Director of Public Prosecutions v Johns

[2024] VCC 932

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

Case No.CR-23-01252

DIRECTOR OF PUBLIC PROSECUTIONS
v
ANDREW JOHNS
JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:	7 February 2024, 18 April 2024, 10 May 2024
DATE OF SENTENCE:	20 June 2024
CASE MAY BE CITED AS:	DPP v Johns
MEDIUM NEUTRAL CITATION:	[2024] VCC 932

REASONS FOR SENTENCE

Subject:Criminal law

Catchwords:              Intentionally damage property, attempted aggravated carjacking, robbery, intentionally cause injury, common law assault

Legislation Cited:      Sentencing Act 1991

Cases Cited:R v Verdins & Ors [2007] VSCA 102; Teryaki v The Queen [2019] VSCA 120; Mikael v The Queen [2022] VSCA 119; R v Gilmour [2019] VSC 766; DPP v David William Parkinson [2021] VCC 2044; R v Sebalj [2006] VSCA 106

Sentence:                  Term of imprisonment of 30 months, with a non-parole period of 12 months

APPEARANCES:	Counsel	Solicitors
For the DPP	Ms A. Dearman	Office of Public Prosecutions
For the Accused	Mr N. Howard	Victoria Legal Aid

HER HONOUR:

1Andrew Johns, you have pleaded guilty on indictment to charges of intentionally damage property, attempted aggravated carjacking, two charges of robbery, intentionally cause injury and common law assault.

2In sentencing you for these crimes, I am obliged to consider the maximum penalty for each of the offences that you have committed. In relation to these matters, those maximum penalties are as follows:

(a)   Attempted aggravated carjacking carries a maximum penalty of 20 years' imprisonment:

(b)   Robbery carries a maximum penalty of 15 years' imprisonment:

(c)   Charges of intentionally damage property and intentionally cause injury each carry a maximum penalty of 10 years' imprisonment: and

(d)   common law assault carries a maximum penalty of five years' imprisonment.

These maximum penalties reflect the seriousness with which Parliament regards each of these offences.

3The circumstances of your offending were set out in a document entitled 'Summary of Prosecution Opening for Plea' dated 24 January 2024. This is an agreed document. It represents your acceptance of each of the elements of the offences which you have committed as well as the factual basis on which I am to sentence. Whilst it will not be repeated in full in these sentencing reasons, I have recourse to the entire document and intend to refer to some of the facts in order that the gravity of your offending can be fully understood.

The offending

4Your offending all took place on 17 November 2022. There were four separate incidents in the Monash Medical car park in Clayton. At the time of your offending, you were said to be experiencing withdrawal from using gamma hydroxybutyrate ('GHB').

5In the lead up to the offending, you called an ambulance to your home at 4:54 am on 15 November 2022 complaining of an anxiety attack, palpitations and auditory hallucinations. It is accepted that you had last used GHB at around 2 am that day.  An ambulance did attend and you were taken to the Alfred Hospital. You were seen by medical professionals at around 8 am and you described a daily intake of GHB and your physical responses which included agitation, palpitations and hearing things. Doctors at that time were of the opinion that your presentation was due to GHB intoxication. You were discharged into the care of your father.

6At 8:20 pm on the same day, you again called an ambulance to your home reporting similar physical symptoms. An ambulance attended and you stated that you were seeing and speaking to God. You were again taken to the Alfred Hospital arriving at approximately 10 pm. You described being on an 11-day GHB 'bender'.

7You were referred for psychiatric assessment which took place some 8-9 hours later at 6:53 am on 16 November 2022. Organic causes of your presentation were excluded. You had developed a florid psychosis and were 'not identifying as self'.  You were administered medication and discharged into the care of your father at approximately 11:55 am.

8Approximately 12 hours later at 12:30 am on 17 November 2022, you attended the Monash Medical Centre Emergency Department in Clayton with your father, Gary. You were presenting with chest pain, headache and withdrawal symptoms. You appeared drug affected and were hyperventilating. You reported hearing the voice of God and seeing the devil. Your principal diagnosis at that time was 'mental and behavioural disorders due to dependence on multiple drugs and psychoactive substances'. You were thought to be withdrawing from GHB and were treated for agitation and withdrawal.

9You were also referred to alcohol and drug services but you had left by the time they arrived. You called your father to pick you up. When your father arrived, he could not locate you.

10CCTV footage at the Monash Medical Centre shows you entering the multilevel car park attached to the hospital at 10:57 am.

