Director of Public Prosecutions v Keating

[2018] VCC 347

IN THE COUNTY COURT OF VICTORIA  Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01753

DIRECTOR OF PUBLIC PROSECUTIONS

v

CONNOR KEATING

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	20 March 2018
CASE MAY BE CITED AS:	DPP v Keating
MEDIUM NEUTRAL CITATION:	[2018] VCC 347

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Bourke
For the Accused	Mr R. Bhattacharya

HER HONOUR:

1Connor Keating, you have pleaded guilty before me to one charge of intentionally causing injury and have admitted prior convictions.  The facts underlying your offending are as follows. 

2On Sunday 9 April 2016, you were being held in a cell at Ballarat police station at which time you were on remand.  You were held in the cell with two other prisoners, one of them being the victim Max Forti.  An argument began between yourself and Mr Forti just when lunch was being served to the two of you and another prisoner in the cell.  During the argument escalation, Forti gave you a push to the chest area with two hands and you responded by swinging a punch at his head which missed.  The two of you then grappled with each other for about the next 23 seconds during which you punched Mr Forti to the head several times.  That ended when you charged Mr Forti backwards from the door of the cell, during which time Mr Forti lost his foot, fell backwards, and your body bore down on the front of him.

3Mr Forti’s head struck the edge of the raised bench block and he was rendered unconscious, staying that way for about the following three and a half minutes.  During that time, you continued to assault him for three minutes and 48 seconds; the CCTV footage of this attack being shown in court. 

4The attack on Mr Forti included straddling his chest and punching him 30 times to the head and face, spitting in his face, stomping on his groin twice, stomping on his stomach three times, kicking him twice in the groin and then dragging Mr Forti over to the cell toilet during which time he still appeared unconscious.  You then kicked him twice to his right kidney, slapped him six times to the head and face, stomped on his stomach, stomped on his groin, kicked him to the groin and spat on him, slapped his head twice then again stomped on his stomach then pulled Mr Forti into a sitting position and forced his head into the toilet bowl.  You then punched Mr Forti’s head three times, flushed the toilet on his head, stomped on his right kidney area and then kicked him nine times in the back at which time Mr Forti was starting to regain consciousness.  You struck Mr Forti six times to his head with a thong, pulled his pants off - it needs to be noted that his pants, Mr Forti’s pants had come down to a considerable degree in the initial struggle.  You kicked him in the back and then kicked him in the back of his head.  You then dragged him away from the toilet, stomped on his legs, straddled his back and drove him headfirst into the floor while Mr Forti was trying to get up on all fours.

5You eventually assisted Mr Forti up onto a bench where you sat beside him, put your arm around him before the arrival of the police custody officers.  It was notable during the CCTV footage that early at the beginning of this fight, you rang the buzzer, attempting to obtain attention, it would appear, and also stood at the cell door and also sought to seek attention. 

6Mr Forti was taken to the Ballarat Base Hospital where it was discovered he suffered a posterior scalp haematoma, a lip laceration, a nasal bone fracture extending to his nasal septum with a deviation to the right, two left transverse process fractures to his spine, post-traumatic amnesia and a chipped tooth.  Mr Forti has apparently recovered but continues to suffer back pain.

7You were interviewed on 10 April 2017, telling police officers that there had been an agreement between you and Mr Forti that you would have his meal as Mr Forti was "coming down off ice".  He then changed his mind and an argument started, and then you said to the police officers, "Next minute then he charged me, tried putting his whole weight on me and yeah, then yeah, I pushed him into a corner, yeah, then hit him a bit and it was done." 

8You also claimed during your record of interview that Mr Forti reminded you of paedophiles who had sexually assaulted you in the past, saying at answer 25, "I felt like he was one of the dudes that tried molesting me as a child."  You expressed some remorse for your behaviour however those answers were qualified by your designating Mr Forti as a person who was not "a nice man, upstanding person that contributes to society with a 24-hour fucking hour job", also saying, "I feel really terrible for what I've done but he's a criminal."  There were certain answers in your record of interview which did not make a great deal of sense such as claiming that certain music companies particularly American music companies had tried to put you on contract because of your rap star capacities. 

