Director of Public Prosecutions v Doets (a pseudonym)

[2018] VCC 2261

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

YOUSEF DOETS (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE HIGHAM
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	27 August 2018
DATE OF SENTENCE:	7 September 2018
CASE MAY BE CITED AS:	DPP v Doets (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2018] VCC 2261

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             Sentence – plea of guilty – causing serious injury intentionally –domestic violence – family violence – relevant prior convictions – history of methamphetamine use – lack of insight – victim blaming – likely diagnosis of schizophrenia – history of non-compliance with treatment – high risk of reoffending – guarded prospects of rehabilitation – general deterrence – specific deterrence – community protection

Legislation Cited:     Crimes Act 1958; Sentencing Act 1991

Cases Cited:R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; Pasinis v The Queen [2014] VSCA 97

Sentence:Four years and six months’ imprisonment with a non-parole period of three years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D Guesdon	Solicitor for Public Prosecutions
For the Accused	Ms D Lamovie (Plea) Mr C Tom (Sentence)	Victoria Legal Aid

HIS HONOUR: 

1Yousef Doets,[1] you have pleaded guilty to one charge of intentionally causing serious injury for which the maximum penalty is a term of imprisonment of 20 years. 

[1] ‘Yousef Doets’ is a pseudonym.

2In short, the circumstances of your offending were as follows.

3At around lunchtime on 25 January 2018, you and your victim, your then-partner of approximately 18 months, were at home in your bedroom playing PlayStation when a dispute arose.  When your victim did not do as you asked, you struck her on the arm with a hockey stick.  You continued to hit her over a period of time, yelling at her to "Stop, stop."  She had no idea what you were talking about.  You and she stayed up through that night using methamphetamine. 

4Throughout the following day, you again began to punch, kick, and hit your victim with the hockey stick.  This included striking your victim to the head. 

5By the afternoon of 26 January, your victim was able to text her mother asking for the police to be called.  Shortly thereafter, police attended at your address.  Your victim was observed to have multiple bruises and cuts to her face and body and to be shaky and disoriented.  You were lying naked on the bed holding an empty liquor bottle.

6Your victim sustained multiple injuries, including fractures to the nasal bone, left cheekbone, left clavicle, two ribs, left forearm, right thumb and pelvis, in addition to bruising around both eye sockets, to the face and elsewhere.  A forensic physician confirmed that the fractures would take weeks or months to heal.

7You participated in a record of interview, and when shown the photos of your victim's injuries, said, "Yeah, I caused them all."  You also said, "I feel like she's forced me to hurt her back."  At various times, you identified that your victim would deliberately give you the silent treatment knowing that it would upset you, that your instincts take over, and you just retaliate.  You also made more generalised comments about having been woman bashed often enough so that you "would not take it any more".

8A victim impact statement was tendered on the plea as Exhibit 3.  Your victim told of how she felt terrified.  She said, "I thought I may not live."  As well as describing the physical impact of your attack upon her, your victim stated, "I am terrified that one day he will find me again.  This is the thought that is always on my mind."  Mr Doets, that is the impact that your offending has had upon your victim.

9I turn now to your personal circumstances. 

10You were born in 1978, and you are thus now 40 years of age, and were 39 at the time of this offending.  Your parents had separated prior to your birth, and you were raised by your mother until the age of ten, when your mother tragically passed away.  You have had no contact with your birth father since.  You were then brought up by your mother's sister and her husband.  Your uncle was a strict disciplinarian.  They already had children, and you never felt that you were a comfortable fit into that adopted family.  That sense of not belonging was compounded by your constant bullying at school.  You report never having friends at school.  You believed that people merely used you. 

11You moved to live with a paternal uncle and attended high school until year 11.  You then found a job at a fast food chain, working there from 17 until you were 23.  When you were 24, you reported that there was a home invasion at your shared accommodation, and you became a prosecution witness in that subsequent criminal case.  It seems that you became withdrawn as a result of fear that you had made enemies, and in consequence you lost your public housing due to your own anxiety and inability to leave the premises.  You reported at this time feeling pressured into stealing cars by other people with whom you co-offended. 

