Director of Public Prosecutions v Dolheguy
[2020] VSC 704
•22 October 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0068
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMIE LEE DOLHEGUY |
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JUDGE: | ALMOND J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | Trial: 20 November 2019 - 19 December 2019 |
DATE OF SENTENCE: | 22 October 2020 |
CASE MAY BE CITED AS: | DPP v Dolheguy |
MEDIUM NEUTRAL CITATION: | [2020] VSC 704 |
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CRIMINAL LAW – Sentence – Manslaughter – Acquitted of murder – Offer to plead guilty to manslaughter – Strangulation of victim – Degree of premeditation – Objectively very serious example on spectrum of manslaughter – Evidence of forensic psychiatrists – Personality disorder and impaired mental functioning – History of childhood abuse and deprivation – Importance of specific and general deterrence and protection of community – Prospects of rehabilitation difficult to evaluate – Remorse limited by reason of personality disorder – Sentence of nine years’ imprisonment, with a non-parole period of five years and six months imprisonment – Brown v The Queen [2020] VSCA 212 and R v Verdins [2007] VSCA 102 considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr P Bourke SC with Ms K Hamill | Office of Public Prosecutions Victoria |
| For the Accused | Ms S Lacy with Ms D Price | Greg Thomas Barristers & Solicitors |
HIS HONOUR:
Jamie Lee Dolheguy, after a trial lasting 18 days, the jury acquitted you of the charge of the murder of Maulin Hirenkumar Rathod at Sunshine on 24 July 2018 but found you guilty of his manslaughter. The maximum penalty for the offence of manslaughter is 20 years’ imprisonment.
Circumstances of the offence
The circumstances surrounding the offence are as follows: In the early evening on 23 July 2018, you received a message from Mr Rathod on a dating app ‘Plenty of Fish’. After a few messages were exchanged, you arranged to meet at your home in Sunbury. This arrangement was made at about 6.55pm. Mr Rathod messaged that he would be there by 8.15pm, that he would ‘see you soon. Get ready.’ You replied ‘Okay. I’ll put my favourite perfume on’. It was agreed that he would message you when he arrived.
Your computer search history reveals that between approximately 7.05pm and 7.08pm you ran the following searches on the internet:
‘im going to kill someone tonight for fun
i’m going to kill someone tonight. Help
i will kill someone tonight
i want to commit murder
Want to commit murder – Queendom’.
You followed a link to a page containing psychological advice before returning to the search results produced by the term ‘i want to commit murder’, and accessing a site with the title ’10 steps to commit a murder and get away with it’.
At 8.01pm, you messaged Mr Rathod and asked how far away he was. He messaged ‘five minutes’. You responded ‘Okay, I’m excited. I’m wearing one of my Cosplay outfits because some man like how submissive it looks’.
At 8.07pm, Mr Rathod arrived and you invited him in.
Fifty three minutes later at 9.00pm, you reported to the police that you had killed Mr Rathod. You described what happened during those fifty three minutes initially to first responders and subsequently in greater detail to police in a recorded interview. Your account of what occurred was not challenged at trial but was accepted as a truthful account of what occurred. The following brief summary is substantially derived from your own words to the police in the recorded interview.
You said you knew you would kill Mr Rathod if he came over but you did not want to kill him and that you did not have a plan of exactly how you were going to do it. When Mr Rathod arrived you observed his physique. You said he did not look like a strong man, that strangulation should be quick and easy; and that you thought that he was weak.
When Mr Rathod arrived, you went to your bedroom. You engaged in conversation together for about five minutes. Some sexual interaction took place involving the use of a vibrator. You told Mr Rathod that you were into choke play and would like to do a role play of ‘choke’. He said he was happy to learn anything as long as you did not hurt him. You then straddled his chest and asked whether you could put a pillow over his face to see if he could breathe or not. You then placed the pillow over his face and found that he could still breathe. You removed the pillow and said ‘Well, that’s not gunna work’.
In the interview you said Mr Rathod did not seem to care. He seemed to be treating it as a game. You said that this was another example of people not taking you seriously. You then offered to teach Mr Rathod how to do a choke hold on people so that he could ‘do it on people’ if they ever tried to assault him, and he agreed. He said ‘Okay, just do not hurt me’. You said ‘As long as you tap I’ll let go, cause tap is a sign of panic’, and he said okay.
