Director of Public Prosecutions v Grech
[2015] VCC 1490
•20 October 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR 14-01020
Indictment No. D13869268.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEVEN KEVIN GRECH |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 and 18 August 2015 | |
DATE OF SENTENCE: | 20 October 2015 | |
CASE MAY BE CITED AS: | DPP v Grech | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1490 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentencing – Intentionally causing serious injury – Paranoid schizophrenia – Vulnerable victim - Verdins principles
Legislation Cited:
Cases Cited: R v Verdins (2007) 16 VR 269
Sentence: 12 months imprisonment followed by a 4 year Community Correction Order with condition.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J Harris | Solicitor for Office Public Prosecutions |
| For the Offender | Mr M Kozlowski | Revill & Papa Lawyers |
HIS HONOUR:
1Steven Kevin Grech, you have pleaded guilty to one count of causing serious injury intentionally contrary to s.16 of the Crimes Act 1958.
2The circumstances of the offence are that in the early hours of the morning of 22 December 2013, you had been refused entry to a hotel in Ballarat Road, Footscray. You were not happy with the security guard who denied you entrance. You found a wooden stake which you intended to use against that security guard when the hotel closed and he left that premises. You hid the stake in a garden bed nearby.
3In the meantime, a taxi arrived at nearby premises. The complainant in this matter, a gentleman by the name of Feyisa Hika, attempted to assume a position in the taxi in front of the persons who had ordered it. Some argument occurred and after some time Mr Hika was evicted from the taxi.
4He was a twenty-five year old who, at the time, had a broken leg and was using a crutch to walk. He was intoxicated. He was angry that he had been evicted from the taxi. He walked some distance and came close to where you were standing. You and he then had a verbal exchange of some sort; you took offence; you obtained the stake from where you had earlier placed it in the garden bed and proceeded to strike Mr Hika with the stake on a number of occasions until he fell to the ground. You continued to use the stake to strike him after he was on the ground.
5As a result of the assault by you, Mr Hika was rendered unconscious.
6You then threw the stake away and left the scene. Police and ambulance were called. Soon afterwards, police viewed CCTV of the scene, from which you were identified. The film did not actually capture the assault itself.
7You were later arrested and taken to the Footscray Police Station where you took part in a record of interview with police. In that interview, you stated that you had seen Hika try to get into the taxi before he walked in your direction. You admitted to taking hold of the nearby stake, striking Hika in the stomach and head. You told police that the victim had said, “Enough” and that you hit him a further three times to the head. You said that he was unconscious after the second of those hits.
8Hika was conveyed to the Royal Melbourne Hospital. As a result of the assault he sustained a number of injuries - loss of consciousness, a complicated fracture of the bone that forms the prominence of the left cheek (the zygoma) in several places including the zygomatic arch, and the wing-like bone plates in the inner skull bone that combine the eye sockets with the base of the skull. There was a complex fracture to the bony cavity of the left upper jaw bone. There was a fracture of the bony prominence behind the left ear. There were facial lacerations. He had bleeding in the white of his eye, multiple abrasions and grazes on both arms, multiple haematomas and bruising to the soft tissue around the left eye, cheek, eyebrow, head and right temporal area.
9The treatment provided to Mr Hika at the hospital was described as “lifesaving”. A Forensic Medical Officer, Dr Schriever, described Mr Hika’s injury as “severe, substantially life-threatening, potentially fatal injuries to multiple sites of the head and face”. He considered that the risk of further and long term complications such as seizures or mental and cognitive impairment was high.
10I can only add there that Mr Hika survived, but you will appreciate, I am sure, from what I have just read of the doctor's opinion that it might easily have gone the other way, in which case you would not be here on charges of intentionally causing serious injury, it might have been something far, far more serious.
11By way of your background; you were born in Melbourne in 1970. At the time of your offending you were aged 43 and you are currently aged 45. Your parents separated when you were young.
