Director of Public Prosecutions v Fairclough
[2018] VCC 1159
•27 July 2018
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication | |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-18-00801
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHRISTIAN FAIRCLOUGH |
JUDGE: | HIS HONOUR JUDGE GAMBLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 July 2018 | |
DATE OF SENTENCE: | 27 July 2018 | |
CASE MAY BE CITED AS: | DPP v Fairclough | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1159 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW - Sentence – Guilty plea – Intentionally causing injury, related summary offences of drive whilst unlicensed and drive unregistered vehicle – Elderly male resident assaulted on his rural property at night without any objective or rational explanation – Physical injuries caused fell in the mid-range of the spectrum - Offender aged 35 at time of offending and 36 at time of sentence – Limited criminal record but nothing for violence – Offender had lengthy and complex psychological history – Offending caused by a combination of the offender’s psychological condition and his illicit drug use – Verdins principles engaged to some extent– Offender’s prospects of rehabilitation dependant on him undertaking the required treatment and counselling for his drug addiction and mental health issues and were ‘moderate at best’.
Legislation Cited: Crimes Act 1958; Mental Health Act 2014; Sentencing Act 1991.
Cases Cited: R v Verdins (2007) 16 VR 269.
Sentence: For intentionally causing injury: convicted and sentenced to a term of 15 months’ imprisonment; pre-sentence detention of 322 days declared; s.6AAA indication of 2 years’ imprisonment with a non-parole period of 16 months. For each of the related summary offences: convicted and discharged.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr A Albert (Plea) Mr C Grant (Sentence) | Office of Public Prosecutions |
| For the Accused | Ms E Millar | Victoria Legal Aid |
HIS HONOUR:
Introduction
1 Christian Fairclough, you have pleaded guilty to one charge of intentionally causing injury, an offence which carries a maximum penalty of 10 years’ imprisonment.[1]
[1] Section 18 of the Crimes Act 1958.
2 You also consented to this court hearing two related summary offences and pleaded guilty to those charges. Summary Charge 3 alleges an offence of driving whilst unlicensed and carries a maximum penalty of three months’ imprisonment or a fine of 25 penalty units, while summary Charge 4 alleges an offence of driving an unregistered vehicle and carries a maximum penalty of a fine of 50 penalty units.
3 To fully understand this offending, the court must have particular regard to the late evening of 7 September 2017 and the following morning.
4 The circumstances of those offences are set out in the typed prosecution opening dated 10 July 2018, to which I have had regard when determining the appropriate sentence in this case.[2] Mr Fairclough was 35 years of age when he offended and is now 36, having been born on 31 March 1982.
Background and context
[2] The opening was tendered as exhibit A on the plea and, as defence counsel indicated, could be treated as an agreed statement of facts for sentencing purposes.
5 By way of relevant background and context, I note that the following.
6 On 7 June 2017, a South Australian magistrate cancelled Mr Fairclough’s driving licence and disqualified him from obtaining any other licence or permit for a period of two years. Then, some two weeks later, on 22 June, the registration on his vehicle expired and was not thereafter renewed.
7 Further, on the evening of Wednesday, 6 September 2017, Mr Fairclough experienced a psychotic episode at his home. A female friend was sufficiently concerned to ring the police and psychiatric services. They attended and assessed him. They concluded that he did not require any urgent treatment or admission to any hospital or psychiatric facility at that time. They then left.
8 That did not placate his female friend who remained concerned and in a state of some fear. As a result, she also left that address.
9 At that time, Mr Fairclough was on bail for a charge of engaging in an act that endangered life. The alleged offending the subject of that charge related to a stabbing which occurred in Canberra where he was then living. According to Mr Fairclough’s counsel in the current matter, he intends to contest that charge on the basis that he was acting in self-defence. Mr Fairclough failed to attend the listed trial date on 15 September 2017, on account of him being in Victorian custody for the current charges. When he failed to appear, the court issued a warrant for his arrest. Whether, and if so when he is extradited to the ACT at some later stage to face trial for that other matter is not something that I can speculate about now.
10 In addition to being on bail at the time of his current offending, Mr Fairclough was also subject to a Good Behaviour Bond. He was placed on that two year Bond on 7 July 2017, for a charge of criminal damage.
Circumstances of the offending
11 I now turn to outline the current offences and the essential narrative. At just after 9.40 am on Thursday 7 September 2017, Mr Fairclough was driving on the Western Highway approximately 27 kilometres east of Horsham and 453 kilometres from Adelaide. Also in the vehicle was the female friend’s dog, which Mr Fairclough later told police had jumped into the vehicle when he was leaving home, unbeknown to him at the time. When stopped by police, he told them that he had been visiting friends in Melbourne and was returning home to Adelaide. He admitted knowing that his driving licence had been previously cancelled[3] and that his vehicle was unregistered. He was not detained by police who then left the scene. I note, however, that he was charged with the relevant traffic offences for which he was later convicted and fined.