Incident one – victim Gaila Whitehouse

11You made your way to level 2 of the car park and removed a fire extinguisher from a nearby wall and smashed the passenger window of a car belonging to Gaila Whitehouse. You had intended to drive home but were unable to start the vehicle without keys. These facts form the basis for Charge one – intentionally damage property.

Incident 2 – victim Margaret Devries

12You got out of the car belonging to Gaila Whitehouse and walked past Margaret Devries who was on her way to her own vehicle. As she passed, she spoke to you in a friendly manner and continued to her car. She was shutting her driver's door when you grabbed it and pulled the door open. You grabbed Ms Devries by her ponytail and dragged her from the car yelling 'give me your car keys, give me your car keys'. You grabbed Ms Devries by the neck with both hands and strangled her before pushing onto the bonnet of another car. At that point in time, she was afraid you were going to kill her. She held out her keys but when you grabbed them the car key remained in her hand. These facts form the basis for Charge 3 – robbery of keys.

13You were observed by Kay Jacob and her daughter Hannah Williams who were on Level 1 but had heard screams for help from Ms Devries. Ms Jacobs used a water bottle to hit at your legs to startle you. Ms Devries ran from you to Ms Jacob and Ms Williams and got into their vehicle.

14You got into Ms Devries vehicle but could not drive it. These facts form the basis for Charge 2 – attempted aggravated carjacking.

Incident 3 – victim Tamara Gambrell

15

You walked from level 2 to level 1 and approached the three women in

Ms Williams' vehicle. She locked the car and told you to 'get away from us'. You went down the ramp to the next level.

16Tamara Gambrell had just arrived at the hospital car park and heard screams from above. She could not see what was happening.

17Ms Gambrell ran towards the stairwell near elevators for assistance and was screaming out 'help, help, there is a lady being attacked'. She was confronted by you in the stairwell and asked you for help saying 'help, there is a man attacking a woman'. You grabbed her with both hands on each of her shoulders, looked her in the eye and said 'what did he look like? Do you have a car? Do you have keys?' She responded 'no'.

18You then tried to take Ms Gambrell's bag but were unsuccessful. You kept saying 'give me your keys'. She was terrified and fearful of being assaulted.

19You forced Ms Gambrell to the ground, causing her to fall backwards into the foyer of the elevator lobby. You grabbed her hair with both hands and slammed the back of her head into the concrete floor 10 times. It is accepted that Ms Gambrell had lost consciousness by the fifth blow yet your assault continued. She then suffered a seizure causing her to violently convulse for more than a minute. These facts form the basis for Charge 4 – intentionally cause injury.

20You took her keys and searched for her vehicle but were unable to find it. These facts form the basis for Charge 5 – robbery.

Incident 4 – victim Khoa Nguyen

21Whilst searching for Ms Gambrell's car, you saw Khoa Nguyen driving his car on the level 1 ramp having just dropped his wife off in the Emergency Department. You walked to the middle of the roadway causing Mr Nguyen to stop. You walked to the driver's door and grabbed Mr Nguyen with one hand on his back and one hand on his chest in an effort to pull him from the vehicle. This was prevented by his seat belt.

22These facts form the basis for Charge 6 - common law assault.

23Mr Nguyen panicked and accelerated away but you held on to him and ran alongside the car until he reached level 2 when you then dropped away.

Post incident

24Ms Gambrell was found by the car park manager. Ms Gambrell had vomited as a result of her injuries and her breathing was obstructed. She was placed in a recovery position.

25

In the meantime, you returned to the level 1 lobby where you threw away

Ms Devries’ car keys. You then stepped over Ms Gambrell who was still unconscious and walked into the stairwell where you slid prone down the stairways on your stomach.

26Police arrived a short time later and you were arrested. By that stage, you had attached yourself to a water pipe by wrapping your left leg around the valve. You were taken to the Monash Medical Emergency Department and received treatment for your injuries. You told clinicians that you were hearing voices. You were seen by psychiatric services but were no longer psychotic and did not require psychiatric treatment. You were discharged into police custody.

27When interviewed by police you made admissions to what you said you were able to recall. You referred to feeling like you were speaking to God, talking to your father telepathically, thinking you were turning into COVID and to having no idea why you did what you did.

The injuries

28Turning now to the injuries as has been made known to me.  According to an initial medical report authored by Dr Angela Williams dated 4 January 2023, Ms Devries suffered blunt force trauma to the neck, left hand and chest which were thought to be minor.

