Director of Public Prosecutions v Giovino
[2023] VCC 595
•23 March 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-22-01516
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANTHONY GIOVINO |
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JUDGE: | HER HONOUR JUDGE CHAMBERS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 31 January 2023 & 23 March 2023 |
DATE OF SENTENCE: | 23 March 2023 |
CASE MAY BE CITED AS: | DPP v Giovino |
MEDIUM NEUTRAL CITATION: | [2023] VCC 595 |
REASONS FOR SENTENCE
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Subject: Criminal law – plea of guilty
Catchwords: Aggravated burglary – damaging property – recklessly cause injury – offending against father – long history of mental illness – auditory hallucinations, a hallmark of long-standing schizophrenia, contributed to offending – persistent use of illicit drugs acted to exacerbate mental health difficulties – reduced moral culpability due to chronic mental health condition
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited: R v. Verdins (2009) 16 VR 269; DPP v. O’Neill [2015] VSCA 325; DPP v. Arvanitidis [2008] VSCA 189; Alexander v. The Queen [2021] VSCA 217; R v. Martin [2007] VSCA 291; Marks v. The Queen [2019] VSCA 253; DPP v. Meyers (2014) 44 VR 486
Sentence:Total effective sentence of 13 months’ imprisonment to be followed by an 18-month community correction order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J.E. Goetz | Office of Public Prosecutions Victoria |
For the Accused | Ms H. Edwards | Victoria Legal Aid |
HER HONOUR:
1Anthony Giovino, you have pleaded guilty to the following charges arising from an incident that occurred on 22 December 2021:
(a)aggravated burglary contrary to s77 of the Crimes Act 1958 ('the Act'), the maximum penalty for which is 25 years' imprisonment;
(b)damaging property contrary to s197(1) of the Act, the maximum penalty for which is 10 years' imprisonment; and
(c)recklessly causing injury contrary to s18 of the Act, the maximum penalty for which is five years' imprisonment.
2The victim in this matter is your father, Mr Raffaele Giovino, who was 67 years of age at the time of the offending. You were 33. You and your father had been estranged for five years prior to this incident on 22 December 2021.
Circumstances of the offending
3The circumstances of your offending are detailed in the summary of prosecution opening dated 17 January 2023, which is the agreed basis upon which you are to be sentenced. In brief, the following is a summary of the events giving rise to the charges.
4On 5 September 2021, your father sent you a message that read, 'Hi Anthony, is father [sic] day today, no wishes for your dad? I am thinking of you'. You replied, 'Yes', with an accompanying 'thumbs up' message.
5At the time of your offending, you were living in the rear shed of the home of a friend, Roland Venner, in Melton West. In around October 2021, Mr Venner had sold you his Hyosung motorbike, together with his black motorbike helmet.
6On 22 December 2021, you attended your father's address in Keilor at approximately 6.50 pm. Your father lived there alone. You were seen by a neighbour as she was leaving her home, who later told police she saw a male wearing a black motorbike jacket and helmet walking from the mailbox towards the front door of your father's address. The neighbour told police you appeared angry.
7Your father was in the kitchen when he heard glass breaking. He walked into the ground floor bedroom and saw you standing there, having smashed the bedroom glass door to gain entry. Your conduct in doing so gives rise to Charge 2 – criminal damage.
8You were wearing the black motorbike jacket and helmet, as well as dark pants and dark gloves. Although you were also wearing sunglasses, your father recognised you. You had a black extendable steel baton in your hand, which you had used to smash the glass door. The baton was extended to approximately one and a half feet in length.
9Your conduct in entering the house, armed with the baton, gives rise to the charge of aggravated burglary, which is Charge 1. By pleading guilty to this charge, you accept that at the time you entered the house, you intended to commit an offence involving an assault, and had the baton, which meets the definition of an offensive weapon, with you.
10Once your father entered the bedroom, you began to strike his head and arms with the extended baton. You continued to attack your father, even as he moved to the kitchen area. At that point, he was bleeding on the kitchen floor from his injuries. During the ensuing struggle, your father managed to disarm you. However, he slipped on his blood and fell to the ground, at which point you recovered the steel baton.
11Your father asked, 'What are you doing? I'm your dad'. You did not respond; rather, you continued to strike him with the baton and then punched and kicked him while he was on the ground. You then left the house, and your father called Triple 0. The entire incident lasted approximately 10 minutes.[1]
[1]Having been observed walking into the house at 6.50 pm and the Triple 0 call to Ambulance Victoria being recorded at 7.02 pm.
