Director of Public Prosecutions v Honey
[2024] VCC 1713
•28 October 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-00480
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PAUL HONEY |
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JUDGE: | Karapanagiotidis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 October 2024 | |
DATE OF SENTENCE: | 28 October 2024 | |
CASE MAY BE CITED AS: | DPP V Honey | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1713 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing
Catchwords: Stalking – child stealing - possession of cannabis – summary charge – trespass – Renzella time, Verdins
Legislation Cited: ss 5(1), 6AAA Sentencing Act 1991 (Vic)
Cases Cited:R v Renzella [1999] VSCA 85, R v Verdins [2007] VSCA 62.
Sentence:16-month Community Corrections Order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. Kelly | Office of Public Prosecutions |
| For the Accused | Mr J. Blackley | Victoria Legal Aid |
HER HONOUR:
1Paul Honey you have pleaded guilty to the following charges, stalking, child stealing, possess cannabis. You have also agreed to this court hearing and have pleaded guilty to a summary charge of trespass.
Circumstances of the offending
2The full circumstances of your offending are outlined in the prosecution opening dated 2 October 2024 and that opening is agreed. At the time of sentence the summary of offending was not repeated as it had just been referred to and I indicated that a summary would appear in the written reasons, as it now does.
3Marian Lever[1] resided at a unit on Mimosa Road in Carnegie. Ms Lever is the mother of Archie Lever[2] who was born on the 24 September 2020. He was aged 2 years old at the time of the alleged offending.
Summary Charge 4: Trespass
[1] A pseudonym.
[2] A pseudonym.
4On Thursday 26 January 2023 at approximately 9:30 PM, Marian Lever was returning home from the Carnegie Library with Archie. Ms Lever noticed you standing outside a nearby unit located on the ground floor of her address looking through the window for approximately 15 minutes at Shona Wills who lives in that unit.
5Ms Lever had not gone inside to her home address. She didn’t know you were and had not seen you before. You put your hands against the window looking through. Ms Lever eventually confronted you and asked you what you wanted.
6Ms Wills came out to the front door. You stated you wanted to know the time. Ms Wills provided the time, you then left and Ms Lever called 000 to report the incident.
Charge 1 – Stalking
7On Sunday the 29 January 2023 at 10:30 AM you stood directly outside Ms Lever’s kitchen window whilst she was washing the dishes. Her blinds were open, and she could clearly see you. You put both your middle fingers up directed at her and screamed “fuck you” and put out your tongue. Ms Lever called 000 to report the incident.
8On Monday the 30 January 2023, at approximately 9:30 PM Archie was in the bedroom alone whilst Ms Lever was making him milk. The blind was open, and the window was slightly ajar. Ms Lever heard Archie talking to someone. Ms Lever then heard an aggressive voice and ran to the bedroom. She saw you standing at the window talking to Archie. You slammed your open hand hard on the window making a loud bang.
9This made Archie begin to shake and cry. You ran away. Ms Lever called 000 to report the incident and stayed with a family member as she was too scared to sleep at home.
10On Tuesday the 14 February 2023 Ms Lever saw you standing outside her bedroom window at 11:19 AM. You then walked past the window and stuck out your tongue at her before leaving.
11Ms Lever felt unsafe and couldn’t sleep. She stayed with friends and family as she was too fearful to sleep in her own home.
Charge 2 – Child Stealing (Charge 1 – Stalking continued).
12On Sunday the 26 February 2023, at approximately 10:00 AM, Archie was outside on the ground floor balcony playing with his toys. The balcony is situated at the front of the apartment complex, nearest to the street on the left-hand side. The balcony is approximately 6 metres from the street, as depicted at p123 of the depositions.
13Ms Lever went to the bathroom. She then heard Archie scream in distress. She ran outside to the balcony and has seen you with your right arm leaning over the waist high balcony past the temporary bamboo screen. Your upper body, head and torso were inside the balcony area.
14You used your right hand to grab Archie’s left shoulder, causing one of his feet to dangle from the ground, leaving the other foot on the ground.
15Ms Lever screamed at you and yelled at you to drop her son. You continued to stand at the balcony holding Archie. Ms Lever has tripped past a chair on the balcony and picked up a broom nearby and hit you until he let go of Archie and ran away. Ms Lever called 000 to report the incident.
16You were transported to Moorabbin Police Station. Due to your presentation, a Forensic Medical Officer was contacted to assess your fitness to be interviewed and you were assessed as not being fit for interview.
17You were on bail at the time of your offending.
