Director of Public Prosecutions v Doran
[2021] VCC 1373
•17 September 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-01549
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JARROD DORAN |
---
JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 September 2021 | |
DATE OF SENTENCE: | 17 September 2021 | |
CASE MAY BE CITED AS: | DPP v Doran | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1373 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: Intentionally causing injury – assault an emergency worker on duty – category one offence – no special circumstances – commit indictable offence whilst on bail – unprovoked attack on police in performance of duties – targeted blows with a hammer – serious offending – offending in context of drug-induced psychosis – no foresight of psychosis – moral culpability reduced – sensible moderation in the need for denunciation and general and specific deterrence – significant impact on victims – early plea of guilty – remorse – criminal history – lengthy history of drug use
Legislation Cited: ss 18, 31(1)(b) Crimes Act 1958; s 30B Bail Act 1977; ss10AA, (2G)
Sentencing Act 1991;
Cases Cited: Martin v R (2007) 20 VR 14; Alexander (a pseudonym) v R [2021] VSCA 217; R v Verdins (2007) VR 269; R v Barci (1994) 76 A Crim R 103; El-Labadidi v The Queen [2018] VSCA 116; DPP v El-Lababidi [2018] VCC 1031; Hutchison v The Queen [2021] VSCA 235; Hicks v The Queen [2013] VSCA 324; Worboyes v The Queen [2021] VSCA 169
Sentence: Charge 1 - total effective sentence of 14 months imprisonment. Charge 2 – community correction order of 16 months with conditions. Charge 3 - fine.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D Karamicov | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms J P Kretzenbacher | Emma Turnbull Lawyers |
HIS HONOUR:
1Jarrod Doran, you are charged that on 1 December 2020, without lawful excuse, you intentionally caused injury to Karen Dale. You are further charged that on 1 December 2020, you assaulted Andrew Spithill, an emergency worker on duty, knowing or being reckless as to whether Andrew Spithill was an emergency worker.
2You also agreed to a summary charge of committing an indictable offence whilst on bail being heard in this Court. You pleaded guilty to that charge, which alleged that you, at Alberton, on 1 December 2020, committed an indictable offence of assaulting a police officer, whilst on bail.
Circumstances of offending
3The circumstances of your offending are set out in Exhibit P5, the Prosecution Opening upon Plea, dated 27 August 2021. You agree generally with the matters set out in the prosecution opening. Whilst Exhibit P5 states there is a factual dispute on the plea, I was informed at the plea hearing that is no longer the case.
4On 1 December 2020, you were living at an address in Turnbull Street, Alberton, with your mother, Pamela Doran, and her partner, Michael Hill.
5On 28 November 2020, Senior Constable Karen Dale, and First Constable Andrew Spithill, attended at your address to serve you with a summons. You were not at home and the officers left a calling card with your mother.
6On 29 November 2020, First Constable Spithill received a phone call from you. You asked that police attend your house, as you had “some stuff” to tell police. You told First Constable Spithill “you know that we are at war.”
7On 1 December 2020, at about 10.49am, you told your mother that a car had pulled up at the front of your house and that she and Mr Hill needed to hide. You armed yourself with a hammer and told your mother to call police. Your mother made a call to triple‑zero requesting police attend at the house.
8Your mother and Mr Hill, on your instructions, hid in the front room, and you stood outside the door. You knew that your mother had called police for assistance. In her call with the triple‑zero operator your mother stated “my son Jarrod has fucked up ... he’s got people after him that’ve come to our house.” In her statement, your mother described you as being very agitated.
9You left the area outside of the front room but later returned, telling your mother and Mr Hill that the people outside had gone. Your mother conveyed that information to the triple‑zero operator, but police were nevertheless dispatched to your address. At approximately 11am Senior Constable Dale and First Constable Spithill arrived at your address in response to the triple-zero call. They found you sitting on the front veranda with your mother and Mr Hill. You had the hammer with you on the seat. As police walked towards the veranda, you stood up and took the hammer in your hand.
10The officers asked you to put the hammer down, but you refused to do so. They then stepped backwards to put some distance between you. You were described as looking intently at the police, and after taking a couple of steps forward, you moved quickly towards Senior Constable Dale. You raised the hammer above your head in your right hand, and with your left hand you took hold of Senior Constable Dale. You then began to strike at her with the hammer. Senior Constable Dale used her hands to protect her head but the hammer nevertheless made contact with her head. In total, you delivered at least six or seven blows to Senior Constable Dale’s head with the hammer.
11First Constable Spithill attempted to intervene and used his baton to strike you at least twice to the lower back. At around this time, Senior Constable Dale fell to the ground and you continued to strike her with the hammer. You were aiming at her head and delivered further blows to her whilst she was on the ground.