9I now turn to your personal circumstances.  You are 19 years of age and at the time of this offending were aged 18.  You have come from an enormously difficult family background.  Your mother was Aboriginal.  At the time of your birth, she was on methadone to treat her for a morphine addiction which had arisen as a result of particular injuries and illnesses that she was suffering at the time.  I was informed that she was advised to have her pregnancy terminated, however she continued and you were born and had to undergo methadone withdrawal.

10Over the years, there has been some apparent diagnoses of you suffering from foetal alcohol syndrome although there appears to be no firm base for this.  What is clear is at the age of six, you were assessed as suffering an intellectual disability with an IQ of about 65.  An overview report from the Department of Health and Human Services Disability Support Unit who have been involved with you since about 2006 notes that you are the only child of your parents but have about eight half-siblings and there is a note that there has been chronic violence and substance abuse within your family which first came to the notice of the Department of Human Services in about 1998, long before you were born.

11In any event, it is quite clear that your childhood was marked by dysfunction, substance abuse and violence, and the family moved constantly.  There were calls by your family upon disability services in 2011 and again 2014 but attempted interventions and strategies suggested, or management of you, were apparently not implemented.  Additionally, when you attended school, you were diagnosed with Attention Deficit Hyperactivity Disorder for which you were also placed on Ritalin.  You have a very long history of drug abuse beginning with the smoking of cannabis from the time you were seven, this being an ongoing and major problem for you particularly between the ages of 14 and 17.  You have dabbled with methylamphetamine or ice although you do not like this, and have also dabbled with other hallucinogens and with ecstasy.

12You have a very, very long criminal history.  You were apparently also sexually abused on multiple occasions by multiple persons as you were a child growing up.  It is unsurprising therefore that you have managed to garner the criminal history that you have.  Unfortunately, and concerningly for this court, a very large part of that history relates to violent attacks by you.  You have been regularly placed in custody, in particular in youth justice through your teenage years. 

13In relation to this particular offending, you told police that the fight initially began over what you saw as Mr Forti's withdrawal from an agreement between the two of you that he would get you food.  You then said (it would appear as an explanation for the continuing attack upon Mr Forti even after he was obviously unconscious that by that stage), you were angry at him because he reminded you of persons who had sexually abused you as a child. 

14A psychiatric assessment by Dr Adam Deacon dated 24 October 2017 was tendered on the plea.  Dr Deacon recounted your history, noted your intellectual disability and also found that you suffered a post-traumatic stress disorder arising from the violence and sexual offending against you as a child.  Beyond that, he did not believe that you had any further mental health issues.

15At the time of the offending, you were in custody as a result of an affray you had been involved in a couple of days before in Ballarat.  You were living with your father in Ballarat at the time.  The affray occurred on 6 April 2017 and on 11 July 2017, you were sentenced to eight months' imprisonment.  On that date, you were also sentenced to ten months' imprisonment for breaches of two Community Corrections Orders on which you had been placed.  Essentially what that means is that insofar as any sentence this court might impose is concerned, does not start until 26 October 2017.

16This is a problematic case involving a large number of issues.  First, it was submitted by your counsel that the particular emotional and intellectual disability problems that you suffer from mean there is a causative effect between those and the offending you engaged in such that as per Verdins, there should be a lessening of moral culpability insofar as your offending is concerned.  You were described by Dr Deacon as being "likely to be a young man with limited frustration tolerance, emotional regulation capacity and coping skills".  Dr Deacon also believed your "mild intellectual disability is certainly a factor that contributes to the deficits".

17You described to Dr Deacon the factors that were driving you, you believed, at the time of this offending.  You told Dr Deacon that you felt possessed during this offending and indeed it would seem you told police in your record of interview that you suffered a sort of blackout whilst you were offending.  Dr Deacon was of the view that those descriptions "would seem to correlate with his extremely angry state rather than anything reflective of a specific psychological state indicative of mental illness.  He has a long history of poorly controlled anger, aggression and violence.  It is reasonable to consider the impact of PTSD in this matter if only in the context of Mr Keating reporting that the victim particularly offended him because he reminded him of a sexual abuse perpetrator.  It is possible that the victim treated an unusually intense angry response in the context of this dynamic."