Then you told Mr Rathod to sit up on the bed. You sat behind him. Initially, so that you did not scare him, you left your legs off him and just placed a choke hold on him. When he started to panic you wrapped your legs around him to make sure he could not move. You told the police that Mr Rathod tapped a lot and that he kept kicking, and swinging his arms around, but you did not let go. You whispered to Mr Rathod ‘It’ll be okay, it’ll be over’. Eventually he stopped and was making a ‘weird breathing sound’. Your arms were getting sore so you ended up (using what you described as another resort) manoeuvring his body around so you could get to the vibrator cord. Without letting go, you wrapped the vibrator cord around his throat and pulled. At this stage, Mr Rathod was lying on his stomach and you were sitting on his back, so that you could hook the vibrator cord so it would pull tighter.
You described Mr Rathod as ‘practically almost deadweight’ just before you grabbed the vibrator to use the cord. Eventually he stopped moving. You wrapped the cord around his throat and tied an extra lacing cord around his throat so he would not wake up.
You then rang the police and reported what you had done. Mr Rathod died in hospital the following day.
Plea of guilty
You made a number of offers to the prosecution including an offer to plead guilty to manslaughter. It is acknowledged that the offers were made at the earliest reasonable opportunity. Having regard to the tenor of the admissions made to police, it was not surprising that those offers were rejected. However, you are entitled to the full utilitarian benefit as if you pleaded guilty at the earliest reasonable opportunity. Additionally, even though there was a trial there was no significant dispute about the facts with the trial being conducted on the limited issue of murderous intent.
Impact on victims
Mr Rathod was 24 years old when he died. He came to Australia in 2014 to study and to create a better life for his family in India. His studies were progressing well and he was working part-time to be able to pay the fees.
Mr Rathod was the only child of Hiren and Jagruti Rathod. His death has been indescribably painful for them. His mother, a teacher, was not able to teach. His father was unable to attend to his business. In their victim impact statement, they say they lost their appetite, their memory, their faith in God, and that their mental health deteriorated. They continue to grieve daily for their lost son.
Niraj Chavda, Mr Rathod’s cousin, states in his victim impact statement that he was so close to his cousin Maulin that they were like brothers and they had grown up together in India. When Maulin came to Australia, Niraj, who was already here, helped him find a job and helped him settle into university on his first day and showed him how to use public transport.
Mr Chavda endured the trauma of seeing his cousin in hospital, being told that his cousin would die, and having to make the phone call to break the news to Maulin’s father. With great apprehension Mr Chavda undertook the difficult task of accompanying Maulin’s body home to India and to Maulin’s parents, to enable them to arrange a funeral according to their religion.
By your actions you have permanently changed their lives.
Your defence at trial was run on the basis that a jury could not be satisfied beyond reasonable doubt that you intended to kill Mr Rathod or cause him really serious injury. All other elements of the charge of murder were admitted or were not in issue.
By its verdict on the contested issue of intention, the jury was not satisfied beyond reasonable doubt that you intended to kill or cause Mr Rathod really serious injury.
Given the admissions you had made to the police, this verdict was undoubtedly due to the acceptance by the jury of the psychiatric evidence adduced on your behalf at trial as to your emotional state and likely state of mind at the time of the doing of the acts in question.
It was submitted on your behalf on the plea that given that you have been acquitted of the charge of murder, I should disregard all the evidence adduced in respect of intention at trial on the basis that the evidence used in the trial was used specifically to show that you had a murderous intent and has no value beyond that for present purposes. Specifically, it was submitted that this evidence does not show that you had a motive or an intention to hurt or cause injury to Mr Rathod and that I should focus on the very limited period of time during which the act of violence occurred: from the time the consensual choke play became non–consensual. That is, from when Mr Rathod tapped and you did not release the choke hold until after he became ‘deadweight’.
