Director of Public Prosecutions v Helem, Joshua Robert
[2012] VCC 1598
•15 October 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT LATROBE VALLEY
CRIMINAL DIVISION
Case No. CR-12-00445
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| JOSHUA ROBERT HELEM |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 15 October 2012 | |
CASE MAY BE CITED AS: | DPP v Helem, Joshua Robert | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1598 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr K. Doyle | |
| For the Accused | Mr Sullivan |
HIS HONOUR:
1
Joshua Robert Helem, on 11 October 2011 you pleaded guilty to the following charges: Charge 1, aggravated burglary of 15 Tyson Road in Heyfield on
16 December 2011. This is your grandparents' home. The maximum penalty for this offence is 25 years' Imprisonment. Charge 2, intentionally cause serious injury to Lorraine Maher, she is your grandmother, on 16 December 2011. Charge 3 was intentionally cause serious injury to Donald Maher on
16 December 2011. He is your grandfather. Both of those last two charges carry a penalty of 20 years' imprisonment.
2 Your offending on this occasion is most serious. You have attacked an elderly couple in their own home. You have gone to their home for the purposes of attacking them. Your assault was sustained, brutal and cowardly. Both of your victims were hospitalised. Both of your victims were your grandparents.
3 I turn now to the circumstances of the offences.
4 Lorraine Maher was your 66 year old grandmother at the time of your assault on 16 December 2011. Donald Maher was your 75 year old grandfather. Your grandparents lived at their home at 15 Tyson Road in Heyfield. At the time you lived at 6 Rose Street, Heyfield. The two homes were close to one another.
5 On 16 December 2011 there had been a meeting with DHS and other persons, including Lorraine Maher, your grandmother, about the welfare of your son Billy. At that meeting it was suggested and decided that the supervision order in respect of Billy be extended for a period of 12 months. At that time Lorraine Maher's sister, Wendy, had been caring and looking after Billy. You were not present at this meeting.
6 On 16 December 2011 you attended at your parents' home. Your youngest sister, Grace Helem, lives with your parents at that home. Your sister Grace, who was then 16 years old, told you that “Nan had gone off her head” at the DHS meeting and that your partner, Jade Phillips, was not going to get custody of Billy for another year. Your sister Grace also alleged that your grandfather had abused her when she was young. This was not the first time you had heard that allegation. You were also aware that Nan, as you describe her, had accused Grace of causing her grandfather to abuse her.
7 After hearing these two separate pieces of information and allegations by your sister, you decided to go to your grandparents' place in a rage and yell at them, and on the way there you decided you were going to assault them. Because they were old, you thought you did not need a weapon, you could punch them out.
8 These matters are all set out in your record of interview with the police.
9 Charge 1.
On 16 December, as I say, with the intention of assaulting and/or punching out your grandparents, you went to their home at 15 Tyson Road, Heyfield. You entered the house through an unlocked back door. This is the charge of aggravated burglary.
10 Charge 2.
You found your grandmother naked in the bathroom in her own home. She was about to take a shower. You said to her, "You took my fucking baby." You then entered the bathroom and punched her in the face and in the nose, which caused her to stumble backwards and she put her hands up for protection. She told you that she did not say anything. You then punched her four to six times in the head with forceful blows. This caused her to fall to the floor. She had blood coming from her nose and from the back of her head. You left the room with your grandmother injured and on the floor. This is the charge of intentionally serious injury to Lorraine Maher.
11 Charge 3.
After you had finished your cowardly and disgraceful attack on your grandmother, you then went to the main bedroom of the house. Your grandfather was on the bed. You punched your grandfather to the head a number of times. Mrs Maher came into the bedroom and yelled at you to stop and said, "You're killing him, Josh."
The assault on your grandfather was sustained and brutal. Your grandfather had only recently returned home from hospital for treatment to one of his eyes. These actions are the basis for the charge of intentionally cause serious injury to Donald Maher.
12 I will deal with the extent of the injuries and the impact on Lorraine and Donald Maher later in these reasons for sentence.
13 After your grandmother yelled at you, you left the house and the injured grandparents behind. Ambulances were called and attended to your victims.
14 I will now turn to your personal circumstances.
15 You are 23 years old later on this month. At the time of these offences you were on a CBO for driving-related offences. You have a total of seven court appearances for driving-related offending.