Gravity of offending
18Now, turning to the gravity of your offending first. Child stealing and stalking, Mr Honey, are inherently serious offences and they are offences that cover a range of conduct.
19In your case on the charge of child stealing I take into account in particular the following - the young age of the child; the clear distress that this incident caused his mother, Ms Lever; the immediate distress it caused the child who was crying; the fact that you intruded into their personal home and the degree of persistence that you showed, desisting only after being hit by a broom.
20As submitted on your behalf I also take into my account in my assessment that the incident was of short duration and that the child was not actually removed from the balcony. The offending I accept was unsophisticated though I also accept the prosecution submission that in all the circumstances it does represent an escalation.
21Further, I take into account that your offending appears to have been spontaneous and opportunistic and that while you grabbed the child's arm and no doubt caused significant distress and trauma to his mother, there was no use of overt violence or threats.
22The case can clearly be distinguished from those involving family violence where one parent, for example, steals a child from another parent during a relationship breakdown. In all the circumstances, while no doubt serious offending, I consider that it falls at the lower end of seriousness.
23In relation to the stalking I take into account that it is constituted by acts on three separate days across a four week period. The acts were intimidating and directed and directed at both Ms Lever and her son. Notwithstanding there was no direct threat made, the offending caused Ms Lever to feel unsafe to the point that she needed to leave her home.
24I also take into account that you were on bail at the time of the offending.
25Your counsel submits that at the time of the offending you were subject to extremely poor mental health and complex psychosocial issues and exhibiting paranoia and psychotic symptoms.
Victim Impact
26Further, Mr Honey, I take into account the impact that your offending has had. I received this morning a victim impact statement from Ms Marian Lever. In that statement she outlines the profound impact that your offending has had on her.
27She states that notwithstanding the passage of time since the offending, 'I still cry alone and think about it. If I had missed even a second my child would have gone in front of me. I will never be able to forget this incident that happened to me and I still feel very sad about it and I never leave my children alone whether it is outside or inside. Even when I walk on the road I fear that someone is coming to pick up my child. That man has given me a huge wound which I can never forget'.
28I take into account the impact that your offending has had, Mr Honey.
Personal circumstances
29In terms of your personal circumstances, you were born in Melbourne, raised in Seymour by your parents. You have an older brother and a younger sister. You report limited contact with your siblings. You describe a relatively normal upbringing where both parents worked. Your father was employed as a railway worker and your mother as a school teacher. You describe your parents as both nurturing and attentive.
30
In terms of schooling, you attended Seymour Technical High School from
Year 7 until 12. You then initially began working in a supermarket and then later transitioned into the retail industry for several years. For some four years you then worked at a Nestle factory operating machinery. Then you worked at an abattoir for two years before returning to the Nestle factory for an addition six.
31You told Ms Gina Cidoni that you were terminated from your employment due to poor behaviour at work. You later went on to work in picture framing for a couple of years and then as a forklift driver on a casual basis. You worked for the Ford Motor Company for four years until the factory closed. You were last employed in 2015 at a freight logistics company.
32Your history of intimate relationships is outlined in the report of Ms Cidoni. During a relationship of some five years you describe experiencing significant stress and difficulties. Your partner took permanent leave from work in the context of having been a victim of rape in the workplace. Her little sister was living with you due to her own challenges.
33Your brother also moved in due to developing schizophrenia and paranoia after being physically assaulted at a bar. You felt responsible for caring for them all and felt the financial strain which impacted your employment. In this context you were fired for tardiness and your relationship also ended.
34Your next long-term relationship of some six years was with your wife. She was older than you and you felt the pressure of providing beyond your means. Eventually you grew apart and you separated in August of 2012 or thereabouts.
35Subsequently she became pregnant and claimed that you were the father which you disputed but were prepared to take on a parenting role. She gave birth to a son on 19 July 2013 and you moved back in with her and co-parented as housemates for a couple of years. She then wanted you to leave the house and in 2015 you became homeless.
36As for alcohol and drug use, you started consuming alcohol at the age of 16 and you were drinking heavily until the age of 20. You then started using marijuana, last using in December of 2022. You also admit to some sporadic cocaine use.
37Over the subsequent years you have experienced homelessness and temporary housing arrangements which have fallen apart in the context of bullying by other residents, theft of your belongings and verbal and physical violence.
38In their letter to the court your parents offer some further insights and refer to your previous good work history, including as a qualified lifeguard. In the context of your marriage breakdown and losing your employment they state, 'He suffered depression and became lost in the destructive spiral of despair, homelessness and drug addiction'.
