Director of Public Prosecutions v Flood

[2015] VCC 1480

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-01154

DIRECTOR OF PUBLIC PROSECUTIONS

v

PAUL FLOOD

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	16 October 2015
CASE MAY BE CITED AS:	DPP v Flood
MEDIUM NEUTRAL CITATION:	[2015] VCC 1480

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms. F. Skepper	Office of Public Prosecutions
For the Accused	Mr. P. Galbally

HIS HONOUR:

1Paul Flood, you have pleaded guilty to the indictment charging you with aggravated burglary on 18 March of this year, Charge 1, intentionally causing injury.  Charge 2, same date, same place.  Theft, Charge 3, as part of the same incident, and possessing a drug of dependence in Charges 4 and 5.  In Charge 4, the drug was Oxycodone, and in Charge 5, Oxazepam, those offences occurring on 19 March of 2015. 

2You have also admitted a criminal record which is extensive, and goes back to 1991.  It includes a substantial number of offences involving a burglary and offences involving dishonesty and violence.  The prosecution tendered and relied upon a summary of prosecution opening which was read to the court.  I am not going to repeat it again.  But it is necessary, I think, just to outline the circumstances of your offending on 18 March of this year, when at about 10 pm on that date, you entered the home of a single mother, Fatima Ahmadi, at Hutton Street in Dandenong, where she was residing with her two daughters, aged 11 and 7. 

3You entered the premises by sliding open a window to the lounge room of the premises, climbing through the window, walking past the two girls who were asleep on couches in the lounge room, and you then went upstairs.  You walked into the bathroom, picked up a towel, placed it over the lower part of your face and walked into Ms Ahmadi's bedroom.  She awoke to see you standing there with the towel covering your nose and mouth and you had an object in your left hand which was covered with something. 

4You demanded money and her phone, and threatened that you would kill her or shoot her.  She believed you had a gun in your hand and handed over her phone.  You then found her handbag and took it.  You walked out of the room, telling her not to follow you, or you would kill her.  You walked down the stairs, took the towel away from your face, she followed you down the stairs in order to retrieve her bag.  When she got to the bottom of the stairs, she demanded you return her bag and tried to grab it.  You responded by punching her four or five times to the face. 

5The house was dark, all the lights were still off.  Her older daughter yelled words to the effect, "Why are you punching my mum" and came over and tried to pull you away from her mother.  You then pushed her, the daughter, onto a couch.  Ms Ahmadi continued to grapple with you, saying, "Don't touch my daughter".  You punched her three more times to the face and pushed her head into the wall two or three times.  She fell down.   

6The elder daughter bravely, again, attempted to intervene to help her mother.  Her mother was able to wrest the bag from you, threw it into the kitchen, and as you started to walk away, she grabbed you and yelled to her daughter to call the police.  You responded by punching Ms Ahmadi three more times to the face causing her nose to bleed.  She fell to the ground.  You then walked out the front door. 

7Ms Ahmadi was taken to hospital.  She sustained a bruise under her left eye, swelling to her nose, headaches, ongoing pain to her neck, nose, head and face.  She remained in hospital for five days.  There were no broken bones, but she continued to experience physical pain, post traumatic amnesia and psychological trauma as a result of the assault.

8You were arrested at your home on the following day.  Police located the mobile phone that you had stolen from Ms Ahmadi's property, six Oxycodone tablets and 18 Oxazepam tablets.  You were taken to the police station and interviewed.  You elected to make no comment.  However you elected to resolve this matter by way of a plea of guilty at the earliest reasonable opportunity, being at the committal mention on 6 June 2015, and I give you full credit for your early indication of a plea of guilty in this court.

9Unfortunately, it has to be noted that you had only been released from your previous prison sentence on 3 February of this year.  I say unfortunately because it is a reflection of the fact that you have spent the bulk of your adult years, indeed your late teen years in custody, serving sentences of one kind or another.  Those are wasted years that you are never going to get back and it has, I have no doubt, resulted in a degree of institutionalisation. 