12You were educated up to Year 10 and after ceasing school you received unemployment benefits for about six years before obtaining employment at a car manufacturing plant where you remained for the next ten years. You were then apparently not employed for the next fourteen years, up until the time of your offending.
13You have a longstanding history of mental health issues, commencing when you were about thirteen. You initially experienced symptoms of paranoia and auditory hallucinations. You have reportedly struggled with psychotic symptoms since that time. You were apparently diagnosed with schizophrenia, depression and anxiety in about 2009 by a Dr Silberman, your general practitioner at that time, who is now deceased.
14You smoked cannabis from an early age on a daily basis. When you were approximately twenty-five, you commenced periodic use of heroin.
15You had been in a two-year relationship up until the time of your arrest, although you were living separately from your partner.
16You have a number of prior convictions relating to offences committed between 1987 and up until 2013. Many of those offences involved the use of drugs and in particular cannabis and heroin. In December 1998, August 1999 and again in February 2000, you were convicted of trafficking heroin. You have a number of convictions relating to possession and use of heroin, the most recent of which appears to have been in early 2000. You have convictions in relation to the possession of cannabis as recently as 2011 and again in 2012.
17The vast majority of your prior convictions relate to matters of dishonesty – various thefts and burglaries. As such, I consider that they have no real relevance to your current offence and I do not take these into account when sentencing you.
18You do, however, have prior convictions relating to aggressive and violent behaviour. In 1994 you were convicted of assaulting police; in 1999 and 2005 you were convicted of possession of a dangerous article; in 2005 you were convicted of making a threat to kill, unlawful assault, and assault with a weapon; in 2010 you were convicted of contravention of a family violence intervention order; and in 2011 you were convicted for intentionally damaging property.
19Your prior convictions do not appear as serious as the matter for which you are presently before the court.
20I note that you have been on remand since your arrest on the date of your offending.
21Section 5 of the Sentencing Act 1991 provides the purposes for which sentences may be imposed by a court. Briefly, these include the need to punish you for your offences in a manner which is just in all of the circumstances; to deter you and others from committing similar offences in the future; to manifest the Court’s denunciation of your offending and to protect the community from you.
22Those purposes also include the establishment of conditions within which it is considered that your rehabilitation may be facilitated, and I consider that is an important consideration in your case.
23Further, I note s.5(4) of the Act provides that I should not impose a sentence on you involving your confinement in a prison unless I consider that the purposes for which you are to be sentenced cannot be achieved by a sentence that does not involve such confinement.
24Further, I have taken into account each of the matters set out in s.5(2) of the Act, these being matters which I am directed to have regard to in sentencing you. These include, and I will go through some if not all of them.
25The maximum penalty imposed by Parliament for this offence of intentionally causing serious injury is 20 years' imprisonment. That term reflects the seriousness which Parliament views the offence.
26Secondly, I take into account the nature and gravity of the offence. On any view, the offence here was a serious one. Your victim was vulnerable; he had a broken leg; he was on crutches; his ability to defend himself was minimal. He was properly described by the prosecutor as being a “soft target” for you. The assault of him was nothing that you would be proud of.
27Thirdly, I am directed to take into account your culpability and responsibility for the offence. Here, nobody else could be held responsible for your offending, you acted alone. I note that initially you had intended to plead not guilty to charges relating to your offending on the basis that you were acting in self-defence. That defence was abandoned by you on the first day of your scheduled trial and you then pleaded guilty to this offence.
28Fourthly, I am directed to take into account the impact of the offence on the victim, Mr Hika. He has provided a Victim Impact Statement. In it he states that he has been left with a scar behind his ear, he has difficulty sleeping most nights, especially when pressure is applied to the side of his ear. He experiences much pain which generally wakes him. He requires medication for his pain. He suffers pain each day but he says that he is now managing it better. His pain is worst on cold days. The area around his eye is very painful. He states that he has nightmares about being attacked and he has been nervous. On any view, the injuries suffered by Mr Hika were serious in the sense that that term is defined in the Crimes Act as being life-threatening. It is now some two years since the incident and Mr Hika still complains of significant physical symptoms of pain. I accept that they can, at the very least, be described as long-term symptoms.