12In 2009, you were placed on a disability support pension in light of your failing mental health, including, I am told, a diagnosis of post-traumatic stress disorder.

13You have had three significant relationships.  From the ages of 25 to 29, you were with a partner of whom you said, "She was a morphine user who required a wheelchair," and that she bashed you and ended up cheating on you.  From the ages of 29 to 34, you were with another woman who, you reported, bashed you for five years.  Your third relationship was with your victim which lasted for 18 months prior to the index offending against her.

14Your criminal history goes back to the year 2000 and contains prior convictions for a range of offences, including acquisitive offences, offences of criminal damage, public drunkenness, and failure to comply with bail.  You have been dealt with variously by means of fines, intensive correction orders and community-based orders, and terms of imprisonment, some of which have been imposed for breaching intensive correction orders and community-based orders.

15Of significance and relevance, in my view, is that your forensic history also reveals prior convictions for offences of violence.  These violence offences not only include resisting and assaulting police, possession of a prohibited weapon and assault, but also, between 2011 and 2012, persistent contraventions of family violence intervention orders and offences of interpersonal violence against your then-partner, who is not the victim in this matter.

16There was tendered on the plea as Exhibit 4 a report of Dr Nicholas Owens, consultant psychiatrist, dated 25 June 2018, and Exhibit 5, an addendum report from Dr Owens, dated 16 July 2018.  Also tendered were defence submissions, Exhibit 6, and a defence chronology, Exhibit 7.  I have read and considered all of that material and the history of you that it provides.

17Over the years, there have been concerns regarding your mental health.  I note that in 1998, your application to join the defence force was rejected on psychological grounds.  In 2002, you were case managed for a month at your local mental health service.  In 2003, you were prescribed the antipsychotic drug olanzapine by a general practitioner. 

18In 2004, you were seen at the local mental health services following a referral upon release from custody, where a diagnosis had been made of schizotypal and antisocial personality disorder.  Unfortunately, you refused case management and counselling, and were apparently ambivalent about taking medicine.  You wanted help with housing. 

19In 2009, you were placed on a disability support pension.  Later that year, you were noted by your general practitioner to be suicidal.  In 2010, you were assessed by the local mental health service after you had been self-harming and threating your then-partner. 

20In 2012, there was a tentative diagnosis of chronic paranoid schizophrenia by a psychiatrist at Melbourne Remand Centre.  On subsequent reviews, your medication dosage was increased, and, upon release six months later, you were assessed as mentally well and compliant with medication.  You further expressed an intention to continue with your treatment.  It is of note that over the next three years you did not offend.  I also note these dates do not appear to marry up with the criminal record, but I accept the period of remaining offence-free was linked to medication compliance.

21Of significance is that on 3 January 2018, you were brought by ambulance to the emergency room, believing there was an alien octopus under your skin.  You were at that time noted to have been using methamphetamine, you reported that you had not been taking your olanzapine, and what is more, you refused any psychiatric assessment.  Dr Owens interviewed you in May and July 2018, and the latter assessment was being conducted with a view to assessing your suitability for a court secure treatment order.  He also had access to your Justice Health records.

22Dr Owens did not think that you showed evidence of formal thought disorder.  He regarded you as having poor insight into the problematic nature of your substance abuse.  He states that:

"One of the themes running through the Justice Health file notes across all of his mental health contact is a sense of grievance towards other people, that he had been treated unfairly since childhood, and that other people are always taking advantage of him."

23Dr Owens reported that in May, your description of the circumstances surrounding the offending strongly suggested that:

"He felt the victim was largely to blame for his actions, even though he said that he accepted responsibility for her injuries.  When directly asked, he said that he was deeply sorry for his actions, but also that he would like to rekindle his relationship with the victim if she was interested."

24In July 2018, your presentation was similar to that in May.  Dr Owens noted that your mental health state was relatively stable at present, but you still reported persecutory beliefs and auditory hallucinations.  As to this offending, you continued to assign blame to your victim, stating that you were giving her a taste of her own medicine.  When presented with a list of injuries of your victim recorded in the police summary, you stated:

"She would have got some of the fractures from falling off the bed.  If it's found I'm at fault, I can't deny it, because it got out of hand.  Not all the injuries ring true to me.  I assault back.  I got too rough for my own good.  I can only think I got bashed man syndrome.  I can't let people abuse me anymore."

