Director of Public Prosecutions v Ellis

[2014] VCC 116

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-01759

DIRECTOR OF PUBLIC PROSECUTIONS

v

SARAH ELLIS

---

JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	30 January and 12 February 2014
DATE OF SENTENCE:	13 February 2014
CASE MAY BE CITED AS:	DPP v Ellis
MEDIUM NEUTRAL CITATION:	[2014] VCC 116

REASONS FOR SENTENCE
---

Subject:         
Catchwords:    Recklessly cause serious injury.  Youthful offender.  
Legislation Cited:
Cases Cited:
Sentence:         30 months/15 months minimum

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Porceddu
For the Accused	Mr L. Gwynn

HIS HONOUR:

1Sarah Ellis, you have pleaded guilty to one charge of recklessly causing serious injury to Michael Charles James.  The offence occurred on 9 April 2013 in a hotel at Werribee.

2The maximum penalty for this offence is fifteen (15) years' imprisonment.  As can be seen from the maximum penalty the parliament of this State regards this offence very seriously.  In passing sentence I have had regard to the maximum penalty.

3The circumstances of your offending are contained in a summary prepared by the prosecution and tendered on the plea which I marked as Exhibit A.  That summary was read in open court by the prosecutor Mr Porceddu.  Your counsel Mr Gwynn accepted that the summary was accurate and formed a proper basis upon which I can proceed to pass sentence upon you for your offending.  It is not necessary that I repeat in full what is set out in the summary and I will not do so.  These sentencing remarks need to be read, however, in the light of what is there set out.

4You attended at a hotel in Werribee with Rhys Diamond who is the brother of your partner Joel Diamond.  Both of you had been drinking before you arrived at the hotel and both of you were affected by alcohol.  Whilst in the hotel two incidents occurred involving the victim in this matter Michael James.  Both were captured on closed circuit television footage which was tendered as Exhibit B.  You were involved in both incidents.  I have viewed both of them in the court and in my chambers.

5In the first incident you punched James in the face twice after he and Rhys Diamond had been fighting.

6After this incident you and Rhys Diamond were escorted from the hotel to the car park.  Rhys Diamond then asked you to phone his brother and asked him to come to the hotel which you did.  Rhys Diamond said to James who was by this time sitting on a stool, “Stay there mate you’ll be right, you’ll get fixed up”. 

7A short time later your partner Joel Diamond arrived at the hotel with another person.  Rhys Diamond had a conversation with his brother and described the clothing James was wearing.  A short time later Joel Diamond entered the hotel and you followed.  Rhys Diamond remained near the door holding it ajar. As James bent down and, without warning, Joel Diamond kicked James in the head with what appears on the video to be full strength with his right foot.  This caused James' head and upper body to rise before immediately falling head first to the floor of the hotel.  It appears he was rendered unconscious by the kick delivered by Joel Diamond.  Seconds later and, whilst James was laying face down and motionless, you then kicked him in the head forcefully with your right foot.  You then went to pick up a glass from the floor but were prevented from doing so by another patron.  You and Joel Diamond then left the scene.

8Your offence is comprised of that which occurs in both incidents.  The first incident where you punched James in the face of itself whilst serious offending was towards the bottom end of any scale for this kind of offending.  But the second incident is very serious.  You acted in concert with Joel Diamond.  You summoned him to the hotel after the occurrence of the first incident knowing that he would inflict acts of violence on James and you later joined in with him in inflicting that violence.  You had time to think and withdraw before each incident but you did not.  Even if James had been staring at you or behaving inappropriately in some way towards you prior to the first part of the incident, that did not excuse or justify in any way the attack which you and Joel Diamond launched by surprise when James was not looking in the second part of the incident.  The attack which you and Joel Diamond launched on James was both vicious and cowardly, taking place as it did when James was not looking and was simply sitting minding his own business in a public place.

9The injuries which you inflicted on James are described in paragraphs 15 to 17 of the prosecution summary.  There were multiple head and facial injuries.  He was placed in an induced coma for 9 days and hospitalised for 17.  Mr James has no recollection of the incident and suffers memory loss.  On any view you and Joel Diamond in concert inflicted very serious injuries with the prognosis still uncertain whether as a result Mr James has suffered long term brain damage.

10The prosecution has filed victim impact statements from Michael James, his mother and brother.  The consequences for Michael James and the effect on his life as a result of the injuries he sustained at you hands can there be seen.  In passing sentence I have taken the contents of the victim impact statements into account as I must.  The prosecution also relied upon a psychological report from Dr Paul Grech who carried out a psychological assessment of Michael James.  Michael James continues to have psychological treatment for a post traumatic stress disorder.  That is not surprising.  I have also taken into account the report of Dr Grech in passing sentence.