12You then turned towards First Constable Spithill. As he used his baton to strike you, he lost grip of it. You and he then began to wrestle. At some point, the two of you separated. As you commenced to rush back towards First Constable Spithill, Senior Constable Dale removed her gun from its holster and fired a shot towards you. The shot connected with your left hand and injured your thumb. You then ran toward the road before falling on the nature strip. You then calmed down, were handcuffed and arrested.
13While you were handcuffed, First Constable Spithill asked you what was going on. You responded “We’re at war, dude you know it ... it’s true ... fucking evil cunts.” You later asked him “Which one did I hit?” and were told you had hit Senior Constable Dale. You were asked why you hit a woman, and you responded, “because we’re at war mate ... we’re at war”. You were also heard to say “I was about to kill some cunt.” You also asked for some Valium.
14You told the officers you were sorry for what you had done, that what you did was wrong, and that you did not know whether you could trust Senior Constable Dale.
15You were taken to the Latrobe Regional Hospital and then transferred to the Dandenong Hospital for treatment to your left thumb including its partial amputation.
16Senior Constable Dale was taken to the Latrobe Regional Hospital and was found to have the following injuries:
(a) right anterior frontal subgaleal hematoma,
(b) right temporal and infratemporal subcutaneous stranding or bruising and swelling, and
(c) pain to the left forearm, right shoulder and left knee.
17Part of the struggle between you and police was captured on a CCTV recording taken from a property across the road to where the incident occurred. I have viewed the recording which was tendered and marked Exhibit P2. I have also viewed the body-worn camera recordings tendered as Exhibit P1.
18You were interviewed by detectives at the Melbourne West Police Station on 4 December 2020. Your answers included the following:
(a) You had a feeling come over you like you were being attacked and you encouraged your mother to go to the other end of the room. You said your mother called triple‑zero and you then recalled attacking police with a hammer and being shot. You could not recall anything specific about the attack with the hammer. (Q/A 24-25)
(b) You said you called police for help because you had been working together with police and providing them with the names of heroin dealers. (Q/A 28)
(c) You recognised the police officer you struck with the hammer when you saw her because you had dealt with her “quite a bit lately”. You recalled apologising to the police officer after the incident. (Q/A 329-333)
(d) You admitted having smoked a couple of cones of marijuana that day but in the preceding days you had taken a combination of ice, Xanax, and “juice”, a reference to the drug 1,4‑butanediol. You admitted having smoked “ice” on the Monday night before the incident and taking Xanax to go to sleep. (Q/A 43-44; 82)
(e) You had been taking the same combination of drugs for approximately six months since moving from Perth and did so on the Monday night before the incident. In this time, you had been consuming “a couple of points” of “ice” each day. (Q/A 47-50)
(f) You said that even though you could not recall specifically attacking police with the hammer, you knew you had the hammer for defence purposes and knew you used it to assault police. (Q/A 60)
(g) You denied ever having hit a woman or assaulting a police officer. (Q/A 67)
(h) You said you had previously been diagnosed with depression and had been prescribed antidepressants but you were using ice and marijuana to self-medicate and you were not taking your medication. You said you had been doing so for seven years. (Q/A 71-72)
19Although paragraph 25 of the prosecution opening asserts you perceived you were “at war” with police, and had convinced your mother under a false pretence to call triple‑zero so that police would attend at your premises, Ms Karamicov, who appeared on behalf of the Director of Public Prosecutions, did not press the point as it was no longer asserted that your attack on police was premeditated.
20What is asserted, however, is you knew and recognised the two victims as police officers when they arrived at your home. You in fact recognised Senior Constable Dale as the officer with whom you had been in contact about several matters shortly before the incident. Furthermore, you knew that when you attacked the officers with the hammer, you were attacking police officers.
21The attack on Senior Constable Dale consisted of deliberate and focussed blows with the hammer to her head. Shortly after the incident you apologised, recognising that it was wrong to act in the way you did.
22At the time you committed these offences, you were on two separate bail orders. Whilst it was submitted this is an aggravating feature of your offending, because you are separately charged with committing an indictable offence whilst on bail, you are not to be doubly punished.
23You indicated an intention to plead guilty to the charges on the indictment at a committal mention on 20 July 2021. It is accepted by Ms Karamicov that your pleas of guilty were entered at an early time. I will have no regard to the matters in paragraph 31 of the plea opening which relate to what was to be a contested plea.
24You have admitted your criminal history. It reflects offending associated with your long history of drug abuse.