10Aggravated burglary is always a serious offence.  This was a particularly serious example of aggravated burglary.  You made the situation worse by engaging in the assaults that you did, on Ms Ahmadi, and again it is unfortunate that I have to note that that conduct does bear similarities to previous conduct of a similar nature on other occasions, when you have been involved in offences of burglary.

11Turning to matters personal to you, a considerable body of material was provided to me on your behalf by your solicitor and counsel, which contained an outline of submissions and a chronology of events in your life, and a number of reports from psychologists and medical practitioners about your mental condition, your personal history and the effects of various events in your life upon your mental impairments and psychological functioning.

12It is apparent that you have a mild intellectual disability, with an IQ of 69; that you continue to suffer from depression, dysthymia, and although there might be some dispute as to your current qualification for a diagnosis of post-traumatic stress disorder, I am quite certain that you have suffered from that in the past, and that it is likely that there is an overlay of those symptoms that bears upon your mental functioning at the relevant time. 

13It is also apparent from those reports and from your history, that you have had the most appalling start to life, and that your substance abuse issues go back to a very early age.  You have been subjected to a chaotic childhood, a chaotic period in your teens and a chaotic adulthood.  To some extent I think that it is a product of the mental impairments.  To some extent it is a product of the lack of care and nurturing that you missed out on a child and as a teenager, and certainly, the product of substance abuse over many, many years.  It is a sad history, I have to say, and one which no doubt has led to this appalling criminal history that is revealed in the second presentment.

14There seems to be some dispute as to the extent to which your capacity to understand the wrongfulness of your conduct in relation to this offending conduct is or is not, or was not impaired at the relevant time.  Dr Bath, in his report, says quite clearly:

15"Whilst he presented as a very simplistic and concrete thinker, his capacity to understand the wrongfulness of his actions was not impaired." 

16Whereas Dr Gelner, in his report, albeit dated 6 August of 2010, says on p.2, paragraph 1:

17"When he uses drugs he becomes disinhibited, irrational, he does not understand the wrongfulness of his actions, he cannot make calm, reasonable decisions or show appropriate judgment or control of his emotions or behaviour." 

18That may or may not be right.  However, even by 2010 and certainly by 2015, it must have been apparent to you what effect taking drugs and abusing illicit substances was likely to have on your conduct by way of a disinhibiting effect.  It seems to me that it really is difficult to find a case amongst all of this material, to support the proposition that your intellectual disability or your mental impairments in combination, led to a conclusion that your ability to reason as to the wrongfulness of your conduct was significantly or relevantly impaired. 

19The prosecution drew my attention to the decision of the Court of Appeal in the case of Caldwell v R [2014] VSCA 274 where in para.59 the relevance of such a finding or the inability to make such a finding was brought into sharp focus. 

20It was argued on your behalf that Verdins principles applied to reduce your moral culpability.  I am not satisfied that such a case is made out.  However, there is no doubt that from a contextual point of view, the history that I have outlined, both of your mental illnesses and your intellectual impairment and your substance abuse history going back to a very early age, are of relevance and I take them into account in the more general sense.

21There is also no doubt, it seems to me, that the mental impairments and indeed, your intellectual disability will make your time in custody more onerous and I take that into account.  It seems to me that that applies in a not-insignificant way in your case.

22Clearly, you had had such a chaotic upbringing, have been subjected to sexual abuse at an early age, or relatively early age, and have had such a poor start to life, one has to I think factor in to the instinctive synthesis in this case, the effect of that very significant disadvantage.  It is a history, unfortunately, which is not too uncommon in these courts and which frequently is attended by the kind of criminal record that you have racked up.  But, that said, your welfare and your future are not the only things that I have to consider. 

23On your behalf, Mr Hardy, who I see is in court again today, was called, and he has been, and remains not just a guardian but obviously a very committed and good friend.  His goodwill and his commitment to helping you was extraordinarily impressive.  I found him to be a very impressive witness and one, who I have no doubt, is entirely sincere in not just his hopes, but his beliefs that he could assist you to turn your life around. 

