Director of Public Prosecutions v Herring (a pseudonym)
[2019] VCC 2229
•20 December 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALEX HERRING (A PSEUDONYM) |
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| JUDGE: | HIS HONOUR JUDGE CARMODY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 5 September 2019 |
| DATE OF SENTENCE: | 20 December 2019 |
| CASE MAY BE CITED AS: | DPP v Herring (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 2229 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Kidnapping – criminal damage – delay in sentence – youthful offender.
Legislation Cited: s.145 Criminal Procedure Act 2009, s. 5(2H) Sentencing Act 1991.
Cases Cited:Bayden Thomas v The Queen [2019] VSCA 223, R v Mills (1998) 4 VR 235, R v Wyley [2009] VSCA 17, DPP v Boulton [2013] VCC 972, Azzopardi v The Queen [2011] VSCA 372, Verdins; Buckley; Vo (2007) 16 VR 269.
Sentence:Convicted and sentenced to 445 days imprisonment with a two-year Community Corrections Order.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Croxford (For Plea) | Director of Public Prosecutions |
| Ms J. Cavka | ||
| (For Sentence) | ||
| For the Accused | Mr W. Barker | David Barrese & Associates |
| (For Sentence) |
HIS HONOUR:
1Alex Herring[1], on 5 September 2019, in the County Court of Melbourne you pleaded guilty to two charges on the Indictment No.J12610012:
Charge 1, was kidnapping of Stephanie Duggan[2], which occurred on 3 October 2018. This charge has a maximum sentence of 25 years' imprisonment.
Charge 2, criminal damage to property on the same date, this charge has a maximum penalty of 10 years' imprisonment.
[1] A pseudonym.
[2] A pseudonym.
2Pursuant to the provisions of s.145 of the Criminal Procedure Act, two related summary charges were heard at the same time as your plea to these indictable charges. You consented to the charges being dealt with at the court at that time. You pleaded guilty to the following related summary charges:
Summary Charge 6, was driving a motor vehicle whilst your licence was suspended. This charge has a maximum penalty for the First of all of 30 penalty units or four months' imprisonment.
Summary Charge 7, which is driving a motor vehicle without a number plate affixed, that charge has a maximum penalty of two penalty units.
3You have now served 442 days of pre-sentence detention.
4Your plea hearing was adjourned part heard until 17 October 2019. The purpose of that adjournment was for the preparation of a Forensicare report. Unfortunately such a report could not be prepared in time for the proceeding to take place on 17 October 2019. Your further plea hearing was adjourned then until 18 December 2019 to allow for further time for your assessment and preparation of the report by Forensicare. The report dated 28 November 2019 has been filed and was served on all parties prior to the further plea and sentence, which was heard on 18 December 2019.
CIRCUMSTANCES OF YOUR OFFENDING
5The prosecutor tendered a summary of prosecution opening for the plea dated 8 May 2019. This was Exhibit “A” on the plea. At the time of the offences you were 20 years of age and lived in Burnside Heights. Ms Duggan was also 20 years of age. Approximately three months prior to the offending you recommenced your relationship with Ms Duggan. You lived together at your premises on an on-and-off basis for approximately two months. Ms Duggan was nine weeks pregnant with your child. You knew of that pregnancy at the time of the offending.
6On 28 September 2018, Ms Duggan was attending a medical appointment when she received a text from you containing a photograph of what was alleged to be you mistreating her cat. Ms Duggan called you. In that call you complained about Ms Duggan damaging the walls at your home and you were going to hurt something she cared about, in that case the cat. Ms Duggan, together with her mother, attended at your premises to collect her belongings and her cat. You were home when they arrived at your place.
7Ms Duggan described you as being emotional. She tried to calm you down. When questioned about the cat you said that you had ‘grabbed it by the throat and threw it against the wall’. Ms Duggan told you that her grandpa was unwell and she was going to see him and would be gone for a few days. According to your victim, after this incident the relationship between yourself and Ms Duggan was over.