29In a subsequent report date 21 March 2023, it was outlined by Dr Williams that, post incident, Ms Devries had presented twice to an Emergency Department with chest pain. A CT scan revealed a sternal fracture that had not previously been identified. This injury was described as one which is painful and impacts on breathing, movement, sleeping, laughing and sneezing until it is healed.

30Dr Angela Sungaila provided a medical report dated 16 January 2023 in relation to Ms Gambrell. Ms Gambrell suffered a 6 centimetre right parietal scalp haematoma and a mild traumatic brain injury.

31

She was referred to a concussion clinic and neuropsychologist and discharged after two days in hospital with anticonvulsant treatment for 6 months and a requirement not to drive for the same time period. An MRI performed on

16 December 2022 was reported as normal.

32No further medical information in relation to either Ms Devries or Ms Gambrell was provided.

Victim impact and offence gravity

33The direct physical impact on Ms Devries and Ms Gambrell has already been outlined.

34The purpose of a victim impact statement is to give those affected by your crimes the opportunity to participate in the criminal justice process by informing the court about the effects of the crime upon them.

35

Ms Devries has provided a victim impact statement. Perhaps understandably, she describes her life as not being the same since the day of the assault upon her. She needed some three months away from work to recover. Ms Devries had a family holiday booked for a special birthday and was unable to properly participate in the celebrations due to continuing pain to her chest. She did need to attend Monash Health post the events of 17 November 2022 and found it traumatic to do so.

Ms Devries lost her sense of independence.   

36Ms Gambrell found the emotional aftermath of the offending against her as overwhelming. She was at Monash Medical Centre on 17 November 2022 as she had a fragile infant in intensive care.  Ms Gambrell has become hypervigilant. She reports living in state of perpetual fear and anxiety. She has lost her sense of safety and security and her ability to trust others.

37Ms Devries’ victim impact statement was read to the Court and you are aware of the content of Ms Gambrell's victim impact statement. The profound and enduring impact of your offending on each of these persons could not be lost upon you. Of course they were not the only ones exposed to your violence, so were Mr Nguyen and Ms Whitehouse as well as any members of the public who happened to be at the Monash Medical Centre that day and in proximity.

38It is perhaps trite to say this is an extremely concerning set of circumstances.

39I view the charge of intentionally damage property and common law assault as being less serious but these two offences bookended a horrific series of events which occurred over approximately 30 minutes and involved four separate direct victims. 

40Your offending in relation to Ms Gambrell and Ms Devries was particularly brutal and undoubtedly terrifying.

41At first blush, sentencing principles of denunciation, general and specific deterrence and protection of the community loom particularly large.

42Whilst not the subject of separate charge, the assault of Ms Devries is part and parcel of the charge of attempted aggravated carjacking and the charge of robbery as it was a mechanism to try and effect each offence.  However, it was a disturbing event committed in a set of circumstance which appear to be particularly violent even if a weapon was not used. In an inherently dangerous act, you used both hands to strangle Ms Devries in order to commit these two offences. She feared for her life. These two charges being part of the one event committed close in time will impact on the degree of cumulation between the sentence imposed for these two offences.  

43The facts of the charge of intentionally causing injury to and robbery of Ms Gambrell are most concerning and these two offences, whilst occurring close in time to each other, are somewhat more separate from each other than the offences committed against Ms Devries.

44It is perhaps more by good fortune than good management that the physical injuries Ms Gambrell incurred were not more severe.  The CCTV footage was available and was positively sickening involving multiple blows to her head whilst she was on the ground.  She was particularly vulnerable in those circumstances and the circumstances also involved an inherently dangerous act in what amounted to blows to the head region.

45

I do not form the view, nor could I, that you ingested GHB post 2am on

15 November 2022 when you commenced the withdrawal process. It was three hours later that you first called an ambulance to assist you with your withdrawal response and take you to the Alfred Hospital. I accept that you were concerned with the reaction you were experiencing from having consumed excessive amounts of GHB.

46As already outlined, you attended hospital on two further occasions, inclusive of your attendance in which your offending was committed, and on each occasion it was to seek assistance for your withdrawal response. It appears that you were making every effort to get assistance with your own concerns about your wellbeing before your response to GHB withdrawal reached the point it did on 17 November 2022.

47In terms of general circumstances involving what amounts to self-induced intoxication, your particular case has the unusual feature of you actively seeking help for your withdrawal symptoms. You did what you could do to address that situation and did so over a number of days before committing very serious offences.