16
In terms of direct criminal history, you have one prior court appearance on
31 March 2009for a charge of recklessly cause injury. On that occasion you were placed on an undertaking without conviction but with conditions to attend psychiatric services at Gippsland.
17 In January 2007 you were sentenced to 12 months' youth training centre on the charge of culpable driving. The victim of your offending was your only and younger brother. You had stolen a vehicle and crashed it in what is described as a bush-bashing drive, causing your brother's death.
18
Since 25 October 2008 you have been a regular patient of the Sale Community Mental Health Service. You have a total of six admissions to what was described as the Flynn Unit at Latrobe Regional Hospital. The first was 25 October 2008 and followed by admissions commencing on 3 November 2008, 20 November 2008. You were also admitted on 30 December 2008 at the Kerford Unit in Wangaratta. You were back at the Flynn Unit on
1 December 2010and 27 January 2011 and closer to these events, on 5 to
10 October 2011 you were admitted as an involuntary patient at the Flynn Unit.
19
Upon your discharge from the Flynn Unit on 10 October 2011, you were at that time an involuntary patient on a Community Treatment Order. Your case manager was Peter Wilson. Peter Wilson saw you on 2 December 2011 and 20 and 21 December 2011. Mr Wilson's last two sessions were four to five days after these offences. He noted you expressed remorse for your actions but displayed nil signs of psychosis during this period of time, that is, from
2 December 2012through to 21 December 2012.
20
You have been diagnosed as suffering from schizoaffective disorder,
bipolar-type, along with cannabis and alcohol abuse. You are medicated with fortnightly injections of Risperidone Consta. Exhibit 1 and Exhibit 2 in this plea are reports from your consulting psychiatrist, Dr Ragendra Agrawal. I hope I have pronounced his name correctly. He is a consulting psychiatrist.
21 The last report is dated 25 July 2012. He consulted with you on 23 December 2011 and concluded at that time that your mental state examination showed nil active signs of psychopathology, that you had good judgment and partial insight. In other words, your psychiatric condition was not active and/or causative of your actions on 16 December 2011.
22 Dr Agrawal does report that you have displayed actives signs of psychosis in July 2012. This was related to your engagement with drug and alcohol services together with drug withdrawal and maintenance, as he described it.
23 There was a further report from Dr Anthony Cidoni, which was Exhibit 3 on the plea, who reported on your condition on 4 September 2012. In his opinion you showed no signs of thought disorder and you had no current delusions, that is at the time of his assessment on 4 September 2012. You continued to take 50 milligrams of Risperidone intramuscularly every fortnight.
24 Dr Cidoni was of the opinion that because you were under a lot of stress your disorder may be have been in mild relapse as evidenced by your agitated mood at the time of the offences. I find that based on your case worker's notes, that is, Mr Wilson's notes, and the opinion at the time of the offences and the expert opinion of Dr Agrawal, who saw you within a week of the offending, that your psychiatric condition played no part in your offending.
25 You have come from a family background where both parents, I am told, were drug addicted. There were a number of separations by your parents. The position now is your parents have been back together for some seven years. You are the eldest of three children. Your younger brother is dead, as I said. Your sister Grace is now 17 years old and lives with your parents in Heyfield.
26 In your upbringing, you were educated to Year 10 at the Maffra Secondary College. After you completed your sentence at youth training centre, you tried to resume school but that was unsuccessful. Because of your parents' habits and activities, you have had access to cannabis at a very early age. You started using cannabis at the age of ten and have used it most of the time since then.
27 I note the evidence of Ms Tracey Phillips, the mother of your ex partner Jade and grandmother of your children. Ms Phillips says that since you were bailed on these charges you have lived with her in Sale and are not using cannabis now. After visiting Dr Donahue, you had been put on medication to suppress the need for cannabis. You have told Ms Phillips that you are sorry for what you have done and say that it was stupid of you.
28 Your current position is that you are a father of two children with Jade Phillips. You are separated from You live with her mother along with two other young men. You are in receipt of the disability pension because of your psychiatric condition. You have never been employed. Whilst on medication your psychiatric condition is under control as long as you do not use drugs.
29 I now turn to the impact on the victims.
First of all, Donald Maher.