11You were arrested on 11 April.  You were released on bail on 17 April 2013.  You have now served eight days pre-sentence detention.  Mr Gwynn said that the seven days on remand had been a salutary lesson to you.

12You were interviewed by police when arrested.  I have read the record of that interview.  When interviewed by police you told them that you had had a lot to drink (Answer 24) and that when you sobered up you realised “it was probably the stupidest thing I have ever done.” (A. 140).  At Answer 246 you asked the police to “tell his family that I am sorry”.  Those matters are to your credit and I am satisfied you are remorseful for what you did.

13You are a young offender without any prior convictions.

14There was a committal mention on 4 July 2013 which was adjourned and the matter was listed for a contest mention on 1 August.  You pleaded guilty to the charge at a special mention on 16 September 2013, obviating the need for a contested committal.  In passing sentence I treat you as having pleaded guilty at the earliest opportunity.  By pleading guilty you have saved the need for both a contested committal and a trial, thus saving court time and of course money.  Importantly you have saved the need to have Mr James give evidence.

15I have taken your plea of guilty at the earliest opportunity into account in passing sentence.  Because of your plea you are entitled in my view to a lesser sentence than I would have imposed had you fallen for sentence after a trial and this is reflected in the sentence I shall shortly pass.

16Mr Gwynn relied upon a psychological report about you from Michael Bilyk which I admitted into evidence as Exhibit 1.  In passing sentence I have had full regard to the content of that report.  Much of your background is set out in that report.

17Mr Gwynn submitted in his written outline of argument that your offending does not represent an example of the offence at the higher end of the scale.  I disagree.  The very nature and seriousness of the injuries inflicted by you and Joel Diamond in concert suggests that submission is misplaced.  I treat your offending as a serious example of what is clearly a serious offence.

18Mr Gwynn referred to a number of factors in mitigation and going to your prospects of rehabilitation.  He pointed to your plea of guilty at the earliest opportunity as evidencing genuine remorse.  I accept that submission.

19He pointed to the relevant admissions and your cooperation in the record of interview as further evidence of your remorse.  I accept that submission and as I have said, I accept you are remorseful.

20He pointed to your lack of prior convictions.  I accept you have an unblemished history.

21Mr Gwynn pointed to the fact you had complied with strict bail conditions for a lengthy period.  He tendered a report from Stephen Riordan from Youth Justice dated 30 January 2014.  In reporting on your progress Mr Riordan reported, inter alia, as follows: 

"Sarah has attended the vast majority of her appointments with Youth Justice here at the Melbourne Magistrates' Court since April 2013.  She required to travel in from Werribee to the Melbourne CBD and was given the option of attending a closer Youth Justice unit in Sunshine but chose to attend here.  Initially, she was somewhat mistrusting and displayed a mild level of bravado.  It took some time for rapport to be and any referrals were for her benefit.  She was firstly referred to the Youth Support and Advocacy Service and allocated a very experienced work in Michelle Albrecht.  Ms Albrecht initially focused on Sarah's drinking and cannabis use, but soon altered her focus to Sarah's social isolation and the abusive relationship Sarah is in.  Sarah Ellis is a 20-year old young woman with no criminal history and prior to these    matters was a person of good character. 

She has led a very traumatic and negatively emotional life and she has been subjected to considerable abuse from the people she loved and loves and sexual abuse from a friend of a friend.  Mr Bilyk stated in his report that she has all the hallmarks of post-traumatic stress disorder.  Sarah is effectively estranged from her brother and sees him seldom.  However, I understand that he will be in court.  Sarah is a resilient young woman and her ability to cope with her traumatic past is extraordinary. However, she has developed some maladaptive behaviours and she is likely to consume cannabis and drink alcohol.  She is in an extremely abusive relationship and has belief she is unworthy of a 'normal' relationship.  Mr Diamond is nine years her senior and has spent a considerable amount of time incarcerated, yet he still controls her from gaol."

22In passing sentence I have taken into account Mr Riordan’s report.  I have also taken into account a report from Ms Albrecht which was tendered yesterday.

23I accept you have taken part in post offence counselling and psychological treatment as part of a mental health plan and that you take prescribed medication to assist with your underlying mental health problems.  I accept that post offending you have reduced your use of alcohol and cannabis.

24You have employment and you are well regarded by your employer at a McDonald's franchise who provided a written reference which I have taken into account.