29Fifthly, I am directed to take into account your personal circumstances and in particular your mental health problems, which I will refer to later in these remarks.
30Sixthly, I am directed to take into account the fact that you pleaded guilty to the offence. You did so on the first day of your scheduled trial so it could hardly be described as an early plea. Nevertheless, you did so before any witnesses had been required to give evidence, and whilst your plea was obviously late, it still, in my opinion, has some utilitarian benefit. Witnesses were not required to go through the distressing experience of giving evidence and the court's resources were largely spared. For that you are entitled to a discount but I do not consider that it should be a particularly large discount in all of the circumstances.
31A report from Mr Mathew Staios, consultant psychologist, dated 23 July 2015 was tendered on your behalf. In addition, Mr Staios gave oral evidence and was cross-examined by the prosecutor. Relevantly, he had examined you and obtained a history from you, which can be summarised as follows:
(a)You had had mental health issues commencing at the age of thirteen.
(b)You experienced symptoms of paranoia and auditory hallucinations which you had attributed to the smoking of cannabis.
(c)You had had psychotic symptoms since your early teens which were exacerbated when you used illicit substances including cannabis.
(d)You had been diagnosed with schizophrenia, depression and anxiety in about 2009. DrSilberman had prescribed you anti-psychotic medication which you would often forget to take. You reportedly ceased taking that medication completely about three years prior to the assault relevant to this court proceeding.
(e)You frequently experienced paranoia, auditory hallucination, difficulty concentrating, and had poor memory.
(f)You have never been hospitalised as a result of your mental health issues.
(g)Since the age of twelve, you had reportedly used about 3 grams of cannabis daily, together with periodic heroin use from the age of about 25. Since your incarceration in 2013, you reported to have used heroin on one occasion in June 2015.
(h)You told Mr Staios that on the night in question - that is, the night of the assault, you had consumed cannabis and heroin as a form of self-medication to assist with reducing your psychotic symptoms, in particular auditory hallucinations, that is, the hearing of voices.
32Mr Staios conducted a number of tests. He estimated that your pre-morbid level of intellectual functioning fell within the low-average range. Your performances ranged from low-average to extremely low. Testing indicated that you were currently experiencing extremely severe levels of depression and anxiety. Your stress levels were in the moderate range.
33Mr Staios assessed you as being at moderate risk of recidivism, that is, re-offending in the future in a similar manner. He based this comment upon your history of poor psychological health, active symptoms of psychosis, lack of social supports and reduced cognitive functioning.
34He diagnosed you as meeting the criteria for Cannabis Use Disorder, Schizophrenia and Major Depressive Disorder.
35He thought it was difficult to ascertain whether your reduced cognitive function was attributable to active psychotic symptoms or relatively stable reductions in cognitive functioning as a result of underlying brain damage. However, given your history of substance abuse, it was his opinion that your cognitive profile was consistent with the presence of a substance-related cognitive impairment, against a background of schizophrenia.
36You told Mr Staios that you were presently not taking any medication to manage your psychotic or depressive symptoms and had not done so for some considerable time.
37Mr Staios considered that your lack of adherence to anti-psychotic medication and your lack of appropriate supports in the community to manage your symptoms were further contributing factors to your behaviour. He thought that if you were to abstain from substance abuse and manage your psychotic symptoms, marginal improvements in cognitive functioning and overall functional ability were likely, particularly if you complied with treatment regimes.
38He considered that although your level of insight into your current cognitive limitations, management of mental health and offending is somewhat lacking, it was his opinion that you had a good capacity to change despite your past challenges, particularly if you were, when released, provided with high levels of support initially. If an appropriate treatment plan was implemented promptly, Mr Staios considered that your level of risk of further offending could be reduced further.