[3] According to [2] of the prosecution opening, the relevant orders as to licence cancellation and disqualification were made in a South Australian Magistrates’ Court on 7 June 2017. I note, however, that related summary charge 3 alleges an offence of driving whilst unlicensed not whilst disqualified and accordingly, he will be sentenced on that basis.
12 It is clear that once the police left, Mr Fairclough chose to continue driving as he is known to have attended at the Hopetoun Hospital that evening, a location some 120 kilometres north of Horsham. There, he spoke to a nurse and requested medication. As there was no doctor at the hospital at that time, he was told that he would need to travel the 63 kilometres to Warracknabeal.
13 The next known sighting of him was made by landowners at a rural property in Yaapeet, located some 45 kilometres west of Hopetoun. At approximately 10.30 that same evening, he was seen driving his vehicle up and down the roadway outside that property. After doing that, he then drove into the property and around a number of sheds.
14 William Fuller and his wife Elaine owned that property and were at home that night. Mr Fuller was aged 79 at the time. When they saw an unknown vehicle driving around their property, they became concerned and rang their son, who lived nearby, and advised him of the situation. Mr Fuller senior then got dressed and went outside to investigate what was going on. What occurred thereafter was the following.
15 Mr Fairclough stopped the vehicle near the garage. The driver’s window was partly open. Mr Fuller approached and asked him what he was doing at the property. Mr Fairclough replied “I’ve been looking for you for a long time” and then opened the driver’s door. That caused Mr Fuller to step back, stumble and then fall to the ground. Mr Fairclough then stood over the elderly victim and punched him to the head and face several times. He then gouged his eyes with his fingers or thumbs, while continuing to punch him to the head and face region. The victim attempted to defend himself by gouging at his assailant’s eyes and biting his finger. Mr Fairclough then bit the middle finger of Mr Fuller’s right hand, causing a laceration.
16 Mr Fuller managed to call out to his wife for help. When she came outside, she saw Mr Fairclough holding her husband who was covered in blood. When Mr Fairclough saw her, he desisted and then got into his vehicle and drove away. By that time, his friend’s dog had jumped out of the vehicle. After
Mr Fairclough drove away, the Fullers returned inside their house and rang 000 to report what had just happened.
17 A short time later, their son arrived at the property and observed blood and the black Nike shoe that the assailant had apparently left behind. By that time, his father was in shock. Rather than wait for an ambulance, the victim’s son immediately drove his parents to the Hopetoun Hospital where they were met by the police who took photos of the victim’s injuries.[4]
[4] As to which see the photos tendered as exhibit B on the plea.
18 The next sighting of Mr Fairclough was made by a truck driver at 11.00 pm that night on the outskirts of Hopetoun. He had been sleeping in his truck when Mr Fairclough woke him and asked for help. When he noticed that
Mr Fairclough’s arms were covered with dried blood, he asked him if he needed an ambulance. In response, Mr Fairclough said he had been attacked by a lady. The truck driver called 000 and then told Mr Fairclough to wait in his vehicle. He then went back to sleep in his truck. Rather than remain at that location, Mr Fairclough drove away towards Hopetoun Hospital.
19 He was intercepted en route by the police who noticed that he had dried blood on his face and hands. He was rambling and appeared confused and disorientated. He told the police that he had been attacked by two men and needed treatment. He claimed his name was Christian Rain and that he was from Ballarat. The police escorted him to the hospital and, after making inquiries, confirmed that he was the person who had attacked Mr Fuller.
20 I note that the two related summary offences relate to Mr Fairclough driving his unregistered vehicle towards Hopetoun Hospital, just before he was intercepted by the police.
21 After the truck driver woke up, he discovered that Mr Fairclough had left a number of his personal belongings on the truck, including his other Nike runner, a mobile phone, a motel key pass, a diary and a wallet containing his driver’s licence and cards. He provided those items to the police at Ararat Police Station.
Investigation, Arrest and Interview
22 As already noted, Mr Fairclough was intercepted by police en route to the Hospital. After escorting him to the hospital, police conducted inquiries which confirmed that he was Mr Fuller’s likely assailant.
23 Further checks revealed that he was unlicensed and that the vehicle he had been driving was unregistered. He was charged accordingly.
24 The police officers then spoke to Mr Fairclough. When he was asked to provide them with his personal details, he told them the following:
· His name was Linden Fairclough;
· His date of birth was 6 March 1967;
· His dog had told him how to get to the area (the police had not seen any dog); and
· The police officer was a servant of the devil.
25 While speaking to the police, he was muttering and appeared agitated and abusive. He eventually gave them his correct name and address.
