Director of Public Prosecutions v Fitzgerald
[2013] VCC 1329
•23 August 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-12-01318
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN FITZGERALD |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 July 2013 | |
DATE OF SENTENCE: | 23 August 2013 | |
CASE MAY BE CITED AS: | DPP v Fitzgerald | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1329 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr N. Goodenough | Office of Public Prosecutions |
| For the Accused | Mr T. Marsh | Victoria Legal Aid |
HER HONOUR:
1 John Fitzgerald, you have pleaded guilty to two charges of assault. The maximum penalty applicable to each charge is five years' imprisonment.
2 These charges arise out of events which occurred on 15 October 2009. Charge 1 relates to an assault by you upon Wei Xue and Charge 2 an assault by you upon Marjory Walsh.
3 It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor (Exhibit A). I incorporate that Prosecution Opening into these sentencing remarks. I sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of the plea hearing. It is sufficient for present purposes to say the facts in this case are most serious and disturbing.
4 In the case of Wei Xue, she was at the time of your assault 74 years of age and described being punched to her top lip by you. As a result, her lip swelled and was bleeding. At the time of her statement, which was made on 16 October 2009, she said her nose was still a bit sore and she described being shaken up at the time. I have no doubt she was.
5 The victim of your offending in relation to Charge 2, Marjory Walsh, felt a blow to the crown of her head, and as a result felt dazed. She said in her statement to police she still felt a little bit dizzy when she went home after the assault. At approximately 3.00 am, she woke up and started vomiting, feeling stressed about what had happened. I have no doubt she felt stressed and she did not seek any medical treatment.
6 At the time of your original plea hearing there were no Victim Impact Statements before me. At that time, Mr Marsh, who appeared on your behalf at your plea hearing, however did not cavil with either Ms Xue’s or Ms Walsh’s description of your offending and the impact it had upon them. I have no doubt the victims of your offending were distressed by your offending and such has been confirmed today in a Victim Impact Statement from Ms Walsh, to which I shall later refer.
7 The effects of your offending upon a victim are a relevant sentencing consideration (see s5 Sentencing Act 1991). I am of course conscious I must not allow the effects upon a victim to swamp the sentencing process.
8 A number of prior court appearances were alleged against you. You had no memory of these, although did not specifically dispute those appearances. Whilst they were of some concern, as they involved violence, they were dealt with many years ago, and I am conscious they were not admitted by you. Idisregard them for the purposes of sentencing you today.
9 You have pleaded guilty to these two charges. I set out a brief chronology relating to the timing of your plea of guilty. In February 2013 a jury was empanelled for an Investigation into your fitness to stand trial. There was evidence called which supported the conclusion that at that time you were not fit to be tried. Both the prosecution and the defence agreed the material supported such a conclusion, however, consistent with the Crimes (Mental Impairment & Unfitness to be Tried) Act 1997 (hereinafter referred to as "the Act") a jury was required to determine that issue. Not surprisingly, the jury concluded you were not fit at that stage to be tried.
10 At the time of that Investigation, you had recently been admitted to Thomas Embling Hospital. Over the hearings before me, it seemed to me, as a lay observer, ie not a psychiatrist or a psychologist, you had at that time mental health issues.
11 Since being found unfit to be tried, you were initially at Thomas Embling Hospital on remand and receiving treatment, and you have now moved to Bailey House, which I will refer to in a moment.
12 I received a report dated 8 July 2013 prepared by Dr Katherine Sevar, Senior Psychiatry Registrar at the Victorian Institute of Forensic Mental Health, co-signed by Dr Douglas Bell, Consultant Psychiatrist, Assistant Clinical Director (Prison Operations) Forensicare. You had remained at Thomas Embling Hospital at that time on remand under the Act. You received a regular dose of the injection Risperdal Consta and were compliant with that medication. When you were interviewed most recently on 12 June 2013, in relation to your fitness to stand trial, you were polite and co-operative, accurately describing the difficulties you had experienced over your life whilst attempting to live with schizophrenia. You were able to meaningfully engage in discussion regarding these charges at that time.
