Director of Public Prosecutions v Grey

[2022] VCC 871

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-02341

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAKE GREY

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JUDGE:

HER HONOUR JUDGE HAWKINS

WHERE HELD:

Melbourne

DATE OF HEARING:

10 March 2022

3 May 2022

DATE OF SENTENCE:

14 June 2022

CASE MAY BE CITED AS:

DPP v Grey

MEDIUM NEUTRAL CITATION:

[2022] VCC 871

REASONS FOR SENTENCE

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Subject:CRIMINAL LAW – Sentencing

Catchwords:              Pleas of guilty – criminal damage – cause injury intentionally – punched on-duty emergency worker – mandatory sentencing regime – special reasons established – schizophrenia – mild intellectual disability – early plea – COVID 19 considerations – Worboyes’ case – Verdins’

Legislation Cited: Sentencing Act 1991 (Vic), s10AA(4), s10A, s10A(2)(c)(i), s18, s6AAA

Cases Cited:Worboyes v R [2021] VSCA 169; R v Verdins [2007] VSCA 102

Sentence:                  Convicted and sentenced to a concurrent total effective sentence of four

months' imprisonment

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Roper	Office of Public Prosecutions
For the Accused	Ms M. Sargent	Bowler & Co

HER HONOUR:

1Jake Grey, you have pleaded guilty to:

·one charge of criminal damage, which carries a maximum penalty of 10 years' imprisonment;

·one charge of cause injury intentionally, which carries a maximum penalty of 10 years' imprisonment;

·one charge of without authority or excuse, enter a private place, which carries a maximum penalty of 6 months' imprisonment; and

·one charge of commit an indictable offence whilst on bail, which carries a maximum penalty of 3 months' imprisonment.

2You have also admitted your prior criminal history.0F[1]

[1]Exhibit P1

Circumstances of Offending

3The full circumstances of your offending are set out in the Summary of Prosecution Opening for Plea dated 14 February 2022,1F[2] the accuracy of which you accepted through your counsel.

[2]Exhibit P2

4I will now turn to address in brief, the offences to which you have pleaded guilty.

Summary Charge 4 – Without authority or excuse, enter a private place

5Firstly, at approximately 12.15 pm on 9 August 2021, you entered the car park of the Victoria Police complex located at 311 Spencer Street Docklands carrying a green 5 litre diesel oil container.  At the entrance of the complex, there are heavy security bollards with signposts marked 'No Pedestrian Access' and 'Police Vehicles Only'.

6Your entering these premises amounts to the Summary Charge 4, without authority or excuse, enter a private place.

Charge 1 – Criminal damage

7Whilst you were in the police complex, Acting Inspector Craig Shepherd observed you pouring the contents of the green oil container on the concrete floor.  Your actions caused damage to the floor and a stain approximately 20 metres long.

8The estimated cost to fix this damage caused by the oil spill was $454.

9These actions amount to Charge 1, criminal damage.

Charge 2 – Cause injury intentionally

10Acting Inspector Shepherd then followed you out of the complex and across the road to 250-260 Spencer Street, Docklands.  Here, he informed two on-duty police officers of what happened.

11You were subsequently arrested, handcuffed and searched by Senior Constable Jarryd Duffy.  When asked by the senior constable of your name and address, you refused to answer and were identified through facial recognition software.

12At Melbourne West police station, four officers, including Constable Adam Thomas, attended to move you between cells due to plumbing problems.  You refused to cooperate, and the officers began to physically remove you from the cell.

13While you were being moved, you wrapped your right arm around the doorway, which prevented the door from being closed.  Constable Thomas moved inside the cell to remove your arm from the door.  When he did this, you removed your arm and punched Constable Thomas once to the nose with a closed left fist.  This caused him to stumble backwards, feel pain in his nose and for his nose to bleed.

14This conduct amounts to Charge 2, cause injury intentionally.

Summary Charge 7 – Commit an indictable offence on bail

15You committed your offending whilst on bail for a matter to be heard at the Bendigo Magistrates' Court on 15 November 2021 for other offences.

16The commission of criminal damage and cause injury intentionally whilst on bail amounts to Summary Charge 7, commit indictable offence whilst on bail.