12An ambulance arrived with the police shortly after, and the victim was conveyed to hospital where he remained until 23 December 2021. At the hospital, your father was assessed for the following injuries:
·an occipital midline laceration to his head that did not require sutures;
·swollen and bruised knuckles on his left hand;
·multiple mild facial lacerations;
·right shoulder/humerus pain with an associated decrease in movement to 45 degrees suggestive of a rotator cuff injury; and
·left fifth metacarpal pain and possible deformity.
13On 16 May 2022, your father underwent further surgery to repair a right rotator cuff injury and was referred for physiotherapy. As a result, he was unable to work for a period of six months.
14The assault causing this injury is the subject of Charge 3 – recklessly causing injury.
15You were arrested by police on 11 January 2022 when you were observed in Long Forest standing next to the Hyosung motorbike that was still registered in Mr Venner's name. On clarifying your identity, you were arrested by the police.
16The police then searched your premises in Melton West where they located a black motorcycle jacket, a purple motorbike helmet and a can of purple spray paint. Mr Venner later told police he had observed you painting the black motorbike helmet purple in early January 2022.
17In accordance with your rights, you made no comment when questioned by police. You were remanded in custody on 11 January 2022. You have remained in custody since this date.
Personal circumstances
18In order to place your offending on 22 December 2021 in context, it is necessary to detail your personal circumstances and your deteriorating mental health in the lead-up to these events
19You were born in October 1988 and are now 34 years old. You are the youngest of three children to your parents, Anne and the victim Raffaele Giovino. You have two older sisters. Since being on remand, you have maintained some contact with your closest sister and have been visited regularly by your mother.
20From prep to Grade 2, you attended St Leo's Primary School in Altona North. As you were falling behind academically, your mother arranged for you to transfer to Annunciation Catholic Primary School in Grade 3. However, you experienced significant bullying and ultimately refused to continue attending school in Grade 4. Your mother then arranged for you to enrol at Altona Primary School where you repeated Grade 4 and were assigned a teacher's aide for the rest of primary school.
21You then attended Williamstown High School where you completed Year 8 but not Year 9. After leaving school, you worked in a number of roles, including as a carwash attendant for two years and then as a welder. You enrolled in a mechanical apprenticeship in 2010 and completed your vocational training at Kangan Institute, obtaining a certificate III in automotive work in January 2011. You continued to work as a mechanic until your deteriorating mental health made it too challenging for you to continue in employment. You have not worked for the past 10 years. During this period, you have been in receipt of a disability support benefit as your only form of income. State Trustees have managed your affairs since April 2016, and you have recently been approved for assistance through the NDIS.
22Your history of significant mental illness commenced in around 2010. Your mother first took you to the doctor after becoming concerned about your reports of auditory hallucinations. In 2011, you were formally diagnosed with schizophrenia. A discharge summary from the North Western Mental Health service dated 19 January 2022 reports that since this time, management of your diagnosed schizophrenia has been complicated by ongoing substance abuse and a failure to comply with medication prescribed for the management of your mental health.[2]
[2] Exhibit 6, discharge summary dated 19 January 2022.
23At the time of your first involuntary admission in December 2011, you were 23 years old. It is reported that your psychiatric admission followed a confrontation with your parents, expressing 'paranoid ideas and increasing agitation'.[3] Prior to being admitted you had been using both methamphetamine and cannabis.[4] The discharged summary states that at the time of your admission, you believed your parents were spying on you, whispering about you and plotting against you.[5] You also disclosed a dispute with your father regarding your unlicensed driving 18 months earlier.[6]
[3] Exhibit 6, summary of discharge following Orygen IPU admission 17/12/11-03/02/12.
[4] Ibid, p3/7.
[5] Ibid, p3/7.
[6] Ibid, p3/7.
24Following your discharge in January 2012, you declined treatment with drug and alcohol services and resumed 'almost daily drug use'.[7] The discharge summary states you were required to leave the family home in August 2012 after a dispute with your parents regarding your continued drug use and following an altercation where police were called to the house after you smashed and destroyed a number of items in your bedroom. You then moved to live with your aunt and recommenced on antidepressant medication. You were referred by Orygen Youth Health to psychiatrist Dr Okedara for treatment. You lived with your aunt for approximately 12 months before moving into share accommodation.
