Director of Public Prosecutions v Edwards

[2018] VCC 1910

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-02085

DIRECTOR OF PUBLIC PROSECUTIONS

V

LUKE EDWARDS

---

JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	14 August 2018
DATE OF SENTENCE:	19 November 2018
CASE MAY BE CITED AS:	DPP v Edwards
MEDIUM NEUTRAL CITATION:	[2018] VCC 1910

REASONS FOR SENTENCE
---

Subject: Criminal law - sentence            

Catchwords: Pleas of guilty to recklessly cause serious injury and robbery – offender attacked stranger in the street – elderly man - unprovoked – extensive injuries including facial and skull fractures – long term dental treatment required – emotional impact – offender diagnosed previously with paranoid schizophrenia – drug addiction – use of drugs that day and previous evening – awareness of effect of drugs on his illness -       

Legislation Cited: Sentencing Act 1991      

Cases Cited:Verdins v R 196 A Crim R 581; DPP v O’Neill (2015) 47 VR 395 ; Williams v R [2017] VSCA 130

Sentence: 7 years and 6 months, npp 5 years.

s.6AAA 10 years, npp 7 years.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Sim	OPP
Rainer Martini & Associates
For the Accused	Mr T. Lynch (Plea) Mr G. Barns (Further plea sentence)

HER HONOUR:

1Luke Edwards, you have pleaded guilty to one charge of causing serious injury recklessly and one charge of robbery.  The maximum penalties for these offences are prison terms of 15 years in each case.  You committed these offences on 9 August 2016.  You were arrested that day and remanded in custody, where you have remained.

2The victim, Paul Whitfield, was a stranger to you, a 69-year-old man who, at about 5.45 pm that day, had been walking towards his home in Frankston when you approached him from behind and attacked him.  You had come from a real estate office in Nepean Highway, Frankston, where you had exhibited very bizarre behaviour.

3An employee, Ms Sarah Tovey, had been closing the office for the day when you arrived and told her that you wanted your money back.  You then knelt in front of the counter and acted as if you were praying.  Ms Tovey called 000 emergency services and asked for police to attend.  The manager then spoke to you, and you left before police arrived.

4Meanwhile, Mr Whitfield parked his car near the Frankston football ground for his wife to drive home after her choir practice.  As he walked towards home along Wells Street, he was speaking on his phone to his son when you came up behind him and said, "You're a goner."  You then punched Mr Whitfield to the back of his head, causing him to fall to the ground.

5He raised his arms to protect himself, but you grabbed them and continued to hit and kick Mr Whitfield several times.  He rolled over, trying to protect himself, but you dragged him onto his back and continued to punch his face and to punch and kick his body in an assault lasting several minutes.  This was seen by several witnesses, a number of whom rang the police.

6You stopped assaulting Mr Whitfield temporarily and took his phone.  You then resumed attacking him.  You stopped and turned to walk away several times, each time returning to strike him again several times.  By this time, he had given up responding and was silent.  This second phase of the assault lasted for one to two minutes.  You then stopped the assault and walked away, leaving the victim alone.  A CCTV camera had captured the attack and disclosed the duration of the attack was about five minutes.

7Police found you, not far away, in Wells Street, covered in blood, with Mr Whitfield's phone in your bag.  You were arrested and taken to the police station, where you were found by a doctor to be unfit to be interviewed.

8An ambulance arrived to treat Mr Whitfield, who was bleeding heavily from his face and had extensive bruising and swelling to his face.  His eyes were blue and swollen shut.  Photographs were taken, tendered as Exhibit A on the plea.

9Mr Whitfield was taken to Frankston Hospital initially, but was transferred to the Alfred Hospital because of the severity of his injuries.  These included multiple bleeding and bruising to the brain, complex skull fractures, right temple bone fracture, fracture of the inner skull bone that combines the eye sockets and the base of the skull, complex facial bone fractures, multiple right eye socket fractures, left frontal sinus injury, right cheekbone fracture, fractures to both sides of the nose, bruising on the neck, abrasions to both knees, and a cracked tooth.