24Unfortunately, he had to concede that the offence was committed at a time when he had not been in contact with you for some hours.  I have no doubt, again, that he is entirely sincere, in his indication that should the court be in a position to impose a Community Corrections Order, that he would ensure that to the full extent possible that you abided by the conditions of it and that he would report any breach. 

25In many respects the community would be best served by rehabilitating you.  I have to assess your prospects of rehabilitation.  In view of the close proximity of this offending conduct to your release from your present sentence, and the fact you were in fact living with Mr Hardy, it is very difficult to assess those prospects as anything other than dismal as things stand at the moment.  Even though there may be occasions upon which, - and indeed quite sustained periods during which you show indications that you are willing to tackle the hard problems in your life and to turn things around. 

26I hope that eventually that does occur.  But the seriousness of this offending conduct, in the light of your criminal record, and previous instances of conduct not dissimilar from that displayed in this offending conduct, does not permit me to pass a sentence which would enable a Community Corrections Order be put in place.

27I have to punish you adequately.  I have to denounce your conduct, but I also have to look to the protection of the public, and to deter you and to deter others from conducting themselves in a similar manner.  Of course, I do not lose sight of the need to impose a sentence that facilitates your rehabilitation, as far as I reasonably can, consistent with the other sentencing considerations, but I am not in a position to put that as the most significant sentencing consideration in this case.

28You do face the prospect of deportation, and that would seem to me to be a real possibility.  It is not something which I can take into account per se, but it clearly is something that is going to weigh on your mind during your period of incarceration and will make your time in custody more serious, and/or more difficult to bear.  I take that into account also. 

29I take into account your mental illnesses and your intellectual disability in a general way, as well as taking those into account in reduction of sentence having regard to the more onerous task that you would have in serving your sentence with those mental impairments and incapacities. 

30I appreciate that in imposing another term of imprisonment is simply going to add to the problems of your institutionalisation, but whilst I look to moderate the sentence for the reasons that I have already outlined, it seems to me that my public duty requires me to put the protection of the public high on the list of sentencing considerations. 

31I am required to consider current sentencing practice, and the prosecution has submitted that the sentence that involved a Community Corrections Order would not reflect the needs of protection of the community.  As I have indicated, I accede to that submission. 

32Doing the best I can to take into account all of those matters, I am looking to impose as lighter sentence as I can in all the circumstances.  I am ready to pass sentence upon you.  Would you please stand:

33From Charge 1, of aggravated burglary, I convict you and sentence you to imprisonment for a period of four years. 

34On Charge 2 of intentionally causing injury, I convict you and sentence you to imprisonment for a period of two years.

35On Charge 3 of theft, I convict you and sentence you to imprisonment for a period of four months.

36On Charge 4 of possessing a drug of dependence, I convict you and discharge you.

37On Charge 5 of possessing a drug of dependence, I convict you and discharge you.  I order that one year of the sentence on Charge 2 be served cumulatively upon the sentence imposed on Charge 1 which makes a total effective sentence of five years imprisonment with a non-parole period of three years and four months. 

38But for your pleas of guilty, I would have imposed a term of imprisonment of six years and 9 months, with a non-parole period of four years and 10 months.

39Now what is the pre-sentence detention please?

40MS SKEPPER:  211 days not including today, Your Honour.

41HIS HONOUR:  Do you agree with that, Mr Galbally?

42MR GALBALLY:  Yes, Your Honour.

43HIS HONOUR:  I declare 211 days of pre-sentence detention as time to be reckoned as served on the sentences that I have imposed, and to be deducted administratively from the time you will actually have to serve.  I order that that fact be noted in the records of the court.  I make the disposal order in the terms of the draft with which I have been provided.  Are there any other orders that I need make?

44MS SKEPPER:  No, Your Honour.

45MR GALBALLY:  No, Your Honour.

46HIS HONOUR:  Yes, all right.  Thank you. 

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