I reject this submission. It is true that the test of whether the act was dangerous, as an element of the charge of manslaughter by unlawful and dangerous act, is objective and does not depend upon subjective intention. Also it goes without saying that it is necessary to take the greatest care to sentence you for the crime of manslaughter, for which you were convicted, not for the crime of murder, for which you were charged. For the purpose of the verdict, the jury was required to consider whether a reasonable person in the position of the accused, performing the act in question, would have realised that he or she was exposing the deceased to an appreciable risk of serious injury.
Objective gravity of the offence
My task in sentencing is different to the task of the jury. Among other things, it is necessary for me to assess the objective gravity of the offending. In doing so it makes a difference if the offender was subjectively aware – that is, realised – that performing the act in question was exposing the deceased to an appreciable risk of serious injury or merely injury, and knowingly inflicted injury (falling short of really serious injury). The offending behaviour cannot be considered in a vacuum without recourse to the proven facts.
It is abundantly clear in your case that there was a degree of premeditation with respect to the act of violence. You had no sexual interest in Mr Rathod. Despite dressing like the character Lolita in your ‘cosplay outfit’ because you believed some men ‘like how submissive it looks’, you were not intending to be submissive, at least from the moment of his arrival. You assessed his physique, noting that he did not appear to be a strong man. You decided that strangulation would be quick and easy. You chose in advance the act of violence ultimately perpetrated. You engaged him in the pretence of a game. First you suggested a contest of strength. You sat on his chest and asked him whether he was strong enough to pull you off. He said he was pretty strong. You asked whether you could test the theory. He replied ‘Yes, as long as you do not hurt me’. You were confused about that, telling the police interviewers ‘‘cause if I’m testing the theory then I am gunna hurt you, it’s pretty obvious but he didn’t seem to be phased (sic) or scared’.
You then asked Mr Rathod whether you could put a pillow over his face to see if he could breathe or not. When you found he could breathe you took the pillow off and said ‘Well, that’s not gunna work’. You suggested the idea of a role play of ‘choke’. You knew that he did not realise the danger he was in. You said that Mr Rathod did not seem to care, and that he seemed to be treating it as a game. This annoyed you. You took it as another example of people not taking you seriously. Despite making it look like a game, you knew you were not playing a game. You knew you were serious.
You suggested you could teach Mr Rathod ‘how to do it on people that if they ever try and assault you’, indicating by that that you would be teaching him how do to a choke hold in self-defence. He said ‘Okay, just don’t hurt me’. You then agreed on a safety plan of tapping to allay his concern about the inherent dangers of choking.
You took up a position sitting behind Mr Rathod. You told the police that you did not put your legs around him initially so as not to scare him. You agreed that the way you were positioning on the bed was ‘strategic’. Once you had him in the most vulnerable of positions and after having made him believe he was not in any danger, you applied a chokehold for long enough for your arms to get sore and did not let go despite him tapping frantically.
On the issue of objective seriousness, the prosecution submitted that I should regard the online searches you conducted between making the arrangement with Mr Rathod to come to your house, and before his arrival, as premeditative conduct increasing the objective seriousness of the offence.
The search history on your computer revealed that from 7.05pm to 7.08pm you conducted online searches using the following search phrases:
‘im going to kill someone tonight for fun’, ‘i’m going to kill someone tonight help’, ‘i will kill someone tonight’ and ‘i want to commit murder’
You searched ’i want to commit murder’ and followed a link to a page containing psychological advice from Dr Bob Rich, spending a total of four seconds there before returning to the search results produced by the term ‘i want to commit murder’. At 7.08.22 pm you accessed a site with the title ’10 steps to commit a murder and get away with it’.
Examination of the search history has contradictory indications. Some searches indicate that you were interested in the subject of killing or at least harming someone. Other searches indicate you were seeking help in relation to having urges to kill or to harm someone. Notably, you only spent a very short time engaged in the search activity – in total less than four minutes. I am satisfied that the searches show ideation of killing or harming someone, and perhaps that you were tantalised by the notion. But I am not satisfied that this conduct necessarily reflects premeditation of harming Mr Rathod at that point. It follows that I cannot be satisfied that the internet searches increase the objective gravity of the offending.