25However, when asked about your reaction to the injuries read out to you, you said you were shocked, surprised and sorry.

"I am not a violent person.  I get violent back.  I can only assume all the assaultings she did to me took its toll and I lashed out under the influence of ice and alcohol.  The injuries could have been worse."

26Dr Owens noted that regarding your current period of incarceration, you were initially placed in a mental health unit for assessment and treatment of psychotic symptoms.  You were treated with olanzapine and escitalopram, which is an antidepressant, and diagnosed with acute psychotic disorder, drug-induced psychosis, and possible dysthymia.  You were discharged back to outpatient prison mental health services in May.  Dr Owens also confirmed past presentations of psychotic illness, follow-up referrals to local area mental health services, and disengagement on your part from those services.

27Dr Owen states that the likely diagnosis is schizophrenia.  Dr Owens regards other possible diagnoses, including schizotypal disorder and recurrent drug-induced psychotic episodes, as not adequate to capture the longitudinal stability and severity of your condition.  In this regard, he points to factors such as lengthy persistence of certain delusional beliefs over many years and ongoing disturbance many weeks after ceasing drug use, as well as significant functional impairment over many years.

28Dr Owens also notes that your reported background and upbringing, characterised by early parental separation, the loss of your mother and then being fostered by relatives whom you described as abusive, constitutes "a developmental trajectory that is a significant risk factor for serious mental illness in adult life."  He also indicated that you met the criteria for polysubstance abuse; methamphetamine, cannabis, and alcohol being the main drugs involved.

29Dr Owens identified that while the severity of your overall distress and your delusional ideas and thought disorder decreases in response to treatment with antipsychotic medication, the difficulty is that:

"He generally does not take antipsychotic medication after release from prison.  And when this fact is combined with ongoing use of stimulant drugs and cannabis, it places him at high risk of psychotic relapse."

30It is clear to me, Mr Doets, that upon release from prison, you need to be assertively followed up by a local area mental health service.  As to the offending, Dr Owens noted at paragraph 65, Exhibit 4:

"The offending occurred in the context of vague paranoid beliefs about the victim's involvement in some form of conspiracy to have him murdered, which also involved her having sex with multiple partners, although I am of course unable to determine the veracity of any of these beliefs.  However, it is very likely the offender’s behaviour at the material time was strongly and primarily related to his use of drugs, especially methamphetamine and alcohol."

31As to imprisonment, Dr Owens stated at paragraph 66, Exhibit 4:

"There are good grounds to suspect that the stress of imprisonment has caused the offender's mental health to deteriorate.  However, this must be balanced with the face that it has only really been in a custodial environment that Mr Doets has received any sort of consistent treatment for schizophrenia, which has been associated with a clear improvement in his mental state."

32In short, in prison you do not take drugs, you receive treatment and your symptoms diminish.  That is what Dr Owens is saying about the impact of prison upon you, in my view.  Of significance is that Dr Owens considers the prognosis for your conditions as moderate to poor, identifying that:

"It largely depends on his willingness to comply with treatment and, long-term, especially when released from custody, to engage with mental health services with respect to psychosocial aspects of treatment and to stop using drugs, all of which have not happened in the past once he has been released from prison."

33Dr Owens states that rehabilitation will be most effective in the context of stable mental health.  He is concerned that you harbour persistent negative attitudes towards others, including women with whom you have relationships, which is characterised by projection of blame and hostile dependency.  It is not entirely clear to Dr Owens as to what extent these attitudes are related to chronic, delusional ideas about yourself and your role in relationships, or whether they reflect personality attributes originating from a traumatic childhood; see paragraph 68, Exhibit 4. 

34At present, were you to be released from prison, the risk of violent reoffending in the next six to 12 months is high.  Dr Owens’ opinion is based upon:

(i)   Your social and forensic history;

(ii)     The fact that in the context of imminent release, you would likely have difficulties with personal support, living circumstances, coping;

(iii)    The absence of plans for your ongoing mental health treatment.