Interview and further investigation

17You were not interviewed about these offences because at the time, your behaviour was erratic, and you had a tendency to be violent.

18On 10 August 2021, Constable Thomas was assessed by a doctor, and an
X-ray established that he had received a fracture of the nasal bone.

Nature and Gravity of Offending

19Constable Thomas was an emergency worker. Intentionally cause injury is a category 1 offence. In these circumstances, you are liable to a mandatory custodial sentence of six months under s10AA(4) of the Sentencing Act 1991. There is an exemption if the court finds that a 'special reason' exists in accordance with s10A of the Sentencing Act.

20I note that a victim impact statement was not provided.

21You punched Constable Thomas whilst he was attempting to move you from one cell to another.  It was entirely unprovoked.  It caused him pain and a fracture to his nose.  Any assault on an on-duty emergency worker is serious.  This is reflected by the mandatory sentencing regime imposed by Parliament for this type of offence.  You were in custody and likely suffering from the effects of schizophrenia at the time of your offending, which significantly reduces your moral culpability in respect of this offending.

22The charge of criminal damage, I conclude, is a lower range example of such offending.

Personal Circumstances

23I turn to consider your personal circumstances.  At the time of your offending, you were 26 years of age and did not have a fixed home address.  You are now 27.  While technically not a young offender, you are still a young man with your life in front of you.

24Various psychological and psychiatric reports, to which I will refer shortly, describe you as an 'unreliable historian'.

25It appears you had a difficult childhood, moving between your parents' homes.  You report that you were diagnosed with attention deficit hyperactivity disorder and that you exhibited a number of problematic behaviours including a tendency towards violent outbursts and limited capacity to regulate your emotions.  You further report that you would often attempt to injure yourself and others.  You moved around for much of your childhood and have lived independently from age 18.  Your accommodation has been unstable since then but generally based in the Greater Bendigo area.

26You achieved a Year 11 level of education but have not held any formal employment.  Your main source of income has been from unemployment benefits.

27You suffer from schizophrenia and have a history of psychiatric admissions.

28You report that you are a regular cannabis user and have previously used methamphetamine but wish to abstain upon your release from custody.  Since your arrest, you instruct that you have not used illicit substances and have been receiving medication to treat your schizophrenia.

29At the time of your offending, you were living with your mother and stepfather but had travelled to Melbourne to give them some time alone in the house.  You instruct that you had no money and no accommodation.  You had been in the city for less than a week and had appeared in the Bail and Remand Court for charges arising from the theft of a drink.  Upon your release from custody the day prior to this offending, you acquired a can of oil and were intending to return to Bendigo.  You reported to Dr Clarkson, psychiatrist at Forensicare, that you heard a voice telling you to pour oil on the floor.  You instruct that you were unaware that the property where you deposited the oil belonged to Victoria Police.  There is no evidence to suggest that you intended to do anything other than pour oil on the concrete driveway.

Sentencing Considerations

Plea of guilty

30Relevant sentencing considerations include your plea of guilty.  You have demonstrated remorse by pleading guilty at the earliest possible opportunity at the committal mention of this matter on 1 November 2021.  In doing so, you avoided the need for a trial, saved witnesses the stress of giving evidence in court and avoided the use of public resources that would have otherwise been spent in conducting a trial.  I take the utilitarian value of your plea of guilty into account.  You have also been subject to more onerous conditions in custody due to the COVID-19 pandemic.  And accordingly, in line with the principles outlined in Worboyes' case, you are entitled to an 'actual and palpable amelioration' of your sentence.2F[3]

Rehabilitation and Verdins principles

[3]Worboyes v The Queen [2021] VSCA 169 at paragraph [35]

31Dr Rose Clarkson of Forensicare provided a psychiatric report to the court dated 10 March 2022.  This supplements the psychological report of Gina Cidoni dated 21 November 2019, the neuropsychological assessment report of Matthew Staios dated 10 March 2022, the psychiatric encounter notes from Justice Health produced under letter dated 4 March 2022, and a report from Bendigo Health Psychiatric Services dated 31 May 2021.