Similarly, and despite the prosecution submissions to the contrary, I do not regard the impact of whispering in Mr Rathod’s ear as you carried out the act of strangulation ‘It’ll be okay, it’ll be over’ as increasing the objective seriousness of the offence. It is not clear what you intended to convey by those words or whether Mr Rathod was conscious at the time you uttered them.
But I do consider that the words demonstrate that you were aware of your actions and were engaged in some consequential thinking at the relevant time.
There are no other potentially aggravating features of the offence to consider.
Whilst manslaughter is by definition a very serious offence involving the death of a human being, I am bound to consider where your offence lies on the spectrum of seriousness having regard to comparative current cases and current sentencing practices. Both prosecution and defence adverted to the very wide range of circumstances that may constitute the offence of manslaughter varying in gravity from the nominal to the ‘very confines of murder’.[1]
[1]DPP v Ristevski [2019] VSCA 287 [68].
The prosecution submitted that your offence falls into the latter category and is properly assessed as being of a high level of objective seriousness, and provided details of cases involving the sentencing of offenders for manslaughter in circumstances involving strangulation or suffocation of the victim, inviting the Court to consider similarities with the circumstances of your offending.[2]
[2]DPP v Ristevski [2019] VSCA 287; Vincec v R [2018] VSCA 18; Sherna v R (2009) 32 VR 668; R v Boroviak [2018] VSC 793; R v Hutton [2011] VSC 484; Grimmett [2011] VSC 506; Bugmy v R (2013) 249 CLR 571; R v Verdins (2017) 16 VR 269; DPP v O’Neill (2015) 47 VR 395; DPP v Herrmann [2019] VSC 694; Di Paolo v R [2019] VSCA 194; Wheeldon v R [2018] VSCA 344; Dang v R [2018] VSCA 43; Leishman v The Queen [2019] VSCA 270; Mill v R (1988) 166 CLR 59; Azzopardi v R (2011) 35 VR 43; R v Melissa [2015] VSC 766R; Veen v R (No. 2) (1998) 164 CLR 465; McDowell and Heiberg [2019] VSC 604; Smith [2018] VSC 684; Mitchell [2015] VSC 24; Ahmadi [2013] VSC 293; Sherna [2009] VSC 494; Pennisi [2008] VSC 498; DPP v Pennisi [2009] VSCA 322.
Defence counsel submitted that the objective gravity of this offending falls at the lower end of the seriousness spectrum noting, correctly, that most of the cases referred to by the prosecution involve older offenders, extended periods of violence, dishonesty about what occurred, or aggravating circumstances in relation to treatment of the body. Defence counsel submitted that ascertaining current sentencing practices for the offence of manslaughter is particularly difficult because of the wide range of circumstances that may constitute the offence and because of the significant different levels of moral culpability and the breadth of sentences that have been imposed. Your case, it was submitted, is unique, rendering comparative sentences and statistics of limited use.
Whilst it is true to say that your case has unique features rendering other cases of limited guidance, every case must be considered on the basis of its own facts.
I accept the matters put on your behalf including that the act of violence was relatively limited and of short duration, and that you contacted police immediately afterwards and made full and frank admissions about what had occurred.
But this was not a case of someone inadvertently carrying out an extremely dangerous act. There was evidently some premeditation and planning at least from the time you sized up Mr Rathod’s physique.[3] You knew very well that what you were doing was wrong. You knew what you were doing was extremely dangerous from your past experience of having attempted to smother one of your care workers in 2015, and from your knowledge of the need to have a safety plan when engaging in such activities.
[3]See also the Report of Associate Professor Andrew Carroll dated 30 March 2020 (‘Carroll Report’), [326] and Transcript of Plea, T125.15-26.
You took the life of a young person who had done nothing to harm or provoke you. He was totally trusting and unsuspecting. In every sense, he was an innocent victim. One can only imagine the terror he felt when he realised that despite his urgent tapping, you were not going to let go.
In my view (given the observations of the Court of Appeal in DPP v Weybury[4] and DPP v Ristevski[5] discouraging the practice of categorising offending as falling into particular ranges of seriousness), it is enough to say that this is a very serious example on the spectrum of manslaughter cases.
[4][2018] VSCA 120, [33]-[34].
