Director of Public Prosecutions v Gerogiannis
[2023] VCC 106
•9 February 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-22-00402
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HELEN GEROGIANNIS |
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JUDGE: | HIS HONOUR JUDGE CHETTLE |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 September 2022 and 23 January 2023 |
DATE OF SENTENCE: | 9 February 2023 |
CASE MAY BE CITED AS: | DPP v Gerogiannis |
MEDIUM NEUTRAL CITATION: | [2023] VCC 106 |
REASONS FOR SENTENCE
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Subject: Criminal sentence
Catchwords:
Legislation Cited: s.5(1), S5(4), S5(4) (c), s6A, Sentencing Act Vic
Cases Cited:Boulton v The Queen [2014] VSCA 342, Atanackovic [2015] VSCA 136
Sentence:Community Correction Order with unpaid work, treatment and rehabilitation, programs to address offending behaviour.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr T. McCulloch | Ms E. Downie |
For the Accused | Ms S. Kermath | Mr M. Kuzilny |
HIS HONOUR:
1Helen Gerogiannis, you have pleaded guilty to one charge of recklessly causing serious injury, one charge of recklessly causing injury, one charge of destroying property and one charge of persistent contravention of a family violence intervention order.
2In addition, you have pleaded guilty to one summary related offence of contravention of bail conditions.
3The facts of your offending are set out in Exhibit A, the amended summary of prosecution opening. I was informed by your counsel that I could treat that document as an agreed statement of fact. I incorporate it into these reasons for sentence and I sentence you on the basis of the facts set out therein.
4Very briefly stated, in June 2021 your father obtained an intervention family violence order against you. You were prohibited by that order from damaging or threatening to damage your father's property and from being with 200 metres of his home without written permission.
5On 19 July 2021 at about 1 pm you attended at your parents' home in
Coburg. You were drunk. You got into an argument with your father and kicked a stool out from under him, scratching his hand. You then hit him in the head with your mobile phone and when he tried to escape you struck him repeatedly with your open hand causing him further laceration. You kicked his legs and arms.6When your mother told you that she would call the police you ripped the telephone from the wall. You punched your mother to the back of the head and pushed her to the ground. You kicked her leg as she crawled away to escape you.
7Neighbours called the police who arrived at 1.40 pm and arrested you for breach of intervention order.
8Significantly, the police had you assessed by a mental health clinician and then you were taken to Northern Hospital for further assessment. It is clear that there were concerns about your mental health on that day.
9You were bailed on 20 July. Bail conditions included that you not be within 200 metres of your parents’ address and to comply with any family violence intervention order. Police obtained such an order that day, naming both your parents as protected persons and prohibited you contacting or communicating with your parents or being within 200 metres of the home.
10You breached your bail conditions and that order apparently by telephoning the Royal Melbourne Hospital and asking to speak to your parents who were both being treated at that hospital.
11On 15 August 2021 you were seen at your parents' home.
12As a result of your attack upon him your father suffered a subdural haematoma and resulting delirium, pain, and psychological trauma. He suffered multiple bruises, abrasions, and scratches. He was released from hospital on 21 September and tragically died in palliative care on 17 October 2021. He was 79 years of age at the time.
13Your mother sustained concussion and bruising to her head, legs, and elbow.
14On 18 October 2021 you made full admissions to police when interviewed.
15Each of your offences are serious criminal offences. The maximum penalty for each is set out in the prosecution opening, Exhibit A.
16Your brother filed a victim impact statement. He is clearly greatly distressed by the death of his father and blames you for it. He has been traumatised by your conduct. He has undergone psychological counselling and suffers social anxiety and inability to interact with family, friends, and colleagues. He avoids social contact.
17I take the contents of the victim impact statement into account in sentencing you, however, I want to make it clear that I do not, in any way, take into account your brother's belief that you were responsible for the death of your father.
18Your counsel tendered Exhibit 1, written submissions on sentence. She outlined your background and submitted that a community corrections order was the appropriate disposition in your case.
19You were born in August 1971. You were 51 years of age when you offended. You have no prior criminal history and no subsequent criminal history. You have no outstanding matters.
20You were born in Melbourne. You were educated to Year 12 level before completing a Bachelor of Social Work at La Trobe University in 2003.
21You have worked in the social work area for 20 years. The details are set out in your resume Exhibit 8 tendered on your plea. Significantly in March 2021 you commenced a new job as a drug and alcohol counsellor. You suffered workplace bullying and your job was terminated in July 2021. As a result of both the bullying and loss of employment your mental health suffered. You had sleep issues, you lost weight, you had sustained panic attacks and you lost your self-esteem. You sought assistance from the Royal Melbourne Hospital, but it appears to no avail. You were drinking to excess and using both alcohol and cannabis to self-medicate. And it appears this conduct exacerbated your mental instability.