25You have had a difficult background as a young person as is set out in the report of Mr Bilyk.  You have suffered trauma in different ways and have developed symptoms consistent with a diagnosis of post traumatic stress disorder.  In his report Mr Bilyk said, inter alia, as follows: 

"Ms Ellis is a 20-year old woman who has submitted to psychological assessment in the context of pending criminal proceedings.  The results of the HCR-20 placed Ms Ellis in the moderate risk range of re-offending violently generally.  This result should be contrasted, however, with seemingly unaddressed post-traumatic symptomology, including  a range of associated psychological sequelae and problematic substance use. 

Historically, Ms Ellis has experienced parental rejection at the hands of her father, premature adoption of parentified roles given her mother's health difficulties, estrangement from her brother and grief following the suicide of another brother and ultimate death of her mother.  Her mother additionally abused  substances due to health difficulties and Ms Ellis furthermore reported being sexually assaulted, which reportedly has never been formally addressed, and a violent and controlling relationship at the hands of her partner.  She described a largely emotionally deprived childhood/adolescence and acknowledged ongoing emotional difficulty throughout her life, including associated substance use.  These factors have seemingly impacted upon her schooling, behavior, and have perpetuated the maintenance of negative and dysfunctional relationships. 

Clinically, PCL and TSA outcomes above identify post-traumatic reactions which should be further explored.  A very strong association between post-traumatic stress disorder and substance abuse exists.  Individuals who witness or are exposed to a traumatic event are clinically diagnosed with post-traumatic stress disorder, have a greater likelihood for developing later drug and/or alcohol use disorders. Substance usage in the context of trauma and mood dysregulation is often motivated by a desire to escape or alleviate distressing symptoms.  As stated above, Ms Ellis has acknowledged that her substance abuse has remained unaddressed and has become a default measure through which she manages difficult situations.  DASS outcomes indicate extremely severe levels of depression and anxiety and a severe level of stress currently.  Anger is also likely to be affecting optimal functioning according to Stax 12 outcomes.  Clearly, Ms Ellis has evidenced poor problem-solving skills and ideally should have sought appropriate intervention at recognition of her involvement in a dysfunctional intimate relationship and substance usage escalation to avert criminal involvement.  It seems though that she has been required to self-manage her experienced difficulties throughout her life rather than be assisted or encouraged to develop functional problem solving and self-soothing approaches. 

Fundamentally, Ms Ellis appears to maintain a sense of abandonment and social isolation, rooted in childhood and adolescent experiences where she was required to sacrifice her own needs to care for her sick mother, who ultimately passed away.  Ms Ellis is likely presently subjugated to these beliefs and compromises her own needs to achieve the acceptance of others. She maintains a relationship in this context with a male whom she describes as controlling and violent towards her. Ms Ellis is insightful as to this pattern though unfortunately remains unwilling to consider behaviour or lifestyle change currently.  This is a significant factor to her future wellbeing.  Of priority, assessment or further information as to the experience and extent of post-traumatic reactions should occur.  Substance usage is additional required to be arrested by Ms Ellis in order to prevent further poor decision making and the potential for again coming to the attention of police.

Intervention pertaining to her involvement in a reportedly violent and controlling relationship is also suggested to assist protective and more functional decisions.  It is noted that cognitive distortions determined likely present according to Ms Ellis's CDS profile indicate amongst others that she is likely to make negative internal attributions regarding the meaning of adverse life experiences, assuming her efforts to change an unwanted and problematic situation will be unsuccessful.  Mandated interventions therefore need to be considered.

26I accept what Mr Bilyk has opined.  You will need ongoing treatment and counselling for your ongoing post traumatic stress disorder and substance abuse problems.

27You were aged 19 at the time of offending and you are approaching your 21st birthday.  Mr Gwynn asked me to place you on a Community Corrections Order with conditions that you undertake unpaid community work and that you are supervised and undergo treatment and counselling as directed.  I had you assessed for such a disposition and indicated that if I made such an order I would consider also imposing a condition that you not associate with your partner Joel Diamond who is presently completing a sentence for other offences.  At the time of this offence Joel Diamond was on Parole release and he intends to contest charges against him as a result of the offence for which I sentence you.

28Whilst you were assessed as suitable for a Community Corrections Order  disposition and you agreed to the conditions foreshadowed if such a disposition was imposed, upon reflection I think that there would be real difficulty enforcing any condition that you not associate with Joel Diamond upon his release.  Joel Diamond has a criminal history and is nine years your senior.  You have told counsellors the relationship is a violent one.  Those factors also I think bring into question the suitability of the Community Corrections Order disposition in all the circumstances.  I had reached this conclusion after deliberating on the plea even before yesterday when the matter was again listed for further plea.