35Significantly, Dr Owens notes that the most likely scenario of violent reoffending would involve non-compliance with psychiatric treatment, use of drugs, especially stimulants (methamphetamine) and alcohol, and difficulties arising in interpersonal relationship dynamics.  See paragraph 70, Exhibit 4.

36I turn now to the submissions of counsel. 

37Ms Guesdon, on behalf of the prosecution, submitted that protection of the community, general and specific deterrence, and denunciation were the primary sentencing purposes in this case. 

38She submitted that per Dr Owens’ report, it was difficult to identify the cause for your offending: difficult to distinguish between your entrenched misogyny, longstanding persecutory beliefs, and methamphetamine-fuelled rage.  Whilst not challenging Dr Owens' likely diagnosis, Ms Guesdon also referred to his conclusion (paragraph 65, Exhibit 4) that your behaviour at the material time was strongly and primarily related to your use of methamphetamine and alcohol. 

39Ms Guesdon pointed to your relevant priors for family violence with a former partner and for breaching family violence orders in respect of that same former partner.  Whilst of course you are not to be punished again for past offending, those matters speak to the need for specific deterrence in your case; that is, to seek to deter you from any repetition of offending of this kind.

40Ms Guesdon submitted this was serious offending.  It was protracted; it lasted over a period of nearly 24 hours.  It took place in the victim's own home, and the victim had her own vulnerabilities, suffering as she did from epilepsy.  There were multiple fractures to her body.  Whilst these were not the lifelong and catastrophic injuries so often encountered, nonetheless significant force had to be used, she submitted, to inflict those injuries.  I agree.

41She submitted that your level of insight is very limited, and this lack of insight directly feeds into your prospects of rehabilitation, which I was urged to view with great caution.  Again, I agree.  Your prospects for rehabilitation at this stage must be viewed as guarded at best. 

42Your counsel, Ms Lamovie, conceded that a significant term of imprisonment was the inevitable disposition.  However, she urged in mitigation of any such sentence the following matters.

43Your plea of guilty, which was entered at the earliest opportunity.  Such a plea demonstrates a willingness to facilitate the course of justice and brings with it the utilitarian benefit of having saved the community the time and cost of a trial.  I agree. 

44She submitted that the plea was also an indication of your remorse.  She urged me to view your undoubted victim-blaming not as an absence of remorse, but rather as a function of your mental illness.  I accept that your current illness may inhibit any clear expression of remorse.

45She submitted that the offending was not driven by malice, nor was it committed in company.  She submitted that your fractured and abusive family upbringing, which created for you a sense of being overwhelmed by conflict in interpersonal relationships, was a matter to which I should have regard.  She submitted that whenever you are faced with conflict, you regressed, and you react as the bullied child you once were.

46She posited a causal connection between your upbringing and your abusive behaviour in relationships, thereby reducing, as I understood her submissions, your moral culpability for this offending.  In this regard, Dr Owens identified your constant sense of grievance directed towards other people, but was unable to identify with any certainty the origins of that entrenched sense of grievance.

47She submitted that your consistent non-engagement in treatment was a function of your social deprivation and your mental illness rather than a refusal to engage.  Your absence of family supports and isolation will mean that prison will be more burdensome for you.

48She submitted that principles 1 and 6 of R v Verdins; R v Buckley; R v Vo [2007] VSCA 102 were engaged. I have referred above to the relevant extracts of Dr Owens’ report, in particular paragraphs 65 and 66 of Exhibit 4. On the evidence before me, upon reflection, I cannot exclude a contribution of entrenched paranoid beliefs to the offending, and thus I cannot exclude a causal connection, although to what extent is a matter of conjecture. Therefore, I find that your moral culpability for the offending is reduced to a certain extent. However, in my view you remain an appropriate vehicle for both general and specific deterrence.

49As to the impact of imprisonment upon your mental health, Dr Owens' report is at best equivocal.  He says prison may impact upon your mental health, but at the same time it is only in prison that you stay drug-free and receive treatment, and so your symptoms diminish.  I do, however, take into account the potential adverse impact of continued detention upon your mental health. 