25You have criminal convictions in Victoria, Western Australia and Queensland. There are numerous convictions relating to drug offences. The most recent of your Victorian offences was in 2013 when you appeared at the Sale Magistrates’ Court for offences including possession of a prohibited weapon, shortening the barrel of a long-arm, unlawful assault, failing to answer bail, reckless conduct endangering serious injury, being a prohibited person possessing a firearm, possessing an unregistered general category handgun, carrying a loaded firearm in a town, possessing cannabis, possessing amphetamine and contravening a Community Correction Order. In addition to being fined, you were sentenced to an aggregate term of imprisonment of 14 months with a non‑parole period of 6 months. Your convictions in Western Australia occurred in 2018 and 2019. For the offence of breaching a police order under the Restraining Orders Act, you were convicted and fined $300. On 6 December 2018, at the Winton Magistrates’ Court, Queensland, you were convicted and fined the sum of $150 for the offence of stealing.
Victim impact statements
26Victim impact statements have been tendered as Exhibits P3 and P4. The authors of those statements, Senior Constable Dale and First Constable Spithill, both requested that their impact statements not be read in open Court. You have been provided with the impact statements. You acknowledged in your letter of apology (Exhibit D4) the impact your offending has had on each of the victims. Respecting the wishes of both police officers, I shall refer very briefly only to some of the matters contained in their statements.
27There are a number of matters that trigger memories of the incident in Senior Constable Dale’s case. She frequently ruminates on what might have been the case had she not been able to shield some of your blows with her hands. She states that she had no warning of the impending attack and literally had to fight for her life in defending herself from your attack.
28First Constable Spithill also speaks of the unexpected nature of your attack. Upon their arrival in response to the triple‑zero call, you did not appear to be angry or aggressive towards the officers, thus the attack upon them was completely unexpected. First Constable Spithill felt sickened watching your attack upon his partner with the hammer. He thought that your actions would kill her.
29In your letter of apology, you state that from a reading of the impact statements you gained a full understanding of not only the physical injuries you caused, but also the psychological impact your conduct has had on the officers, their families and friends.
30While the prosecution plea summary was generally accepted, your counsel, Ms Kretzenbacher, submitted that the first time you had taken the combination of ‘ice’, Xanax, cannabis and 1,4-Butanediol was a few days prior to the incident, and not six months as you said in the recorded interview with police. Ms Kretzenbacher also clarified that you did not consider yourself at war with police, but rather with local drug dealers.
Personal Circumstances
31I turn now to your personal circumstances. You are 38 years of age. You were born and raised in the Gippsland area.
32Your parents separated when you were approximately 10 years of age. You have an older sister and a younger brother and sister. You maintain a good relationship with your mother, her partner Mr Hill, and each of your siblings.
33You reported to Ms Sandra Cokorilo, psychologist, that your mother was an alcoholic. You also explained that you idolised your father, whom you described as a functional heroin addict, but that your relationship with him has deteriorated over the last 5 years.
34You completed Year 10 at the Sale Secondary College. At around the age of 19 you obtained work as a fisherman in the Port Welshpool and Port Albert areas. You performed that work for approximately two to three years.
35Your main area of employment has been in the carpentry and building industry. You completed an apprenticeship, a number of courses including a Certificate III in Carpentry, a Certificate IV in Occupational Health and Safety, and a Diploma in Building and Construction, which you completed in 2019 studying at night school.
36You reported your life trajectory declined after the age of 30, following the breakdown of a relationship and your subsequent methylamphetamine use. In approximately 2015, you relocated to Western Australia to try and rid yourself of your drug habit. Whilst in Western Australia, you were employed in the building industry working for a company, initially as a leading carpenter but then promoted to the position of supervisor. You were made redundant in early 2020 and returned to Victoria obtaining work as a leading carpenter with a Melbourne based company. Your role included managing occupational health and safety issues, quality control, ordering, stocktaking and costings. You were living in Melbourne, but because of COVID‑19 you lost your accommodation. You returned to live in Sale, commuting daily to Melbourne. This involved approximately six hours of travel each day. It was during this period that you relapsed into methylamphetamine use, primarily, you report, to keep yourself awake. In approximately March 2020, after some two months of work with that company, you lost your job as a result of you becoming unreliable due to your drug use. Since that time you have been self-employed as a carpenter until your remand into custody for these offences.
37You have a lengthy history of drug use. From about the age of 16 you were using up to 2 grams of cannabis each day. Between the ages of 25 and 30 you were using MDMA on weekends, and from the age of approximately 30, you were using amphetamine, cocaine and methylamphetamine. You were using approximately half a gram of methylamphetamine on a daily basis until you moved to Western Australia. You instruct your counsel you were abstinent whilst in Western Australia.
38Until shortly before these offences were committed, you were in a relationship for some six years. You described that relationship as “very toxic” due to mutual paranoia and distrust fuelled by mutual drug abuse. On the breakdown of that relationship you went to stay with your mother and Mr Hill.