Plea of guilty

48The Sentencing Act 1991 obliges me to consider the stage at which you entered your guilty plea.

49Your plea was entered in July of 2023 at committal proceedings. I accept that it was a plea entered at the earliest opportunity once appropriate charges and the facts had been settled between the parties.

50Your plea has saved the Court and community the time and expense of contested proceedings and, most importantly, the witnesses of the need to give evidence and relive what could only be described as traumatic events.

51Your plea was also entered whilst the Court was still responding to the impacts of the COVID‑19 pandemic and has additional utilitarian benefit in that context.

52I have no difficulty accepting that you are genuinely remorseful for your actions.

53These factors will all be taken into account in your favour. 

Personal circumstances

54You grew up in East Bentleigh in a loving home environment.

55You currently reside with your father, Gary, who works as an accountant. You enjoy a close relationship with your sister, Danielle. Unfortunately, your mother, Jillian, died from cancer in 2018 after an initial diagnosis in 2016.

56During your school years, in both primary and high school, you were bullied and, when you retaliated, you were apparently labelled as a bully yourself. You drifted between friendship groups and had difficulty pursuing romantic relationships. You see your school years as providing the foundation for your later resort to substance misuse.

57You completed a Year 12 education and enrolled in a Bachelor of Information and Communication Technology. You initially did well but your studies lapsed in the 'freedom of university' and you began drinking heavily.

58You have not had much success in your romantic relationships until more recently. Your first was in university and lasted several years but was one of high conflict and involved a pregnancy termination. Your second romantic relationship was one of six months' duration and finalised in the context of infidelity. You describe yourself as grieving that relationship for several years and your substance use increased. Your third relationship is one you describe as 'toxic' and involved substance misuse. You more recently have commenced a new relationship with Ailie Boek who remains supportive of you.

59You have worked in retail as well as completing a qualification in logistics and obtaining a forklift licence.

60You have had your own concerns about your mental well-being. You saw a psychologist briefly after the demise of your second relationship. You sought assistance from your general practitioner in 2017 and were prescribed medication for anxiety and depression which you initially found helpful.

61Your mood understandably worsened around the time of your mother's illness and death in 2018 and you attended upon a psychiatrist who recommended an increase in your antidepressant medication. You engaged in some self-harm around this time.

62You ceased prescribed medication around 2019 and began using illicit substances. You took a deliberate overdose of GHB and sedatives around that time.

63In 2020, you again attended a general practitioner and changed your antidepressant treatment to good effect. Your well-being deteriorated during the 2020 lockdowns associated with the COVID-19 pandemic and coincided with heavy use of both alcohol and GHB.

64In October of 2021, you attended the Monash Medical Centre and were diagnosed with Borderline Personality Disorder and substance misuse.

65In late 2021, you began seeing a private psychiatrist, Dr Sajeevan, and completed a four-week dual diagnosis admission to the Melbourne Clinic in the context of emergency presentations and a brief hospitalisation in the public mental health system experiencing suicidal ideation. You were diagnosed with Borderline Personality Disorder, substance misuse and Attention Deficit Hyperactivity Disorder.

66In the two weeks prior to your offending, you stopped drinking but had been using GHB to help with your withdrawal from alcohol. You told Dr McInerney that your use of GHB was very heavy at this time and I have already referenced your description to one hospital that you had been on an 11-day 'bender'.

Expert evidence

67Tendered on your behalf was a report dated 10 March 2023 authored by Dr Clare McInerney, Forensic Psychiatrist. The purpose of her assessment was to consider the relevance of your mental health to your charges.

68She had reviewed other collateral material, the medical records in the days leading up to 17 November 2022, had seen the Body Worn Camera Footage of your interaction with Police at the Monash Medical Centre on 17 November 2022, had access to your record of interview with Police and to the notes of the consultant psychiatrist who saw you immediately after your offending. That consultant psychiatrist had noted:

“Andrew does not appear to be currently psychotic or suffering from a mood
disorder and does not require any acute psychiatry treatment. He has a severe substance use disorder with recent reported excessive use of GHB and subsequent struggles with the withdrawal side effects.”

69A report from Dr Angela Williams dated 31 December 2022, which is part of the depositional matters and referred to by Dr McInerney, outlined that your presentation on 17 November 2022 was best understood as the effects of GHB intoxication or withdrawal which can cause confusion or psychosis.