22Dr Paul Cammell who diagnosed you with suffering with a major depressive episode, with anxiety features in November 2021, see Exhibit 2. He recommended continued use of antidepressants.
23Your general medical practitioner reported in Exhibit 3, that you had a
long standing history of mixed depression and anxiety. And that your mental health had taken a downward spiral due to recent workplace bullying. He organised psychological therapy for you under a mental health plan, see
Exhibit 5.24That treating psychologist reported focusing on emotional regulation,
self-forgiveness, feelings of remorse and anxiety management with you. And his report is Exhibit 6.25You wrote to the court outlining your history and your reaction to your offending in Exhibit 7. You state that you are, 'Sickened and disgusted by your offending behaviour.' You described it accurately as, 'Inexcusable' and set out the steps you have taken to repair your mental health issues. You have ceased using cannabis and drinking alcohol. Significantly you appear to have repaired your relationship with your mother. There is no longer an intervention order in place, and you visit and support your elderly mother again.
26Much of your plea revolved around your counsel's submission that a community corrections order was appropriate in your case. Mr Pickering who was then the learned prosecutor strongly submitted that a term of imprisonment was required to properly reflect sentencing principles of general deterrence and just punishment. He pointed to the age and frailness of both your parents and to the savage and ongoing nature of your attack upon them.
27Such a submission has strong force. You knew the frailty of both your victims. You should not have been at their home in the first place because the IVO prohibited your attendance and your conduct. Mr Pickering properly acknowledged that the Court cannot impose a term of imprisonment unless the Court is satisfied that no other sentencing option is open to it.
28The Sentencing Act 1991 has many provisions that effectively mandate custodial sentences in certain circumstances. Those provisions do not apply to your case.
29S5(4) provides that,
'A court must not impose a sentence that involves the confinement of the offender unless it considers that the purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender.'
30S5(4)(c) provides that,
'A court must not impose a sentence that involves confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed, cannot be achieved by a community corrections order with appropriate conditions.'
31The purposes of sentencing are set out in the exhibit s.5(1) of the
Sentencing Act. Just punishment, general and specific deterrence, promotion of rehabilitation, denunciation of your conduct and protection of the community are all relevant factors in your case.32In balancing these factors the Court must have regard to the maximum penalties prescribed, current sentencing practices and the nature and gravity of the offending and offenders culpability and degree of responsibility for the offence. The Court must also have regard to the impact on any victim, any loss, injury or damage resulting from the offence. And whether the offender pleaded guilty and when. The offenders' previous character and the presence of aggravating or mitigating factors concerning the offender, or any other relevant circumstance.
33Thus, sentencing involves many different considerations and is not determined by one factor or consideration alone.
34To assist the Court in your case I requested a psychiatric report from Forensicare. That report is Exhibit E. The report sets out your personal background and history and reviews your prior psychiatric history.
35You have experienced depression, low self-esteem, and personal insecurity throughout your life. You have taken antidepressants and anti-anxiety medication for 10 to 15 years.
36Dr Glowinski conducted a mental state examination of you and reviewed Exhibit A, the prosecution opening. He also read the material tendered by counsel on your plea. In paragraphs 68 to 72 of his report Dr Glowinski concluded.
'Ms Gerogiannis describes that she used alcohol and cannabis to control anxiety and depressive symptoms related to triggers. She acknowledged that there was a problem and I think she probably qualifies for a polysubstance abuse disorder as per DSM-5 criteria. This condition appears to be in remission in the context of an upcoming court hearing.
Ms Gerogiannis describes consistent depressive symptoms which I think probably qualifies for a persistent depressive disorder or dystonia. She described superimposed depressive episodes where her sleep, attitude and general functioning was impaired. These depressive episodes have been influenced by psychosocial stresses and probably also by substance abuse.
Ms Gerogiannis described what I thought was a reasonably compelling history suggestive of past elevated mood states. I note that a treating psychiatrist did not consider that she had features of bipolar disorder but did not mention whether this might be features of a bipolar 2 disorder. A family history of schizoaffective disorder in her father increases the likelihood of bipolarity. Although I would not effectively definitely diagnose a bipolar disorder on cross‑sectional assessment, I think there is reason to be suspicious of an underlying bipolar diathesis. This should be further explored by her treating clinicians.
Ms Gerogiannis described that she was in the midst of a very stressful time in the lead up to the offending. She was being bullied at work and was ultimately terminated during her probation period. There were significant stresses at home as her father was becoming increasingly frail. She was her father's primary carer and also provided support for her mother.
Ms Gerogiannis described that she had developed a range of depressive and anxiety symptoms in the weeks prior to her offending. Her description is reasonably convincing for a major depressive episode with anxious distress. Effectively a relapse of a longstanding mood disorder. This also could be conceptualised as a mixed mood episode as part of a bipolar disorder type 2.'