26 In light of his demeanour and behaviour, he was arrested under Section 351 of the Mental Health Act 2014 and then taken to the Horsham Wimmera Base Hospital for assessment.
27 While en route, he defecated in his hands and then rubbed his hands with faeces. Once at the hospital, he told police that he had done that because he wanted to give himself an infection. At the hospital, he received medical treatment and underwent psychiatric assessment. He was considered fit for police interview and discharged from hospital.
28 He was then taken back to Horsham Police Station and formally interviewed once he had the chance to obtain legal advice. As was his legal right, he gave ‘no comment’ answers to the questions and allegations put to him by the interviewing police officers. However, he did volunteer some things during the interview, including the following:
· He wanted a blood test for infection after being bitten;
· The doctor who had examined him would not know if he had an infection “slowly creeping its way into my body”; and
· The police were mistreating him by not arranging for a tetanus shot.
Pre-sentence detention
29 When the interview concluded, Mr Fairclough was charged and remanded in custody, where he has remained to this day. The period up to, but not including the date of his plea hearing, 13 July 2018, was 308 days. The period from initial remand, up to, but not including the date of this sentencing hearing is 322 days. That period will be the subject of a pre-sentence detention declaration later in these sentencing reasons.
Physical injury caused to victim
30 As earlier indicated, Mr Fuller was initially taken to Hopetoun Hospital. After being medically examined there, it was considered necessary to airlift him to the Horsham Wimmera Hospital for specialist attention. At that hospital, he was found to have sustained the following injuries from the assault:
· A broken nose;
· A broken eye socket;
· Severe swelling to the eyes and associated bruising to the corneas which was affecting his vision;
· Multiple bruises and a laceration to his face; and
· A laceration to the middle finger of his right hand.
Victim impact statements
31 The victim and his wife have each made a victim impact statement.
32 In his statement dated 10 July 2018, Mr Fuller succinctly describes the adverse effects that this offending has caused him.[5] Apart from the physical injuries themselves and the pain and discomfort they caused, the victim has ongoing concern as to whether he will be left with any long term or residual problems with his eyesight. Currently, he is being monitored by a specialist at the Royal Melbourne Hospital. In the months following the assault, he was unable to personally attend to the usual farm duties and missed the local football grand finals, as he was still experiencing difficulties with his vision.
[5] Exhibit B on the plea.
33 In her statement of the same date, Mrs Fuller eloquently outlines the significant emotional and psychological toll that this offending has caused to her and her husband. What occurred on that night terrified her and she is now scared to be home alone at night. The serious and random nature of the attack has caused them disquiet and unease; they are now hyper-vigilant about their safety and have implemented additional security measures at their property. The sense of peace and security that she and her family used to have around their property has been ruined. She does not believe that she will ever get over what occurred and considers the area in which she lives unsafe. There have been numerous trips to Melbourne for specialist monitoring and treatment, which is ongoing. The extended family have had to step in and provide assistance with the farm work and transportation. That has caused stress, inconvenience and expense.
Timing of the Plea
34 This matter was the subject of a two day contested committal hearing on 17-18 April 2018. Based on their instructions, defence counsel cross-examined with a view to testing whether the prosecution could exclude, as a reasonable possibility, the fact that Mr Fairclough acted in self-defence when he injured Mr Fuller. Perhaps the more realistic lines of enquiry pursued at that hearing were those relating to whether the prosecution could prove that the victim suffered a serious injury, as opposed to an injury simpliciter, and, whether they could prove that Mr Fairclough had the necessary reckless state of mind as to the causing of serious injury. I note in that regard, that Mr Fairclough was then facing the more serious charge of recklessly causing serious injury.
35 Mr Fairclough was ultimately committed for trial on all indictable charges.
36 It should be noted that after being committed, the prosecution chose to charge him with an offence of intentionally causing serious injury and the parties agreed to uplift the related summary driving offences.
37 Mr Fairclough faced a directions hearing in this court on 3 May 2018.
38 The matter ultimately resolved on 19 June 2018. As part of that resolution, the prosecution agreed to withdraw the more serious charges if Mr Fairclough pleaded guilty to the current charge of intentionally causing injury.
39 In all of those circumstances, I consider Mr Fairclough’s plea to have been entered at a relatively early stage of the proceedings, but not at the earliest reasonable stage.
40 For taking the course that he did, when he did, Mr Fairclough is entitled to a commensurate discount in his sentence, the extent of which I will make clear shortly.
Prior Criminal Record
41 Mr Fairclough has lived for much of the time in South Australia, which explains why the criminal record filed with this court relates to offences committed in that State. They mainly involve driving offences and he has a relatively bad driving record. Of most significance is the 2017 conviction for drive dangerously to escape police pursuit. He has no prior convictions or findings of guilt for offences that involve violence or the threatened use of violence. In all, it is a limited and not overly significant criminal record for current sentencing purposes.