39Approximately three to four days before the offending, you report having used methylamphetamine, GHB, Xanax, and Valium in combination for the first time.
40Exhibit D6, is a psychological report of Sandra Cokorilo, dated 25 August 2021.
41You told Ms Cokorilo that approximately 12 months before your current remand, your partner miscarried. You blamed the miscarriage on her heroin use. The miscarriage and her use of heroin caused a strain in your relationship. Police issued a safety notice against you as a result of your frequent verbal altercations. You said that subsequently you were in conflict with the drug dealers who continued to supply your partner with drugs. You also reported that in mid-2020, your maternal grandmother, with whom you were very close, passed away.
42When you were remanded into custody, you were prescribed Avanza to help calm you as you were experiencing paranoia and delusions. You reported a belief that you were going to be killed in gaol and that God was talking to you through the newspaper. You were placed in protective custody approximately six months ago and you state that your psychosis resolved at the same time. You report you have never experienced psychosis previously or had a psychiatric admission.
43With regard to the circumstances of your offending, you told Ms Cokorilo that after a four year abstinence, you relapsed into methylamphetamine use in an attempt to stay awake travelling between Gippsland and Melbourne for work. You said that as your drug use escalated, your tardiness and absences from work resulted in you being terminated in March 2020. To fund your drug use you withdrew $20,000 from your superannuation savings.
44You said that in the period immediately preceding the commission of the offences, you believed yourself to be Jesus and you were waging a war on drug dealers whom you blamed for supplying drugs to your partner. You said you repeatedly contacted police in relation to the drug dealers and explained that your words “we are at war” were directed at the drug dealers and not the police.
45You also reported that on the day before your offending, you were assaulted and your car was smashed by the drug dealers. You said you had stolen drugs and money from a dealer and on the day of your offending, you believed you had seen the people who had assaulted you in a car outside your mother’s home. You told Ms Cokorilo that you could not be certain if the people were in fact in front of your home or whether that was a figment of the delusions you were experiencing at the time.
46You were tearful as you were recalling your attack on Senior Constable Dale and were in disbelief at your actions. You expressed your remorse for your conduct which you, having watched the footage of your conduct, described as ‘disgusting’. You acknowledged that Senior Constable Dale was lucky to be alive.
47Ms Cokorilo states you appeared genuine and sincere in your expressions of remorse and empathy for the victim. You were emotional throughout your discussions of the offending and you made no attempts to minimise or deny your behaviour.
48Following a mental state examination and the administration of psychometric testing, namely the Depression Anxiety Stress Scale, Ms Cokorilo considers you meet the criteria for Major Depressive Disorder preceding, at the time of, and following the offending. Since being remanded, she considers you have developed symptoms consistent with a diagnosis of a Generalised Anxiety Disorder.
49Ms Cokorilo notes that methylamphetamine abuse can result in a substance-induced psychotic disorder and associated violent behaviour. She states your offending is thought to have occurred in the context of a substance-induced psychotic disorder. She further states:
“It appears that at the time of the offending Mr Doran was not able to think clearly, make calm and rational choices and appreciate the wrongfulness and consequences of his conduct. It is thought that he would have exerted more control over his behaviour, had he not been struggling with substance-induced psychosis.”[1]
[1]At paragraph 74
50And further:
“His self-medication with illicit drugs would have additionally increased his risk of engaging in impulsive and reckless behaviour, as well as further impairing insight, decision-making and judgement and ultimately worsening underlying mental health issues. Substance abuse in itself can impair cognitive ability, and result in emotional dysregulation, disinhibited and poorly considered behaviour.”[2]
[2]At paragraph 76
51Ms Cokorilo considered your behaviour was not evidence of a criminal belief system but more a reflection of your untreated psychological symptoms, including what she describes as ‘self-medicating’ your untreated depression with illicit drugs.
52Your risk of violent recidivism was assessed using the Violence Risk Appraisal Guide. You received a score of 5. This means, it would seem, that approximately 35 per cent of persons in that category re-offend violently within an average of 7 years, and 49 per cent within an average of 10 years after release. Abstinence from the use of illicit drugs would reduce the risk of further violent offending.
53Ms Cokorilo considers that imprisonment will weigh more heavily on you than a person without your mental health conditions and that you are unlikely to receive the specific treatment you need for your depressive disorder and anxiety disorder in custody.
