Director of Public Prosecutions v Desimone

[2019] VCC 2097

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00889

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL DESIMONE

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	11 December 2019
DATE OF SENTENCE:	13 December 2019
CASE MAY BE CITED AS:	DPP v Desimone
MEDIUM NEUTRAL CITATION:	[2019] VCC 2097

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Goodenough	Office of Public Prosecutions
For the Accused	Mr D. Swan	Victoria Legal Aid

HIS HONOUR: 

1Michael Desimone, you have pleaded guilty to one charge of recklessly causing serious injury to your father, Peter Desimone.  At the time of your attack on him, on 10 August 2018, he was 77 years old.  You were 45.  You were then living in a bungalow on your father's property.  The attack was unprovoked and sustained.  It caused fractures to the ribs and bleeding on the brain.  At his advanced age, these injuries were very significant indeed.  In his victim impact statement, he wrote of how frightened he was of this happening again.

2He fears that his brain is still bleeding and he is worrying about what is going to happen because he had to stop taking a blood thinning drug, warfarin, he is fearful that he might have a stroke at any time.  He does not like asking people to help him to go to things but now he has to.  He has ongoing pain, or did at the time of this victim impact statement, in his ribs.  He relives the attack many times and does not sleep well.

3He does not like going out including to Melbourne for important medical appointments.  He came to learn that his difficulties in seeing his daughter and grandsons were because of their fear of you.  You had lived at your father's property in the bungalow for some years.  That arrangement flowed from the fact that sadly you have suffered from an entrenched mental illness for many years.  You serious mental illness has seen you frequently admitted to psychiatric hospitals and placed on community treatment orders while in the community over the last 20 years.  Your illness and its consequences have dominated your adult life, bringing to an end your professional career in a laboratory as a laboratory assistant and technician and also technician in, as best I could understand it, water management in the water management industry.

4It also has interfered with your studies that you took up after having difficulties at the previous employment.  Your deep and elaborate delusions incorporate a sense that you have been denied your due recognition and compensation for inventions and the like connected with your previous employment both in the laboratory and in the rural water management employment.

5Your mental illness is plainly what the courts have come to describe as an impaired mental functioning.  As was said by Chief Justice Gleeson, as he then was, in the important sentencing decision in New South Wales of The Queen v Engert which is reported in 84, ACR, 67 and the judgment commences with these words at 68.  This is a decision from 1995.  His Honour said:

'Persons suffering from mental disorders frequently come into collision with the criminal justice system.  Sentencing such persons commonly confronts judicial officers with the need to make a sensitive, discretionary decision'.  

6In your case your treatment over the years has endeavoured to manage your illness to ensure stability and allow you to work and or study.  However, you have from time to time fallen between the cracks of the community mental health system and resisted or just stopped engaging in treatment, most concerningly, stopped taking medication.  That medication being appropriate antipsychotic medication.  You were receiving appropriate oral medication in 2014 and appropriate depot antipsychotic medication in 2015 and 2016.

7You ceased treatment and medication in 2016 but when you presented to the emergency department of the local hospital in Shepparton you were not provided with much assistance it seems and no follow-up.  Your mental state deteriorated with you experiencing serious psychosis.  I have read the very helpful reports of the forensic psychiatrist, Dr Fiona Best and Dr Brennan.  They outline your troubled history of mental illness.  What is made clear is that leading up to your offending, you were not receiving treatment for your illness.

8Dr Brennan wrote the following as to the period leading immediately up to the offence.  She did so in the following terms:

'Mr Desimone told me that he had difficulties in getting his car repaired prior to the alleged offending and needed to borrow his father's car.  This apparently led to "Tension between the two of them".  Mr Desimone told me that his father kept talking to a friend about giving her money despite his sister needing money and this made him angry.  He told me that they were arguing and it got physical'.