70Dr McInerney was of the opinion that you had longstanding and severe substance use as well as other mental health symptoms which include emotional instability, intermittent anxiety and low mood, intense and chaotic relationships and deliberate self-harm or suicidal ideation. She was of the opinion that your mental health symptoms and substance use disorder interact closely and exacerbate each other. There was no evidence of psychotic illness.

71As indicated earlier, you told Dr McInerney that you had two weeks of heavy use of GHB in advance of your offending. In response to experiencing panic symptoms as a result of your heavy ingestion of GHB, you decided to try to stop using GHB.   

72In Dr McInerney's opinion, that was at the time of your offending, you were experiencing a delirium which is also known as an acute confusional state. This she did describe as a medical rather than a psychiatric condition and it appeared to have been caused by your initial overuse of, then withdrawal from, GHB. It was your withdrawal from this substance that appeared to be the most likely cause of your delirium, a finding which Dr McInerney preferred to that of drug induced psychosis.

73Dr McInerney further opined that:

“It is not all clear that he knew what he was doing at the material time. If he did, it is in any case highly unlikely that he was able to reason with a moderate degree of sense and composure about whether his actions, as perceived by reasonable people, were wrong, at the time.”

74Dr McInerney was of the view that the acute confusional state caused a gross impairment of judgement and decision-making and obscured your ability to appreciate the wrongfulness of your actions.

75Further, Dr McInerney opined that it was unlikely you could have anticipated your level of disordered mental state. In her opinion, you experienced a severe side effect. You had not experienced a delirium before and were without a history of aggressive or violent behaviour due to substance use or withdrawal.

76I was initially concerned about Dr McInerney's opinion that what you experienced was a medical condition and, as a result, your plea hearing was adjourned so that she could give evidence.

77At your further plea hearing held 18 April 2023, Dr McInerney was called to give evidence. A transcript of her evidence was made available and I have had recourse to its contents. Dr McInerney outlined that delirium is an acute confusional state and a neurocognitive disorder. It affects the brain and the mental health that relates to cognition in the person suffering from delirium. There is always a medical cause. Delirium presents very acutely and can vary a lot during the presentation. Dr McInerney described delirium as a disorder of cognition like dementia.

78In terms of the symptoms, she described gross disorientation, severe confusion, heightened emotions, perceptual disturbances, auditory disturbances, paranoid beliefs and gross disorganisation of behaviour and mood. Particular to you, there was an acute and fluctuating presentation and you were disturbed and paranoid. You were confused about your circumstances and grossly misinterpreting them – for example, visualising demons and hearing God. Dr McInerney had considered both drug induced psychosis and delirium and formed the view that on 17 November 2022, you were experiencing a delirium.

79Dr McInerney gave evidence that certain substances are illicit for a reason as they come with risks. I accept that GHB is so described. Her evidence was that you could have known that there were risks associated with using illicit substances. I observe that, in your case, you were familiar with the drug and had previously experienced symptoms that you described in your record of interview as being similar or close but not to this extent. However, I accept Dr McInerney's evidence that your reaction to your withdrawal from GHB was one which she described as 'extremely severe' and she confirmed that it would have been very difficult to anticipate this level of abnormality. 

80There was limited challenge to Dr McInerney's opinion.

81I note that at your further plea hearing held 18 April 2024, application was made by the Crown to amend the Crown opening and written submissions filed. It was accepted that your offending on 17 November 2022 occurred whilst you were experiencing a drug induced delirium, as opposed to a drug induced psychosis, as part of withdrawing from GHB.

82On completion of this evidence, it was submitted on your behalf that whilst the delirium was a medical issue, it had in fact generated a mental impairment.

83I will return to this.

Prospects for rehabilitation

84You have no prior criminal history nor any matters since the events which are the subject of the indictment.

85As a direct consequence of your offending, you spent 28 days in custody before obtaining a grant of bail on 14 December 2022. I accept that to some degree this period is capable of acting as both a sanction and a deterrent into the future. You had never been in custody before and I am told that you were initially placed in isolation and were not able to receive visitors during your period on remand. I take this into account in a general sense.

86The Crown concedes that specific deterrence and community protection have been addressed to a large extent by the time you spent on remand and your subsequent efforts to rehabilitate. I agree and these sentencing factors are of limited weight.

87Given the delirium you experienced on 17 November 2022 was directly related to your withdrawal from GHB usage, provided there is no further drug usage, the risk that you present to yourself or others is considerably reduced.