54Also tendered on your behalf is a psychiatric report of Dr Leon Turnbull dated 18 February 2021. You gave him a somewhat different account. You said that on 28 November 2020 you were drugged by a drug dealer in Sale, where you went to plead with him not to sell drugs to your partner or her sister who was pregnant. You said you were offered a can of soft drink which you took and then felt odd. You said you believed you received a “hot shot’ in the drink. Upon your return to Yarram you said you contacted police and said something along the lines of “we’re at war” meaning with the drug dealers. You told Dr Turnbull you had formed the view that police had given you the ‘green light’ and that you were doing the work of God. Your narrative continued that on 30 November you returned to the drug dealer where you were assaulted by seven people. You then attended at a police station where you introduced yourself as ‘Jesus’.
55As to the incident giving rise to the charges before me, you told Dr Turnbull you saw a car across the road which you thought was the drug dealer. You recall that when police arrived at your house, you recognised officer Dale. You had no issue with her. You recall her approaching you, asking about your welfare, and then a hot feeling coming over you. You recall holding a hammer. You do not remember the actual assault.
56Dr Turnbull stated you were neither depressed nor particularly anxious when he assessed you on 17 February 2021. He does not consider that you have any chronic psychotic condition such as schizophrenia or delusional disorder. Despite you not telling Dr Turnbull about your drug use the night before the incident, Dr Turnbull states – “I would say he has had some sort of drug-induced psychosis, at least in part due to the ice he is taking, albeit he had ceased about two weeks prior, and then whatever substance he had been provided.” Dr Turnbull noted other information including the statement of Michael Hill who said that you had been talking about “church and drugs,” saying you were Jesus and wanting Mr Hill to go to church with you. I note also Mr Redman’s statement that you spoke to him not long before the incident and stated, amongst other things, “I’m Jesus, you're saved, I’ve got ya.”
57Dr Turnbull stated you do not have an underlying mental illness and a mental impairment defence is not open.
58Both Ms Cokorilo and Dr Turnbull believe the explanation for your offending lies in a drug-induced psychosis. That you may have been in a psychotic state is consistent with the observations of others including Mr Hill and Mr Redman. I note also from the recordings taken from the body worn cameras of officers Spithill and Thompson that you do make reference to being ‘Jesus’ and having an issue with drug dealers selling drugs to Courtney. Courtney is your ex-partner’s sister. At one point you said “I love my drugs, but I never sell them to pregnant women.”
59The prosecution made efforts to find out whether you had been in contact with police and providing information concerning drug dealers but there is no official record of complaint. I was informed by Ms Kretzenbacher that you were seen by police in Sale on 30 November, yelling aggressively at the occupants of a unit. Ms Kretzenbacher submitted you were in a heightened state upset with the drug dealers, in particular an alleged dealer called “Damo”. A police officer, Mark Blanchard, I was told, made a statement confirming a confrontation between you and ‘Damo’ in Sale on 30 November. You also mentioned ‘Damo’ to Officer Thompson at the time of your arrest. According to what you told Officer Thompson, ‘Damo’ had been selling drugs to your ex-partner and Courtney.
60You instructed Ms Kretzenbacher that when you were in Sale you were assaulted and had your car smashed by the drug dealers. Police saw that the window of your car had been smashed.
Sentencing Considerations
61The offence of intentionally causing injury carries a maximum penalty of 10 years’ imprisonment. As the offence was committed upon an emergency worker whilst on duty, pursuant to s10AA of the Sentencing Act 1991, I must impose a term of imprisonment of not less than 6 months unless I find under s10A that a special reason exists. It was not argued that in the circumstances of your case I should find a special reason exists. The offence is also a Category 1 offence as defined in the Sentencing Act, accordingly pursuant to s5(2G) of the Act, I must make an order under Division 2 of Part 3, other than a sentence of imprisonment imposed in addition to making a Community Correction Order in accordance with s44.
62The charge of assaulting an emergency worker on duty carries a maximum penalty of 5 years’ imprisonment, and the summary charge of committing an offence whilst on bail carries a maximum penalty of 3 months’ imprisonment.
63I find that your offending was serious. Your attack upon police, in the performance of their duty responding to an emergency call, came as a complete surprise to them. S/C Dale, in particular, was vulnerable to your forceful and targeted blows with a hammer to her head and body. You then turned on First Constable Spithill who was trying to protect his partner. The situation ended only after you were shot in the hand by S/C Dale. The use of the hammer elevates the seriousness of your offending.
64I take into account the physical injuries suffered by S/C Dale which, fortunately, were not more serious. They were in large part bruising to the head and other parts of her body. However, the consequences of your attack upon the two officers extended beyond the physical injuries, as is well outlined in their respective victim impact statements.
65I should at this point state that I have viewed the recordings from the police body worn cameras and make mention of the highly commendable way in which both officers treated you following your attack upon them. There was no animosity and it is clear they were concerned more with your welfare and comfort than their own.