[7] Ibid, p4/7.
25You were re-admitted to hospital on 16 August 2014 following a relapse into schizophrenia, again characterised by 'paranoid ideation' and 'auditory hallucinations', having become non-compliant with medication. A treatment order was made by the Mental Health Tribunal, following which you stabilised and were discharged on 22 August 2014. At that time, a family violence intervention order precluded you from returning to the family home, and you were referred for housing support.
26Your next admission occurred on 13 January 2016 when you were 28 years old, again experiencing auditory hallucinations, reporting you were hearing the voices of your uncle and father who were 'out to get [you]' and telling you to 'get a job'.[8] You admitted heavy alcohol use around this time.
[8] Ibid, IPU (13/01/16-08/03/16) p4/7.
27Further admissions occurred between October and November 2018, December 2018 and January 2019 and on 15 June 2019 when you were admitted to the Sunshine Emergency Department. Each admission occurred in the context of increasing auditory hallucinations, which were reported to decrease in frequency and intensity with improved medication compliance.[9] Each admission occurred in the context of increased cannabis, alcohol or other illicit drug abuse.
[9] Ibid, SAAPU (27/10/18-06/11/18) p4/7.
28On 30 December 2021, following this offending, you were again psychiatrically assessed by the North Western Mental Health service, during which you reported ongoing conflict with your family although you did not disclose the offending against your father. You did, however, disclose heavy ice use but declined any formal referrals for drug treatment at this time.
29You have been subject to a number of community treatment orders, with the last 52-week order made on 9 March 2021[10].
[10]Outline of Defence Submissions on Plea Hearing dated 25 January 2023 at [25]
30Despite the challenges posed by your poor mental health and drug abuse, you have a relatively limited prior criminal history. In February 2011, you were sentenced to one month's imprisonment, wholly suspended, for driving whilst disqualified. In 2014, you were placed on an adjourned undertaking, without conviction, for charges of unlawful assault and intentionally damaging property. On 8 June 2021, you were placed on a further adjourned undertaking without conviction for one charge of unlawful assault and one charge of criminal damage.
31It is relevant, however, that much of this offending related to incidents involving your parents. The criminal damage charge for which you were sentenced in 2014 arose from an incident where you smashed your mother's mobile phone, contravening an intervention order that had been obtained to prevent family violence the day before. The intervention order was obtained after you pushed your father into a wall, which is the incident that gave rise to the charge of unlawful assault.
32The offending for which you were sentenced in 2021 arose from events on 30 November 2019 when you threw a bottle of water at the windscreen of your father's car, causing damage to it, before assaulting your father by punching him. The offending against your father on 22 December 2021 represents a significant escalation in your offending behaviour towards your father.
Mental health assessment
33You were assessed for the purposes of the plea by consultant forensic psychiatrist, Dr Fiona Best on 3 September 2022. In her report dated 26 October 2022, Dr Best reviewed your psychiatric history, including multiple admissions to acute psychiatric in-patient units, and confirmed your diagnosis of schizophrenia. Dr Best reports you have been treated with a range of antipsychotic medications but that your history of 'poor adherence' to treatment regimes is such that you are now prescribed long-acting depot antipsychotic medication. Dr Best is of the opinion your long history of polysubstance abuse has exacerbated your mental health difficulties.
34During your assessment with Dr Best, you disclosed long-term hostility towards your father. You report that as a child, you used to 'hate' your father, stating he would discipline you with a belt, but never your sisters. After your parents separated in 2015, you state you lived with your father but were told to leave the house due to time spent online gaming. You told Dr Best you had 'heard your father's voice for many years', stating, 'They are not treating me right, and bullying me'.[11]
[11] Exhibit 1, report of Dr Fiona Best dated 26 October 2022 at p10.
35As to the circumstances of the offending in December 2021, Dr Best recounts as follows:[12]
He reported he had been thinking about going to his father's house for two years, but he knew it was wrong to do so. He said, 'The voices, I'd had enough, the voices said, they pushed me, they were controlling my behaviour'. He reported the voices were very intense for the two weeks prior to the alleged offence … he reported he thought his father was controlling him, and the voices were saying, 'If you're gonna do it, do it properly…'
[12] Exhibit 1, report of Dr Fiona Best dated 26 October 2022 at p11.