9However, you also described to Dr Brennan some unusual experiences in what appears to the months leading up to the alleged offending, that is over a year ago.  You told her that the military and radio defence technology had kept you awake for three weeks continuously, zapping you with radio technology.  This was done remotely.  You described feeling this physically and that it was horrific and you were bombarded with radiation.  You described other people being impacted by radiation coming from you, for example a lady at the local council office.  You questioned why the government allowed all this and then you told the doctor that the radiation just stopped. 

10I do not need to go into further detail about the delusions and difficulties that you had at this time.  They are set out in both Dr Best's report and also in
 Dr Brennan's report in the paragraphs that follow from those that I have just quoted.  Dr Best was of the view that indeed it appeared to her that you were psychotic at the time you committed the alleged offences.  And following the assault on your father which was violent, unprovoked, unrestrained and causative of serious injury, though luckily not permanent lifechanging injury, although there is ongoing residue of problems.

11But you were quickly transferred from the prison where you were remanded to the Thomas Embling centre due to your serious ill health.  The discharge summary from Thomas Embling which was tendered on the plea noted that shortly after the assault, you were very seriously ill and delusional.  Your time at Thomas Embling for many months was replete with psychosis, grandiose and delusional behaviour and thoughts.  There was agitation, threats and violence.  Treatment was difficult.  There were problems with other patients there including an assault on you on 1 March 2019 by another inpatient.

12You did come to settle and reduce your problematic behaviour and accepted medication.  You were ultimately returned to prison, as I understand it, in
mid-2019 and have remained on appropriate depot medication while at the Ravenhall prison.  There remains understandable concerns regarding your compliance with medication and treatment if you were in a less restrictive environment, that is while in the community.  While you have had a long and deep difficulty with mental health, you have not previously offended, a matter much to your credit.  It gives confidence to me that you can, if well managed and if you are compliant with medication, you can resume a lawful lifestyle.  You have been a user of cannabis and taken alcohol to excess in the past.  These matters need to be dealt with upon your release.

13Before moving to your prospects and likely circumstances in the near future, I return to the role of your impaired mental functioning in my sentencing task.  Here it is plain, as I have said, that the matters set out by the Court of Appeal in the case of Verdins & Ors v R, have application.  It is clear your mental illness was causative of your attack on your father.  Indeed, as I said, Dr Best said that you were psychotic at the time.  Thus your moral culpability is much lower than it would be the case had you not had an impaired mental functioning.

14Thus the full weight of denunciation cannot be visited upon you.  This is a very significant matter as ordinarily an attack on a 77-year-old man would warrant very considerable weight to be given to denunciation and thus punishment.  As your impaired mental functioning is of an intense or acute nature, that is, in my view, it follows that the community would not be comfortable if I used you as an example to deter others who, unlike you, are not mentally unwell.  You are different by reason of your mental illness and thus the usual heavy weight to be given to general deterrence must be very significantly moderated.  So, to any weight which might be given to specific deterrence, though in your case that would be quite a minimal given that you are without prior convictions.  But in any event, it would be moderated by reason of your impaired mental functioning.

15Your mental illness has been managed and treated in prison with the understandable ebbs and flows.  Your decline leading to your offending was, it seems, arrested by the efforts of the clinicians at the Thomas Embling Hospital and at Ravenhall.  In practical terms, the matters set out in Verdins, in particular at point No.6 in the list of summarised matters, do not operate to mitigate penalty or by much at all.  So, much was said by your counsel.  In my view, so too the matters set out in point 5. 

16Although your counsel said that the sentence may weigh heavily on you, it seems to me that while it may weigh heavily on you, the treatment that you have provided enables you to get greater insight into your behaviour and the need for ongoing treatment.  Thus I have not applied any or much mitigatory weight in respect of how the sentence operates on you.  The other matter which is not strangely mentioned in Verdins in the explicit way that the points 1 to 6 are, but it has been set out in many other cases, indeed in Engert, the case that I just referred to, and it is that mental illness means I must give more weight to protection of the community. 