66Your counsel accepted that the circumstances of your offending are serious and have had a significant impact on the victims. However, it was submitted that you offended in circumstances of deteriorating mental health and self-medicating with illicit substances. Ms Kretzenbacher submitted that just prior to the offending you took a combination of substances you had not previously taken and nor had you previously experienced a drug-induced psychosis. Ms Kretzenbacher relied on your drug-induced psychotic state as lessening your moral culpability and relied on the decisions of Martin v R[3] and Alexander (a pseudonym) v R.[4]
[3](2007) 20 VR 14
[4][2021] VSCA 217
67In Alexander,[5] at paragraph [43], Kyrou and McLeish JJA stated:
Ordinarily, an offender’s culpability is not reduced by reason of the fact that he or she committed the offence while under the influence of a psychosis induced by drug use. However, in some circumstances, the fact that an offender’s psychotic state was drug-induced may lessen his or her culpability. The critical factor in determining how to treat a drug-induced psychosis for sentencing purposes is the degree of foreknowledge on the part of the offender. It is necessary to identify the probable consequences of the use of the particular drug by the particular offender and whether the offender foresaw those consequences. The answers to these questions (as to which the onus lies on the offender) may point to a finding that the offending resulted from mental impairment attracting the principles in Verdins. (Citations Omitted)
[5] Ibid
68Ms Karamicov, whilst accepting you were in a state of drug-induced psychosis, submitted there should not be any mitigation of your moral culpability. To this end, it was put I should have regard to the extent of your psychosis. Ms Karamicov submitted that you recognised S/C Dale, that you knew that your actions were wrong, and you were capable of rationalising your behaviour saying words to the effect “I shouldn’t have done that” after the event. Ms Karamicov submitted that you were not in a floridly active state and that upon being arrested you were calm and considered in your responses to police. Ms Karamicov was also critical of the fact that what you told Dr Turnbull and Ms Cokorilo was based on your own self-reporting; that the information provided to them was at times inconsistent; and that neither expert, it would seem, had regard to your recorded interview with police. It was further submitted that if your drug-induced psychotic state is to reduce your moral culpability it should only be to a limited extent.
69I have some difficulty with these latter submissions as there was no challenge to the tender of the reports of Dr Turnbull and Ms Cokorilo, nor were the authors requested to attend Court to explain or elaborate on the concerns raised by the learned prosecutor.
70I accept, on the balance of probabilities, the opinion evidence that at the time of your offending you were in a drug-induced psychotic state. I also accept that you had not previously experienced a psychotic episode nor did you foresee that as a consequence of the cocktail of drugs you undertook in the preceding days. Your behaviour shortly before the unprovoked attack on the police officers, your references to being Jesus (both before and following the offences), and your behaviour in shepherding your mother and Mr Hill into a room in the belief that the drug dealers were outside your house, in my opinion, is not inconsistent with such a mental state.
71Given those findings, and consistent with Alexander’s case, I consider that the principles set out in Verdins have application.
72I find that your drug-induced psychotic state impaired your ability to think clearly, exercise appropriate judgment and control your behaviour. I find there is a causal nexus between your impaired mental state and the commission of the offences. Accordingly, I consider your moral culpability, as distinct from your legal responsibility, is reduced and there should be sensible moderation in the need for denunciation and general deterrence.
73The need for specific deterrence will also be moderated somewhat although it remains an important consideration given your lengthy history of drug abuse.
74Ms Kretzenbacher also relied on Ms Cokorilo’s diagnosis of Major Depressive Disorder as relevant to the application of Verdins principles. I note Dr Turnbull found you were neither depressed nor particularly anxious. The difference in your presentation before him and Ms Cokorilo may be because of the difference in the timing of their respective assessments. On the basis of Ms Cokorilo’s diagnosis, there should be some slight moderation in the sentence to be imposed given her opinion you will find the burden of imprisonment more onerous than a person in normal health. However, I am not able to find on the balance of probabilities that there is a serious risk of imprisonment having a significant adverse effect on your mental health. I do not consider Ms Cokorilo’s report goes so far as to bear out such a risk.
75You have pleaded guilty to the offences. They were early pleas and have saved the court and community the time and expense of a committal hearing and trial. Witnesses have been spared the ordeal of having to give evidence. The utilitarian benefits of pleas of guilty are of added significance in this pandemic and “ordinarily should attract a more pronounced amelioration of sentence than at another time.”[6] I am required to ensure that the pleas of guilty result in a “perceptible amelioration of sentence.”[7]
[6] Worboyes v The Queen [2021] VSCA 169, [39]
[7] Ibid
76I also accept that you are genuinely remorseful for your behaviour. This is reflected not just in your early pleas of guilty but also in your discussion with Ms Cokorilo. You were tearful when recounting your offending behaviour, you expressed appropriate empathy, and you did not try and minimise your behaviour. I also have regard to your letter of apology to the victims of your offending.