10As a result, he required surgery to reset both cheekbones, nose, and eye socket.  He later needed surgery to repair facial fractures and nose and eye socket damage.

11After a contested committal hearing in October 2017, the case was fixed for trial to take place in May 2018.  Negotiations were conducted over several weeks in 2018 and it resolved a few days before the trial was due to begin. 

12Mr Whitfield's victim impact statement appears to be in two parts.  Initially, on
8 September 2016, he describes suffering from a lot of pain for which he needed to take medication through the night, which disturbed his wife, making it difficult for her to sleep.  He was worried about walking outside, fearful of people, and even of loud voices.  He worried about how he might protect himself.  He said he felt like a shadow of his former self.

13The second part of his victim impact statement, dated 25 July 2018, described the continuing, very severe impact of the attack upon him.  He has had extensive dental treatment for two implants.  He has lost his sense of smell, his eyesight in his right eye is very weak, and that is confirmed by a report from his eye specialist.  He is still fearful of loud voices and fears that people in the street may be a threat to him.  His wife says he has become short-tempered.

14You pleaded guilty at an early date, taking into account an early offer you made and the negotiations following the contested committal.  Even a plea of guilty just before trial deserves a discount for having avoided the trial, as it has importantly saved the complainant and other witnesses from having to give evidence again, or at all.  In fact, only the informant gave evidence at the committal, and it was very brief.

15That plea is also an indication of remorse, although there has been no other expression of it.  Rather, you have made an effort to rationalise the attack in terms of recklessness rather than intention, caused by hallucinations and paranoid delusions to the effect that the victim was a CIA agent following you, and that these hallucinations and delusions resulted from the use of the drug ice.  That, indeed, is a major focus of the plea in this case.

16A report from clinical neuropsychologist, Ms Leanne Kennedy, was tendered at the initial plea hearing.  Ms Kennedy stated that you reported to her a number of past incidents which you believed may have contributed to a head injury, the most recent of which was an assault in prison with a fractured cheekbone confirmed by X-ray.  That incident is the only one of which there is any objective evidence, although not evidence that was, in fact, available.

17The report writers referred to doubt about the veracity of the history of death and trauma in your childhood, and as to other accounts of your history. 
But given your mental impairment, it may well be that these beliefs, if that is what they are, are genuinely held and perhaps they sadly suggest a background of early development deficits.

18You also reported a history of heavy use of alcohol and illicit drugs from a young age, including heroin and ice in more recent years.  In prison, you have been taking Olanzapine, an antipsychotic drug, which you had not been taking when in the community.  Your only medication then had been buprenorphine.

19You told Ms Kennedy that you were unsure about a diagnosis of schizophrenia, and you said you only experienced paranoid ideation when you were coming down from drugs.  That is an indication that you do understand the link between drug intake and the manifestations of your illness.

20You are now aged 42, and you are a single man who has spent many years, recently, in prison.  You were the only child of your parents, who separated when you were five, and you then lived with your mother and grandmother. 
It seems you did well at school until your teenage years, when your education was disrupted with two changes of schools and you began using cannabis.

21You left school in Year 11 and began work as a plasterer, but started using heroin.  Your mother asked you to leave home when you were 15 because of drug use, and you have had no contact with either of your parents since.  After living in school accommodation for a while, you became homeless for a time.

22You had a long-term relationship with a woman who is the mother of your son, but your son was taken into care when he was aged two.  You have remained in contact with your partner and you wish to resume that relationship once you are released.  Apart from her, you have no family supports on which to rely.

23Referring again  to Ms Kennedy's report, she conducted tests which disclosed, and I quote:

"Significant impairment in inhibition of impulsive responding, which may have also contributed to your actions, compounding the effects of ice on your state of mind at and around the time of the offending."

24Putting aside for the moment the more recent report of Mr Warren Simmons, the psychologist, I turn to your criminal history and the professional opinions of those who have treated and assessed you in the past.