[5][2019] VSCA 287, [66]-[67].
Evidence of experts
Expert evidence was led from two eminently qualified and experienced consultant forensic psychiatrists, Associate Professor Dr Andrew Carroll and Dr Danny Sullivan.
In Dr Carroll’s opinion, you satisfy a diagnosis of personality disorder, which includes borderline and antisocial traits, and you have an extreme impairment in all four domains using the level of personality functioning scale (LPFS) set out in the Alternative DSM-5 Model for Personality Disorders.
Dr Carroll reports that your developmental history has been extensively documented, with your early childhood characterised by emotional neglect and abuse including extreme physical and sexual abuse; that your clinical presentation, as observed by multiple agencies and clinicians over many years, has always been consistent with a person who is a survivor of extreme abuse and neglect;[6] and that it appears likely that your basic socio emotional needs were not met from infancy onwards, so that in your case, the foundational building blocks of normal personality functioning were never established.
[6]Carroll Report, [314]-[315].
Specifically, Dr Carroll states that the lack of secure attachment figures appears to have resulted in:
· a profoundly damaged sense of self, which has led to a range of entrenched severe deficits in psychological functioning including a very limited capacity to integrate diverse conflicting emotions and impulses;
· deficits in your capacity to reduce your level of emotional distress and arousal at times of distress resulting in an entrenched pattern of ‘acting out behaviours’;
· very limited capacity for empathy; and
· no interest in, or capacity for, meaningful, emotional, reciprocal relationships with other people.[7]
[7]Carroll Report, [317].
Furthermore, Dr Carroll reports that your protracted abuse experiences have resulted in underlying rage towards your mother; a very primitive sense of your own agency and power in the world; a fusion of your sexual functioning with issues of power and control; and strong feelings of hatred towards the external world and humans in general.[8]
[8]Carroll Report, [318].
In Dr Carroll’s opinion, at the time of the killing it is likely that you were in an acutely disturbed state of mind,[9] with pathological rage, homicidal urges, heightened arousal, and emotional dysregulation occurring on a background of your pre-existing personality disorder which very significantly impaired your mental functioning, including adversely affecting your capacity to self-regulate your emotions and behaviours when in a highly aroused and angry state with conflicting impulses.[10]
[9]Carroll Report, [342].
[10]Carroll Report, [343].
In Dr Carroll’s opinion, the offence is only explicable on the basis of your severe personality disorder.[11] Dr Carroll reports that the most salient symptoms of your personality disorder (namely, emotional dysregulation, profound identity disturbance, and empathy deficits were all directly relevant to the offending behaviour) were active at the time of the offence and are causative of your offending.[12]
[11]Carroll Report, [346].
[12]Transcript of Plea, T54; Carroll Report, [346].
Dr Sullivan agreed that you satisfy the diagnosis of personality disorder and that you have an extreme impairment as assessed on the relevant scale.[13] In his opinion, your personality disorder and the associated impairments ‘underpinned’ the offending and agreed with Dr Carroll that it played a necessary causative role. He reports that your personality disorder is of a nature and magnitude which (as the involved experts reflect) is extremely unusual and severe, and the level of efforts to address this reflect how impaired and concerning your presentation is.[14] Dr Carroll agreed with these observations.
[13]Report of Dr Danny Sullivan dated 14 April 2020 (‘Sullivan Report’), [111].
[14]Sullivan Report, [127].
The evidence given at the sentencing hearing by the forensic psychiatrists of the severity of your dysfunction is consistent with evidence given at your trial about the intense level of care required over many years, including 24 hour care for several years, numerous episodes of self-harm by cutting and bodily insertion of objects, and the high number of hospital admissions required as a consequence. Each of the professional caregivers and treating professionals noted that you were one of, if not the most, challenging clients they had ever engaged with.
It is abundantly clear from all of the evidence that you have a profound personality disorder and impaired mental functioning particularly when you are in an aroused state.