Personal circumstances
42 I will now turn to outline Mr Fairclough’s personal circumstances which I have taken from his counsel’s very helpful written submissions[6] and from the psychiatric and psychological reports that were tendered on the plea hearing.[7]
[6] See exhibit 1.
[7] See exhibits 2 to 5 inclusive.
43 As I have already observed, Mr Fairclough is now aged 36.
44 He was born in Adelaide and has two younger sisters. After his parents separated when he was five years old, he remained living with his mother. She later re-partnered with a man named Wayne Johns. When he was about 10, the family moved to Brisbane. Mr Fairclough remained living with his mother and step-father until his late teens, at which time he left home for a period and lived on the streets. On his account, his step-father was an alcoholic and violent towards Mr Fairclough. He has no contact with him now.
45 During his childhood, Mr Fairclough did not see his biological father regularly. That changed when he was aged 17; he moved back to Adelaide and lived with his father for a period. They have always had a somewhat tumultuous relationship. His father had re-partnered, however, that relationship ended when his father was gaoled for fraud. At that time, Mr Fairclough moved back to Brisbane for a short period, only moving back to Adelaide once his father was released from prison.
46 When his mother and step-father later moved back to Adelaide, Mr Fairclough moved back in with them until the age of 26, when he purchased his own unit.
47 A year earlier, one of his sisters died in a drug-related incident and that impacted him greatly.
48 His other sister is currently residing in Brisbane. After being involved in a series of car accidents, she suffers from a serious back injury and is on a disability support pension
49 At age 34, Mr Fairclough moved to Canberra. He remained living there until he was charged in relation to a stabbing incident, for which he was remanded in custody. He was eventually granted bail on condition that he reside with his father who was then living in Ballarat. A couple of months prior to the current offending, Mr Fairclough moved back to Adelaide where he lived with his female friend Heidi, until being remanded in custody for the current matter.
50 Mr Fairclough’s mother and step-father are now living back in Brisbane, but he is in contact with his mother who has visited him in custody recently.
51 His relationship with his father has improved in recent times and
Mr Fairclough feels much supported by him. His father has visited him twice in custody in the past couple of weeks.
52 Mr Fairclough attended many different schools and reportedly experienced learning difficulties. He was diagnosed with a learning disorder and left secondary school mid- way through Year 11. However, to his credit, he later returned to school and managed to complete Year 12.
53 After leaving school, Mr Fairclough worked at the Radisson Hotel in room service. He then opened a carwash business which he ran until he attended TAFE. During and after his TAFE course, Mr Fairclough worked in hotel kitchens for approximately four years, including as a chef. When he moved to Canberra in 2016, he worked at a service station. He also has had a number of temporary positions over the years including as a personal trainer and a private investigator, and he has run his own business buying and selling parts for vintage model cars. After being granted bail in the ACT, Mr Fairclough performed voluntary delivery work in his father’s logistics business in Ballarat for approximately four months.
54 Mr Fairclough has had a number of serious relationships in the past, however, he is currently single and has no children or other dependants.
55 Mr Fairclough has a lengthy history of poly-substance abuse.
56 He began using alcohol and cannabis at age 16 or 17. The alcohol use increased over time to the point where he was drinking daily by age 24. He continued to intermittently abuse alcohol until he was 29. He has reduced his use of cannabis, but still uses it occasionally.
57 In his late 20s or early 30s, Mr Fairclough began using cocaine and methamphetamines. He reported positive effects from the methamphetamines which he used to treat his chronic fatigue and give him energy. He attempted to cease amphetamine use when he moved to Canberra, but found it too difficult. After being granted bail in the ACT, he went and lived with his father in Ballarat and was able, at least initially, to abstain from drug use.
58 However, Mr Fairclough was using methamphetamines once or twice a week for the few months after he had moved back to Adelaide. He says that was because he had trouble coping when living with Heidi and felt like he was trapped at her house.
59 At the age of 30, Mr Fairclough developed glandular fever and chronic fatigue syndrome which lasted for approximately five years. He has had no other major physical illness.
60 He has been assaulted on a number of occasions whilst in custody, the last occasion being on 17 June 2018. He says he has not reported any of those assaults because he believes he would be put in isolation for a number of days if he did.
61 As his counsel submitted, and as the reports from the psychiatrist Dr Fiona Best[8] and the psychologists Gina Cidoni,[9] Dr Roy Wyatt[10] and Sarah Evans[11] demonstrate, Mr Fairclough has a complex mental health history. I have taken the contents of those reports into account when determining the appropriate sentence in this case.
[8] Dated 4 October 2017 and tendered as exhibit 4.
[9] Dated 27 June 2018 and tendered as exhibit 5.
[10] Dated 1 September 2017 and tendered as exhibit 3.