25In September 2012, His Honour Judge Taft of this court sentenced you to prison for four years and four months with a non-parole period of two years and ten months.  You had pleaded guilty to intentionally causing serious injury and to three charges of resisting police.

26Judge Taft referred to your long criminal history, amounting then to 15 pages.  He noted that you had been sentenced several times for acts of violence and that your recent offending then, for which His Honour was sentencing you, represented an escalation in your criminality.

27His view then was that your prospects for rehabilitation were heavily qualified, that your life had deteriorated in a downward spiral over the past decade, marked by heroin addiction, homelessness and increasingly serious criminal offending with attendant violence. 

28You had spent several weeks in the Thomas Embling Hospital earlier in 2012, and Dr Ruth Vine had provided a report.  Dr Vine considered that you probably suffered from recurrent schizophrenia, and Judge Taft concluded that your impaired mental functioning, in combination with consumption of alcohol, meant that deterrence as a sentencing consideration should be somewhat modified.

29I have now been provided with a brief report from Forensicare written by a mental health nurse, apparently for the purpose of a forthcoming hearing in the Magistrates' Court in December.  It confirms your various psychiatric admissions and a diagnosis in March 2012 of acute and transient psychotic disorder without acute stressors, dissocial personality disorder, and history of substance abuse disorder.

30Mr Simmons assessed you recently and provided a report dated 9 November 2018 with a supplementary report dated 15 November.  He had been supplied with Judge Taft's sentencing remarks, Dr Schreiber's report as to your mental state at the time of your arrest, Dr Vine's report, and that of Ms Kennedy, as well as other relevant documents including a copy of the letter you wrote to the police in April 2017.

31Mr Simmons noted that that letter was thought -disordered and clearly psychotic in nature.  It was written after you had been in custody some time, so it was unlikely to have been influenced by drug use, but its contents do not sit well with the understanding that you were taking antipsychotic medication at the time while in custody.

32Both your counsel and the prosecution have agreed that the extent to which the principles in the decision of Verdins[1] apply is a matter of degree, and so it is necessary for me to determine the facts in this regard.  The indications are that mental impairment did affect your judgment when you attacked Mr Whitfield, but that methamphetamine use that day and use of LSD the previous evening had also contributed.  I have no hesitation in drawing that conclusion.

[1] Verdins v R [2007] VSCA 102

33As to the manner or extent of that effect, it is impossible to disentangle its effects from the part played by your mental illness.  Your bizarre behaviour in the estate agent's office and the fact that you were found to be unfit for interview after your arrest are clear indications that you were very unwell at the time, highly indicative of a condition of mental impairment, but equally impossible to disentangle from the effects of the use of mind-altering drugs.

34Mr Sim, for the prosecution, submitted that a relevant consideration in this regard is the fact that you were aware at the time of the offending that you had been diagnosed with schizophrenia and that antipsychotic medication was prescribed and necessary.  There is authority to the effect that an offender's comprehension that abuse of alcohol or drugs can lead them to offend precludes them from any benefit of the Verdins principles insofar as limbs one to four are concerned.

35However, it is well-known that part of the symptomology of psychotic illnesses may be the denial of the need for continuing medication in cases where medication has succeeded in bringing about improvement in the illness. 
It cannot be said that the same degree of choice is available to the person concerned where such denial is operating.

36The same cannot be said of the choice to take drugs.  You had extensive experience of the influence of drugs upon you, and of the link between drug use and offending.  The only rational part of your letter written in 2017 was to acknowledge your own experience of the link between drug use and delusions.

37The result is that deterrence, in both general and specific forms, is in your case to be somewhat modified by reason of your illness.  That finding leads me to consider the need to balance this, and certain other sentencing considerations, in order to determine the appropriate sentence.

38It is likely that imprisonment is and will be more burdensome for you because of your mental illness than for other prisoners who do not suffer in that way.  Apparently, you have benefited from the stability resulting from ongoing medication whilst in custody, but that likelihood does not rule out the burdensome nature of the experience of imprisonment for you, and I take that into account.