39Prior to your arrest you were regularly attending a crisis centre in St Kilda and Launch Housing but found it extremely difficult to secure stable accommodation.
40You have a relevant prior criminal history which I accept largely coincides with drug use and homelessness.
Psychological/psychiatric assessments
41
The Forensicare report of 15 August 2022 records your past diagnosis and hospital admissions. It notes your previous diagnosis as depression unspecified, nonorganic psychosis and anxiety disorder and refers to a psychiatric admission on 28 August 2015 for one day and from 30 August to
1 September 2021.
Psychological report of Gina Cidoni, 28 August 2023
42Ms Cidoni administered the Weschler Adult Intelligence Scale Test but because you did not have enough subtest scores to derive the full-scale IQ due to the test setting, her evaluation focussed on 'more narrow domains of cognitive functioning'.
43Your verbal comprehension was measured in the low average range. Your ability to sustain attention, concentrate and exert mental control was also in the low average range. An attempt to apply the Millon Clinical Multiaxial Inventory to assess the presence of clinical syndromes was rendered invalid.
44Ms Cidoni concludes that you have 'the below-average abilities and verbal comprehension and working memory abilities which suggest you experience challenged in specific areas of daily functioning. Your lowered verbal reasoning abilities also affect your communication and comprehension skills'.
45She considers that you show significant 'signs of paranoia and delusional thinking'. She opines 'these symptoms are consistent with disorders on schizophrenic spectrum, specifically aligning with the diagnosis of schizoaffective disorder’.
46She considers that your uncontained psychotic disorder distorts your understanding and contributes to poor decision making and potential conflict. Your homelessness exacerbates your psychiatric symptoms and makes effective treatment more challenging.
47Ms Cidoni considered that you may be unfit to stand trial. Further, at paragraph [115] she opines that your mental disorder significantly amplifies challenges and can lead to misunderstandings and conflicts with others, in turn raising the risk of conflicts in a custodial environment. Further at paragraph [116], your condition is compounded by being unmedicated and 'The absence of proper treatment also heightens [your] emotional volatility'.’
Dr Sam Calvin, psychiatrist
48Dr Sam Calvin provided two reports of 16 November 2023 and 16 July 2024 and had a range of material available to him, including the report of Ms Cidoni. He considers that your case presents a 'complex interplay of psychosocial issues, including an itinerant lifestyle, social instability and substance use. The last decade has been marked by significant homelessness and erratic behaviours, alongside considerable use of cannabis'. You report experiencing paranoid thoughts directed at others but it remains unclear whether these symptoms are attributable to your social instability and chaotic lifestyle on the streets, your drug use or an underlying illness.
49Dr Calvin considers that while there are 'unquestionable signs of past psychiatric disturbances' he suspects these are likely due to your underlying vulnerabilities which stem from substance abuse and dysfunctional social situation.
50In terms of Ms Cidoni's report, he notes that it fails to provide substantial justification for the diagnosis and states that delusional thinking alone is insufficient to attract the diagnosis suggested.
51In his first report he concluded that you were fit to stand trial. In his addendum he opines in broad terms as follows Your psychiatric history is shaped significantly by your family dynamics, marital issues and persistent social instability. Over the past decade there has been a gradual deterioration in your mental health and functioning. You have reported experiencing paranoia directed at others. Establishing a clear psychiatric diagnosis is challenging. While there are questionable signs of past psychiatric disturbances, he could not diagnose you with a specific psychiatric condition that would explain your behaviours.
52He confirms, 'It appears that these behavioural disturbances are likely related to his underlying vulnerability stemming from substance abuse and dysfunctional social circumstances. Currently imprisoned in a relatively drug free environment he does not exhibit any delusional thinking'.
53He also could not establish any clear psychiatric disturbances at the time of the offences. He suggests that accessing the prison medical records from soon after your arrest as well as obtaining collateral information from family members might help provide further insights into your mental health at the relevant time.
54In terms of reconciling the opinions of Dr Calvin and Ms Cidoni, your counsel submitted that I ought to proceed on the basis that at the time of Ms Cidoni's assessment you were in fact suffering from the diagnosed conditions which would have rendered imprisonment more burdensome.
55While the report of Ms Cidoni provides useful insights, I do consider that the foundation of the opinion is lacking. Also, I accept the opinions of forensic psychiatrist, Dr Calvin and consider that you may very well have suffered psychiatric disturbances and difficulties and challenges but this is likely to be attributable to your sustained impoverished circumstances which have contributed to a deterioration in your mental health.