Impaired mental functioning at the time of offending may reduce an offender’s moral culpability if it had the effect of impairing an offender’s ability to exercise appropriate judgment, think clearly or make clear and rational decisions, if it made the offender disinhibited or contributed causally to the commission of the offence.[15] Since the decision of the Court of Appeal in Brown v The Queen,[16] an offender diagnosed with a personality disorder should be treated as in no different position from any other offender who seeks to rely on an impairment of mental functioning as mitigating sentence in one or other of the ways identified in R v Verdins.[17]
[15]Brown v The Queen [2020] VSCA 212, [6], [29], [68]; R v Verdins [2007] VSCA 102.
[16]Brown v The Queen [2020] VSCA 212.
[17]Brown v The Queen [2020] VSCA 212, [6], [29].
The prosecution submitted that whilst Verdins[18] principles can apply in an appropriate case, there is no realistic connection or causal link in your case. I disagree with the proposition that there is no realistic connection or causal link.
[18]R v Verdins [2007] VSCA 102.
I am satisfied that the disorder and its profound psychological deficits were active at the time of the offending and significantly impaired your mental functioning. In this regard, I accept the opinion evidence of Dr Carroll and Dr Sullivan on the plea.
In your case, once you had reached an acute level of anger and were in an aroused state, your emotional dysregulation made it extremely difficult for you to control the impulse to act out that anger so that while you were aware that strangling Mr Rathod was wrong and you knew what you were doing and could in fact organise the steps that led to the actions which caused Mr Rathod’s death, I am satisfied that your cognitive state (that is your capacity to think clearly and logically about your actions) was likely to have been severely impaired, particularly at the time of the doing of the act. Furthermore, your reduced capacity to experience and express empathy meant that you were not sufficiently responsive to Mr Rathod’s distress to stop.
In all the circumstances, your moral culpability for the offending is significantly reduced by reason of your severe personality disorder, which relevantly impaired your mental functioning at the time. As a result your sentence must be significantly moderated.
Childhood abuse and deprivation
Your moral culpability for the offending is also reduced by reason of the terrible mistreatment and the deprivation you suffered as a child.
I do not propose to go into explicit details of your personal history, which is extensively documented in Dr Carroll’s reports. It is enough to record that you were born on 17 October 1999 in Wauchope, New South Wales. You have three siblings: two older brothers are now aged about 22 and 23, and a sister who is aged about 19. You also have three half-siblings. From the age of about two years and nine months, you lived sometimes with your mother, sometimes with relatives and sometimes with extended family. The family environment was extremely dysfunctional and involved severe mistreatment and deprivation. From the age of 10 you became subject to a child protection order. Although your parents formally remained your guardians, they had no active role in your life or in the decision making in your life. Between the ages of 11 and 14 you had various placements in therapeutic home-based foster care and, during your early teenage years, spent time in a psychiatric hospital and were heavily medicated. It took several years before your personality disorder was diagnosed. Little is known about your early education. During grade 6, you attended school for half days with a full-time support aide. You had limited secondary schooling, with records suggesting you last attended school in year 8. Between August and October 2013 you were placed in secure welfare and, in October 2013, moved into specialised residential placement under the care of McKillop Family Service on a child protection order. Your care program involved a team of eight staff and a house supervisor with a two to one staff ratio 24 hours a day.
Although this mistreatment and deprivation occurred some years ago now, and before your tenth birthday, the High Court in the case of Bugmy[19] recognised that its effects are enduring and must be given full weight in sentencing. Your case is a prime example of such enduring effects which I take into account in the determination of your sentence.[20]
[19]Bugmy v The Queen [2013] HCA 37.
[20]Bugmy v The Queen [2013] HCA 37, [42]-[44].
Specific and general deterrence
It was submitted that your personality disorder and impaired mental functioning is also relevant to the issue of specific and general deterrence.
In my view, the need for specific deterrence (that is deterring you from acting like this in the future) is reduced but not eliminated. The current offence was committed in 2018, only three years after you made an attempt to smother one of your carers, resulting in you pleading guilty to the charge of reckless conduct endangering life and also to a charge of contravening a conduct condition of bail.
The latter offence may be disregarded for present purposes but the offence of reckless conduct endangering life is highly relevant. The conduct which involved the choking of a carer with a cushion has marked similarities with the conduct engaged in on this occasion. Notwithstanding allowances being made with respect to your complex issues (and bearing in mind you were very young at the time of the 2015 offence), you need to be deterred from repeating such behaviour.