17Thus you and the community will be best served if you are supervised and helped on release by Corrections staff.  There is an underlying risk that you present if your mental illness is not well treated and managed.  The impact of your crime on your father and indeed on your estranged sister is significant.  You are no longer part of the family.  I do take into account the significant effect on your father of this brutal attack upon him.

18In this case your mental illness is so obviously the prominent factor in what you did, why you did it and also who you are and what the future holds.  By your plea, you are not able, that is your plea of guilty to the crime, you are not able to be the subject to a supervision order, in particular, a non-custodial supervision order under the Crimes (Mental Impairment and Unfitness to be Tried) Act.  This is the case, notwithstanding that the psychiatrist who saw you, Dr Best, considered that you were psychotic at the time.

19The reports that were gathered concentrated on whether you were fit to stand trial.  Nonetheless, there is no capacity for the court to engage those important services that are available under a non-custodial supervision order.  Thus, the ongoing supervision of the court and the forensic mental health clinicians, that would be there if it was a non-custodial supervision order, cannot be used to ensure protection of the community.  However, I can use a community corrections order to enable a period of supervision and oversight while you settle on release.

20It was urged by your counsel in a comprehensive report that was at all points helpful indeed right up to the last moments just before I commenced my sentence.  That plea was that your time in prison, including the time at Thomas Embling, and a lengthy community corrections order thereafter was the appropriate penalty.  Prosecution did not argue against it.  I had you assessed and was provided with a comprehensive or an extensive report by the community corrections officer.  The report writer found the assessment a difficult task given the complexities of your mental illness and problems in ensuring that you have supports upon your release.

21There remains concern for your ongoing compliance with treatment and your uncertain housing.  You have secured immediate accommodation as a consequence of generosity of a friend, Mr Carter, who has attended court regularly and I see him here again today.  He resides in the Ballarat region and the community mental health care and the supervision of the Office of Corrections will be undertaken by appropriate agencies in that area of Ballarat.  That accommodation is available for a period of three weeks.  Thereafter I am told you will look to other accommodation in the Ouyen or Mildura district. 

22It is hoped that that can be secured as soon as possible and settled.  If it is, then you will move from the community mental health or area mental health service in Ballarat to the area mental health service in the Mallee or Mildura.  It is important that you do not fall between the cracks.  You must of your own efforts, Mr Desimone, continue to get mental health treatment as you have in the past from area mental health services.  There were times that you did fall between the cracks when you were in Shepparton.  It cannot happen again. 

23But Forensicare were concerned about you continuing with uninterrupted treatment as is plain.  So, too am I concerned.  You must be on depot medication it seems to me to ensure compliance.  You have indicated you will comply and do so voluntarily with area mental health services, including medication.  This is an important development and an indication that your prospects for rehabilitation are better than perhaps was the case earlier.  Given your impaired mental functioning and thus the moderation of the weight to be attributed to the important sentencing considerations I have mentioned already, I can in my view appropriately punish you to a term of imprisonment of the time that you have served already, together with a community corrections order with strict conditions.

24Thus for the crime of recklessly causing serious injury, I sentence you to a term of imprisonment of 489 days.  Thereafter, which is today, I will explain that to you in more detail.  But also as part of the sentence, I place you on a community corrections order for two years.  You are required to have assessment and treatment for your mental health, assessment and treatment for drug abuse, assessment and treatment for alcohol abuse, to undergo programs to assist in ensuring that you do not reoffend, so offender behaviour programs.  You need to be under supervision of the Office of Corrections and I will require you to return back to court as part of a judicial monitoring to be certain that all the things that I wish to be in place are in place.  The judicial monitoring will take place next year after about four months.  We will set a precise date shortly.

25You have been in prison since the offending, it was a long time.  That period of time is 489 days.  That figure having been reckoned, I now declare that you have served 489 days of the sentence of 489 days that I have just imposed.  I will ensure this declaration is entered into the records of the court.  That means that the prison authorities will understand that you have served each and every day, the full amount of the sentence that I have just imposed.  Thus, upon their calculations which will occur later this afternoon, you will be released.  Mr Carter is here and I hope he is able to take you back to Ballarat promptly.