36Dr Best also assessed you as meeting the criteria for a cannabis use disorder and stimulant use disorder. Dr Best refers to notes provided by Justice Health which record that you were using a point of methamphetamine every other day and 1 gram of cannabis daily prior to being remanded.[13]
[13] Exhibit 1, report of Dr Fiona Best dated 26 October 2022 at p9.
Matters in mitigation
37On your behalf, a number of matters were relied upon in mitigation of your sentence.
38First and foremost, you entered a guilty plea to the charges at an early opportunity. After initial investigations were undertaken to assess your fitness to enter a plea, you pleaded guilty to these charges at the second committal mention in the Magistrates' Court. In pleading guilty that early stage, the victim was not required to relive the ordeal by giving evidence in court. Through your plea, you acknowledge responsibility for your offending. There is utility in your guilty plea as it saved the court and the community the time and expense associated with a trial. That utility is enhanced in the present circumstances where delays in the criminal justice system remain significant in the wake of the pandemic. You are entitled to, and will receive, a significant reduction in your sentence in light of your early guilty plea.
39However, beyond the remorse indicated by your plea, you have not otherwise demonstrated insight into the impact of your offending or indicated any regret for your conduct. Whilst this does not detract from the sentencing benefit you are entitled to by virtue of your guilty plea, the absence of genuine regret is relevant to my assessment of your future prospects.
40Secondly, I accept you are otherwise a man with a limited criminal history, with only one previous conviction for driving while disqualified. The other priors, relating to damaging property and unlawful assault, are relevant given they occurred in the context of a disputes with your parents, but I note both were dealt with by way of a non-conviction undertaking on each occasion, neither of which was breached by you.
41Thirdly, and significantly, your mental health is relevant to the sentence to be imposed.
42An offender's impaired mental functioning can be relevant to sentencing in a number of ways:
(i)the condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing principle;
(ii)the condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served;
(iii)whether general deterrence should be moderated or eliminated as a sentencing consideration depends on the nature and severity of the symptoms exhibited by the offender and the effect of the condition on the mental capacity of the offender both at the time of the offending and at the date of sentence or both;
(iv)whether specific deterrence should be moderated or eliminated as a sentencing consideration otherwise depends upon the same conditions;
(v)the existence of the condition at the date of sentencing may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health; and
(vi)where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment.
43These considerations are referred to as the Verdins[14] principles. Verdins principles may operate so as to moderate the appropriate sentence to be imposed. For the first four limbs enunciated in Verdins to apply, there 'must be a connection between the impairment to mental functioning and the [offender's] moral culpability or the need for general and specific deterrence'.[15] If the mental impairment existed at the time of the offending, it must have some 'realistic connection' with the offending or have 'caused or contributed' to the offending.[16] It must be established that the mental impairment affected the offender's ability 'to appreciate the wrongfulness of the conduct'; or to make calm and rational choices or to think clearly at the time of the offence.
[14]R. v. Verdins (2009) 16 VR 269
[15]DPP v O'Neill [2015] VSCA 325 at [74].
[16] Ibid. at [74]
44In this case, your counsel argued that your moral culpability and the need for the sentence to operate as a deterrent was moderated on the basis that limbs 1 to 4 of the Verdins principles apply based on the expert opinion of Dr Best. The prosecution accepts that the principles in Verdins are enlivened to reduce your moral culpability and the need for the sentence to operate at a deterrent to others to some degree. However, the prosecution submissions highlighted the role your ongoing abuse of illicit substances also played in your offending and the corresponding need for the sentence to operate as a specific deterrent to you in that context.
45Dr Best, in her psychiatric report dated 26 October 2022, details the contribution made by your diagnosed schizophrenia to your offending behaviour on the night, stating:[17]
Mr Giovino has a diagnosis of schizophrenia, which is an accepted and enduring form of mental illness. The statement of Roland Venner dated 11/01/22 states that Mr Giovino was unwell in the weeks leading up to the alleged offending, and supporting documents from his area mental health service reference his psychotic symptoms being difficult to treat with longstanding chronic delusions and auditory hallucinations involving his parents. Mr Giovino reported that at the time of the alleged offence, he was hearing his father's voice and wanted it to stop. It his highly likely that at the time of the alleged offence, Mr Giovino's unstable mental health and psychosis impacted on his ability to think clearly and rationally and exercise good judgement.
[17] Exhibit 1 at p12 [4].