88You report that you have not used illicit substances since November of 2022. In Dr McInerney's opinion, as your delirium resolved, you were unlikely to experience further symptoms unless you resumed GHB usage. I am reasonably confident that your experience of 17 November 2022 and the direct consequences of it for you is such that you are unlikely to return to drug usage. You have demonstrated this to be the case for a period of some 19 months. Urine screens tendered on your behalf and a report from Jayne Hazon of Cansford Laboratories are confirmative of this.

89A letter from Dr Sujeevan, Consultant Psychiatrist dated 20 February 2023 confirms that you were admitted to an addiction program at the Melbourne Clinic on 16 December 2022 after being released on bail. You successfully completed that program and were discharged in February of 2023. There was no evidence of psychosis during that admission and you were treated with anti-depressants and a low dose of quetiapine and diazepam. You were referred to a range of outreach services with regular psychiatric appointments.

90I have insufficient evidence to give much application to the decision in Akoka v The Queen [2017] VSCA 214 but your time in rehabilitation is demonstrative of your desire to make positive changes in your life.

91In a second letter dated 16 January 2024, Dr Sujeevan stated that you participated well in the Addiction Behaviour Program. You regularly attended outpatient reviews, an Addictive Behaviour Day Program, and saw a psychologist fortnightly. You have been compliant with treatment and prescribed medication. Your mental state was described as stable. Otherwise, he reported that you stay physically fit through Brazilian Ju Jitsu, continue with university studies in Information and Communication Technology and have a stable personal life.

92In a third letter dated 23 May 2024, Dr Sujeevan confirms your continued compliance with treatment. You have maintained all treatment interventions, have remained drug free, present as stable, have almost completed your university degree and are considering seeking employment.  

93A letter from Nelson Lay dated 28 January 2024 speaks of your work with him and Good Jiu Jiu Brazilian Jiu Jitsu in Moorabbin. You have seen benefits to your overall wellbeing from regular physical exercise. Mr Lay describes you as calm, friendly and of being level-headed. 

94I have also had regard to a letter dated 23 January 2024 from Effie Moraitis, Program Manager of the Addiction Services Unit at The Melbourne Clinic and a letter dated 30 January 2024 authored by Teri Power, Outreach Clinician, both of which detail your response to their assistance and that you do so in a positive manner. Ms Power provided updated information dated 4 June 2024 confirming that you have continued to engage with her on a fortnightly basis.

95A Confidential Psychological Report dated 28 January 2024 authored by your treating psychologist, Marco Keogh, has also been tendered. You have consistently attended psychological therapy sessions with him on a fortnightly basis since mid-March of 2023 to address issues of substance abuse, Adult Attention Deficit Hyperactivity Disorder and Borderline Personality Disorder. You are described as having invested heavily in this process and in behavioural change. Mr Keogh speaks of your developing stability in your mental health and to being optimistic of your recovery and of you being of low risk to the community.

96You are to be commended for your efforts. There is obvious merit in you being able to continue established and effective therapeutic relationships as soon as you are able to do so.

97Your efforts at rehabilitation are supportive of your remorse and further reduce your future risk.

98I note that you have provided letters of apology to Ms Devries and Ms Gambrell. These are of limited weight but at least demonstrate your insight to the impact of your wrongdoing upon others.

99I accept that you are well supported by family. This is perhaps obvious by the assistance your father provided in the lead up to and at the time of your offending. Your father and partner have both attended various listings in relation to this matter and are present for your sentencing today. I accept you have a supportive romantic relationship, which you both intend to pursue.

100Your father, Gary Johns, has also provided a reference. Within the family, you are known as being placid, good-natured and very caring. He speaks of your remorse and difficulty reconciling what happened in November 2022. Your father also speaks of your commitment to improve your wellness both mentally and physically. He is of the opinion that your offending was totally out of character and that you are well capable of making a positive contribution to society.

101You would appear to have excellent prospects for rehabilitation.

Sentencing submissions

102The issue for me throughout these proceedings has been whether delirium is different in any way from how the courts have dealt with the issue of drug induced psychosis and can limbs one to four of the decision in Verdins have application.[1] 

103Your counsel argues that limbs one to four in Verdins have application.[2]

104The Crown submitted that your offending warranted the imposition of a head sentence and a non-parole period. I accept the submissions made in writing as to the nature and gravity of your offending.