8At about 3.45 pm on 3 October 2018, Ms Duggan was at her mother's home when you sent her a text message asking for your house key back. Ms Duggan responded that she would put the key on the washing machine, which was out the front of the house, and you could collect it and then leave. Ms Duggan later heard a loud banging on the locked front flyscreen door. You were screaming at her to 'open the fucking door'. You repeated this a number of times.
9Ms Duggan went to the front door and told you to calm down and that you were scaring her. Through a glass panel she saw you pulling at the door and breaking the metal screen. You then pulled the door until the lock gave way. That was charge of criminal damage.
10You then continued threatening Ms Duggan and commenced punching at the glass panel. She was concerned for her safety and she actually opened the door of the house and let you inside. Once you came inside of the house she tried to distance herself from you; however, you followed her and she was able to smell, she says, beer on your breath. You then began screaming at Ms Duggan, telling her to pack her bag and demanding that she go with you. She refused and continually asked you to leave the house.
11You then went to her bedroom. Ms Duggan followed you, begging you to stop, but you told her to 'Shut the fuck up'. In the bedroom you threw a number of her clothes into a bag. Ms Duggan was sitting on the bed crying and asking you to stop. You then, she describes, got 'right up in her face'. You were screaming at Ms Duggan during this time, telling her to hurry up and get into the car. Ms Duggan has remained on the ground and pulled her knees up to protect her stomach. You stood over her screaming and you were moving your legs in a kicking action, but you were not actually kicking her.
12You then left the room and she followed with the bag. Whilst walking down the hallway Ms Duggan collapsed. She says that she was struggling to breathe. You asked where her asthma puffer was and, struggling to reply, she did not know. You again told her to get in the car and grabbed her from behind and carried her. She was telling you not to touch her stomach as you were trying to get her in to the car.
13Ms Duggan has then vomited. You cleaned up the vomit with some toilet paper that you had retrieved. Ms Duggan then continually asked you to leave; however, you took her bag and repeated your demand that she was to get into the car. She took the house keys and left the house with you, locking the door behind her.
14You then put her bag in the car. She stopped and sat down on the driveway. She was crying and screaming for help and telling you her stomach was hurting. A neighbour saw Ms Duggan and described her as crying and hysterical.
15You then told Ms Duggan to get in the car again and 'stop dragging this out'. You then went and got your car and brought it over closer to the driveway for her. You picked her up and put her in the car. As you got her closer to the front passenger seat part of the car she put her feet up against the car, trying to stop you from putting her in it. You then told her that you were going to your house to sort out the relationship. After a struggle you got Ms Duggan in the car. On a couple of occasions she opened the door, trying to get out; you shut the door behind her.
16You drove away. Ms Duggan was vomiting at that time. As you were driving you received a call from your employer, Mr Wilson. You spoke to him on the phone. Ms Duggan continued to beg you to take her home, telling you that she would do whatever you wanted and she would not call the police.
17Whilst you were waiting at one of the intersections of Sayers Road and Palmers Road, Ms Duggan was hanging out of the car. She tried to and successfully got the attention of another driver; however, you pulled her back into the car and continued driving away.
18After a short time you pulled up at a vacant block of land. You appeared to have calmed down. You said to Ms Duggan that if you really wanted to hurt her you would have already done it and that you loved her and you did not want to hurt her. Ms Duggan told you that she was terrified of you and asked you to take her home. You continued to speak with Ms Duggan and asked her that if she would stay the night that would help you.
19After about 30 minutes of this back-and-forth conversation between yourself and Ms Duggan, you have then given her phone to her, and she texted her mother. You agreed to take her home and you did so. That was the charge of kidnapping.
20When you arrived at her home you tried to kiss Ms Duggan and hug her before she got out of the car and went inside. Once inside, Ms Duggan’s mother was there with the neighbours.
21At the time of all of this your licence to drive was suspended and you had no registration plates fitted to the car.