[11] Dated 25 August 2017 and tendered as exhibit 2.
62 On his own account, Mr Fairclough saw a psychiatrist in Adelaide for a number of years after the death of his sister. He has also been treated by a psychologist and a psychiatrist in Ballarat since the stabbing incident in Canberra. Despite this, it appears that his insight into his mental illness and its symptoms remains poor.
63 The clinical psychologist, Dr Wyatt, first saw Mr Fairclough on 9 June 2017 as a result of a referral from his treating GP. The purpose of the referral was to allow assessment and treatment of anxiety and depression. There were a total of sixteen sessions with Dr Wyatt, the last of which occurred on 23 March 2017. During the period in which those regular sessions occurred,
Mr Fairclough was taking a prescribed anti-depressant medication.
64 He presented with significant anxiety symptoms on the back of a long history of trauma. Those symptoms appeared to have been experienced over a lengthy period, together with symptoms of depression. Dr Wyatt was of the view that Mr Fairclough would likely meet the diagnostic criteria for PTSD.
Dr Wyatt was also concerned about delusional themes and very significant paranoia that Mr Fairclough displayed and so, suggested to his GP that he refer him to a psychiatrist. He was told that he was already under the care of one.
65 Dr Wyatt felt that although Mr Fairclough engaged well, he demonstrated a low level of insight into his illness. Whilst he felt somewhat restricted by his limited knowledge of Mr Fairclough’s full mental health history, he strongly recommended that he be assessed by an appropriately qualified and experienced forensic psychiatrist who may be able to shed more light on the alleged offending relating to the stabbing in Canberra.
66 Dr Wyatt spoke to Mr Fairclough on the phone more recently, at which time there were indications of suicidal ideation which appear to have been experienced in the context of his pending court case in the ACT.
67 Mr Fairclough appears to have sought a phone consultation with the psychologist Sarah Evans on 20 August 2017. She had known him for many years as she was a longstanding family friend. She noted that in the past, he had received treatment for depression, anxiety and mood disorder. At the time he rang her, he was in hospital awaiting admission to a psychiatric unit. He reported anxiety, paranoia, panic attacks, episodes of depression and suicidal ideation. She was of the clear view that he was suffering from PTSD and in need of assessment and long term treatment.
68 The consultant forensic psychiatrist, Dr Best, assessed Mr Fairclough in custody on 24 September 2017. To his observation, Mr Fairclough presented as disorganised, disturbed, anxious and unhappy. He blamed his parents for his predicament. Dr Best did his best to take a history in relation to this offending, but was limited to some degree by Mr Fairclough’s problems with memory. Dr Best detected no psychotic symptoms to suggest schizophrenia, but there was some evidence of mood and personality difficulties. He noted
Mr Fairclough’s long history of illicit substance and alcohol misuse, ultimately concluding that he met the diagnostic criteria for alcohol, cannabis and stimulant use disorders. He also noted that Mr Fairclough appeared to be ambivalent and minimised and denied any difficulties as a consequence of his substance abuse history. Understandably, he was of the view that there was a real need to address that as he considered that the offending may have occurred as a result of substance abuse. Such treatment and counselling could therefore reduce the chances of Mr Fairclough behaving violently in the future. He recommended that the current medication regime continue.
69 Dr Best was of the view that Mr Fairclough’s personality difficulties make him more vulnerable to developing a major mental illness such as depression or anxiety and the impaired mental functioning he experiences as a result of those personality difficulties, would mean that incarceration would be a more burdensome experience for him than for an individual who did not suffer from those difficulties. Dr Best offers some hope in relation to treatment for the personality difficulties. In his view, Mr Fairclough would benefit from a psychotherapeutic treatment approach, that assisted him to mature out of his personality difficulties and reduce the risk of him reoffending in the future.
70 Ms Cidoni assessed Mr Fairclough on two separate dates in June 2018.[12] He presented as of at least sound average intellectual function. She noted that he had a history of PTSD, anxiety and depression as well as poly-substance abuse disorders. I note that the psychiatrist Dr Best also suggests that he may have a borderline personality. I also note that Ms Cidoni had the benefit of Dr Best’s report and that she agrees with his finding which she considers to be consistent with her own assessment and findings.
[12] On June 18 and 27 2018.
71 Mr Fairclough has had a history of suicidal ideation and suicide attempts by way of medication overdoses, including a number of psychiatric admissions with the most recent being a few weeks prior to the current offending.
72 Ms Cidoni noted that his overall psychological profile indicates that he is very distressed and disturbed and is suffering a high level of situational distress. He also has extremely elevated levels of anxiety which impacts on him both emotionally and physiologically.
73 Amongst other symptoms, his mental illness causes him to have difficulty with decision making, problem solving, and concentration. He has poor judgement which can result in risk-taking behaviour. He suffers from paranoia, confused thought processes and perceptual disturbance, while under the influence of substances.