105The Crown contend that your moral culpability remains high and any mitigatory affect from your delirium should be confined given you had previously completed residential rehabilitation at the Melbourne Clinic in December 2021 and that your use of GHB was self-induced.

106It was submitted that your experience and knowledge of this drug had previously included the effects of withdrawal symptoms. This submission was somewhat in conflict with the initial concessions made in relation to limbs 1, 3 and 4 in Verdins having application. The Crown had conceded the application of limbs one, three and four of the decision in R v Verdins & Ors [2007] VSCA 102 but in submissions filed early this morning, now suggest that the evidence of Dr McInerney is that you suffered a neurocognitive disorder and that your delirium does not come within the Verdins considerations.[3]

107However, it remains conceded that your delirium may reduce your moral culpability and that specific deterrence and community protection have been largely addressed by your efforts to rehabilitate.

108It was also submitted by the Crown that the weight should still attach to general deterrence, denunciation and just punishment in the context of what was obviously serious offending.

109I was referred to the decisions in Teryaki v The Queen [2019] VSCA 120 and Mikael v The Queen [2022] VSCA 119 by way of 'comparative sentences' and have had recourse to each of those decisions. Ms Teryaki was young with a lengthy criminal history and had an intellectual disability, Borderline Personality Disorder and established difficulty coping in the custodial setting resulting in constant self-harm. Her impairments played a material role in her offending and were likely to do so into the future without significant intervention. Mr Mikael also had an extensive criminal history, a difficult childhood with resultant mental health conditions and a history of drug and alcohol abuse. Each of those decisions were of some assistance with dealing with offending related to carjacking but not in relation to the particularities of your case.

110Your counsel contends that given your lack of prior history, lack of subsequent matters, efforts to rehabilitate and very clear explanation for your offending giving rise to the applications of the Verdins principles,[4] then the court can reflect all relevant sentencing considerations in the imposition of a Community Correction Order in combination with the 28 days you have already served.

111I was referred to the decisions in R v Gilmour [2019] VSC 766 (‘Gilmour’), DPP v David William Parkinson [2021] VCC 2044 (‘Parkinson’) and R v Sebalj [2006] VSCA 106. I have read each of those decisions. Parkinson was a decision of this court. Mr Parkinson committed the offences of aggravated burglary and threat to kill in somewhat bizarre circumstances after taking an excess of prescribed anti-depressants. He had a criminal history, significant mental health problems, significant physical health problems and an acquired brain injury. The expert evidence was that at the time of the offending, Mr Parkinson would not have been able to reason with a moderate degree of sense and composure as to the wrongfulness of his actions due to a delirium from high dosages of anti-depressants in the context of his acute medical problems. It was accepted that there was a powerful and realistic connection between his temporary impairment and the offending such that his moral culpability was reduced.

112Mr Gilmore recklessly caused serious injury to his wife and caused injury to rescuing neighbours whilst suffering a medically-induced delirium after having an adverse reaction to medication prescribed during a hospital stay for Crohn's disease. He had previously had an adverse reaction to the medication and had a long history of mental illness.

113The fundamental difference between your case and that of Gilmour and Parkinson is that your delirium resulted from the voluntary ingestion of significant quantities of an illicit drug.

114In Mr Sebalj's case, there was a question as to whether the psychosis with which he presented was drug induced or an early onset of a schizophrenic illness. That case has been described in the past as being 'unusual'.

115In any event, the courts have long held that, in general terms, self-induced psychosis does not provide a circumstance of mitigation and, in certain circumstances can in fact be aggravating.

116Your offending occurred in the context of you suffering a delirium, or acute confusional state, directly linked to or produced from your withdrawal from self‑ingested GHB over an 11‑day period. Dr McInerney's findings were that there was gross impairment of your judgement and decision making resulting from that confusional state which impacted significantly on your ability to comprehend the wrongfulness of your actions. In that context, your ability to think clearly and make rational choices was impaired.

117Whilst your unchallenged diagnosis is one of delirium, it has still occurred in circumstances of self-ingested and excessive illicit drug usage and then a physical response to the withdrawal which led to your acute confusional state. I see no basis to distinguish between delirium and drug induced psychosis in terms of your sentencing. The court must consider what the probable consequences of the ingestion of GHB to you were and whether you foresaw those consequences.

118Perhaps as has already been outlined, I accept that you were actively trying to seek assistance in the lead up to your offending on 17 November 2022 having identified your own discomfort with the symptoms you were experiencing. You were sent home twice having sought medical attention.