46In light of the findings of Dr Best, supported by the documentation provided by your treaters at the North West Mental Health service, together with the factual background and circumstances leading to your offending, I have come to the following conclusions.
47You have a long history of mental illness that has manifested in auditory hallucinations and persecutory beliefs focused on your parents, particularly your father. Your diagnosed schizophrenia is longstanding and which Dr Best concludes has been 'refractory to treatment'.[18] It is a persisting mental health condition that, in Dr Best's expert opinion, undermines your ability to think and act rationally and to exercise sound judgment. It is, however, clear from the medical records to which I have referred that with antipsychotic medication, your mental health stabilises.
[18] Exhibit 1 at p12 [5].
48However, as highlighted by the prosecution submissions, the instability of your mental health is complicated by your persistent abuse of illicit drugs, which act to exacerbate your mental health difficulties. The interrelationship between your mental health disorder and drug use disorder was considered by Dr Best in her supplementary report dated 20 December 2022. In that report, Dr Best states:[19]
“It is very difficult to stay [sic] which aspects of Mr Giovino's presentation are secondary only to schizophrenia and which are related only to illicit drug use. The comorbidity of schizophrenia and substance abuse is well known … there are a number of hypotheses to explain the increased incidence of ongoing substance abuse in schizophrenia, the most common being 'self-medication', usually to manage the negative symptoms of schizophrenia and/or cognitive deficits. Other hypotheses include substances being used to manage the side effects of antipsychotic medication…”
[19] Exhibit 2 – Report of Dr Fiona Best dated 20/12/2022, at page 6 [4]
49In the case of Arvanitidis,[20] the Court of Appeal said that the offender's foreknowledge that the potential for his drug use to cause him to experience paranoia, persecutory delusions and other forms of disorganised thought were sufficient to exclude the Verdins principles. However, other cases have adopted a more flexible approach.[21] For instance, in the case of Marks,[22] although the accused had been hospitalised for drug-induced psychosis in the past, the expert evidence was that he would not have known or anticipated the likely degree of the consequences of illicit drug use on the occasion of his offending.
[20]DPP v Arvanitidis [2008] VSCA 189.
[21]Alexander v The Queen [2021] VSCA 217, R v Martin [2007] VSCA 291.
[22]Marks v The Queen (Cth) [2019] VSCA 253.
50Here, although you had been hospitalised whilst exhibiting psychotic symptoms in the context of increased drug abuse in the past, there is little in your history to indicate you could have anticipated the likely degree of the consequences of your illicit drug use on this occasion. Although your prior history indicates you have engaged in property damage and two assaults in the past involving your father in 2014 and 2019, you have not acted with this degree of violence in the past. On other occasions you were hospitalised due to auditory hallucinations in 2016, 2018 and 2019, there is nothing in the medical notes to suggest that these admissions corresponded with violent behaviour. Moreover, yours is not strictly a case of drug-induced psychosis. Here, your underlying and longstanding mental health condition is exacerbated but not caused by drug abuse. As to your foreknowledge of the effect drug use would have on your psychotic illness, Dr Best is equivocal, stating[23]:
“I am not able to give a definite opinion as to whether Mr Giovino was aware at the time of the alleged offending that substance abuse would reactivate his psychosis. Mr Giovino has a long history of psychotic illness and a long history of substance abuse. The effect of substances on his psychotic illness is likely to have formed part of the psychoeducation program provided by his treating team, however, I note that Mr Giovino's mental illness was considered by the community mental health team to be difficult to treat, with longstanding and persistent chronic delusions and auditory hallucinations … the process of delivering psychoeducation has been hampered by chronic psychosis with entrenched paranoid delusions and auditory hallucinations that have been difficult to treat.”
[23]Exhibit 2, at pages 6 & 7 [5]]
51I am satisfied that the auditory hallucinations you experience as a hallmark of your long-standing schizophrenia contributed to your offending on the night. The evidence establishes that the offending occurred in the context of your deteriorating mental health. In that context, your moral culpability for your offending conduct is reduced given that your impaired mental health directly undermined your ability to think and act rationally and to exercise sound judgment at the time of your offending, particularly in the context of the persisting auditory hallucinations.
52I accept, however, that your increased consumption of illicit drugs, both amphetamines and cannabis at this time, also played a role in your offending by exacerbating your underlying chronic mental health condition. I have also had regard to Dr Best's conclusion that your psychotic symptoms have been difficult to treat, with multiple antipsychotic medications trialled in the past. In the circumstances, I consider the Verdins principles operate to moderate your sentence and reduce, but do not extinguish, your moral culpability for this offending and the need for the sentence to operate as a general deterrent.