74 Ms Cidoni is of the opinion that the resources that an individual needs for day-to-day living are compromised in Mr Fairclough’s case. He experiences difficulties with comprehension and memory as well as logical thinking and connecting actions with consequences. She states that those shortcomings appear to have been present at the time of this offending.
75 In terms of Mr Fairclough’s drug use, Ms Cidoni states that he suffered a drug induced psychosis during the offending period with some persisting signs of disturbed thought processes and paranoid delusions. However, she also stated that his use of illicit substances exacerbated his existing psychological symptoms. That was consistent with his intense reaction and impaired ability to control his behaviour at the relevant time.
76 Mr Fairclough is currently taking anti-depressant medication in custody.
77 Understandably, she is of the view that his psychological condition means that Mr Fairclough would have great difficulty coping in a harsh prison environment and as such, the experience of time on remand and of serving a custodial sentence would weigh more heavily on him than on a prisoner of sound mental health.
78 On a more positive note, she indicates that his conditions, while onerous, are treatable. In order for that to occur, he must abstain from illicit drug use and undertake psychotherapy and good psychiatric management in conjunction with pharmacological treatment. While such treatment will not cure his condition, it can help regulate his emotions to lessen the intensity of his behaviour and reduce the chances of him over reacting to situations.
Matters in mitigation
79 Your counsel was also able to rely on a number of other matters in mitigation on your behalf, Mr Fairclough.
80 You told police that your licence had been cancelled and that your vehicle was unregistered.
81 You have pleaded guilty to those offences as well as to the more serious offence of intentionally causing injury at what I regard to be a relatively early stage of these proceedings. By taking that course, you have facilitated the course of justice and saved the community from the cost and time that would have been incurred in running a contested trial. You have spared Mr Fuller and his wife from the further trauma of having to give evidence at such a trial.
82 There is no real evidence of genuine remorse on your part, but that appears to be because of your poor mental state, both at the time of offending and currently. Whilst you have some appreciation that your condition contributed to your offending, you continue to labour under the mistaken belief that the victim was being aggressive towards you. The absence of genuine remorse is not an aggravating feature, but more properly to be considered as the absence of a mitigating factor, albeit one that is often present in cases that are dealt with by plea rather than trial.
83 The issue of insight is a somewhat vexed one, about which there are differing observations by two of the expert witnesses, albeit made at different times and in respect to different offending or, to put it more accurately in the earlier instance, alleged offending. In the end, based on the evidence before me, I am prepared to accept that Mr Fairclough has some insight, but it appears to be limited to his acknowledgement that his behaviour was influenced by his psychological condition and his distressed emotional state. It is still of some concern, however, that Mr Fairclough continues to harbour some belief about Mr Fuller acting aggressively towards him on the night.
84 Mr Fairclough was, on any view, a very unwell man during the relevant timeframe. I accept that the reasons for that are two-fold. First, his underlying psychological condition. And, second, the exacerbating effects that his abuse of illicit substances had on that condition. Some of the descriptions of his movements, demeanour, statements and behaviour in the hours leading up to and subsequent to this offending, border on the bizarre. He was confused, rambling, disorientated and, ultimately lost, all in the context where he was taking proactive steps to try and get professional assistance. His housemate in South Australia had real concerns about him well before that and appears to have been frustrated and concerned by the lack of intervention by the police and others when she sought appropriate intervention.
85 At the plea hearing, defence counsel invited the court to accept that Verdins case had some application. More particularly, that on account of
Mr Fairclough’s mental state when he committed this offence, his moral culpability for it should be seen as reduced and there should also be a moderation of the weight to be attached to deterrence and denunciation. Further, the court should accept that the experience of incarceration for
Mr Fairclough is a more onerous one than for other prisoners of sound mental health.
86 In reply, prosecuting counsel agreed that Verdins principles 1 and 5 were engaged, that is, the moral culpability and burden of imprisonment points, and took no real issue with the other submissions, leaving it for the court to consider.
87 I should also note that each of the parties agreed that in respect of the moral culpability point, there should be a limit to the amount of the reduction because of the fact that Mr Fairclough’s voluntary intoxication from drugs exacerbated the symptoms of his psychological condition. I consider that to have been a realistic and sensible approach for the parties to have taken and was assisted by it.
88 So, from the court’s perspective, I make clear that I accept that
Mr Fairclough’s moral culpability should be seen as reduced to a modest degree and that the weight to be attached to deterrence and denunciation should be moderated. Clearly, his experience of the custodial environment has been very difficult during his time on remand and there is no reason to think that it will be any different while he serves the rest of the sentence that I intend to impose on him today. I want to make it clear that were it not for the application of those principles, the sentence would have been higher.