18Dr Deacon described your explanation of the offending as both detailed and persuasive.  Dr Deacon also stated:

"Mr Keating's combined problems of mild intellectual disability” – (and I digress here to say that the term 'mild' is a clinical one and in no way belittles the level of that disability when living in the community - and I return), “trauma related emotional dysregulation problems and residual PTSD predisposed him to being reduced in capacity to effectively manage his circumstances in the police cell with the victim.  He was less able to make calm and reasonable decisions and appropriate judgements and control his emotions as a result of a constellation of underlying cognitive, emotional and mental problems."

19I do accept notwithstanding a submission to the contrary from the prosecution that there is a link between your intellectual disability, post-traumatic stress disorder and your involvement in this offending both in the way it erupted and in the way you continued with it.  I do accept that your moral culpability is thereby lessened.  I also accept that this combination of problems that you have do make you, as Dr Deacon described you, "a young and vulnerable man" who was less likely to cope in an adult prison compared with "a psychological robust and cognitive competent adult". 

20It appears that whilst in adult custody you have on one occasion been seriously assaulted to the point that you awoke in a hospital. The circumstances of that encounter were not available and it is unable to be determined whether or not you were the perpetrator or were in fact assaulted.  However, in the circumstances of the conditions that have been described to me, it is my view that in the confines of a prison environment,  which carry its own stressors - you carry personal difficulties both intellectual and emotional which render you more likely to respond in a violent fashion to the very structure that surrounds you when in custody.  That was exemplified by several examples of such offending provided to me by the prosecution.  Those incidents in 2016 and 2015 involved violent attacks upon other inmates for no particular reason, several violent attacks on staff at youth justice centre and a violent attack upon a security officer who placed his hand on you as you were voluntarily leaving the Magistrates' Court. 

21Having summarised all this, the question is:  what is the appropriate response?  I note that you had been placed on the community corrections orders in 2017 only for a matter of days before you again violently offended in the community.  It was submitted that the case of Bugmy has particular application in your case. That was a High Court decision reported at (2010) HCA 37 where Mr Bugmy perpetrated a violent attack resulting in a serious injury - that is, a loss of sight in one eye - to a prison officer. On that occasion, the High Court noted that an offender's childhood deprivation and indeed where the offender was Aboriginal with particular exigencies that might attach to the upbringing of an indigenous person in a particular community were matters that should be taken into account. However at paragraph 44 where the court noted the effects of profound childhood deprivation did not diminish over time and so that full weight could be given on each occasion that an offender who suffered such deprivation appeared in court it was also stated:

"An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced."

22Those words might have been framed to describe you precisely, Mr Keating.  The court then went on:  "However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender."  And that is precisely the problem that this court has. 

23I accept that you have had a very difficult and deprived childhood and that is certainly something that I take into account.  I accept that you have got an intellectual disability that makes it very hard for you to control yourself and means that you are more likely to react very violently and that you have a post-traumatic stress disorder which may be triggered during an attack and then combines with your inability to control yourself so that we see the situation such as the way you kept on hitting, punching and attacking Mr Forti well after it was obvious that he was unconscious.

24You have been a client of the Department of Health and Human Services Disability Services for many years.  Your case manager Ms Amanda Sterrick, gave evidence in court of what it is hoped can be done with you once you leave prison.  You are currently supported by a Care Team which comprises a Multiple and Complex Needs initiative, and they will be looking to place you in supported accommodation once you leave gaol, you give you proper drug and alcohol counselling and support and psychological support and to assist you with employment.  The court is very grateful that that is available.

25Ironically, had you been charged with committing a serious injury, the capacity of this court to place you in a more appropriate environment than gaol would have been possible.  That is- a Residential Treatment Order. 