39Section 6D of the Sentencing Act requires that protection of the community is to be regarded as the principal purpose for which your sentence is imposed.  The prosecution does not submit that your sentence need be disproportionately long in order to achieve that outcome, but does submit that your offending was at the higher end of the range of seriousness and so deterrence should not be unduly moderated.  I agree with those submissions.

40A further consideration is that of your prospects for rehabilitation.  Judge Taft observed that your prospects at that time were heavily qualified, and now, they cannot be placed any higher than that. There remains some hopeful prospect because of the stability you seem to have achieved with two short drugs courses completed while on remand, and because, in the past, you demonstrated that you are capable of engaging in treatment, when in 2016 you gave early signs of complying with the obligations of a Community Correction Order, which unfortunately, you breached by reoffending.

41Would you stand now, please, Mr Edwards?

42I sentence you to seven years' imprisonment for injuring the victim and two years for the charge of robbery of his phone.

43I order that six months of that sentence be served in cumulation upon the longer sentence, which is the base sentence.

44That results in a total effective sentence of seven years and six months.

45I order that you serve a minimum period of five years before being eligible for parole.

46You are to be sentenced as a serious violent offender, which will be noted on the court record.

47If you had not pleaded guilty to these charges, I would have sentenced you to ten years with a non-parole period of seven years.

48You have been in pre-sentence detention for 832 days, not including today, and I declare that as time which has already been served, and I shall cause that to be noted on the court record.

49The prosecution has applied for a disposal order in relation to the clothing you were wearing, and I make that order.  But Mr Barns, I did not know whether it was opposed or unopposed or ‑ ‑ ‑ 

50MR BARNS:  Your Honour, he had some running shoes that were very new which he would like returned.  I've agreed with my learned friends that an order can be made.  I understand there are 28 days for my instructing solicitor to negotiate with ‑ ‑ ‑ 

51HER HONOUR:  All right.  So I will not make that order today.  Is that right?

52MR BARNS:  I think the order is made.

53HER HONOUR:  Is it?  Let me have a look and see if it is - what it says at the moment.  Yes, it has got the runners there, but I can cross that out if ‑ ‑ ‑ 

54MR BARNS:  Yes.  Well, that's what we'd prefer.  I think our - there's a question of whether they can be returned.

55MR SIM:  Your Honour, I understand, Your Honour, if it's included in the order, if the runners are included in the order, then as is set out in the document, the usual 28-day appeal period would apply.

56HER HONOUR:  All right.

57MR SIM:  So that would require, somewhat in an overly complicated way,
Mr Edwards to appeal that decision alone.  As I have understood - the position of the Crown is, they should be included along with the other clothes.  It's not - it's to be contrasted in the case of say, an injury matter where you've got a weapon, for example.   I can’t remember if photos of Mr Edwards were tendered,  certainly, they were on the brief.  But his clothing was certainly taken off him and photographed, and it was covered in blood.  And my instructor has contacted the informant this afternoon before Your Honour came onto the Bench, and we're instructed the runners do have blood on them.

58HER HONOUR:  I see.

59MR SIM:  And there are concerns from Victoria Police for returning them, for that reason alone.  But I can't really advance the matter in any further way.

60HER HONOUR:  I see.  Do you want to be heard any further on it, Mr Barns?

61MR BARNS:  My instructions are to try and seek their return, but I understand the difficulties.  It's probably easier to make the order and my instructor can take the matter up with Victoria Police,  for example, there might be a consent order at a later point that would delete them from the order on the appeal.

62HER HONOUR:  All right.  Well, I will make the note in the sentencing remarks that the order is partly opposed.  I think that is the best way to do it.

63MR BARNS:  Probably easiest, yes.  Thank you, Your Honour. 

64MR SIM:  Thank you. 

65HER HONOUR:  All right.  So that is there.  Now, are there any other omissions, Mr Sim?

66MR SIM:  No.  Nothing else, Your Honour.

67HER HONOUR:  Mr Barns?

68MR BARNS:  No, thank you, Your Honour.

69HER HONOUR:  Thank you.  You may take Mr Edwards now, officers.

‑ ‑ ‑