22On the following day, 4 October 2018, you were arrested by police. You participated in a long and wide-ranging record of interview. The full details of your answers to the police are set out in Exhibit “A”. Relevantly you told the police the following things:
·Ms Duggan packed her bag and got into the car of her own free will;
·You admitted you pulled the door off its hinges and accidentally broke it in frustration;
·You denied that you forced Ms Duggan to go anywhere with you; that Ms Duggan never told you to leave the house at any time;
·You agreed that Ms Duggan had an asthma attack during the argument between you and when she calmed down you moved your car closer to the house to help her get into the car and she got in the car;
·You said that whilst you were in the car Ms Duggan was carrying on and causing a 'fucking scene', as you described it, trying to get people's attention;
·You agreed you took Ms Duggan home;
·You had a hug and a kiss, and spoke with Ms Duggan and you thought everything was great at the end of it;
·You told police you did not think you had done anything wrong and you admitted you might have scared Ms Duggan a bit;
·You denied threatening to kill or hurt Ms Duggan;
·You also denied you never touched Ms Duggan or that you had hurt her;
·You admitted you pulled her back by the jumper whilst you were driving along at 80 kilometres per hour when she was trying to get out the window;
·You said if you wanted to hurt her you would have already done it and you denied taking Ms Duggan’s phone, which was one of the allegations she had made against you;
·You agreed it appeared that you had forced Ms Duggan from your car after you were shown the CCTV of the scene; and
·You admitted to police that your licence had been suspended at the time.
23At the time of the record of interview you maintained you had not offended and showed no insight or empathy into how these events impacted on Ms Duggan.
VICTIM IMPACT STATEMENT
24Ms Duggan prepared a victim impact statement dated 4 April 2019, which was Exhibit “B” on the plea. A psychologist's report about Ms Duggan was prepared by Pamela Newman, psychologist, dated 9 April 2019, and was Exhibit “C” on the plea. The report of Ms Newman was directed to factors relevant to Ms Duggan being able to attend previous court dates and the effect that a Court appearance would have on Ms Duggan.
25Ms Newman reports that Ms Duggan presents with symptoms consistent with PTSD, anxiety and depression, as a direct result of your offending. In her victim impact statement Ms Duggan sets out how she is affected by your violence and has to attend a psychologist to treat her anxiety and depression. She sets out her concern and medical treatment sought to ensure your offending had not caused damage to her unborn child. She stated she was eight weeks pregnant at the time of your offending. Ms Duggan has incurred considerable medical expenses due to her treatment for the pregnancy and potential harm by your offending and her psychological condition resulting from it.
26She states that she has been unable to obtain paid work. Ms Duggan states that she is now socially isolated. She has lost her ability to trust people due to your betrayal of her trust. She no longer has contact with or care of your two children, who are children of a former partner. She now concentrates on what is best for her son. That is your son as well.
PERSONAL CIRCUMSTANCES
27You are now 21 years old. At the time of the offending you were 20 years old. You have a prior criminal history. You have five court appearances in the Children's Court between February 2013 and April 2017.
28In April 2017, you were convicted and placed on a community corrections order at the Heidelberg Magistrates' Court for a contravention of a family violence order and other offences. That family violence order was in relation to your previous partner, Mikayla[3], who is the mother of your two older children, in which you have now reconciled with and had returned to at or about the time of this offending.
[3] A pseudonym.
29You breached that order and at Sunshine on 17 August 2018, you were placed back on a community corrections order. You offended in this case whilst on that community corrections order. On 17 August 2018, you were dealt with for breaching the offences of the original CCO and fined. You have a limited criminal history for a person of your background.
30When you were two months old your biological father died at the age of 29 years. Your father died of a heroin overdose the day after his release from Pentridge prison. You did not learn of this fact until your early teenage years. Your biological mother is also a heroin addict. When you were two months old you were left with Danielle and Leslie Lawson[4] by your mother at that time for two weeks' respite care. Your mother did not return to collect you from Mr and Mrs Lawson.
[4] A pseudonym.
31Mr and Mrs Lawson became your foster parents. You initially thought of them as your parents because, from the earliest time, they were the only adults in your life. You saw your mother on three or four occasions between the time of being abandoned by her until her death, when you were approximately 13 years old. As I understand it, your mother committed suicide.
32You have three biological brothers. You have two older brothers, Josh[5] and Philip[6]. You have another brother, Darren[7], who had been abandoned with you with the Lawsons. At the stage of early teenage years you became aware that Mr and Mrs Lawson were not your real parents. You became rebellious and uncontrollable. The DHS, or it might have been DHHS by then, placed you as a ward of the state and you had numerous placements in foster care. You also lived in residential units conducted by DHHS until the age of 17 years old.
