on Charge 5 be served cumulatively with each other and with the base sentence, but that otherwise the sentences be served concurrently. 

130This produces a total effective sentence of 4 years' imprisonment and I direct that you serve 32 months before becoming eligible for parole. 

131I express the strong wish that you be considered eligible for parole rather than serving all of your sentence, all other things being equal, especially if it be the case that you are able to take advantage of inpatient treatment.

132I declare that you have already served 788 days by way of pre-sentence detention.

133If not for your pleas of guilty I would have sentenced you to a total effective sentence of six years imprisonment  with a non-parole period of four years.

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