In relation to general deterrence, no weight should be given to this as a sentencing consideration. In my opinion, by reason of your extreme and unusual personal circumstances, there would be no useful purpose served by making you an example to others.
Protection of the Community
However, protection of the community is of considerable importance. The disorder you have is severe, entrenched and difficult to treat without extensive long term therapeutic care. In the meantime, by any objective measure, you remain a danger to others and a danger to yourself.
This is apparent from the evidence of past conduct of the inexplicable unprovoked attack on a carer who you liked. In relation to the present offence, whilst there was an explanation (being a disproportionate response to frustration with your carers from events occurring earlier in the day), this offence is another example of an attack unprovoked by the victim.
There have been many instances of behaviour constituting a danger or potential danger to others or to yourself during the time you have been in prison awaiting trial and sentencing for this offence.
In an affidavit sworn in April 2020 by Jennifer Ann Hosking, the Acting Assistant Commissioner, Sentence Management Division of Corrections Victoria, Ms Hosking deposes that since your reception into Dame Phyllis Frost Centre in July 2018 you have remained in the Swan 2 Management Unit and have a maximum security rating.[21]
[21]Affidavit of Jennifer Ann Hosking sworn 28 April 2020. See also affidavit of Jennifer Ann Hosking sworn 6 October 2020.
In your time there you have, among other things:
(a)threatened to harm a child in front of its mother;
(b)continued to have thoughts of wanting to hurt other prisoners and children;
(c)threatened to kill a prisoner you had applied to mix with (later you both apologised);
(d)been placed in an observation cell specifically designed to reduce the risk of self-harm on 20 occasions, sometimes at your own request;
(e)self-harmed by tying or attempting to tie a ligature around your neck on 25 occasions or by cutting yourself or bodily insertion of objects, as a result of which you have been escorted to hospital for treatment on seven occasions; and
(f)on multiple occasions been non-compliant and have verbally abused prison officers and medical staff. On occasions, such abuse has escalated to the kicking and biting of prison officers.
In the last six months it appears that you have settled down with fewer incidents, though I am mindful of Dr Carroll’s opinion that you ‘maintain an ongoing high risk of violence’.
For completeness, I note that during the initial plea hearing it was submitted that an appropriate disposition would be to sentence you (then a young offender) by making a youth justice centre order under s 32(1) of the Sentencing Act 1991 (Vic). When coupled with the view I take of the objective seriousness of the offending, I considered there was an unacceptable risk of violence presented by your homicidal urges (as documented by Dr Carroll) which would have endangered a younger and likely more impressionable and vulnerable cohort. This was so concerning that I would not have been prepared to exercise the discretion to make such an order.
Prospects for rehabilitation
Both Dr Carroll and Dr Sullivan were measured in their assessment of your prospects for rehabilitation.
Dr Carroll stated that the prognosis for your personality disorder is unclear: as your central nervous system matures by your mid-twenties significant improvement is possible but equally your psychological deficits may become entrenched, particularly if you remain subject to a very restrictive prison regime indefinitely. Dr Carroll reported that for the foreseeable future, you will continue to be at very high risk of self-harm, of impulsive aggression and long-term risk of less frequent but very significant acts of non-reactive violence of the kind indicated by the current offence and your prior offending in 2015.
Dr Carroll stated that your subjective quality of life is surprisingly high in Swan 2 and your mental health has, if anything, been improved by the extremely restrictive regime, though long term that environment will likely have an adverse effect on your development of social skills and capacity for autonomy.
Dr Carroll concludes that your prospects for rehabilitation are constrained by the manifestations of your personality disorder (with its current unknowable prognosis) and by the fact that you will likely remain in a restrictive non-clinical environment. In Dr Carroll’s opinion, your prospects will be improved if mental health professionals are able to play some significant long-term role in supporting and advising the prison staff who will be managing you day to day; and that you are capable of engaging and working with mental health clinicians and are capable of psychologically minded reflection at times that you do not suffer a mental illness such as a psychotic disorder and you have average intellectual abilities.