[5] A pseudonym.
[6] A pseudonym.
[7] A pseudonym.
33In that period of time you were sexually assaulted by the father of one of your friends. This was not reported to police but has had a significant impact on your mental well-being.
34Due to your disrupted life, your formal education finished at Year 7 level. In short, whilst in the Lawson’s care you had a level of stability in your life, but once away from them you have had to fend for yourself from the age of effectively 13 years old onwards.
35Despite your disrupted life you have managed to get a job at the age of 13 or 14 years old, initially as a jet ski mechanic. This employment lasted for two and a half years and you ceased it because your employer would not give you an apprenticeship.
36Since the age of 15 years old, you have then worked in the bricklaying industry. You are not formally qualified as a bricklayer but have consistently worked as a bricklayer from the age of 15 until the time you were incarcerated.
37You have used drugs over your life, and have prior to your offending been a cannabis and cocaine user. In the short period prior to this offending you were on a course of anabolic steroids to increase your bodybuilding ability. In the past you have used methylamphetamine.
38You have fathered two children, Max[8], who I think is three to four years old, and Emily[9], who is two years old, with Mikayla Argent[10]. Ms Argent has been at the court hearings in this matter and I note she is here today. At the time of this offending you were ending your relationship with Ms Duggan and reconciling with Ms Argent.
[8] A pseudonym.
[9] A pseudonym.
[10] A pseudonym.
39You have been visited by Ms Argent whilst in custody and your plan is to resume your relationship upon release from prison. Ms Argent was the victim of your first CCO in the family violence order which I referred to earlier.
40You also had at this time an on-again and off-again relationship with your victim Ms Duggan for a period of two years leading up to these offences. You now have a child with Ms Duggan. You have told Dr Sakdalan you accept your relationship with Ms Duggan is over and that you will partake in a legal process to be part of your child's life in the future.
41You have had 442 days in custody since being arrested by police for these offences. You have been in police cells, Melbourne Assessment Prison, Port Phillip Prison, Fulham Prison, Ravenhall Prison, Marngoneet Prison. You have undertaken work in prison where you could do that and you have done courses to improve your understanding of family and relationships and that is shown in the documents contained within Exhibit “4”. Your drug screens have been negative.
42I note in your report to psychologists that you do not feel connected to Mr and Mrs Lawson in an emotional way. Mr and Mrs Lawson, despite their advancing years, have been at every stage of these court proceedings. You should respect and honour their support that they have given you from two months of age to the current day.
43You have the prospect of resuming your relationship with Ms Argent and your two older children. You have a demonstrated capacity to pursue and obtain work as a bricklayer. These factors shine some light of hope on your rehabilitation prospects despite your difficult start in life.
SENTENCING CONSIDERATIONS
44The basic purpose for which a court may impose a sentence are just punishment, deterrence both specific and general, rehabilitation and denunciation of your actions and the protection of the community. In sentencing you, I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances.
45I am also required to balance the interest of the community in denouncing your criminal conduct with the interest of the community in seeking to ensure as far as possible that you as an offender are rehabilitated and reintegrated into society.
46I am also required to take into account current sentencing practices in fixing your sentence. That enquiry is directed, particularly, but not exhaustively, to the kind of sentences imposed in comparable cases and the statistics for the sentence at that time. I note that I asked the prosecutor if she had such cases and sentencing statistics. I also looked them up myself, and I have considered those statistics and current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case, as indeed they are from one another. Nevertheless, current sentencing practice is only one of the matters I take into account.
47I am also mindful of the provisions of the Sentencing Act and in particular s.5(4C), which directs the sentencing court to consider whether a community corrections order can achieve the purpose for which sentence is to be imposed.
48I have received the case of Boulton in considering if a community corrections order would be appropriate in your case, or any part of it, and I have had you assessed for a community corrections order. You have been assessed as being suitable. That is not the end of the matter.