77Tendered on your behalf were references from your mother Pamela Doran, your father Bernard Doran, and your paternal grandmother Patricia Doran. They each write about the terrible effects of your drug addiction and how when you are not using illicit drugs, you are a normal, considerate and decent person. Your mother also commented upon the difficult time you have had this last year with the loss of an unborn child, the loss of your grandmother, the breakdown of your relationship of six years, and the loss of work due to COVID.
78The support of your family is important to your prospects of rehabilitation. I have regard also to your work history and qualifications as matters relevant to your prospects. However, to my mind, your prospects of rehabilitation remain guarded unless and until you are able to overcome your addiction to illicit drugs and receive appropriate treatment for your underlying mental health issues.
79I consider it appropriate that some allowance be made in the sentence to be imposed by reason of the fact that the thumb of your left hand was amputated following you being shot. As was submitted by your counsel, the injury to your left thumb, a direct result of your offending, will constitute enduring punishment for your criminal behaviour.[8]
[8] See Barci (1994) 76 A Crim R 103
80You have been in custody since 1 December 2020. Much of your time in custody has been under restrictions imposed because of the pandemic. These include a ban on personal visits, increased lockdowns, and limitations on services and courses in which you may participate. I was also told that you have spent time in protective custody as a result of assaults upon you, although I have not been provided with any evidence as to how long you were placed on protection or the reasons for that. Nevertheless, I accept that the burden of imprisonment has been rendered more difficult by reason of the pandemic.
81Ms Kretzenbacher submitted that in the circumstances I should impose a gaol sentence in respect of the charge of intentionally causing injury and a community correction order on the charge of assaulting an emergency worker on duty.
82Ms Karamicov submitted that general deterrence and denunciation were paramount sentencing considerations. However, whilst they are still important considerations, for reasons earlier stated, I consider there should be some moderation having regard to your psychosis. Ms Karamicov also placed emphasis on the harm suffered by each of the victims and the fact you have a relevant criminal record. Ms Karamicov submitted that your offending warranted a term of imprisonment with a non-parole period.
83I was referred by Ms Karamicov to two Court of Appeal decisions in response to my query whether there were any comparable cases. Those decisions are El-Labadidi v The Queen[9] and Hutchison v The Queen.[10] Both involved assaults upon police officers in the course of their duty. In Mr El-Labadidi’s case, by an offender in a state of drug-induced psychosis. In Mr Hutchison’s case, by a person suffering a complex Post-Traumatic Stress Disorder and a Major Depressive Disorder. It was acknowledged by both counsel that neither case is directly on point.
[9] [2018] VSCA 116
[10] [2021] VSCA 235
84I have not found either case of much assistance to the issue of current sentencing practice. The objective and subjective features of both cases are significantly different to those in the case before me. In El-Labadidi, the Court of Appeal, did not sentence but remitted the case back to the County Court for sentencing.
85Since being provided with the above decisions, a check of the reported County Court decisions reveals that Mr El-Labadidi was sentenced in this Court by Judge Ryan on 9 July 2018.[11]
[11] [2018] VCC 1031
86His Honour found that the appellant before him (the case being an appeal from a decision of a Magistrate) was lacking in insight into his offending, was without remorse and was a poor prospect for rehabilitation. He was assessed as unsuitable for a Community Correction Order. On the charge of intentionally causing injury he was sentenced to a term of imprisonment of eight months.
87I have also had regard to the Court of Appeal decision in Hicks v The Queen in which the appellant, on the charge of intentionally causing injury, was sentenced to 2 years’ imprisonment.[12] Again, the circumstances in that case are significantly different to those in the case before me.
[12] [2013] VSCA 324
88Current sentencing practice is but one of a number of factors to which I am required to have regard. However, it is to be emphasised that sentences passed in other cases are not precedents and “[w]here they may be seen to fall within a range, that range informs, but cannot determine, the appropriate sentence in a particular case.”[13] I do not consider the cases to which I have had regard constitute a range of sentences for the offences under consideration.
[13] DPP (Cth) v Brown [2017] VCSA 162, [56]
89Following the plea hearing I sought a pre-sentence report as to your suitability for a Community Correction Order. Despite some breaches on previous orders, you have been assessed as suitable for a Community Correction Order.
Sentence
90Having regard to all the circumstances of your case, I have decided to sentence you to a term of imprisonment on charge one, and to place you on a Community Correction Order on charge two. By placing you on a Correction Order it is hoped that you will receive appropriate treatment and counselling and be rehabilitated. Your rehabilitation will, in my opinion, best serve to protect the community. Before I can do so you will need to agree to being placed on a Correction Order. I should also warn you that if you breach the Correction Order you will be returned to court and risk being re-sentenced on charge two.