13 There was evidence in that report you had made a meaningful response to treatment. Your previous delusional beliefs regarding your identity and your paranoid delusional system regarding Centrelink and the judicial system had abated. Your delusional beliefs had now resolved and you were fit to stand trial. In the opinion of the authors, despite now being fit to stand trial, you would need to remain in treatment in the future. In their opinion you suffered with paranoid schizophrenia. It was considered important by the authors you continue to receive treatment for the foreseeable future and upon release from Thomas Embling Hospital receive ongoing treatment through community area mental health services in supported accommodation, and that has been the situation since you entered Bailey House.
14 Those representing you, upon receipt of this recent report, then brought the matter back before me for mention to set a date for your plea hearing.
15 As I have said, you have then pleaded guilty to these two charges. I accept, based on the material before me, that that was your first real opportunity to enter a plea to these charges, given your mental health. You are entitled to have that plea of guilty taken into account in your favour, and I do so.
16 The community, by your plea, has been spared the cost and time of a trial and witnesses, in particular Ms Xue and Ms Walsh, have not been required to give evidence at your trial. Whilst your plea of guilty was entered late in the piece, I accept, however, it was at your first real opportunity to enter such a plea, and such is relevant in mitigation of your sentence.
17 When spoken to by the police you denied your offending behaviour, although I accept at that stage you were probably also mentally unwell. I accept your plea of guilty which has now been entered indicates remorse by you for that offending.
18 In an earlier report from Dr McInerney, Psychiatrist, dated 21 February 2013, she had the benefit of discussion with your sister, Mary Fitzgerald, who had provided a lot of information to her, not only in relation to your background and personal details, but also in relation to your psychiatric history. That enabled Dr McInerney to conclude positively you had an established diagnosis of paranoid schizophrenia dating from approximately 30 years ago (see paragraph 6.4 of the report). Dr McInerney formed the opinion your mental processes were, at that time, currently impaired by an active psychotic illness. She concluded your impaired fitness in thought related to a treatable psychotic illness and anticipated then that your fitness would be restored within the next 12 months.
19 That anticipated fitness was consistent with the conclusion in the report of Drs Sevar and Bell, to which I have previously referred.
20 Details of your background and personal circumstances were contained within the report of Dr McInerney, such obtained from you sister, and Mr Marsh in his plea relied upon that material.
21 You are currently 68 years of age and were born at Box Hill. You lived in Melbourne all your life except for a brief trip to the United Kingdom when you were in your 20s. Your parents separated when you were in your teens and the family did not see your father again.
22 You were advised in your 20s your father had died whilst in Singapore. Your sister thought his death had had a negative impact on your mental health.
23 There were four siblings in total, yourself, your sister Mary who lives in Melbourne, and two brothers who at that time were living in Queensland. There was no known family history of mental illness.
24 You were a bright child and put forward for a scholarship program.
25 When you finished secondary school you completed an Honours Degree in Physics and Maths and worked as a teacher for a term or two. That, however, ceased due to your mental illness.
26 As far as your sister was aware you had not had paid employment since. She said you were known to read widely and had significant depths of knowledge on a number of topics including, gardening, physics and chemistry.
27 In your 20s you went to the United Kingdom to study history, although it would appear you had a psychotic episode almost immediately, were admitted to hospital then repatriated to a Sydney mental health hospital. You returned to Melbourne shortly thereafter.
28 Over the years, your sister said you struggled to acquire stable accommodation, as your temperament and mental health difficulties made it difficult for you to live with other people.
29 Your most stable accommodation was for six years, ending in 2000, she said. You lived in a long-term rental unit which ended when the owner decided to redevelop the property. Your sister, Mary, attempted to acquire housing for you, although you had made that difficult (see paragraph 2.13).
30 According to your sister, she understood you had been homeless for at least ten years. When you did visit her, you would not tell her where you were staying. She thought you were receiving some support from Sacred Heart Mission in St Kilda and other shelters.
31 You had never married and do not have any children.
32 You did not appear, according to your sister and Dr McInerney, to have a significant alcohol or substance use history.
33 Your sister also provided details regarding your extensive psychiatric history, which I will not repeat here but are contained within paragraphs 3.2 to 3.11. of Dr McInerney’s report. Dr McInerney also had access to some information from a number of psychiatric services.
34 Your counsel, Mr Marsh, submitted your various health issues referred to in the reports before me enliven the principles in R v Verdins & Ors[1]. Mr Goodenough, on behalf of the prosecution, conceded that was the case, and I also agree.