37Finally, in paragraph 75 to 77 Dr Glowinski reported.
'Ms Gerogiannis said that she had been abstinent from alcohol and cannabis over the last year and a half. She described that she continues to attend psychological therapy. She attends a psychiatrist for assessment. She continues to take antidepressant medication. She currently presents as flat and depressed but not acutely unwell. She is probably back onto her usual baseline albeit without substance use and with the stress of her upcoming court hearing.
If the court decides on a community disposition, I suggest that there be measures to ensure that she continues to attend appropriate psychiatric and psychological treatment. While I do not think she necessarily needs to see another psychiatrist for treatment I wonder about whether exploration of a potential bipolar 2 diagnosis might lead to more targeted medication treatment. Her psychological therapy should continue with a frequency at the discretion of the treating team.
Ms Gerogiannis' treatment for a mood disorder will likely be disrupted if she was given a custodial sentence. Her history of mood disorder and her demographic features all place her at a high risk of depressive relapse in the event of incarceration.'
38Your offending is, as I said serious, and your culpability is in my view high. You acknowledge as much yourself and I take into account in your favour a number of factors. Firstly, your pleas of guilty. Those pleas were entered at an early stage, you are entitled to a significant reduction in sentence to reflect those pleas of guilty. Such pleas have an even greater value because of the effect COVID-19 has had upon our justice system. You have facilitated the course of justice at the time in which our system was struggling.
39You fall to be sentenced as a now 52-year-old woman of previous good character. You have no prior involvement with the criminal law. Your offending occurred against a background of personal stress and depression exacerbated by your self-medication with alcohol and cannabis.
40Your offending, although serious was out of character and unusual. To attack your parents as you did can only be explained as a complete loss of control and mental collapse by you.
41In the midst of a severe personal meltdown, you personally lost control and behaved totally irrationally. You recognised your mental health collapse. You had been getting medical assistance for years before you offended and increased that assistance subsequent to your offending.
42You are currently medicated, stable, and sober. You have commenced your rehabilitation in the 18 months since your offending.
43The Court of Appeal has provided this court with guidance as to the operation of community corrections orders on several occasions. In the case of
Boulton v The Queen [2014] VSCA 342 the Court said at paragraph 2,'The community correction order is a flexible sentencing option enabling punitive and rehabilitative purposes to be served simultaneously. The community corrections order can be fashioned to address the particular circumstances of the offender and the causes of the offending. And to minimise the risk of reoffending by promoting the reoffenders rehabilitation.'
44At paragraph 108, the Court continued,
'In addition, imprisonment is often seriously detrimental for the prisoner and hence for the community. The regimented institutional setting induces habits of dependency which leave, over time to institutionalisation and to behaviours which render the prisoner unfit for life in the outside world. Worse still the forced cohabitation with convicted criminals operates as a catalyst for renewed criminal activity on release. Self-evidently such consequences are greatly at the community's disadvantage.'
45At paragraph 112, the Court continued,
'Given the adverse features of imprisonment to which we have referred, the conclusion that imprisonment is the only appropriate punishment amounts to a conclusion that the retributive and deterrent purposes of punishment must take precedence. Put another way, it is a conclusion that the offenders just desserts for the offence in question requiring imprisonment even though the court is well aware that time spent in prison is likely to be unproductive or counterproductive for the offender and hence the community.'
46At paragraph 114, 115 the Court stated,
'The community corrections option offers the court something which no term of imprisonment can offer. Namely, the ability to impose a sentence which demands of the offender that he or she take personal responsibility for
self-management and self-control. And, depending on the conditions, pursue treatment and rehabilitation, refrain from undesirable activities and associations and avoid undesirable persons and places. The community corrections order enables the offender to maintain the continuity of personal and family relationships and benefit from the support they provide. In short, the community corrections order offers the Sentencing Court the best opportunity to promote simultaneously the best interests of the community and the best interests of the offender. And those who are dependent on her or him.'
47On this analysis if defence counsel submits that a community correction order would be appropriate, it is no answer for a prosecutor or a judge to say, how could a community corrections order be appropriate given that the offence of this seriousness has always received imprisonment. As we have endeavoured to explain, that question should mark the beginning not the end of the
Courts' consideration.48Finally, and often quoted paragraph at paragraph 131 the Court said:
'It follows from what we have said that a community corrections order may be suitable even in cases of relative serious offences which might previously have attracted a medium term of imprisonment. Such as, for example, aggravated burglary, intentionally causing serious injury, some form of sexual offences involving minor, some kind of rape and some categories of homicide. The sentencing judge may find that in view of the objective gravity of the conduct and the personal circumstances of the offender a properly conditioned community corrections order of lengthy duration is capable of satisfying the requirements of proportionality, parsimony, just punishment and affording the best prospects for rehabilitation.'