53In light of your persisting drug use, there remains a need for the sentence I impose to deter you from violent offending into the future and to protect the community, particularly the physical safety of your parents and the victim specifically.
54Assessing your prospects of rehabilitation is not straightforward. As assessed by Dr Best, your psychotic symptoms are entrenched and have proven difficult to treat. Your long history of drug abuse is also problematic, and you have been historically resistant to drug treatment or counselling. You appear to have little insight into the correlation between your drug abuse and poor mental health.
55Against this, you have a limited prior criminal history despite living with schizophrenia for the past 11 years and notwithstanding multiple admissions for in-patient treatment during that period where you were experiencing auditory hallucinations and entrenched paranoid delusions. On a positive note, you have generally responded well to antipsychotic medication and continue to have the support of your mother, who, together with your aunt, was present at your plea hearing. Both your mother and aunt have provided references indicating their ongoing support for you, to which I have had regard.
56Notwithstanding these matters, at present I am unable to assess you have positive prospects of rehabilitation and remain guarded as to your future prospects although this assessment very much depends on your willingness to engage in intensive mental health and drug treatment into the future.
Other sentencing considerations
57The offence of aggravated burglary is a serious offence, reflected in the maximum penalty of 25 years' imprisonment prescribed by Parliament. In the case of Meyers[24], the Court of Appeal, in referring to its earlier decision in Hogarth, observed:
“…Hogarth established that current sentencing practices…for serious forms of aggravated burglary needed to change, as they did not reflect the objective seriousness of such offending. Aggravated burglaries which involve confrontation and violence, or threats of violence, should be viewed very seriously, whether the target of the attack is a former domestic partner or a person against whom some other grievance is held.”
[24]DPP v. Meyers (2014) 44 VR 486 at [6]
58The decision in Meyers identified a number of non-exhaustive factors a sentencing court should consider when assessing the objective gravity of the offence of aggravated burglary.[25] Turning to your case, you attended at the property armed with a steel baton, with the intent of assaulting your father. You used force to enter the home by smashing his glass door.
[25]Ibid. at [48]
59Your father was entitled to be safe in his home. By your conduct you breached the sanctity and safety of his home. He had done nothing to provoke this attack.
60I accept the incident was relatively short-lived and was neither sophisticated nor elaborately planned offending. Rather, in a psychotic state, you attended at the property armed with the baton, intending to assault your father.
61It is important to recognise that the offence of aggravated burglary is complete upon entry to the premises, and the sentence I impose on that charge does not involve punishment for what occurred following entry. However, your intent on entry is a significant feature going to the gravity of the offence and is informed by your actions once inside the house.
62Once inside, when confronted by your father, you immediately began to strike him to the head and arms with the baton, persisting despite him struggling and trying to escape from you by moving to the kitchen and yelling, 'What are you doing? I am your dad'. It is also concerning that you continued to strike, punch and kick him when he was on the ground and therefore unable to defend himself. You were reckless as to whether your conduct would cause him injury.
63Although no victim impact statement has been provided, this must have been a frightening and distressing experience for the victim, particularly as it was violence perpetrated against him by his son and in his home. The injury to his shoulder required surgery. Objectively, I do not accept the defence submission that this was offending at the lower end of the range of seriousness for the offence of recklessly causing injury when viewed objectively. Overall, I assess the objective gravity of your offending as falling within the mid-range for offending of this kind.
64In cases such as this, the sentencing principles of general deterrence, denunciation and just punishment will ordinarily be strong considerations. Here, however, for the reasons I have explained, these sentencing considerations are moderated by the fact your conduct was realistically connected with your impaired mental health at the time.
65There is still some need for the sentence to deter you specifically; in particular, to deter you from illicit drug use, knowing it exacerbates your underlying psychotic illness.
66Following your plea hearing, defence counsel provided a list of comparable cases for my consideration. I have had regard to these cases, but as always, every case must turn on its own facts, and other decisions are not determinative of the appropriate outcome in your case. However, in broad terms, the cases do highlight that combination sentences of imprisonment followed by community correction orders have been imposed for offences of aggravated burglary and causing injury recklessly or intentionally, even after the Court of Appeal decisions in Meyers and Hogarth.