89 This is the first time that he has had to spend any significant time in custody. I allow for that experience being salutary and effecting some measure of personal deterrence already.
Objective gravity of the offending
90 Of course, matters personal to Mr Fairclough are not the only considerations for this court. The objective gravity of the most serious offence is one or the other relevant considerations.
91 This type of offence is intrinsically serious. Parliament has reflected that by fixing the relatively high maximum penalty that it has, 10 years’ imprisonment.
92 All things considered this offence was, in my view, a relatively serious example of its type. The victim was elderly and extremely vulnerable. He was assaulted at night, in a sustained and frightening manner, and in the supposed safety of his rural property. The injuries sustained were significant and fall at least in the mid-part of the spectrum of injuries that can be encompassed by such a charge. Objectively viewed, the assault was unprovoked. The victim’s wife suffered the no doubt shocking fate of witnessing the concluding moments of that assault on her husband and the traumatic aftermath. The principal victim, his wife, and to a lesser extent, other members of their family, have all been negatively impacted by this offending.
93 Even allowing for the matters that can be relied on in mitigation, the seriousness of this offence calls for a relatively significant term of imprisonment.
Relevant sentencing principles
94 Whilst reduced to some extent, general deterrence and denunciation are still relatively important sentencing considerations. By the sentence that it now imposes, this court must seek to condemn the criminal conduct in which
Mr Fairclough engaged and go some way towards discouraging other like-minded people from engaging in such aggressive behaviour.
95 Specific deterrence is also relevant. This offending was serious and it was committed whilst subject to bail and a bond for other unrelated offences. One of his prior convictions related to driving dangerously and resulted in him serving a very short period in custody on remand. Mr Fairclough must understand that engaging in violent conduct towards another member of the community is treated seriously by the courts and, in the event of any repetition on his part in the future, he can expect to be dealt with sternly. I have read nothing in the various reports to suggest that he is totally incapable of being deterred. I consider that he can be, albeit perhaps not to the full extent given the current problems he has with consequential thinking.
96 Protection of the community from Mr Fairclough is also of some relevance in this case, given the nature and seriousness of this offending and the fact that the two underlying and interconnected causes, his psychological condition and his abuse of illicit drugs, are yet to be properly addressed through appropriate treatment and counselling.
97 This court must also have regard to Mr Fairclough’s age and prospects for rehabilitation. Any assessment of the latter must be undertaken with some caution, however. He is now a man of relatively mature years who has struggled with an entrenched and serious drug problem and with complex mental health issues. Both were important factors in him offending as he did on this occasion and are yet to be adequately addressed. If there is to be any hope of achieving real and sustained rehabilitation, Mr Fairclough must successfully complete a suitably tailored drug treatment program, preferably a residential-based one, abstain from drug use altogether, and seek professional assistance for his mental health problems. That will take considerable motivation, effort and discipline on his part and I do not underestimate the difficulty of the task ahead of him in that regard.
98 On the issue of Mr Fairclough’s prospects of rehabilitation, defence counsel urged the court to keep in mind a number of relevant additional considerations. He has a relatively limited criminal record with no priors for violent offending. He has, in the past, and over a significant period, voluntarily sought out mental health treatment in the community. And, the recommended treatment interventions referred to by the experts, allow for some improvement in his condition and a corresponding reduction in the risk of him re-offending. I have had regard to all of those considerations when assessing Mr Fairclough’s prospects.
99 In the end, doing the best that I can with the available material, I consider those prospects to be ‘moderate at best’.
Sentencing submissions
100 In her sentencing submissions, Ms Millar conceded that an immediate term of imprisonment was the only appropriate sentence for this offending. Further, she urged the court to impose a straight sentence, either by way of a sentence of less than one year or, in the event that the sentence was at least one year, but less than two years. It must be acknowledged that the emphasis in her sentencing submission was on the first of those alternatives and the raising of the second was really by way of an alternative submission.
101 The second and alternative of those submissions is rarely made in this court, since the Sentencing Act 1991 gives a Sentencing Judge a discretion to impose a non-parole period for any head sentence of at least one year, but less than two years.[13] So, in the event that an offender was granted parole, ordinarily they would serve the remainder of their head sentence in the Victorian community subject of course to complying with all of the conditions of the parole order on which they were released.[14]
[13] Section 11 (2).
[14] ‘Ordinarily’ because in approved circumstances an offender can have their parole transferred to another Australian State or Territory.
102 But, given the personal circumstances in which Mr Fairclough finds himself and the instructions that he has provided to Ms Millar on this issue, it is entirely understandable that defence counsel made the alternative sentencing submission that she did. To those matters could arguably be added the period of pre-sentence detention that Mr Fairclough has already served on remand.