56While I do not therefore accept that any principles of Verdins[3] are enlivened in your case, I do take into account your vulnerabilities and the unique challenges that you have suffered.
[3] R v Verdins [2007] VSCA 62.
Other considerations
Plea of guilty
57I also take into account your plea of guilty. While not entered at the earlier opportunity it still does entitle you to an important sentencing discount. The plea has saved the expense of a trial and spared the need for witnesses to come to court.
58Further, it spared Ms Lever the ordeal of giving evidence in a trial.
59I accept that your plea indicates your willingness to facilitate the course of justice and represents an acceptance of responsibility.
Totality
60The principle of totality is also an important consideration in your case, both as between the current charges and the further term of imprisonment that you have recently served.
61
Your case has quite a protracted history, as is outlined in the prosecution opening with the charges originating in the summary stream of the
Moorabbin Magistrates' Court.
62On 28 February 2024, you were sentenced in the Magistrates' Court to 365 days imprisonment for unrelated summary offending. At the time of sentencing, you have been held in remand for a total period of 410 days.
63As agreed between the parties arising from this period is also 45 days in what can be referred to as Renzella time.[4] This was time that you previously served that has not been accounted for an is not referrable to this matter.
[4] R v Renzella [1999] VSCA 85.
64On the current matter you have been remanded since 29 February 2024 and therefore the total period of pre-sentence detention now available to you as agreed between counsel is 243 days.
Prospects of rehabilitation
65Mr Honey, I accept that your prospects of rehabilitation will be greatly improved if you receive support and assistance in developing insight into your mental health challenges and drug use.
66I accept your counsel's submission that you will need structure and support on your release to assist with such things as long term housing and financial assistance.
67Your prior criminal history in substance does not commence until 2017, which coincides with a deterioration in your mental health and your social circumstances.
68In custody, as you told the court, you have undertaken some courses including a computer course, health and safety, a white card course, and alcohol and cannabis courses.
69Importantly, you also have the support of your parents. They are committed to renting accommodation in Williamstown, living with you and transporting you to and from appointments. No doubt this will be of significant assistance to you and they have attended court in support of you on previous occasions and offer their unwavering support.
70As counsel informed the court this morning your mother has had to return to Queensland for a medical appointment but your father is on the way to the prison in anticipation of your expected release today.
71It is however also important, Mr Honey, that you begin to develop your own independent networks and resources so that these responsibilities do not fall completely on their shoulders. They state in their letter, 'Paul has strongly expressed his view that he wants to get a job and be a productive member of the community'.
72At the indication hearing I was told, Mr Honey, that there is an intervention order in place protecting Ms Lever and her child and that continues at least until March 2026. I make clear that it is very important that you abide by the conditions of this order. Do you understand?
73ACCUSED: Yes, Ma'am.
74HER HONOUR: All right. I do consider that therapeutic interventions, further structure and treatment will assist you in developing insight which it seems to me you do need assistance with.
Further sentencing considerations
75The purpose for which sentences may be imposed are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In particular, I accept that specific deterrence and protection of the community are important considerations.
76
I take into account the sentencing guidelines referred to in s5 of the
Sentencing Actwhere relevant to your case, along with the applicable maximum penalties. I have also considered the principles of proportionality, parsimony and, as already canvassed, totality.
77At the sentence indication hearing your counsel submitted that the court should proceed to sentence you to a combination sentence and one that did not require you to serve any further time exceeding your period on remand for this matter.
78A carefully structured CCO, it was submitted with therapeutic components, has the capacity to meet all relevant sentencing purposes and affords the bests prospects for rehabilitation.
79The prosecution submitted that a further custodial period was required given the nature of the offending and its gravity.
80At the hearing I indicated that on a plea the court would likely impose a combination sentence not exceeding the term that you have already served combined with the lengthy community corrections order.
81In sentencing you I have taken into account all the submissions and material relied upon by each counsel at both the sentence indication and at the plea hearing today. I had you assessed for an order and you were assessed as suitable. During your assessment it appears you may have deflected and minimised your offending but encouragingly the assessor notes that you appeared to be open to receiving support to improve your circumstances. You expressed that you want to gain employment and that you are prepared to engage with and work with Corrections.
82In all the circumstances, I consider that a combination sentence is the just and appropriate one in your case. You have served a substantial period in custody and I consider that an order can provide necessary and appropriate structure and supervision and be tailored to meet your circumstances and the cause of your offending.
83I consider that the punitive, deterrent, denunciatory and rehabilitative purposes of sentencing can be sufficiently achieved by the term of imprisonment that you have already served coupled with a community corrections order of lengthy duration.