26Had you pleaded not guilty to the offence and been found guilty of it, that is guilty of the criminal offence, putting aside mental impairment, I would have imposed a sentence of four years with two years and six months as the minimum non-parole period.  Is there any other orders required?

27MR GOODENOUGH:  No, Your Honour.

28HIS HONOUR:  Thank you.

29MR SWAN:  No, thank you, Your Honour.

30HIS HONOUR:  Hang on, just pass that up to me.  You did file a 464 on
7 October, do you still want that?

31MR GOODENOUGH:  I am instructed, Your Honour, the legislative changes are such that we do not need to make the application before Your Honour. 

32HIS HONOUR:  Excuse me.  So, no other orders?

33MR GOODENOUGH:  No, Your Honour.

34HIS HONOUR:  No.  We will produce a community corrections order, Mr Swan.  Mr Desimone will have to sign that.  The release from the dock provisions are fraught with difficulties.  It is better if he is checked through the - sent to records downstairs, settled, given a whatever he is given when people are released from downstairs.

35MR SWAN:  Yes, Your Honour.

36HIS HONOUR:  And, so, that is what will proceed.  The judicial monitoring will be on 27 April 2020 at 9.30.  He can appear from whatever court is closest to him.

37MR SWAN:  Thank you, Your Honour.

38HIS HONOUR:  So, initially the community corrections district or office will be that in Ballarat.  Excuse me.  Mr Desimone, the community corrections order that we have is this.  It will last for two years.  The following matters that I am about to read out to you, are conditions that apply to all community corrections orders.  The first is you are not to commit an offence punishable by imprisonment during the time the order is in force, that is the next two years.  Well, just do not commit any offences at all again.  But if you do within the next two years you will come back before me for the breach of this order and it is highly likely that the mercy shown here will not be repeated.

39Now, you have got a - the next matters I am going to read out to you are all about cooperation and the like.  So, you have got to comply with obligations under the sentencing regulations, they will need to make sure they know who you are, take a photograph and all that sort of thing.  You must report to and receive visits from the Office of Corrections.  You must report to the community corrections centre at Ballarat, (indistinct words), within two clear working days of this order starting.  You must let them know if you change your address or your job if you get one.  You must not leave Victoria without getting permission to do so and you must obey lawful instructions and directions.

40Now, if you go up to Mildura way, they have got ways and means of dealing with the fact that you might go over the river into New South Wales from time to time but make sure that they are aware that you might do that and take it up with them.  So, they are the mandatory conditions.  The next are the conditions that apply to you.  You must be under supervision of them, that is the Office of Corrections, they will need to know how you are going, they will need you to come in, they will need you to potentially talk on the phone to them.  A range of things.

41You must be assessed and treated for drug abuse, you must be assessed and treated for alcohol abuse, you must undergo any mental health assessments and treatment that is directed by the regional manager.  That will dovetail in with your community mental health plans.  You must participate in programs to address factors relating to your offending.  They will work out if you need those.  You must come back to this court for a review of how you are going on the community corrections order.  That review will be on 27 April 2020 at 9.30.

42I will be sitting in this court but you can attend at Mildura or Ballarat, wherever you are.  If you sign that, then you will head downstairs and will bring the matter to an end upon your release later this afternoon.  Can you just take that to him, Mr - thank you very much.  We will do the order as quickly as possible so it can be taken to those downstairs and ‑ ‑ ‑

43MR SWAN:  Thank you, Your Honour.

44HIS HONOUR:  ‑ ‑ ‑ they can do - check their records and be done.

45MR GOODENOUGH:  Please the court.

46MR SWAN:  Please the court.

47HIS HONOUR:  Very grateful to you Mr Swan for a very comprehensive plea in this matter.  Thank you, Mr Goodenough.  Mr Desimone, just head downstairs and things will get sorted out.  I should also say, the court is very - has admiration for Mr Carter and hopefully things get sorted out.  I will stand down.

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