[1](2007) 16 VR 269
35 I was advised at the plea hearing that those at Thomas Embling intended to assess you on 17 July 2013 to check your suitability for aged care, that is, for supported accommodation when you transition from Thomas Embling Hospital into the community and thus your recent attendance at Bailey House.
36 Regarding your rehabilitation prospects, which I must consider when sentencing, I do have concerns. However, I note your recent positive response and compliance with the taking of anti-psychotic medication. Should you continue with that medication, or indeed with any other medication recommended by those at Thomas Embling Hospital or those at Area Mental Health, your rehabilitation prospects will, of course, be greater. When sentencing you I must seek to maximise your rehabilitation prospects.
37 As well as matters personal to you, to which I have referred, including your prospects of rehabilitation, I must also take into account matters such as deterrence, especially general deterrence. Whilst that is of considerable importance in a case such as this, that is, assaults upon vulnerable victims, in my opinion the principles in Verdins are applicable. General deterrence, your moral culpability and specific deterrence, should be moderated to reflect your mental health issues relevant to the restatement of the Tsiaras principles in Verdins, in particular principles 1, 2, 3 and 4.
38 I am also conscious of applicability of the restatement of principles 5 and 6. However the sentence I impose in this case will not require further consideration of those principles, as I do not intend to sentence you to a further term of imprisonment.
39 I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending. This continues to cause me concern, and as previously stated, such concerns will only be allayed if you maintain your medication/treatment regime.
40 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
41 You have been on remand for these offences for approximately 18 months, that time spent in prison, the Acute Assessment Unit and/or Thomas Embling Hospital.
42 Turning to disposition, Mr Marsh submitted it would be appropriate to bail you to reside at Thomas Embling Hospital until such time as it was considered by the authorised Psychiatrist and/or her nominee at Thomas Embling Hospital that you transition into the community with the supports necessary, to ensure not only your own protection but also protection of members of the community. He anticipated this would be likely under the care of Area Mental Health on a Community Treatment Order.
43 Mr Marsh submitted it would not be inappropriate to sentence you to be placed on a Community Corrections Order with conditions attached, relevant to your ongoing treatment and counselling for your mental health issues, to assist your eventual release into the community on the anticipated Community Treatment Order, and to enable me to monitor your progress on that Community Corrections Order by reviewing it on a regular basis.
44 Mr Goodenough submitted the disposition of your offences urged by Mr Marsh and discussed with me was within the range of appropriate dispositions.
45 Ultimately, of course, it is my decision as to the sentence. However, the submission made by Mr Marsh on your behalf, and accepted as being within the range of appropriate dispositions by the prosecution, in my opinion, is sensible, and more importantly, reflects all relevant sentencing considerations in your case.
46 At the conclusion of the hearing on 15 July 2013, an appointment was to be made by Heidelberg Office of Corrections to attend upon you at Thomas Embling Hospital to speak to those responsible for your care and to consider your suitability for a Community Corrections Order with the anticipated conditions. It was anticipated that report would be provided to the court by 21 August 2013.
47 At the hearing on 15 July I discussed with Mr Marsh my intention that the Order, should you be considered suitable for a Community Corrections Order, should be for five years’ duration. Mr Marsh was going to speak to those caring for you at Thomas Embling as to when it might be appropriate for this matter to come back before me as part of my judicial monitoring of the Order.
48 The further plea and sentence was adjourned to today's date, 23 August 2013.
49 In the intervening period I received correspondence from Ms Sarita Lemme, Leading Community Corrections Officer, Heidelberg Community Corrections, dated 31 July 2013 in which she confirmed her interview with you on 22 July 2013. She had subsequently been advised by Thomas Embling Hospital (on 30 July 2013) that it was anticipated you would be discharged on 5 August 2013 to reside at Bailey House in North Melbourne. That has subsequently occurred.
50 I also received a pre-sentence report prepared by Ms Lemme dated 31 July 2013, which addressed your suitability or otherwise for a Community Corrections Order. Further details were provided in that report regarding your history and background, including your prior court appearances.
51 At the time of interview with Ms Lemme you were living at Bailey House, an aged care facility, since 5 August 2013.
52 Turning to your health history. You acknowledged to her that in the past you had struggled with your mental health and malnutrition due to being homeless. You acknowledged you had earlier been diagnosed with schizophrenia and at times had ceased taking your medication.