On the other hand, according to Dr Carroll, you show no interest in the rehabilitative pathway beyond the Swan Unit. The degree to which you will be able to engage with attempts to address your risk of serious violence is unclear and your pattern of suicide attempts and high risk self-harming behaviours is now very well entrenched and likely to present ongoing challenges to attempts to manage you in less restrictive circumstances. It was unclear to Dr Carroll as to whether your environment and your management in the coming years will be adequately guided by evidence-based psychological principles such as to promote your recovery and rehabilitation.
Dr Carroll said he thought it was premature to say that you will always be at high risk of very serious violence, though you ought to be considered to be constantly at significant risk of such behaviours, and that it is a possibility that maturation will assist you over a time frame of the next five to ten years.
Dr Sullivan considered that evaluation of your prospects for rehabilitation is a very difficult prognostic exercise because it relies on a range of factors which he cannot predict; that with maturity you may become more capable of regulating your emotions and foresee the future in which you can engage in a meaningful life and that therapy is the way through, it may well be that you remain stuck in a situation in which you are unable to countenance leaving a restrictive environment (such a Swan 2); and that your treatment is something in which you engage briefly and then disengage. Your prognosis will really depend to what extent you are able to engage with and sustain treatment and that effective treatment is available for you in the longer term.
Dr Sullivan states that the severity of your personality disorder does give an indication that it is going to be a complex journey rather than a straightforward one.
From a sentencing perspective, what emerges is the realistic and sensible recognition that your prospects for rehabilitation very largely depend on the extent to which you are willing and able to engage in a lengthy and difficult psychiatric and psychological treatment regime taking place over a period of years not months and the availability of such treatment. If you are not willing or able to do so, your prospects are bleak. Importantly however, both experts agree that progression is possible.
In a further affidavit,[22] Ms Hosking provided updated information to the Court. It appears that you are engaging well with the Dame Phyllis Frost Centre and sentence management panel officers at monthly reviews with a psychiatrist from Forensicare, a psychologist from the Specialist Trauma Service WestCasa and an occupational therapist.[23] You are showing interest in an incentive-based regime and attending the leisure centre and gymnasium. At the sentencing hearing the court was shown some of your artwork. Recently you have been given access to items previously unavailable to you including shoe laces, remote controls and batteries. You have obtained a billet role as a cleaner cleaning vacated cells. Reportedly you do this job exceptionally well.
[22]Affidavit of Jennifer Ann Hosking sworn 6 October 2020.
[23]See also Letter from Penelope McDonald, WestCASA, dated 2 April 2020 (Exhibit 25).
The Commissioner has recently approved a formal staged transition plan with a view to transferring you from the restrictive environment of Swan 2 to Rosewood Unit with the ultimate goal of mixing with other women prisoners and following normal unit routines. Ms Hosking deposed that the stages are not time limited and progression will be entirely dependent on your behaviour.
It appears that a concerted effort is being made to aid your rehabilitation whilst at the same time there is a realistic appreciation that progression is likely to be very gradual and may not be linear.
The evidence of Ms Hosking indicates that there is room for very cautious optimism with respect to your potential for rehabilitation. I propose to sentence you in a way which facilitates your rehabilitation.
Remorse
An attribute of your personality disorder is a limited capacity for empathy. This bears a direct relationship to, and limits, your capacity to feel remorse. Remorse may serve as an indicator of the likelihood of a person re-offending. A person who is truly and deeply remorseful for their actions is less likely to repeat them. In your case, due to your empathy deficits, I am not convinced that the amount of remorse you feel is likely to significantly inhibit future conduct. Nevertheless, I accept that you do feel remorse to the extent that you are able. It follows that you must be given the benefit of remorse in mitigation of your sentence.
Having regard to all of the facts in this case and current sentencing practice, the sentence of this Court is that you be imprisoned for a term of nine years. I fix a non-parole period of five years and six months.
You have been in custody since 25 July 2018. I declare pursuant to s 18(4) of the Sentencing Act 1991 (Vic) that you have already served 822 days in custody, not including today. I direct that the fact that this direction has been made and its details be noted in the records of the Court.
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25
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