39By way of a treatment plan, he advised that there should be referral to a psychiatrist for ongoing treatment of psychotic symptomatology and medication review; referral to a drug and alcohol counselling service; and given your reduced cognitive functioning, psychiatrists working with you were advised to use simple and concise language when communicating with you and to use behavioural support strategies in the light of your reduced cognitive functioning. He considered that an injectable long-lasting anti-psychotic medication, administered by a mental health nurse who checked in with you on a regular basis, was recommended.
40He considered you should be referred to a drug and alcohol service for psycho-education in the area of harm minimisation and drug relapse strategies relating to your issues with substance abuse. He considered that you should be referred to a case management service for support in the community.
41Mr Staios considered that your ability to reason and your problem solving skills had been reduced. You told him that you were still hearing voices, some of which were telling you not to trust Mr Staios himself.
42Mr Staios had viewed the audio-visual recording of your police interview and concluded that there were signs in it that you were suffering from forms of paranoia.
43Your counsel has submitted that there were a number of principles which have been referred to in a Court of Appeal matter of Verdins[1] that I should take into account. These were:
(i)That your moral culpability should be viewed as reduced because of your mental health issues at the time of your offending;
(ii)That you were not a suitable vehicle for principles of general deterrence, that is, deterring others in the community from acting as you had;
(iii)In prison, it was likely that you would be subject to more significant hardship than was usual for prisoners;
(iv)There was a serious risk that an extended period in prison would have a significant deleterious effect on your mental health condition.
[1](2007) 16 VR 269
44In short, your counsel submitted that, on the evidence before me, primarily what you require is appropriate mental health treatment, and I agree with that submission.
45The circumstances of your offending were somewhat unusual. You had, as a result of the previous verbal altercation with the security guard at the hotel, obtained the relevant weapon, hidden it and were patiently waiting for the security guard at the hotel to leave before confronting him. That conduct showed both some planning and some patience on your part. It was whilst you were waiting for the security guard that Mr Hika unfortunately passed close by and engaged in a further verbal altercation with you, which led to the offending conduct.
46Whilst I am inclined to the view that a significant cause of your offending behaviour was that you were intoxicated and probably under the influence of drugs, I accept Mr Staios’s view that you were likely to be suffering from the continued effects of chronic paranoid schizophrenia, Cannabis Use Disorder and a major depressive disorder, which is likely to have contributed to an extent to your offending behaviour. For that reason, I do consider that I should view your moral culpability for the offending behaviour as being somewhat reduced.
47I do not consider that you were, at that time, unable to plan your actions or unable to foresee the consequences of your actions.
48I consider that most of your prior convictions relating to offences of dishonesty were probably connected with your use of drugs. Insofar as there were convictions relating to violence, they appear likely to have been of a quite different nature to your offending behaviour on the night in question.
49I have concluded that specific deterrence is an important sentencing consideration in your case. The sentence that I give should constitute a clear message to you that your behaviour on this occasion was appalling and will not be tolerated. Similarly, I see no reason to moderate or eliminate general deterrence as an appropriate sentencing consideration here. That is, a sentence that will hopefully deter others in the community from behaving in the same manner as you did.
50I accept that the existence of your mental health condition at the current time may mean that a given sentence will weigh more heavily on you than it would on a person of normal health and fortitude.
51Although I accept that imprisonment is unlikely to assist in your rehabilitation, I am not convinced that your incarceration to date, or for some limited future period, is likely to have any significant adverse effect on your mental health.
52Counsel provided me with a number of other cases involving Judicial sentencing remarks relating to persons convicted of similar offences. Each case of course turns on its own facts to a large degree.
Sentence
53In all the circumstances, I have come to the conclusion that the purposes for which you are to be sentenced would not be satisfied by a wholly non-custodial sentence. I consider this was a serious assault on a previously injured and vulnerable victim who had little ability to defend himself.