53 Ms Lemme noted the reports of Dr Sevar, 18 July 2013, Dr Bell, 8 July 2013 and Dr McInerney dated 21 February 2013.
54 In the opinion of Ms Lemme, given your mental health history, you were not a suitable candidate to perform unpaid community work, and I agree.
55 You were assessed by her as falling within the low risk of re-offending category. When medicated you had insight into your mental health illness and understood the importance of engaging with Area Mental Health. Ms Lemme recommended the Treatment and Rehabilitation (Mental Health Assessment and Treatment) Condition be imposed on a Community Correction Order, if made.
56 The Community Correction conditions were then explained to you by her and you consented to the making of a Community Correction Order.
57 You were ultimately assessed as being suitable for such an Order by her with a number of suggested conditions, specifically treatment and rehabilitation to which I have previously referred, and a judicial monitoring condition. A specific supervision condition was not recommended, and I agree. As part of the Order I understood you would at any rate be required to report to a Case Manager at Corrections Victoria on a fairly regular basis to monitor your compliance and progress with other conditions. Such was considered sufficient by Ms Lemme, and I agree.
58 In my opinion such a disposition is appropriate, being mindful, as I am, you have already spent considerable time in custody relevant to this offending. In determining the conditions to attach to the Order I have also taken into account the matters referred to in s.48A Sentencing Act 1991.
59 Before I turn to sentence, I also acknowledge that I have today received a Victim Impact Statement from Ms Walsh dated 12 August 2013, who is now 82 years of age. Not surprisingly, perhaps given her age, in her Victim Impact Statement she refers to the ongoing negative impact upon her of your offending. She says she no longer feels secure and wonders where you are. She said she has an uneasy feeling, even when she is out walking and shopping and asks what do the future years hold. She said she enjoys walking but does not drive as much. She does not feel secure walking or travelling, in particular around the Box Hill area. In relation to walking to attend shopping and so on, she has to walk past 16 houses to get to her destination and she does not feel at ease and some days she says it feels so quiet. Clearly the impact upon her has been significant, and I acknowledge that.
60 In relation to sentence this is what I am proposing, so just have a listen to this and then Mr Marsh can have a chat to you if you are not sure about it.
61 On Charges 1 and 2, I intend to convict you and place you on a Community Corrections Order. The Order will be for 5 years and it starts today, which is 23 August 2013.
62 There are a number of core conditions that apply to everybody on an Order, not just you, so these are core conditions, as they are called, and I believe they have been explained to you. They are as follows:
· You must not, whether you are in or outside Victoria, during the period of the order, that is the next 5 years, commit an offence punishable by imprisonment.
· You must comply with any obligation or requirement prescribed by the regulations.
· You must report to and receive visits from the Secretary to the Department of Justice, or his or her nominee - that is the Corrections Officer person - during the next 5 years.
· You must report to the Community Correctional Services at Carlton on Tuesday, 27 August 2013 at 11 am. That is a definite appointment time.
· You must notify the Secretary, or his or her nominee, of any change of address or employment within 2 clear working days after that change.
· You must not leave Victoria without the permission of the Secretary to the Department of Justice - that is the Community Corrections Office.
· You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure you comply with the order.
63 When it talks about "Secretary" it is the Community Corrections Officer for your purposes. Now they are core conditions, they apply to everybody on one of these orders.
64 There are two other conditions I am adding in your case, which hopefully you have heard and discussed with Mr Marsh:
1. You are required to undergo treatment and rehabilitation, specifically Mental Health Assessment and Treatment, as required by the Secretary or his/her nominee.
That is you have to attend for mental health treatment and assessment. In other words, I anticipate that will mean keep doing what you are doing under the treatment order that you are on and as you are told to do by Area Mental Health. Community Corrections is just overseeing that from the court point of view, because I have no control over the treatment order or Area Mental Health. This is to help the court know that all that is going according to plan.
2. You are to be monitored by the Court (that means me) regarding your compliance and progress on the Order at 12 monthly intervals.
65 Now you need to consent to me making the order, you have to understand what those conditions mean. Did you want to have a chat to Mr Marsh about any of those again?
66 MR MARSH: If I may just approach, Your Honour. Thank you.
67 HER HONOUR: Yes, you can approach.
68 MR MARSH: Thank you, Your Honour. He has indicated that he understands the conditions and that he is prepared to abide by them.