91On charge 1, you are convicted and sentenced to 14 months’ imprisonment.
92On charge 2, I propose placing you on a Community Correction Order for a period of 18 months following your release from custody. You will also be required to perform 160 hours of unpaid community work, be under the supervision of a Community Correction Officer, attend for treatment and counselling for any mental health issues; drug and alcohol issues; participate in offending behaviour programs, and there will also be judicial monitoring.
93Mr Doran, do you wish to speak with your counsel before you decide whether you wish to be placed on a Community Correction Order with those conditions?
94OFFENDER: No, I am happy with that your Honour.
95HIS HONOUR: Right. Just bear with me while I read out the precise terms of the Correction Order. Sorry, I just appear to be having some difficulty with that. The terms of the order are as follows:
· The Order will last for 18 months and commences upon completion of imprisonment.
· You must attend at the Sale Community Correctional Services office within two clear working days after the commencement of the order.
The mandatory terms that apply to all Community Correction Orders are as follows:
· You must not commit another offence for which you could be imprisoned during the time that the order is in force;
· You must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011;
· You must report to, and receive visits from, the Secretary (or his or her delegate);
· You must report to the Community Corrections Centre within two clear working days of the order starting;
· You must let a community corrections officer know within two clear working days of you changing your address or job;
· You must not leave Victoria without first getting permission to do so from the Secretary (or his or her delegate);
· You must obey all lawful instructions from and directions of the Secretary (or his or her delegate).
The additional conditions are:-
· You must perform 160 hours of unpaid community work over a period of 18 months as directed by the Regional Manager.
· If you fail to comply with this order, the Secretary to the Department of Justice (or his or her delegate) may give you a direction to perform additional hours of unpaid community work in accordance with section 83AU of the Sentencing Act 1991.
· You must be under the supervision of a Community Corrections Officer for a period of 18 months.
· You must undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the Regional Manager.
· You must undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed by the Regional Manager.
· You must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the Regional Manager.
· You must participate in programs and/or courses that address factors relating to the offending as directed by the Regional Manager.
· You must re-appear at court for a review of your compliance with the order as directed by the Court.
· You must attend for review on the 18th of March 2022 at 09:30 AM at Melbourne County Court.
HIS HONOUR: Mr Doran, do you understand the effect and conditions of the order? Sorry, you'll have to - you're on mute, I think. Say something?
OFFENDER: Yes, Your Honour.
HIS HONOUR: You understand the conditions and effects of the order?
OFFENDER: Yes, Your Honour.
HIS HONOUR: And do you consent to it being made?
OFFENDER: Yes, Your Honour.
96HIS HONOUR: All right. On charge 3, you are convicted and fined $800.
97I declare pursuant to s 18 of the Sentencing Act that the period of imprisonment reckoned to have already been served under this sentence is 291 days, not including today.
98Had it not been for your plea of guilty the sentence I would otherwise have imposed is one of 26 months with a non-parole period of 18 months.
99Now, Ms Karamicov, Ms Kretzenbacher, are there any other matters?
100MS KARAMICOV: No, Your Honour. Thank you.
101MS KRETZENBACHER: Your Honour there was one thing I just wanted to confirm, as there was a recommendation from Community Corrections that some of the community work hours are counted as treatment and rehabilitation hours. I just wanted to confirm whether that was an order that your Honour had also included?
102HIS HONOUR: No it’s not Ms Kretzenbacher.
103MS KRETZENBACHER: Thank you your Honour.
104HIS HONOUR: All right. I am not certain but I assume a copy of the order will be sent out to your client Ms Kretzenbacher for his signature. It may be under recent changes that his oral confirmation will suffice, I am not sure. But to be on the safe side we will make sure a copy is sent out to him for his signature.
105Would you like the opportunity to speak to your client?
106MS KRETZENBACHER: Yes please, Your Honour. If I could have that briefly?
107HIS HONOUR: Yes certainly. I do have a matter starting shortly but - so if it's a relatively brief conversation there'll be no difficulty with that.
108MS KRETZENBACHER: Thank you, Your Honour.
109HIS HONOUR: We will switch off the recording machine, make sure the court is empty so that you and Mr Doran can have a conversation in private. If you could let my associate know, please, when you're finished, I'd be grateful.
110MS KRETZENBACHER: Yes. Thank you, Your Honour.
111HIS HONOUR: All right. I am grateful to each of you for your assistance in this matter.
112MS KARAMICOV: Thank you.
113HIS HONOUR: Thank you. Please adjourn the court.
---
8
0