67On your behalf, it was submitted that a sentence involving a combination of imprisonment and a community correction order could meet all relevant sentencing considerations whilst promoting your future rehabilitation. The prosecution submitted that such a sentence was within range although an immediate custodial term with a non-parole period was also said to be within range for this offending.
68I accept that your time in custody on remand has been difficult for a number of reasons. This was your first experience of custody. Your impaired mental health will have made this first experience of custody more difficult than that experienced by others without your longstanding condition. Dr Best expressed the opinion that incarceration would weigh more heavily upon you. Although Dr Best stated this was being brought about by the fact you were 'deprived community-based treatment and continuity of care', I reach my conclusion also having regard to Dr Best's expert assessment that your entrenched delusions and auditory hallucinations have been difficult to treat even in the community. Your mother says you have found custody a frightening experience, and this is confirmed in the Corrections assessment. I find limb 5 of Verdins is enlivened and have taken this into account in moderation of your sentence.
69You were assessed by Community Corrections as to your suitability for a community correction order and were found suitable although not without reservations being expressed by Corrections. You have consented to such an order being made. On a positive note, you told Corrections you intend to continue accessing mental health treatment in the community and expressed a willingness to engage in drug treatment and rehabilitation. Your mother has stated she is able to support you initially with housing, and also financially, in order to assist you.
70Since the assessment, I have also had regard to the additional supports I am advised are now available to you. The organisation that coordinates your NDIS assistance, 'Breakthru', has confirmed that it is able to refer you for speech and occupational therapy, psychological assistance and engagement with a specialised behavioural support practitioner to assist in regulating your behaviour and emotions and in daily living skills. Additionally, the Bridge program is available to you for the next three months to provide intensive case management, including outreach assistance and assistance with housing.
Sentence
71Balancing the various matters to which I have referred, whilst having regard to the maximum penalty for each offence, I now sentence you as follows:
72On Charge 1 – aggravated burglary – you are convicted and sentenced to eight months' imprisonment. This is the base sentence.
73On Charge 2 – intentionally damaging property – you are convicted and sentenced to four months' imprisonment.
74On Charge 3 – recklessly causing injury – you are convicted and sentenced to 12 months' imprisonment.
75Although the offences arise from the one incident, it is appropriate that the separate criminality of the offending against your father after you broke into the house be reflected by ordering that five months of the sentence imposed on Charge 3 be served cumulatively upon the sentence imposed on Charge 1.
I make no order for cumulation in respect of Charge 2.76This gives a total effective sentence of 13 months' imprisonment. Pursuant to s18 of the Sentencing Act 1991, I reckon 436 days as the period already served under this sentence and direct that this be entered into the record of the court.
77Following the imprisonment component of your sentence, upon release, on all three charges you are placed on a community correction order for a period of 18 months. The focus of this order is to enhance and promote your prospects of rehabilitation. In addition to the standard conditions that apply to all community correction orders, you will be subject to treatment and rehabilitation conditions in relation to drug use and mental health.
78In imposing these conditions, I note that Dr Best considers you would benefit from admission to a Secure Extended Care Unit. I consider that such an option should be explored with your mental health treatment team in consultation with Community Corrections.
79I further direct that you engage in offence specific programs as directed. In this regard, I note the recommendation of Dr Best that you be referred to the Forensicare Serious Offender Consultation Service, which she states provides support to individuals living with serious mental illness and who are at risk of offending.
80You will also be subject to supervision. I also intend, at least initially, to judicially monitor your compliance with the community correction order and direct that you appear before me on 25 May 2023 at 9.45 am for this to occur.
81I have imposed a community correction order of this duration so that, whilst supervised in the community, you are subject to mandated treatment for your longstanding mental health and drug abuse issues to best promote your prospects of rehabilitation and the community protection that will follow. Much will depend upon your willingness to take up the opportunity being afforded to you and the supports that will be made available.
82You should be aware that the order can be breached if you do not comply with the conditions of the order or if you commit any offence punishable by imprisonment while it is in place. If you do, you can be charged with breaching the order. You would then return before me, and I may have to resentence you on the charges that are now before me in addition to sentencing you for breaching the community correction order.
83Pursuant to s6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty, the sentence I would otherwise have imposed would have been a sentence of three years, six months' imprisonment with a non-parole period of two years, three months.
84Finally, I make the forfeiture and disposal orders sought by the prosecution, noting that they are not opposed.
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