49You have pleaded guilty to these charges. Your plea of guilty was indicated at an early stage. Your plea does have the utilitarian value for allowing for the orderly and effective administration of justice. There is a certainty of outcome and a resolution of the substantive issues raised by your offending and your plea allows for the preservation of court and police resources to deal with other matters. Your plea vindicates a public confidence and legal process set up to protect the community.
50Your plea is also a clear acknowledgement by you that you accept responsibility for your criminal behaviour on this occasion. Your plea also recognises that you are willing to facilitate the course of justice in the community and I accept that your plea of guilty to these charges indicates and demonstrates some remorse on your part.
51Your plea also removes the need for your victim to give evidence in a trial and being cross-examined about the frightening events that constitute your offending behaviour. This shows that you have developed an understanding or empathy for your victim whilst you have been in custody.
52In this case there has been considerable delay between the date of your offending and your sentence today. The delay has not been caused by yourself. At the time of the offending you were 20 years old and there was approximately six months before you turned 21 years old. One of the potential matters arising from the delay in finalising your matter is the loss of opportunity to be sentenced as a young offender and a possible youth justice centre order. Further, this is your first time in custody and you have spent that time in adult poison as a remand prisoner.
53One of the reasons for the delay on the first plea hearing date was the unavailability of Ms Ferrari, a psychologist who had assessed you. The prosecution sought to cross-examine Ms Ferrari. The delay was compounded by further administrative issues to do with the preparation of the Forensicare report ordered by the court at the end of your plea hearing on 5 September 2019.
54I have no doubt you have been anxious and stressed by the uncertainty you have faced concerning incarceration for all of that time. Dr Joseph Sakdalan confirmed that was the case in his report.
55You have also displayed a level of maturation and understanding of the impact of your offending on your victim. This understanding has matured you in your time on remand and I accept your letter to the court, which was Exhibit “5”, and your statements to Dr Sakdalan about your offending confirm that you now accept your role in the offending and that your actions were wrong.
56The Court of Appeal in the case of Bayden Thomas v The Queen [2019] VSCA 223 at paragraph 66 said as follows:
'Of course, delay can be important in the overall sentencing synthesis. In some cases, it can allow for a significant reduction in sentence. That is particularly so where, as in this case, the applicant was suffering severe anxiety and depression throughout the entire period that elapsed from arrest to sentencing. That stress and anxiety was, no doubt, compounded in his case by uncertainty as to whether he would be imprisoned'.
57That applies here in part. I have taken delay into account when considering the overall sentencing disposition in your case.
58As I said before, at the time of your offending you were 20 years old. You are now 21 and you have spent 442 days on remand in adult prison awaiting this moment. This is your first time in custody.
59It is a principle of sentencing law that when a young offender such as yourself is to be sentenced, the sentencing disposition should be tailored taking account all other sentencing considerations to promote the offender's rehabilitation. This approach serves the interest of the individual offender, that is you, and the community as a whole.
60In the case of R v Mills (1998) 4 VR 235 three propositions of sentencing were set out:
'(i) Youth of an offender, particularly a first offender [that is not you], should be a primary consideration for a sentencing court where that matter properly arises;
(ii) In the case of a youthful offender rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focusing on rehabilitation is to be preferred. (Rehabilitation benefits the community as well as the offender.);
(iii) A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender; and, where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified. This proposition is particularly applicable in general principles of sentencing as set out in s.5(4) of the Sentencing Act.’
61In more recent times the Court of Appeal have made pronouncements of consideration of youth in sentencing practices. In the case of R v Wyley [2009] VSCA 17 Maxwell P said as follows:
'Mills constantly reminds sentencing courts, and this Court on appeal, that there is great public benefit in the rehabilitation of an offender and in maximising the prospect that the offender will carry on a law-abiding life in the future. But that consideration is not unique to young offenders. Nor is there any one correct answer as to how the balance is to be struck between that consideration and others which may point towards a period, or a longer period, of imprisonment, rather than a non-custodial sentence. Thus understood, the later cases of DPP v Lawrence and R v Nguyen are not to be viewed as 'excluding the principles in Mills', but simply as instances of how those principles are to be applied'.