26The court has the power to order that someone is removed to such a facility for up to five years, and in my view that would be the most appropriate response by this court.  I do not believe that gaol is a particularly appropriate environment for you.  You require to be treated in a secure environment which contains services specifically designed to counter the difficulties that you face.  Unfortunately for everyone, I can only place you on a Residential Treatment Order if you have committed- what is defined as a serious offence and the offence to which you have pleaded guilty is not a serious offence for the purposes of the legislation although it has been submitted to me that I should regard your attack on Mr Forti as a serious example of this type of offending and I do agree with that.

27So I have a number of issues to weigh up.  I have accepted that your moral culpability is to be lessened.  I have accepted that at the same time, the issues that you face make you more liable to offend in this way and as the High Court has stated, issues of community protection in these sorts of cases remain live.  In other words, Mr Keating, I understand you've got an intellectual disability.  I understand you find it really hard to control yourself and I understand that once you start laying into something, you find it really hard to stop. However you are certainly a danger to the community.

28You are currently housed in the Marlborough Unit at Port Phillip which gives me some comfort as that is a unit specifically designated for persons suffering from an intellectual disability and I understand you are working as a gardener there and have undertaken certain certificates.  That at least gives me some comfort.

29Yet again however this court is placed in a position where it is required to sentence a person suffering multiple difficulties both in terms of environment, in terms of innate disabilities - you are definitely a person of complex needs - and nowhere appropriate to put him.  I certainly do not think you are a suitable candidate for a Community Corrections Order.  It was submitted that I should deal with you by way of a sentence of imprisonment combined with a Community Corrections Order and if your problems were less intense, complex and worrying, it may be something that I would consider.  But I must take into account as I have said that you were placed on two Community Corrections Orders and sent to live with your dad with the assistance of Disability Services and you almost immediately offended in a very violent way.

30As against that, I also accept that the particular stressors of a custodial environment are more likely to set you off because of the innate difficulties that you have.  I do regard community protection as a live issue.  I do not regard specific deterrence as particularly relevant to the sentencing exercise before me simply because I do not think it has any impact on you in that I do not find you a particularly suitable vehicle for specific deterrence if I may coin a phrase.  Nor do I believe that you are a particularly suitable vehicle for general deterrence again because of the very specific difficulties that you have.  However, I do think that your offending in this violent fashion happens so much that you are a danger to the community.

31So I have to weigh all these things up when I come to sentence you.  I do accept the prosecution submission that this is a serious example of this type of offending.  I am comforted, as I have said, by where you are currently placed in the gaol.  I am comforted by the involvement of Disability Services who are also assisting you to gain proper funding under the NDIS.

32In the end, regretfully, it seems to me the only way I can deal with you - and in saying this, I do accept you are remorseful for your offending - is by imposing a term of imprisonment.  What does worry me about that is how you will manage on parole.  Parole is a particularly strenuous and rigid affair these days and persons who breach parole are subject to much more severe consequences than has previously been the case.  It is to be hoped - and I want to ensure my sentencing remarks are forwarded to the parole board - that when you are on parole, note is taken of your own personal particular difficulties and some allowance is made for them should you be unable to best respond to the fairly stringent demands.  Again, I regret that I cannot place you on a restricted Residential Treatment Order which in my view would have been by far the most appropriate response.

33Given that I cannot, however, I am going to sentence you as follows.  Could you stand up please.

34Taking into account all the issues that I have outlined, I am sentencing you to a term of imprisonment of 16 months.  I am going to order that you serve a minimum of 12 months before being placed on parole.  This might seem a lenient response in one sense.  In handing it down, I in no way underplay the ferocity of your attack on an unconscious man or the fact that you kept going or the fact that your attacks on people in the past have continued to be serious.

35However, it is also my view that apart from anything else, the fact is, the conditions that necessarily exist in a custodial setting are more likely to cause you to behave in the way that you do.  I do not see any answer to it.  So that is the reason for which I sentence you in this way.

36Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to ‑ ‑ ‑

37MR BOURKE:  Just sorry to interrupt Your Honour.  Before you make that declaration, Your Honour has not provided for a sufficient amount of parole of six months which is the minimum.

38HER HONOUR:  It's six months, I beg your pardon.  Very well, then I will make it - I think there should be a minimum of 12 months so I will make it 18 months.  Thank you for correcting me on that.  So it will be 18 months with a minimum of 12 months.  I declare that 145 days of that sentence have been served by way of pre-sentence detention.

39Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of two and a half years and ordered that you serve a minimum term of 18 months.

40Do you understand what I have said?  I have used fairly complicated language, all right? 

41OFFENDER:  Yeah, I do, Your Honour.

42HER HONOUR:  All right.  Tell me what you think I've said to you?

43OFFENDER:  That I have 18 months and with parole.

44HER HONOUR:  Twelve months on the bottom.  You might not get it.

45OFFENDER:  Yeah.

46HER HONOUR:  It just depends how you behave in gaol.  Do you understand why?  All right, that's what I'm concerned about because I was ‑ ‑ ‑

47OFFENDER:  Sorry.

48HER HONOUR:  I was talking a lot about why.

49OFFENDER:  Yeah.

50HER HONOUR:  Your problem for you is this.  You know you've got that intellectual disability, right?  You know you've got what's called post-traumatic stress disorder.  You know that?

51OFFENDER:  I do now.

52HER HONOUR:  You do now, all right.  When those two are combined, you get set off really quickly and once you start, you can't stop.

53OFFENDER:  Yeah.

54HER HONOUR:  Now some of that's not your fault.  But the problem with it is - but not all of it, some of it is your fault.  The problem for that is, that makes you dangerous in the community. 

55OFFENDER:  I understand that.

56HER HONOUR:  You go off like a firecracker and you keep going.

57OFFENDER:  That's - that's why I'm doing, um, anger management programs and um, now that I'm sentenced, I can do a higher anger management program after I've finished the one that I'm on.

58HER HONOUR:  Well, I'm really pleased that that's the case.

59OFFENDER:  Yeah.

60HER HONOUR:  Because you do need to do that but you need to understand this.  I've taken these things into account when I sentenced you.  There's probably - given what you've done, and given what you've done in the past, it's not a particularly heavy sentence.  But this can't go on forever.

61OFFENDER:  No, I know.

62HER HONOUR:  The day is going to come when you launch into another prisoner, you launch into a prison guard, you launch into someone in the Bridge Street Mall, you're going to really, really hurt them and you're going to go to gaol for years and years and years.  All right?

63OFFENDER:  Yep.

64HER HONOUR:  I'm just relieved you haven't got a massive ice problem.  You haven't got an ice habit to go with it because ‑ ‑ ‑ 

65OFFENDER:  It'd be worse.

66HER HONOUR:  ‑ ‑ ‑ that would make it even worse.

67OFFENDER:  Yeah.

68HER HONOUR:  All right?  But you know, I hope you're listening to me.

69OFFENDER:  I am, Your Honour. 

70HER HONOUR:  All right.  And when you get out, you'll be helped by Disability Services but you don't have to take their services, all right?  It's voluntary.

71OFFENDER:  Yeah.

72HER HONOUR:  All right?  You will be an absolute idiot not to take every ounce of help they can give you.

73OFFENDER:  Yeah, I know.

74HER HONOUR:  Because if you don't, you're going to be in this again and you'll never see this sort of sentence again.

75OFFENDER:  Yeah.

76HER HONOUR:  All right? 

77OFFENDER:  Yes, Your Honour.

78HER HONOUR:  All right, thank you.

79OFFENDER:  Thank you.

80HER HONOUR:  Have a seat, thank you very much.  Thank you, yes, all right.  Is that everything?

81MR BOURKE:  Yes, Your Honour.

82HER HONOUR:  Very well.

83MR BHATTACHARYA:  Thank you, Your Honour.

84HER HONOUR:  Thank you very much.  We will adjourn to ten past nine, hopefully that will go ahead.  Thank you very much, thank you, we'll stand down.

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