49Mr Pickering referred me to another Court of Appeal decision of
Atanackovic [2015] VSCA 136. This was a case concerned with whether or not Boulton has application in federal sentencing. The court summarised the effect of Boulton at paragraphs 17 to 32 before concluding that Boulton has no application to federal sentencing.50In determining the appropriate sentence on appeal, the court added at paragraphs 159 to 160:
'Our conclusion above would have been the same even if Boulton had been applicable to the present case. There is nothing in that case that alters the longstanding principles for assessing the seriousness of individual offences and the weight to be given to particular sentencing considerations in relation to them. Drug offences are intrinsically serious. Even though specific deterrence may not be prominent for some offenders general deterrence will ordinarily be primary consideration. Offending of the nature and scale undertaken by the applicant in the present case has traditionally been dealt with by a lengthy period of imprisonment and nothing in Boulton requires a different sentencing disposition in the present case.
We would add that contrary to the assumption that appears to underpin some of the submissions that have been made to this court since Boulton that case, where it applies, has not elevated community corrections order to the status of "sentencing option of choice" for many particular offences. In saying that community corrections order may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment. Boulton was simply making the obvious point, that given the multifaceted features of community corrections order, a community corrections order may be more appropriate than imprisonment across a broad range of offences.
Likewise the statement in the case that a community corrections order, where appropriate, should be preferred to imprisonment is a salutary reminder of the longstanding principle or parsimony. Such a statement do not create any presumption that a community corrections order is suitable for a particular offence, still less that it is appropriate in the circumstances of any particular offender. The appropriate sentencing disposition in each case will depend on the statutory provisions and the sentencing considerations that are pertinent to that case informed by relevant case law.'
51Mr Pickering submitted that this statement somehow has relevance to your sentence. Clearly the Court of Appeal are stating that each case must be dependent on its particular circumstances. That is the approach I have taken in your case, balancing the fact that I am not convinced that imprisonment is the only available option in your case.
52Because of the factors I have set out I believe that principles of general deterrence, just punishment and denunciation can all be properly reflected in an appropriately conditioned community corrections order that is both punitive and rehabilitative as recognised by the court in Boulton.
53I have had you assessed for suitability to undergo a community corrections order and you have been found so suitable. I propose to mandate significant unpaid community work as part of this order. Your community correction order will be both punitive and therapeutic and you need to understand that if you breach this order by failing to comply with the conditions or by reoffending you will be brought back before this court for resentencing and in such a case imprisonment would be a real option.
54Do you consent to undergo a community corrections order?
55OFFENDER: Yes, I do.
56HIS HONOUR: Yes. On all charges, including the related summary offences, you are convicted and sentenced to undergo a community corrections order for three years. That order will have special conditions. That you perform 250 hours of unpaid community work. Secondly, that you undergo treatment and rehabilitation for alcohol. Thirdly, you undergo treatment and rehabilitation for mental health. Fourthly, that you undertake programs to reduce reoffending. Fifthly, you will be under supervision.
57I order that 75 hours of the time involved in programs can count against the unpaid community work that I have made in your case.
58I direct that a copy of the Forensicare report be provided to Corrections so that, in particular, the issue of your bipolar 2 diagnosis or possible diagnosis can be pursued.
59Pursuant to s6A of the Sentencing Act I indicate that but for your pleas of guilty I would have imposed an effective term of imprisonment of 30 months with a non-parole period of 20 months.
60Are there any other orders required?
61MR McCULLOCH: No, Your Honour.
62HIS HONOUR: You can come out. Leave the dock and come and sit behind your counsel. I need you to sign the order.
63MS KERMATH: Your Honour, you say 30 months, non-parole was it 20 months?
64HIS HONOUR: Thirty with a 20.
65MS KERMATH: All right. Thanks.
66HIS HONOUR: Is what I said. Thirty months total effective - - -
67MS KERMATH: Yes. Thirty months.
68HIS HONOUR: Where does she have to go?
69MS KERMATH: I believe the closest would be Broadmeadows.
70HIS HONOUR: Where did the report come from? I will just get - where is the report? It will have - yes. You are directed to report to Broadmeadows within two working days. So, by Monday night you have got to have attended at Broadmeadows Community Corrections Centre.
71OFFENDER: Yes, Your Honour.
72HIS HONOUR: They will have a copy of your order waiting for you.
73MR McCULLOCH: If the court pleases.
74HIS HONOUR: When is the bail? At 10.30 or - - -
75VOICE: At 1.30.
76HIS HONOUR: At 1.30. All right. So, we have nothing until then? Right. You have got to print it first. You understand the effect of that order, Ms Gerogiannis?
77OFFENDER: Yes, I do.
78HIS HONOUR: All right. And what I said, if you breach it you are back here and you do not want that. All right. All right. I will adjourn until 1.30.
79MS KERMATH: If Your Honour pleases.
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