62His Honour continues:
'As counsel properly conceded towards the end of his submissions, there is a role for general deterrence to play in relation to every class of case. In relation to certain classes of case, however, general deterrence may have a particularly important role to play. The present case is of that kind. Violence of this kind [and that is what this case is about], in circumstances of this kind, is so prevalent, that general deterrence is seen to have particular importance. But, again, the role of general deterrence will vary with the circumstances of the case'.
63I just add for emphasis here, cases of violence generally call for a general deterrence consideration. Further, these issues of sentencing youth were considered in Azzopardi v The Queen [2011] VSCA 372, where Redlich JA said as follows:
'The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender's youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished'.
64Your offending is serious. It was submitted by the prosecutor that your kidnapping charge is in the mid to upper range for that offence. Whilst I assess your kidnapping offence as a serious offence, I do not accept that it is properly to be regarded as being in the mid to upper range of that offending. The seriousness of your offending is informed by the following matters:
(1) At the time of your offence you were serving a CCO for violent related offending, and in particular family violence offending against your former domestic partner, not the victim of this case;
(2) you kidnapped your victim after she had allowed you to enter her premises to discuss matters of dispute between you;
(3) your victim and yourself began a verbal argument and then you lost your temper and took her from the house;
(4) you knew your victim was pregnant with your child at the time of the offending;
(5) you forced your victim to get into the car with her possession;
(6) you drove the victim away from the home with the intention of taking her to your home;
(7) whilst driving away it was clear to you your victim was stressed, vomiting and trying to attract attention of other people and to get out of the car;
(8) after a short time you stopped the car at a vacant block. You and your victim were upset and yelling at one another. You then calmed down and you subsequently drove her home;
(9) your victim was not physically hurt and your baby has been born whilst you have been in custody, meaning the baby is all right; and
(10) the whole episode lacked the planning and execution of far more serious kidnapping offences. This was a case where you lost your temper and events unfolded in response to your lack of control and outburst of anger when your victim did not do as you had asked her.
65You have been assessed by Carla Ferrari, consultant psychologist, for the purpose of this plea. Ms Ferrari has prepared three reports, dated 1 May 2019, 9 May 2019 and 20 August 2019. These reports were exhibit “3” in the plea. Ms Ferrari also gave evidence on your plea hearing on 5 September 2019. Ms Ferrari was extensively and skilfully cross-examined by the prosecutor. I have had the advantage of hearing and seeing Ms Ferrari give her evidence and I accept that she is appropriately qualified and experienced to give the opinions she gave in her reports and in her evidence.
66I also accept she was prepared to make appropriate concessions whilst giving her evidence. Nevertheless, her diagnosis was that you had at the time of the offending and presently suffered from post-traumatic stress disorder (“PTSD”) arising from your upbringing and particularly from the death of your parents and the sexual assault which was inflicted upon you when you were approximately 13 years old. Her diagnosis was supported by psychometric testing that she administered to you to confirm her clinical diagnosis.
67In her evidence she also confirmed that it was likely that your steroid use would have been an additional perpetrating factor to your offending. That is how she described it. Ms Ferrari maintained her opinion that the post-traumatic stress disorder was relevant to your offending and I accept her opinion on that matter.
68I ordered a Forensicare report. Dr Joseph Sakdalan, who is a clinical psychologist, prepared a report dated 28 November 2019. I am going to read paragraphs 40 and 41. It is as follows:
'The PDS testing findings indicate that his profile is typically found amongst individuals who are generally aware of their shortcomings and their responses are not overly influenced by other people's appraisals. Mr Herring’s DASS-21 test result indicated that Mr Herring has reported significant depressive anxiety and stress symptoms. His PCL-5 testing finding is suggestive of probable PTSD; however, as I explained above, I am of the opinion that he does not appear to fully meet the criteria of a diagnosis of PTSD and that his current presentation seems more consistent with adjustment disorder with mixed anxiety and depressed mood as defined under the diagnostic and statistical manual of mental disorders [referred to as the DSM-5].