29Yesterday I received further evidence in the form of a statement from the informant Detective Senior Constable Malberg (Exhibit E) which provides evidence that you have been in regular contact by phone with Joel Diamond whilst he is in prison.  One of the conditions of your bail was that you not associate with him.  You told the assessing officer from the Department of Justice who assessed you for the Community Corrections Order  that you do not have any contact with Joel Diamond and that you would continue to refrain from contacting him should the court order you to.  You also agreed to the imposition of a condition in the Community Corrections Order  that you not contact him.  The evidence received yesterday showed in my view that you were not frank with the interviewing officer and were prepared to mislead her.  Yesterday in submissions Mr Gwynn on instructions asked that if I made a Community Corrections Order  there should be no condition that you have no contact with Joel Diamond.

30I also had you assessed for suitability to serve any sentence of imprisonment imposed in a Youth Justice Centre.  You indicated your unwillingness to serve any sentence in a Youth Justice Centre  for reasons which I understand and accept.

31Your mother died in 2005 aged 39 when you were aged 12.  For much of your formative years you were responsible for your mother’s care as your mother suffered a protracted illness.  Your parents separated when you were an infant and you have no contact with your father.  Your brother Brendan suicided the day after release from a Youth Justice Centre at Parkville, hence your unwillingness to yourself enter such a facility.  Your other brother Tim is employed and was in court to support you.  You were placed in the care of Department of Human Services aged 12 after your mother’s death and thereafter in foster homes and were the victim of sexual assault in that context.  Your current relationship with Joel Diamond is a difficult one punctuated as it is by acts of violence.

32You were educated to year 11 and have completed subsequent studies in Community Services and Business Studies.  I accept your life has been difficult through matters not of your making and to your credit you have done your best to make something of yourself.  I was told and accept you are of sound intelligence.  You presently reside in rental accommodation in Tarneit and at present you and Joel Diamond are separated whilst he is in prison.

33The prosecution submitted the appropriate disposition in this case was to impose a custodial sentence.  The prosecution acknowledged that you offended as a young offender but submitted that the gravity of your offending meant that you must go to prison.  It acknowledged that in sentencing young offenders the law requires the sentence to reflect more emphasis on rehabilitation and less on general and specific deterrence.  But the prosecution submitted this was a case where your level of offending was so serious that applications of those normally accepted principles when sentencing a young offender, even one without prior conviction, must here be overridden.

34Since hearing the plea I have given this matter a great deal of consideration and I have had regard again to all of the material tendered and the helpful submissions of both counsel.  I have concluded that a disposition in the form of a Community Corrections Order is not appropriate having regard to the level of your offending and the seriousness of the injury that you in concert with Joel Diamond inflicted on Michael James.  This is in addition to the problems with such a disposition that I have earlier referred to.  I am of the view that the only appropriate sentence here is to impose a term of imprisonment greater than three months in an adult prison.

35I have taken full account of the fact you are a young offender with no prior convictions and come from a difficult background.  However, the sentence I impose in my view in all the circumstances of this case must reflect appropriate application of general and specific deterrence and must serve to denounce in the strongest possible terms the offending that you engaged in.

36Because of your youth and background and because of all of the other mitigating factors referred to above and addressed on the plea I have reduced the head sentence I will impose and I have provided for you to be considered for release on parole at a relatively early time.  Whilst I cannot say that your prospects for rehabilitation are good, especially whilst you remain in a relationship with Diamond, I nevertheless have reached the view that you should be considered for release after you have served half the sentence I will impose.  I note that testing carried out by Mr Bilyk concluded you were at moderate risk of reoffending violently.  In passing sentence I have also had full regard to current sentencing practices for the offence of Recklessly Causing Injury as published on the Judicial College of Victoria website and as published by the Sentencing Advisory Council in the form of its Sentencing Snapshot.

37Would you please stand, Ms Ellis.  On the charge of recklessly causing serious injury you are convicted and sentenced to a term of imprisonment of two and a half years.

38I direct that you serve a minimum term of 15 months before being eligible for release on parole.

39I direct that eight days be reckoned as having been already served under the sentence imposed this day.

40For the purposes of s. 6AAA I state had it not been for your plea of guilty to the charge I would have imposed a term of imprisonment of four and a half years and I would have directed that you serve a minimum term of three years.

41The prosecution has applied for the taking of a forensic sample from you having regard to the fact you have been convicted of an offence listed in schedule 8 of the Crimes Act 1958.  Having regard to the seriousness of your offending I am of the opinion it is in the public interest that a forensic sample be taken and I have signed the order submitted by the Director.

42Ms Ellis, I am required to inform you that having made this Order, once it is served upon you, then a member of the police force may use reasonable force to enable the procedure to be conducted, which in this case is the taking of a scraping from your mouth.  I have signed an Order to the above effect.

43Are there any matters arising out of that?

44COUNSEL:  No, Your Honour.

45HIS HONOUR:  Would you remove Ms Ellis, please.

----