54Taking all of the circumstances into account, it is my intention to sentence you to a term of imprisonment of 12 months, together with a three-year Community Correction Order with a number of conditions to it. The prosecutor has advised me that you have already served a period in prison of longer than 12 months. It follows that you would not be required to serve any further time in prison save for your return to gaol today for administrative purposes.
55I am in possession of a report from Corrections Victoria dated 18 August 2015 in which the author indicates that you have been assessed to be suitable for such a Community Correction Order. However, I would only impose such a sentence if you consented to the Community Correction Order and to the conditions attached to it.
56Before I ask you whether you consent to the order and its conditions, I need to tell you what the conditions will be.
57Firstly, there are a number of mandatory or compulsory conditions set out in s.45 of the Sentencing Act. They are:
(a)That you must not commit during the course of the Community Correction Order, any offence in Victoria punishable by imprisonment;
(b)That you must comply with any obligations or requirements provided by the regulations;
(c)That you must report to and receive visits from the Secretary (that is, the Secretary to the Department of Justice or his or her nominee) as directed during the period of the order.
(d)That you must report to the Community Correctional Services at 10 Foundry Road, Sunshine within two clear working days of your release from prison. That is, by 4 pm on Thursday of this week.
(e)That you must notify the Secretary or his nominee of any change of address or employment within two clear working days after such change. If you move home you must notify the Secretary, or the officials at Community Corrections. You must notify them of that change of address;
(f)That you must not leave Victoria except with the express permission of the Secretary to the Department of Justice. You must not leave Victoria. If you go to Albury you have left Victoria; and
(g)That you must comply with any direction given by the Secretary that is necessary in order to ensure that you comply with this Community Correction Order.
58In addition to those mandatory conditions, I intend to propose additional conditions upon you. They are as follows:
(a)That you undergo treatment and rehabilitation being:
(i)Assessment and treatment (including testing) for drug abuse or dependency;
(ii)Assessment and treatment (including testing) for alcohol abuse or dependency;
(iii)Assessment and treatment (including testing) at a residential facility if necessary for withdrawal from and rehabilitation for alcohol abuse or dependency or drug abuse or dependency;
(iv)Any medical assessment or treatment that may include general or specialist medical treatment or treatment in a hospital or residential facility.
(v)Any mental health assessment and treatment that may include psychological, neuro-psychological, psychiatric or treatment in a hospital or residential facility. Basically what that means, Mr Grech, is that you must accept and attend and partake in treatment and assessments of you for any of those purposes as recommended by the Secretary to the Department. He or she will base that advice on medical information provided;
(b)You shall be supervised, monitored and managed as directed by the Secretary pursuant to s.48E of the Sentencing Act, in particular to ensure that you comply with all medical advice concerning prescribed medication relating to your mental health condition.
59In concluding that those orders are appropriate in your case, that those conditions are appropriate for you, I have had regard to the information, matters and recommendations made in the Corrections Victoria report, and to the report of Mr Staios previously referred to.
60
I intend to ask you whether you consent to a Community Correction Order with those conditions attached to it. You may wish to discuss those matters briefly with your counsel before indicating your consent or otherwise.
Mr Kozlowski - - -
61MR KOZLOWSKI: May I just approach him, Your Honour?
62HIS HONOUR: Yes. Would you prefer me to leave the Bench just for a moment?
63MR KOZLOWSKI: I don't think at this point it will be necessary. I'll see how I go.
64HIS HONOUR: All right, I'll stay here. Take all the time you want.
65MR KOZLOWSKI: Thank you for that opportunity, Your Honour. He understands and he consents.
66HIS HONOUR: Yes. Mr Grech, you have a document to sign here which my associate will give to you which sets out those conditions.
67OFFENDER: Yep, thanks, Your Honour.
68HIS HONOUR: And I require your signature to indicate that you agree to them. You having done so, I indicate I will make those orders as previously described.