'It is possible that his PTSD symptoms might be attributable to him feeling traumatised by his own offending. There is evidence that he has been experiencing specific stressors occurring in his life prior to the index offending, specifically ongoing relationships with the victim. The relationship can be described as problematic and dysfunctional and consequently Mr Herring harboured some resentment towards his victim. The incident seemed to be a major trigger in that he has lost his ability to control his behaviour, hence he resorted to the violence, which is his maladaptive way of dealing with the problem. His maladaptive pattern of dealing with his frustration and anger by resorting to violence has been consistently apparent throughout his personal history.
'I am of the opinion that Mr Herring’s current medical health issues are largely triggered by situational factors, particularly ongoing stressors that have occurred since he recommended his relationship with the victim, his subsequent incarceration and ongoing stress because of his legal predicament. His background history and current presentation did not appear to be consistent with a diagnosis of chronic PTSD and as much as the adverse events that have occurred to him, that is the death of his parents and sexual assault, contributed or reinforced his maladaptive schemas and mental health issues, he did not attribute his previous mental health issues to these events. Furthermore, Mr Herring has largely functioned well in the community and has not reported any long-standing PTSD symptoms'.
69Dr Sakdalan also stated that your steroid use did not play a major role in your offending. Both of the experts agree that your anabolic steroid use did not play a significant role in your offending. Dr Sakdalan states that his PCL-5 testing found your results were suggestive of probable PTSD. Ms Ferrari says her testing confirmed her clinical diagnosis of PTSD.
70The test required under s.5(2H) of the Sentencing Act is that you are required to prove an impaired mental functioning that is causally related to the commission of the offence that substantially reduces your culpability for the offence. The standard of proof is on the balance of probabilities. If you satisfy this requirement then the sentencing court is not required to sentence you pursuant to division 2 of part 3 of the Sentencing Act. That is to impose a term of imprisonment with a non-parole period for the offence of kidnapping.
71On the basis of all the expert psychological evidence in this case, I accept that you have established that at the time of your offending and now you are and continue to suffer from post-traumatic stress disorder and consequently your moral culpability for the offending is reduced.
72Mr Barker on your behalf also relied on the principles of Verdins' case in mitigation of your sentence. I have accepted Ms Ferrari's diagnosis of PTSD having relevance to your mental state at the time of your offending. Your PTSD condition reduces your moral culpability for this offending.
73The general and specific deterrence considerations of sentencing principles are also to be moderated in your case because of the PTSD diagnosis. Over your young life you have develop coping mechanisms and behaviours to disguise the impact of your PTSD symptoms and this is confirmed in Dr Sakdalan's report when he states, 'You have largely functioned well in the community and have not reported any long-standing PTSD symptoms'. In short you have learnt how to cover it up.
74You have the diagnosis of PTSD and the symptoms of the angry man, that is your description of yourself, need to be treated so that you can properly be rehabilitated and be a contributing member to our society. I have decided your rehabilitation will be given its best chance if you have a court-supervised rehabilitation for your mental health condition and other matters. I assess your prospects of rehabilitation as fair.
75In consideration of the general and specific deterrence, although moderated, just punishment and denunciation of your offending and protection of the community dictate that the only appropriate sentence in relation to the charge of kidnapping is a term of imprisonment. In respect of the criminal damage charge your offending can be adequately by the supervision order from the court, which is designed to enhance your prospects of rehabilitation given your age and your limited criminal history.
76Would you stand please?
77On the charge of kidnapping you are convicted and sentenced to 445 days' imprisonment. On the charge of criminal damage you are convicted and placed on a two-year community corrections order. The conditions of that order are that you will be supervised, that you have drug treatment and rehabilitation, alcohol treatment and rehabilitation, mental health treatment and rehabilitation and offender reduction programs.
78You are further to be judicially monitored. The first judicial monitoring will take place on 20 February 2020 at 9.30 am here at the Melbourne County Court, and that you are to report to the Dandenong CCS. Can I just check is that the appropriate CCS for your client?
79MR BARKER: Would Your Honour give me permission to approach the dock?
80HIS HONOUR: Certainly, yes.
81MR BARKER: Yes, Dandenong is correct.
82HIS HONOUR: Dandenong. Yes, thank you. You are to report to the Dandenong CCS offices within two days of your release from prison. On my calculations - sorry, I haven't declared it. Pre-sentence detention is declared at 442 days, so today is 443, 444, 445 is Sunday on my calculations. So you have to report before Christmas.