He is now 76 years old. At the time of your offences he was 75. Mr Maher had recently been in hospital for an eye operation. He was in his own home, in his bed, or on his bed, when you perpetrated your cowardly attack on him. He is your grandfather.
As a result of your attack, he was taken from his home in Heyfield to Sale hospital. He was then airlifted to the Alfred Hospital. His main injury is a severely comminuted fracture of the left antrum and depression of a large bony fragment through the orbital floor in his face. There were fractures through the left medial anterior wall and two fractures of his left zygomatic arch. There was bruising and contusions as a result of the brutal attack by you on an old and infirm man.
In his victim impact statement dated 23 April 2012, which is Exhibit D on the plea, Mr Maher sets out the above injuries and adds that he had concussion and his false teeth were broken as a result of your cowardly attack on him. He states he now needs a walker to get around and has difficulty sleeping. He says he is worried about noises in the night and is on edge as a result of the attack.
I accept that this attack has had a significant impact on Mr Maher and continues to do so. The level of medical intervention and treatment required by him proves the severity of his injuries.
30 Lorraine Maher.
Mrs Maher is your grandmother. At the time of your assault she was 66 years old. I have dealt with the circumstances of your assault on her.
As a result of your attack, Mrs Maher sustained facial soft tissue periorbital bruising and an undisplaced fracture of her nasal bones. She also had a three centimetre laceration to the back of her head where she had struck her head when she had fallen backwards as a result of your front-on attack of her in the bathroom. She has also suffered bruising to her right shoulder and right hand when she fell backwards and tried to defend herself.
Mrs Maher was taken by ambulance to Central Gippsland Health Service. The hospital notes and Mrs Maher in her victim impact statement stated that she had had chest pain and angina pain when she was at the hospital.
The prosecution do not rely on the angina chest pain injury as a direct result of your assault. Mrs Maher remained in hospital for three days.
In her victim impact statement, also dated 23 April 2012, Mrs Maher describes her injuries as set out above in Exhibit C - her victim statement is Exhibit C. She also sets out the security locks that were put on the back windows of the house and she worries about being attacked again. She was very embarrassed because you attacked her when she was naked in her own bathroom. She worries a lot and cannot believe that you attacked her and her husband when she thought she had done a lot for you because your parents were drug addicts and you had been put in DHS care. These are understandable sentiments to be expressed by a caring grandmother.
The photographs of Mr and Mrs Maher, which were part of Exhibit B on the plea, display the extent and severity of the beating they each received from you. You literally beat them black and blue.
31 The conduct of this case.
You have gone into the police station by appointment the day after these offences. In your record of interview you made full and frank admissions as to your offending. You have complied with the terms of your bail conditions. The fact that you were going to plead guilty to these charges was indicated at a very early stage. The case was previously listed in August 2012, but
Mr Sullivan quite properly adjourned the matter so that a report could be obtained from Dr Cidoni to properly address the Verdins considerations in your case.
32 I now turn to the sentencing considerations.
33 The basic purpose for which a court may impose a sentence of imprisonment are just punishment, deterrence, both specific and general, rehabilitation, denunciation of your actions and protection of the community. In sentencing you, I must have regard to a range of factors such as the seriousness of your offences, your culpability for them, your personal circumstances and those of the victims, Donald and Lorraine Maher. I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure, as far as possible, you, as an offender, are rehabilitated and reintegrated into society.
34 You have pleaded guilty. You have pleaded guilty at an early stage in these proceedings. The plea was indicated before any committal proceedings. Your plea of guilty has a utilitarian value of allowing the orderly and effective administration of justice. There is a certainty of outcome and a resolution of the substantive issues raised by your offending. Your plea allows for the preservation of court and police resources to deal with other matters. Your plea indicates public confidence in the legal process set up to protect the community. You have, by your plea, relieved the victims, Mr and Mrs Maher, from giving evidence against you, their grandson. It facilitates some closure for them as victims of the offending.
35 The plea of guilty to these charges indicates and demonstrates remorse on your part. However, in your record of interview you did not express concern for your grandparents and in later occasions you have shown insight to both your psychiatrists, who have been reported in this case, and that you are sorry for what you did, and you describe your actions as acting like an idiot.