119Whilst your record of interview reveals previous impact on you from withdrawing from GHB, as already indicated, I accept Dr McInerny's evidence that, on 17 November 2022, your reaction to withdrawal was extremely severe and that it would have been very difficult to anticipate the response which you experienced. I in fact accept that you could not have anticipated the reaction which you did experience to your withdrawal from GHB. This aspect does impact on the moral culpability for your offending, which will be reduced accordingly.

120I also find that limbs one to four of Verdins do have some application.[5]

121I am less satisfied there is a basis to reduce the weight to attach to general deterrence to any great extent but it is to be reduced given your lack of foresight.

122Specific deterrence has been affected in any event for the reasons I have already outlined. There is limited need to attach weight to protection of the community, for reasons already outlined. These considerations however are not extinguished as you need to maintain relevant treatment, but they are largely ameliorated.     

123Given the competing submissions as to your sentencing, in order to be better informed, I did have you assessed as to your suitability for a Community Correction Order.

124A report dated 18 April 2024 from the Mental Health Advice and Response Service (MHARS) was part of this assessment. You do not have a history of inpatient treatment in a public psychiatric unit. You are compliant with medication for depression and ADHD symptom management. You have an established therapeutic relationship with your psychiatrist, Dr Sajeevan and psychologist, Mr Marco Keogh. Your attitude was described as pro-social and you expressed empathy for your victims and remorse for your offending. It was recommended that there be ongoing assessment or treatment for your mental health should a Community Correction Order be imposed.

125An Assessment Outcome Report dated 19 April 2024 was also provided. You were assessed as suitable for a Correction Order.

126Whilst these reports have been of assistance, taking into account all matters I am required to take into account, I am not satisfied that your offending, particularly that the subject of Charges 2 to 5 is such that a Correction Order alone or in combination is available. I do see considerable merit in an extended period of supported transition in your return to the community.   

127I take into account that the issue of the role that drug induced delirium has played in your sentencing has added to the delay as there have now been a number of listings to resolve the state of the evidence and my understanding of it. This, I accept, has been a source of considerable stress. It has also offered an additional period in which to assess your future prospects and I take this delay effectively generated by me into account in a general sense. 

128I am about to turn to the sentencing exercise.  I will just check with each of you whether there are any matters you need to draw to my attention?

129MS DEARMAN:  No, Your Honour.

130HER HONOUR:  I have had no from each counsel.

Sentencing

131The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of your victims.

132I am also required to balance the interest of the community in denouncing criminal conduct with the interest of the community in seeking to ensure, where possible, that offenders are rehabilitated and are reintegrated into society.

133I have taken into account the sentencing guidelines referred to in section 5 of the Sentencing Act 1991 where relevant to your case. I have taken into account current sentencing practices for the offences to which you have pleaded guilty and the important principles of both totality and proportionality.  

134I am not satisfied that all of the offences you have committed warrant a term of imprisonment. This description does not apply to the charges of attempted aggravated carjacking, robbery nor the charge of intentionally cause injury.  I sentence as follows:

135Charge 1 – criminal damage, you are convicted and discharged.

136Charge 6 – common law assault, you are convicted and fined the amount of $1,000.

137Charge 2 – attempted aggravated carjacking – 20 months' imprisonment. This is the base sentence.

138Charge 3 – the first in time and perhaps the most serious in terms of the robbery charges – 18 months' imprisonment.

139Charge 4 – robbery, the second in time – 18 months' imprisonment.

140Charge 5 - intentionally cause injury, carrying a lesser maximum that the other matters but an extremely serious set of circumstances – 18 months' imprisonment.

141Two months of Charge 3, and four months of Charge 4 and Charge 5 are cumulative on each other and on the base sentence.

142The total effective sentence is therefore one of 30 months' imprisonment. You are to serve 12 months before you are eligible for parole, 28 days are reckoned as having already been served.

143Section 6AAA of the Sentencing Act requires me to state the sentence I would have imposed had you not pleaded guilty to the charges. This is somewhat artificial given the matters I have otherwise taken into account and the strength of the Crown case but if not for your pleas of guilty, you would have been sentenced to 4 years' imprisonment with a minimum of 2 years and 6 months before being eligible for parole.

144Once again, I thank counsel for their considerable assistance during the conduct of this matter, for which I am extremely grateful. 

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[1] R v Verdins & Ors [2007] VSCA 102, (‘Verdins’).

[2] Ibid.

[3] Ibid.

[4] Ibid.

[5] Ibid.