83In the materials put before the court by the prosecution it was brought to my attention under s.28 that I have the power of the Road Safety Act to interfere with your licence. I do not propose to do that. There is a reason for that. If you had a licence to get about and you treat it properly, that is if you have one, you can use that to get yourself to the bricklaying jobs. That is why I have interfered with that.
84There was a request for 464ZF, but I suspect it would have already been given. Has there been a 464ZF order made?
85MS CAVKA: No.
86HIS HONOUR: There hasn't?
87MS CAVKA: No.
88HIS HONOUR: Very well. You seek one, though?
89MS CAVKA: Sorry?
90HIS HONOUR: You seek one?
91MS CAVKA: Yes, Your Honour.
92HIS HONOUR: Yes. I order that - yes, there's not one filed with the court, that's the ‑ ‑ ‑
93MS CAVKA: It hasn't been e-lodged?
94HIS HONOUR: No.
95MS CAVKA: Your Honour, I'll e-lodge that today. I would have thought it was e-lodged, but I will have to double-check, Your Honour. Your Honour, I can arrange to have that done within 10 minutes.
96HIS HONOUR: Sorry?
97MS CAVKA: I can have that done within 10 minutes.
98HIS HONOUR: Thank you. I will just let you know what all that means, Mr - what I am going to do is I am going to order a 464ZF, which is the authorities take a swab from within your mouth and they have reasonable force to do so. The real question is whether it is done in the prison or whether it is done at the police station. Within 30 days of a police station at Dandenong. That is the order I will make. Dandenong police station, because he will be released ‑ ‑ ‑
99MS CAVKA: Thank you, Your Honour, yes.
100HIS HONOUR: Should be released on Sunday. Thank you, I have just been reminded s.6AAA of course, which you have to - but for your plea of guilty, and this is the overall sentence I would have imposed, I would have imposed a sentence of three and a half years with a non-parole period of two and a half years' imprisonment.
101MS CAVKA: Your Honour hasn't passed a sentence on the two summary matters.
102HIS HONOUR: Thank you, and thanks for reminding me. In relation to the related summary matters, in respect to Charge 6, which is a driving while suspended, you are convicted and fined $400 and in respect to Charge 7, which is no number plate, you are convicted and fined $100. So it is a total fine of $500 and you will have to deal with Fines Victoria for the payment of that.
103MR BARKER: As Your Honour pleases.
104HIS HONOUR: Thanks. Does that conclude everything?
105MS CAVKA: Thank you, Your Honour.
106HIS HONOUR: Yes. The only thing you have got to do is sign a community corrections order before you go. I will give that to counsel, he will speak to you first and then, if you are satisfied or prepared to do it, that is the finish. You can take a seat, thanks.
107We will just have copies of that order made so that - I will just have copies of the order made so that you have got a copy of it. In all the excitement of getting out of gaol, Mr Herring, when it comes about, do not forget to go down to Dandenong, because they already know. The Corrections people already know about you in the sense that you have breached one CCO in the past. Do not give them an excuse to do it to you again. They will do it if you do not turn up. You will have to postpone your Christmas shopping to make sure you see them first, all right?
108Other than that, good luck when you get out. You have got a future in front of you. Your de facto has come back here to you. She has been here during the course of your court appearances. And you have got three children to look after, two of them with her and the other one. Also, as I said during the course of my sentencing remarks, you should be very grateful to Mr and Mrs Lawson.
109MR BARKER: Your Honour, can I just take an opportunity to thank Your Honour and Your Honour's staff. This matter almost had to get listed in 2020 and Your Honour and Your Honour's staff made a lot of effort to squeeze it into different places. So on behalf of Mr Herring we're grateful.
110HIS HONOUR: Thanks, Mr Barker. I want to thank you both and your previous counsel in this case for your assistance in this case. Whilst on my staff, this is my tipstaff's last day, so when I leave you can all congratulate him on great career here. Thank you very much, you can remove the prisoner.
111Thanks, Bob. This is the last time you will have to do this. Thanks.
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