69I will also indicate pursuant to s.6AAA of the Sentencing Act that had you not pleaded guilty to the offence and you had been found guilty by a jury, I would have sentenced you to a term of imprisonment of 2 years with a non-parole period of 12 months.
70In terms of time spent in pre-sentence detention, I have calculated 667 days. Is that your total?
71MS HARRIS: Yes, that's the same as I have, Your Honour.
72HIS HONOUR: Thank you. I declare that 667 days of pre-sentence detention, not including today, be reckoned as being served under the sentence and I direct that a declaration to that effect be recorded in the records of this Court.
73Other ancillary orders sought?
74MS HARRIS: Your Honour, I seek a disposal order.
75HIS HONOUR: What does that relate to?
76MS HARRIS: This is for the stake, the wooden stake, and some clothing that was seized from the prisoner.
77HIS HONOUR: Well, why would you want to dispose of his clothing? You'd just give those back to him, wouldn't you?
78MS HARRIS: We could.
79HIS HONOUR: I mean is there some reason why they shouldn't be handed back to him?
80MS HARRIS: No.
81HIS HONOUR: I take it they were clothing seized for identification purposes in the context of the CCTV and the like.
82MS HARRIS: Yes, Your Honour.
83HIS HONOUR: Yes. I won't make that order, but I will make the order for disposal of the stake. Have you previously handed that draft order up to the court?
84MS HARRIS: Yes, Your Honour. Your Honour wanted the date changed - - -
85HIS HONOUR: I think I've got it here.
86MS HARRIS: - - - and the attendances changed.
87HIS HONOUR: Wanted what changed?
88MS HARRIS: The date on the order and the attendances.
89HIS HONOUR: I'm not quite sure what attendances you're referring to.
90MS HARRIS: Rather than having Jane Warren on it, having my name on it because I am here today, I believe.
91
HIS HONOUR: Yes, I see. Yes, if you could hand those up, thank you.
Mr Kozlowski, have you seen those disposal orders?
92MR KOZLOWSKI: I haven't seen them as such, but I know what they relate to and I've got nothing to say about them.
93HIS HONOUR: They relate solely to the 1.8 metre wooden stake.
94MR KOZLOWSKI: That's right. There's certainly no opposition to that, Your Honour.
95HIS HONOUR: All right, I'll make the orders as sought by the prosecution.
96Section 464ZF?
97MS HARRIS: No, Your Honour, he's already on the system.
98HIS HONOUR: Yes. I just wanted to make one further comment to you. Just stand up for a moment, if you would.
99I hope it is clear to you Mr Grech that you do suffer from some mental health problems.
100OFFENDER: Yes, Your Honour.
101HIS HONOUR: And those problems have likely to have played a part in your offending on this occasion. If it was not clear to you before, I hope it is clear to you now that your use of cannabis and your lack of adherence to, or your failure to follow medication advice from doctors has been likely to have contributed to your offences.
102You are, as I understand it, 45 years old. You are not a youthful man anymore, but by the same token you have many years of life ahead of you, and if you are to avoid regular visits to prison, it seems to me that you must acknowledge that you do have a mental health problem, and hopefully you are able to appreciate that you require treatment, and finally, that your condition is made worse - exacerbated by use of cannabis. You would be well advised to cease using that substance.
103Thank you. Although normally I would say you are free to go, as I understand it you are required to remain in custody for administration purposes and return to prison, and you would be released from there at the earliest opportunity; is that correct?
104MS HARRIS: I believe that is correct, Your Honour.
105HIS HONOUR: Yes, good. You can go downstairs, and I wish you every success for the rest of your life.
106OFFENDER: Thank you very much, Your Honour. Have a good day.
107HIS HONOUR: Anything else that counsel want me to consider?
108COUNSEL: No, Your Honour.
109HIS HONOUR: Thank you, we will just adjourn temporarily.
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