32The Clarkson report states that you were:

'more likely than not to have been experiencing psychosis at the time of the offending, as…[you were] assessed as being mentally unwell on…[your] reception to MAP four days later [after the offending], later diagnosed as a relapse of schizophrenia’.3F[4]

[4]Exhibit D2 at paragraph [51]

33According to Dr Clarkson:

'this was highly likely to have had an impact on…[your] ability to exercise appropriate judgment and make calm and rational choices or think clearly’.4F[5]

[5]Ibid

34The Staios report details that you ‘very likely meets criteria for a mild intellectual developmental disorder’5F[6] and you are reported to be 'very slow to process information, [and]… likely to display difficulty weighing up and considering the consequences of …[your] actions'.6F[7]

[6]Exhibit D1 at paragraph [7.1]

[7]          Exhibit D2 at paragraph [7.2]

35You continued to experience ongoing mental health concerns after being remanded on 9 August 2021 - including psychotic relapse, auditory hallucinations and a relapse of schizophrenia - which was most recently reported on 9 February 2022.7F[8]

[8]As detailed in the subpoenaed Justice Health records (and summarised at paragraphs [28]-[31] and [50] of Exhibit D2)

36Dr Clarkson reports that you may be at some risk of increased burden of imprisonment due to your mental health conditions, specifically your ‘schizophrenia and intellectual disability'8F[9] because 'if …[your] mental state deteriorates, this may require…[you] to spend some of …[your] sentence in a seclusion cell or in a specialised unit such as …[you are] currently located. Although …[you] can ultimately be transferred to Thomas Embling Hospital…'.9F[10]

[9]Exhibit D2 at paragraph [52]

[10]Ibid

37Dr Clarkson notes that there is some degree of vulnerability from other prisoners due to your poor judgment and limited intellectual functioning, though does note the prison environment has lessened the availability of illicit substances.

38For all these reasons, Ms Sargent, on your behalf, submits that case of Verdins has applicability.10F[11]

[11]         R v Verdins [2007] VSCA 102

39Ms Sargent further submits that a 'special reason' exists which displaces the mandatory custodial period which attaches to Charge 2, given that at the time of committing the offence, you had a mental impairment that is causally related to the offending, which substantially and materially reduces your culpability.11F[12]  Given that the time you have so far spent on remand exceeds the mandatory custodial sentence for Charge 2, this submission is now somewhat academic.  Unfortunately, there were unexplained delays in seeking appropriate forensic psychiatric reports on your behalf, which has delayed the progress of your matter and has extended the period you have spent on remand.  Had this not been the case, the submission would have been forceful, and will now be taken into account in assessing your moral culpability for the offending.

[12] Sentencing Act 1991 (Vic), s10A(2)(c)(i)

40Mr Roper for the prosecution concedes that you have demonstrated mental health and cognitive impairment which both attracts the operation of the principles in Verdins' case and amounts to a 'special reason' for the purposes of the Sentencing Act, such that the mandatory term of imprisonment of six months is not applicable in your case.

41I formally conclude that a 'special reason' for the purposes of s10AA(4) of the Sentencing Act has been established.

Sentencing purposes to be taken into account

42Offences against emergency workers causing injury have been viewed as a special class of serious offence by Parliament and accordingly are subject to a mandatory sentencing regime.

43This case is an important example of such offending and accordingly the principles of just punishment, denunciation and general deterrence are relevant.

44You have relevant prior matters in 2020 for assaulting emergency workers whilst on duty, and for damaging property and violent offending on that and other occasions.  Your criminal record confirms that mental health featured in some of that offending and has been a longstanding issue for you.

45The need to specifically deter you from similar offending in the future and encourage you to seek treatment is relevant in your case.  In the absence of suitable treatment, the protection of the community from harm caused by you is a relevant sentencing consideration.  The Forensicare report confirms that you have a history of drug use including methamphetamines, which aggravates your level of cognitive functioning and your mental health issues.

46Your moral culpability for this offending is, however, significantly reduced due to your diagnosis of schizophrenia and intellectual disability.

47Mr Roper fairly concedes that time served is sufficient and within the sentencing discretion, but urges the court to consider the imposition of a community corrections order so that you can be best supported upon you release in terms of drug rehabilitation and treatment.

48I accept that your risk of reoffending depends entirely on your compliance with the proposed treatment plan and your abstinence from drugs.