36 Your plea is clear acknowledgment by you that you accept responsibility for your criminal behaviour in this case. Your plea also recognises you are willing to facilitate the course of justice in the community.
37 Your prospects of rehabilitation are directly linked to whether you control your use of cannabis and alcohol. Combined with that, you need to comply with the psychiatric treatment and prescription of medication. These are matters you will have to deal with upon your release from prison.
38 I accept that your psychiatric condition could make your time in custody difficult. If you comply with your medical treatment, your condition should remain stable, as Dr Agrawal has described for the last year or so. I also accept that you are young and this is your first time in adult custody.
39 The overwhelming considerations in this case are general and specific deterrence and denouncing your conduct by the application of a just punishment. In this case it is imprisonment.
40 The aggravating features of these very serious charges of aggravated burglary and assaults include invasion of the home, the home was of your grandparents, you were motivated by revenge or administering some justice of your own on untested allegations. Even when you were confronted with your naked grandmother, you continued on your mission to assault both of them. Your victims were elderly. One of them was ill. These same people had cared for you as their grandson.
41 The prosecution submitted that the totality of your offending calls for an immediate term of imprisonment. I have previously referred to the maximum penalties set out in each of the offences by Parliament. The prosecution submitted that the considerations of general and specific deterrence and denunciation ought to be accorded full weight given the circumstances of this particular case. I accept that the considerations of special and general deterrence, combined with denunciation of these offences, are very significant in sentencing you to imprisonment. The assaults were brutal and in the setting of home invasion of elderly relatives.
42 The prosecution submitted a range of total sentence which was merciful.
43 Mr Sullivan, on your behalf, properly conceded that imprisonment was the appropriate penalty. However, he urged that your psychiatric condition was a weighty matter to take into account when considering the total sentence and the length of non-parole period. In particular he submitted that your psychiatric condition may have played some part in your offending.
44 I accept that Mr Sullivan has done everything he can possibly do for you in his plea and the preparation of all the things that he brought to court for you.
45 On the basis of the contemporary medical evidence and opinions of your psychiatric condition at the time of the offending, as I have said before, I do not accept your psychiatric condition was a cause of your behaviour or linked to your behaviour, rather you were extremely angry and acted out of rage.
46 If you would not mind standing, please. Thank you.
47 I sentence you as follows:
48 Charge 1, that is the aggravated burglary, you are convicted and sentenced to three years' imprisonment. Charge 2, you are convicted and sentenced to two years' imprisonment. I order that 12 months of this sentence is cumulative upon Charge 1. Charge 3, you are convicted and sentenced to two years' imprisonment. I order that 12 months of this sentence is cumulative upon Charge 1 and Charge 2. That is a total effective sentence of five years' imprisonment.
49 I order that you serve a non-parole period of three and a half years before being eligible for parole.
50 The pre-sentence detention is four days?
51 MR SULLIVAN: It will be seven days.
52 MR DOYLE: Yes, sorry, Your Honour. Yes.
53 HIS HONOUR: It is seven, thank you.
54 Pre-sentence detention is seven days and that time will be deducted administratively.
55 I will sign the forensic sample order under s.464ZF, and I will come back to that in a minute, Mr Helem.
56 Further, I declare under s.6AAA that but for your plea of guilty, I would have sentenced you to six years' imprisonment with four and a half non-parole period..
57 In respect to the 464ZF, I just have to warn or advise you that when the authorities come to take their sample from you, that they can use reasonable force in order to do that procedure. Do you understand that? You have to answer. Do you understand that? Just yes or no? I don't think he is responding. He is looking at me.
58 PRISONER: I understand that, Your Honour.
59 HIS HONOUR: Thank you. Does that cover everything, Mr Sullivan?
60 MR SULLIVAN: Yes, I believe so, Your Honour.
61 HIS HONOUR: Thank you. Is that right, Mr Doyle?
62 MR DOYLE: Yes, Your Honour.
63
HIS HONOUR: Thank you. Thanks very much for your assistance in this,
Mr Sullivan. It was a very difficult case and no doubt there are some further difficulties in front of you, but thank you for your assistance here.
64 MR SULLIVAN: Thank you, Your Honour.
65 HIS HONOUR: You can remove the prisoner. Thank you.
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