69 HER HONOUR: So he consents to the order being made in those terms.
70 MR MARSH: Yes, Your Honour.
71 HER HONOUR: So you consent? You agree with that, you consent? Yes or no?
72 OFFENDER: Yes.
73 HER HONOUR: Thank you very much, have a seat Mr Fitzgerald.
74 Pursuant to s.48K Sentencing Act 1991 I am of the opinion it is necessary for me to review your compliance. At the time of each review, which is to be annually, I require a brief report be prepared by the Secretary to the Department of Justice - that means Community Corrections have to do a brief report - pursuant to s.48L Sentencing Act 1991 regarding your compliance and progress and you also have to be here on that date.
75 The first review hearing is to take place on Friday, 22 August 2014 at 9.30 am. I am hoping you might be available, Mr Marsh, it just makes things a bit easier than having to go back to square one, but if you are not available I understand. If you can at least brief whoever takes your place with some background information about this matter that would be a big help, that might save this becoming a very lengthy hearing unnecessarily.
76 MR MARSH: I will do my utmost to be here in a year's time, Your Honour.
77 HER HONOUR: If you are a video link candidate on that date, if you are somewhere I don't mind that either.
78 MR MARSH: I'm sure we can work (indistinct), Your Honour. Thank you.
79 HER HONOUR: My associate will make a note in her diary about a week before that to liaise with Mr Marsh. I would prefer continuity if at all possible.
80 Pursuant to s.48L Sentencing Act 1991 I simply state at the Review one option available to me, depending upon your progress, includes cancelling a condition.
81 No further orders were sought by the prosecution in relation to this matter.
82 Pursuant to s.6AAA Sentencing Act 1991, had you been found guilty of these two charges following jury verdict I would have sentenced you to a maximum term of imprisonment of 3 years with a non parole period of 2 years.
83 That time of 11.00 am was arranged by the Community Corrections Officer. She advised us when that report was silent on a date and time, she advised that the appointment has been made for that date, 11 o'clock next Tuesday. Is there any reason why Mr Fitzgerald cannot be there? Do you want to check that with him?
84 MR MARSH: I did before, Your Honour. He doesn't have the address but aside from that there's no issue.
85 HER HONOUR: The address is there, it'll be on the document.
86 MR MARSH: And I said the address will be on the order. So that should be fine.
87 HER HONOUR: He's got to be there though. I don't want this coming back to me next week on a potential breach. Mr Fitzgerald, you have to attend, you have to go to the Community Corrections on Tuesday at 11 o'clock, it's a set time.
88 OFFENDER: Yes, I have to know the address - - -
89 HER HONOUR: We'll give you that. Yes, Mr Marsh.
90 MR MARSH: I was just about to say that there's previously been phone contact between Mr Fitzgerald and Corrections about the time.
91 HER HONOUR: All right.
(Community Corrections Order signed and acknowledged.)
92 HER HONOUR: I haven't declared any PSD given the order that I have imposed. Do we know how many days it was, did you ever work that out?
93 MR GOODENOUGH: 540, Your Honour, including the plea date of 15 July.
94 HER HONOUR: When did he get out into - because Bailey House - - -
95 MR GOODENOUGH: 5th of August, I understand.
96 MR MARSH: No, no, he was bailed.
97 HER HONOUR: That's right, you're quite right. Up to that date.
98 MR MARSH: Yes, that's correct, it was to the plea date and then on the plea date his situation changed from remand to bail, even though he remained in the same spot.
99 HER HONOUR: So it's 540 day.
100 MR MARSH: Yes.
101 HER HONOUR: Do you agree with that? I might just add it just for completeness - - -
102 MR MARSH: I do. And, look, just as an excess of caution I would ask that Your Honour simply note that in the records of the court - - -
103 HER HONOUR: No, I think I'll put it at the end of the sentence.
104 MR MARSH: Your Honour's quite right, it's not relevant to this declaration but it's - - -
105 HER HONOUR: In case I have to revisit which I really hope I don't.
106 Pursuant to 18(4) Sentencing Act (1991) I declare that you have spent 540 days in custody by way of pre-sentence detention for these two charges and direct that that be entered into the records of the court, which of course I hope I do not have to worry about in the future but it is there in case I forget.
107 Thank you, anything else? Thanks very much. Mr Goodenough, you don't need to be here on that date, you will no doubt have the same instructor probably and she knows all about it, she can brief anyone else appropriately in 12 months' time, I am confident. Thank you.
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