103 The personal circumstances to which I refer, relate to Mr Fairclough’s strong ties to South Australia. I accept that he is anxious to serve any sentence for this matter as soon as he can, face trial in the ACT for the outstanding matter and then return to live in South Australia without being hindered by the need, if released on parole, to be resident in Victoria. I appreciate that there are some assumptions built in to all of that, but I accept that is the view that
Mr Fairclough currently holds.
104 For their part, the prosecution’s submission was limited to the argument that nothing short of a custodial sentence was appropriate in the particular circumstances of this case. Mr Albert, counsel who appeared on behalf of the Director, did not seek to make any submissions as to whether that sentence should be less than one year or more than two years, nor as to whether the court should fix a non-parole period in the event that any sentence imposed fell within the discretionary range in Section 11 (2) of the Sentencing Act 1991. In my view, that was an entirely appropriate and fair approach for him to have taken on behalf of the Director.
Analysis
105 I was much assisted by the considered submissions made by the parties in this matter. In my view, nothing short of a custodial sentence is warranted given the particular circumstances of this case.
106 This is a somewhat complex case and there are various and in some respects competing considerations to take into account.
107 In the end, I have come to the view that whilst it is appropriate to impose a sentence of more than one year, it should not be much more and, in the particular circumstances of this case, it is appropriate for the court to exercise its discretion under section 11 (2) of the Sentencing Act 1991 by declining to fix a non-parole period.
Sentence
108 Having carefully considered, balanced and weighed the various sentencing considerations raised by this case, I have decided to convict Mr Fairclough and sentence him as follows.
109 On Charge 1, intentionally causing injury, he will be sentenced to a term of 15 months’ imprisonment.
110 In respect of that head sentence, I decline to fix any non-parole period.
Pre-sentence detention
111 The period of 322 days pre-sentence detention, not including today’s date, is hereby declared as having already been served in respect of this sentence and I order that such declaration and its details be entered in the records of the court.
Section 6AAA declaration
112 Pursuant to s.6AAA of the Sentencing Act 1991, I indicate that had
Mr Fairclough pleaded not guilty to this charge of intentionally causing injury, and had he been convicted of that offence at trial, he would have been sentenced to a term of two years’ imprisonment with a non-parole period of 16 months.
Sentence for Related Summary Offences
113 In all of the circumstances, I consider it appropriate in respect of each of the related summary offences to convict and discharge Mr Fairclough.
Forensic Sample Order
114 In all of the circumstances of this case, I am prepared to exercise my discretion in favour of granting the prosecution’s application for an order authorising the taking of a forensic sample from Mr Fairclough pursuant to s.464ZF (2) of the Crimes Act 1958. I have made that decision having regard to the seriousness of the circumstances of the offending, the fact that the order was not opposed and the fact that the granting of the order is in the public interest.
115 Accordingly, I order that Mr Fairclough undergo a forensic procedure for the taking of a scraping from the mouth in accordance with Subdivision 30A of Part 3 of the Act, until a sufficient sample is obtained for placement on the database.
116 Mr Fairclough, I am required to inform you that if at the time of request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and the police may use reasonable force to enable that forensic procedure to be conducted. Do you understand what I have just told you,
Mr Fairclough?
117 OFFENDER: Yes, Your Honour.
118 HIS HONOUR: Ms Millar, I would appreciate it if when you are speaking to your client, after I leave the Bench, you could just ensure that he does fully understand what I have just told him about the forensic sample order.
119 MS MILLAR: Yes, Your Honour, I'll do that. Your Honour, I wonder if there could be a custody management note placed on the record. Mr Fairclough has instructed that he was again assaulted last week in custody. Perhaps if that's an issue that could be monitored. I understand that he did report that assault. But given that there have been a number of occasions now, if that could be noted, that will be appreciated, Your Honour.
120 HIS HONOUR: How do you suggest that should be expressed on the relevant documentation?
121 MS MILLAR: Your Honour, I think given that he has reported the last incident, that it could be noted that he has been assaulted whilst in custody and if Corrections could monitor - - -
122 HIS HONOUR: All right, well I will have noted on the relevant custody management documentation that this is the first significant sentence of imprisonment that Mr Fairclough has had to serve. He presents as a vulnerable prisoner, in part because of a number of alleged assaults on him by other prisoners and that the custodial authorities charged with his care should closely supervise him for his own welfare.
123 MS MILLAR: Yes, Your Honour.
124 HIS HONOUR: Something to that effect.
125 MS MILLAR: Yes, Your Honour, that's suitable. Thank you, Your Honour.
126 HIS HONOUR: Yes, all right. Are there any other matters that either counsel wish to raise at this stage in relation to either the sentence or reasons for sentence?
127 MR GRANT: No, Your Honour.
128 MS MILLAR: No, Your Honour.
129 HIS HONOUR: Very well, adjourn the court sine die at this stage please Mr Tipstaff.
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