50Mr Doets, intentionally causing serious injury is a serious offence, as can be seen by the maximum penalty imposed by Parliament.  Whenever committed in the context of family violence, it will always be viewed as a most serious offence by the court, and there will always be a need to give weight to the principle of general deterrence.

51These courts will do everything that they can to protect women from violent men.  In Pasinis v The Queen [2014] VSCA 97, the Court of Appeal emphasised the importance of general deterrence in sentencing for family violence offences. The court stated:

"The key to protection lies in deterring the violent conduct by sending an unequivocal message to would-be perpetrators [that is, a message from this court out into the world at large to anyone who contemplates committing domestic violence] that if they offend, they will be sentenced to a lengthy period of imprisonment so that they are no longer in a position to inflict harm."

52The courts will protect women from partners who would be violent towards them.  As has been correctly stated by counsel, this was a protracted and sustained assault upon a defenceless woman who, in addition to the multiple injuries she received at your hand, was reduced to a state of abject fear.  She was terrorised and left terrified.  Those injuries were serious and many in number, consisting of multiple fractures to many parts of the body.  This is in addition to undoubted mental trauma.  Your victim has been left fearing for her future.

53In sentencing you, I must have regard to a range of different factors.  I must give effect to the principle of general deterrence and specific deterrence; meaning, in short, I must deter others from behaving as you have done, and I must deter you from any repetition of such behaviour.  I must express the community's denunciation of your conduct, and I must also protect the community in so far as is possible from future offending on your part.  I must promote, if possible, your rehabilitation.  I take in account the effect your crime has had upon your victim, and I must have regard to current sentencing practices as determined by the Court of Appeal and the maximum penalties prescribed by Parliament.  In short, I must try to balance your personal circumstances with the circumstances of the offending.

54It is clear, Mr Doets, that you have longstanding issues regarding your mental health: that reduces, to some extent, your moral culpability.  It is also clear that you have consistently disengaged or refused to engage in treatment.  I accept a likely diagnosis in your case of schizophrenia.  However, Dr Owens considers at paragraph 68, Exhibit 4 that:

"It is essential, both in terms of effective rehabilitation as well as reduction in future risk of violent offending, that his psychotic illness is adequately treated and his mental state stabilised in the long term."

That is, in my view, an inescapable conclusion, based upon all the material in front of me.  Until such time as you are engaged with mental health services in the community, and until such time as you are drug-free, you, in my view, present as a high-risk perpetrator of family violence and interpersonal violence.  In my view, the community needs protection from you.

55In this case, general and specific deterrence and protection of the community are the primary sentencing considerations.  I have had regard to all of the mitigatory factors urged upon me on your behalf.  Nonetheless, in my view, only a substantial term of imprisonment can meet the objective gravity of your offending. 

56If you could stand up, Mr Doets, please.

57On Charge 1, intentionally causing serious injury, you are sentenced to a term of imprisonment of four years and six months. 

58I fix a non-parole period of three years. 

59Pursuant to s.6AAA of the Sentencing Act 1991, I declare that had you not pleaded guilty, you would have been sentenced to a term of imprisonment of five years and six months with a non-parole period of four years and three months.

60Pursuant to s.18(4) of the Sentencing Act 1991, I declare that you have served 224 days of the sentence that I have passed, and I direct that this be entered into the records of the Court.

61I will make the forfeiture order sought by the prosecution in relation to the hockey stick.

62Now, Mr Tom, in terms of custody management issues?

63MR TOM:  He is currently an outpatient at Ravenhall Correctional Centre, sir.

64HIS HONOUR:  He is not in any acute ward at the moment?

65MR TOM:  No, he is an outpatient and he still has regular follow-ups with a doctor.

66HIS HONOUR:  I shall note that he is currently being assessed and followed up for his mental ill health.  Is he in receipt of olanzapine and escitalopram?

67MR TOM:  Yes, Your Honour.

68HIS HONOUR:  I shall note those down and make sure that they continue to be monitored.  I will also ensure that the two reports of Dr Owens are sent to Corrections Victoria.  Anything else that I can do in relation to ensuring good custody management?

69MR TOM:  No, I don't believe so, Your Honour.

70HIS HONOUR:  Thank you Mr Tom, Ms Guesdon.

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