49The Mental Health Advice and Response Service at the Melbourne County Court advised the court on 2 May 2022 that your treating team have advised that you do not require compulsory mental health assessment or treatment. It was also confirmed that you are suitable for voluntary treatment in the community rather than as an in-patient.

50Accordingly, I granted bail and deferred sentence for you to attend a scheduled appointment with general practitioner Dr Pyae Yanaung at Tristar Medical Group Eaglehawk on Thursday 5 May, and to make contact with Bendigo Health Triage upon your release.  You did both of these things and are said not to have committed any further offences during the deferred period and have otherwise been compliant with the conditions of bail I placed you on.

Current Sentencing Practices

51I have had regard to current sentencing practices for these types of offences, including the provisions of the Sentencing Act referred to above.  Mr Roper for the prosecution referred the court to the Sentencing Snapshot No.265 compiled by the Sentencing Advisory Council of Victoria.  I have regard to the contents of that snapshot.

52Mr Roper also notes that you have spent significant time in custody to this point and that the principle of proportionality is relevant in your case.  He submitted that a combination sentence which sees you supported by a community corrections order upon your release would be necessary to encourage you to voluntarily access mental health and drug abuse services.

53Given the significant mental health challenges you face, I was concerned about the difficulties you would experience, were I to place you on a community corrections order.  Accordingly, I deferred sentence, and I am satisfied that you have voluntarily engaged in services and encourage you to continue to keep in contact with your general practitioner and to seek mental health treatment if you need it.

Time on remand

54You have spent 268 days on remand, and this is available to you by way of
pre-sentence detention.  This is the longest period of detention you have served, and it has been subject to the onerous and restrictive COVID-19 prison conditions.  Your mother has been unable to visit, and you have had limited access to programs and services.  It has been an isolating experience for you.

55You completed an occupational health and safety course at the Metropolitan Remand Centre and worked in the laundry at Ravenhall.  You spent some time on the Aire Unit, which is a unit designed to treat prisoners with serious mental illness.

56During this time, you have remained drug-free and properly medicated with antipsychotic medication. I am told that you do not want to go back to prison and are motivated to continue to comply with your medication regime and stay away from drugs.  These things are critical to reducing your risk of further offending.

57As I said, you have a poor record of compliance with largely therapeutic community corrections orders in the past.  Accordingly, rather than sentencing you to a combination sentence involving a further community corrections order as urged by the prosecution, I bailed you on conditions to live with your mother in Bendigo and attend upon your general practitioner and the local mental health team.

58I confirm that by letter dated 5 May 2022, Sheree Pickles, forensic clinical specialist of Bendigo Health, confirmed that you made contact with the Regional Triage Service on 4 May 2022 in accordance with the directions of the court.  Bendigo Psychiatric Services received confirmation from your previous treatment team at Ravenhall prison that you do not currently require area mental health support.  Accordingly, you have been linked with a local GP and provided with the Regional Triage number to contact in the future if required.

59Dr Jafar Ahmed from Tristar Medical Group Eaglehawk certified that you attended on 8 May 2022, and you therefore fulfilled your conditions of bail.  

Sentence

Imprisonment

60Jake Andrew Grey, I sentence you as follows.

·     On Charge 1 (criminal damage), you are convicted and sentenced to seven days' imprisonment.

·     On Charge 2 (cause injury intentionally), you are convicted and sentenced to four months' imprisonment.  This is the base sentence.

·     On Summary Charge 4 (without authority or excuse, enter a private place), you are convicted and sentenced to seven days' imprisonment.

·     On Summary Charge 7 (commit indictable offence whilst on bail), you are convicted and sentenced to seven days' imprisonment.

61These terms are to be served concurrently. That is, the total effective sentence is four months' imprisonment.

Pre-Sentence Detention

62Pursuant to s18 of the Sentencing Act, the period of 268 days of
pre-sentence detention is hereby declared as having already been served in respect of this sentence. I order that such declaration and its details be entered into the court record.

Section 6AAA Declaration

63Pursuant to s6AAA of the Sentencing Act, I indicate that had you pleaded not guilty and been found guilty after trial, I would have sentenced you to a term of nine months' imprisonment

Ancillary Orders

64I will make a disposal order by consent.

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