Sentence
84So, Mr Honey, just coming to the sentence now, synthesising all relevant matters, you are convicted and sentenced as follows.
85On Charge 1, which is the charge of stalking I am sentencing you to 243 days imprisonment plus a community corrections order for a period of 16 months.
86On Charge 2, which is the child stealing you are convicted and you are sentenced to six months imprisonment plus a community corrections order of 16 months.
87Possess drug of dependence, the small amount of cannabis you are convicted and discharged.
88Trespass, again taking into account the maximum penalties and totality, I am imposing a sentence of seven days imprisonment.
89I make no orders for cumulation. All the sentences imposed are to be served concurrently.
90The conditions of the order I am going to go through now with you but before doing that I declare that you have served pursuant to s18, 243 days imprisonment.
91I indicate pursuant to s6AAA, the had you not entered a plea of guilty I would have sentenced you to some two years and four months imprisonment with a non-parole period of one year and five months.
92I make the forfeiture order of the cannabis in the terms sought and as it was unopposed. And in terms of the order, I am going to go through the conditions now because you are in custody. I am going to have you indicate whether or not your consent to the order and then in due course this morning I expect that it will be provided to the prison.
93So, Mr Honey, just to pause for a moment. In total, I have sentenced you as I indicated to the time that you have served, 243 days. And I have set that sentence up in a particular way between the charges but I have reckoned it so you have done that time now. Do you understand?
94ACCUSED: Yes, Ma'am.
95HER HONOUR: I am releasing you on a 16-month community corrections order and the conditions of the order are as follows.
96Every community corrections order has core conditions to it. So first of all, those core conditions are that you must not commit another offence for which you could be imprisoned during the time of the order. The order commenced today and it goes for 16 months.
97You must comply with the obligation of requirements set by Corrections. You must report and receive visits from Corrections. You must report to the Community Corrections Office in Werribee.
98That must be the closest one, correct counsel? It must be Werribee.
99So, Werribee is the closest community corrections service and you need to report there within two clear working days after this order. So that will bring you to, you should really probably arrange to go in there tomorrow but you have got two clear working days to do that. You could even do it today, subject to when you are released.
100You must let community corrections know within two clear working days of doing so of a change of address or job. You must not leave Victoria without first getting their permission. You must obey all lawful instructions from and directions of Corrections. So, they are the basic conditions that attach to all community corrections orders.
101
Further, I impose the additional conditions as follows. For the period of the
16 months you must be under the supervision of Corrections. You must undergo assessment and treatment for drug abuse or dependency as directed. You must undergo any mental health assessment and treatment as directed. You must participate in programs and/or courses that address factors relating to your offending as directed.
102So, that is in summary treatment rehabilitation for drugs, mental health programs and supervision.
103All right. Now, first of all, Mr Honey, do you understand those conditions?
104ACCUSED: Yes, Ma'am.
105
HER HONOUR: All right. I should also explain this. You can breach the order in two ways. One, by not complying with it, so not doing what is required of you. And two, by committing an offence punishable by imprisonment within the
16 months. All right. That is how you breach an order.
106If you breach an order you come back to court. I deal with you for the breach and it is open for the court to re-sentence you on the original charges. That means that there would be a risk and an option of imprisoning you. All right, so that is how you can breach and order and that would be the consequence of it.
107So, for example, breaching an intervention order would constitute a breach of the order.
108All right. Now, do you understand how you can breach an order?
109ACCUSED: Yes.
110HER HONOUR: Do you understand what could happen?
111ACCUSED: Yes.
112HER HONOUR: All right. So, Mr Honey, understanding the conditions of the order, understanding how you can breach it and the potential consequences do you consent to this order being made?
113ACCUSED: Yes.
114HER HONOUR: All right. Now, Mr Honey, these orders are punitive. All right. You are accountable to Corrections. You have to prioritise it. You need to structure your day. You need to do what they are asking you to do. All right. But you will notice I have not included community work. You have done a substantial period of time in custody.
115This order is focussed on treatment and helping you get things back on track and working with you. And I think it would be helpful for them to have the reports as well. Is there any issue with the reports being provided to treatment providers?
116MR BLACKLEY: No.
117HER HONOUR: Can I indicate, counsel, I had contemplated no doubt as you can see, judicial monitoring in particular. But it is not recommended given the lack of history and I am following the recommendation in that regard.
118MR BLACKLEY: Yes, Your Honour.
119HER HONOUR: All right. Counsel, is there anything further
120MR KELLY: No, Your Honour.
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