Director of Public Prosecutions v Klement
[2018] VCC 67
•7 February 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
CR-17-00181
Indictment No. F14114704
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RUSSELL KLEMENT |
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JUDGE: | HIS HONOUR JUDGE HIGHAM |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 September 2017; 13 October 2017; 1 December 2017; 1 February 2017; 2 February 2017 |
DATE OF SENTENCE: | 7 February 2018 |
CASE MAY BE CITED AS: | DPP v Klement |
MEDIUM NEUTRAL CITATION: | [2018] VCC 67 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – aggravated burglary - sentence
Legislation Cited: Crimes Act 1958 (Vic), s 77(1)
Mental Health Act 2014 (Vic), s 101
Sentencing Act 1991 (Vic), s 6AAA
Cases Cited: R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269
Sentence: Total effective sentence of 6 months’ imprisonment and a 3-year
Community Correction Order
Section 6AAA declaration: 21 months’ imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M White | Solicitor for the Office of Public Prosecutions |
For the Accused | Mr D Sala (Plea) Ms B Coath (Sentence) | Pica Criminal Lawyers |
HIS HONOUR:
1Russell Klement, you have pleaded guilty to one count of aggravated burglary. The maximum penalty for that offence is a term of imprisonment of 25 years.
2Tendered on the Plea as Exhibit 1 was the Summary of Prosecution Opening. I annex a copy of that opening to these sentencing reasons.
3In brief, the circumstances of your offending were as follows:
4In December 2015 you were living with your girlfriend, Ms Glenda Poulter, in an apartment in an assisted living complex in Docklands. Also living in the same residential complex were Rachel Bramwich and Grace McInstray.
5On 15 December at some point in the late afternoon you opened the door of their apartment and attempted to turn the door handle of the bedroom, behind which both of your victims were hiding. You said to them that you were going to kill them and you repeated this threat three times. You pushed against the bedroom door, saying, "I'm coming to get you and I'm going to kill you". You were seen to be holding a kitchen knife with a black handle and a silver blade in your right hand. You had taken that kitchen knife from the kitchen of your victims’ apartment. Ms Bramwich called a neighbour for assistance.
6You then left the apartment and you returned to your own apartment in the complex, leaving the kitchen knife on the floor of your victims' kitchen. When police attended you were arrested. Your DNA was found on the knife that had been thrown away at the scene.
7You believed that your victims had been breaking into your apartment on a regular basis and stealing your belongings. You stated that your actions were intended to scare them and to make them stop stealing your things as they had been doing this for three years. You admitted that you used a knife to scare your victims, and further, you said you did not think that they would believe that you would actually cause them any harm. In short, your intent was to scare them to get them to stop doing that which you believed, wrongly, that they had been doing. It is common ground that there was no factual basis for your delusional beliefs.
8You pleaded guilty to this matter at the earliest opportunity and I give you full credit for that.
9Your date of birth is November 1991 and you were aged 24 at the time of this offence and you are now aged 26. You are still relatively a young man.
10Mr Klement, your criminal record contains matters dating back to 2011. You have appeared before the Magistrates' Court on a number of occasions for offences including criminal damage, possession of a prohibited weapon, burglary, intentionally causing injury and assault. You were dealt with by means of fines and two Community Correction Orders (CCO). You breached your first CCO and a further CCO was imposed upon you, with more conditions relating to treatment and your rehabilitation.
11Your forensic history is best understood in the context of your medical history. You have benefitted over the years from the intervention of the Department of Health and Human Services, from the Office of the Public Advocate and, most importantly, Inner West Area Mental Health Service, which I understand is known as Waratah Clinic.
12This latter service disengaged with you earlier in 2017 and stopped being a service provider for you. Nonetheless, your key clinician case manager, Mr Jason Webb, remains an advocate for you. I have seen him now twice in my Court. You are very fortunate, Mr Klement, to have a professional such as Mr Webb speak for you.
13On the plea, a report by Dr Andrew Carroll dated 19 September 2017 was tendered to the Court (Exhibit 2RK). I have had regard to all of the matters raised in that report, even if I do not make direct reference to them in these sentencing remarks.
14Dr Carroll diagnosed you with autism spectrum disorder, accompanied by an intellectual and possible language impairment, such that, in his opinion, you meet the criteria for an intellectual disability. He diagnosed you with schizophrenia, which, in his opinion, appeared to have had its onset some ten years ago. At the date of his examination, your schizophrenia was evidenced by ongoing delusions, hallucinations and disorders of thought possession. Importantly, Dr Carroll stated, at paragraph 127:
"It is likely that his schizophrenia has never come fully under control and that he has functioned in the community with some degree of ongoing delusional thinking of various kinds for many years. He has a number of delusional beliefs on which he is prone to act, such as in this case, that neighbours are repeatedly breaking into his property and that his partner, Ms Poulter, is being unfaithful to him”.
15Dr Carroll was of the opinion that,
"His mental state functioning has improved whilst in custody, as compared to his being in the community, and this appears to be due more to the assertive treatment of his schizophrenia with high doses of medication and on a regular basis, and also [and this is of importance] the enforced absence of cannabis use".
In other words, whilst in prison, you receive your medication and you cannot smoke cannabis.
16You remain, however, actively psychotic, with delusions of other prisoners laughing at you. Dr Carroll was of the opinion that it was likely that you would find imprisonment more burdensome than an average prisoner without your mental health condition. You struggle with interpersonal stimulation and thus are more averse to the enforced contact of a prison environment than the average prisoner would be.
17Dr Carroll, who was assessing you in relation to an aggregate number of offences of interpersonal violence, driven by your delusional thinking, considered your therapeutic needs, and whether they were best being met by your confinement. He stated at paragraph 132:
“Although his medication needs are being well managed, his placement in prison is not meeting his broader psychiatric rehabilitative needs.”
Ideally, he opines, you would receive rehabilitation within a secure setting such as a Secure Extended Care Unit (SECU).
18Your plea was adjourned on multiple occasions to enable full enquiries to be made as to a placement in a venue which is best suited to your clinical and therapeutic needs. No secure accommodation best suited to your clinical and therapeutic needs is available. In short, nothing was suggested as feasible, plausible or achievable.
19At paragraphs 133 to 135 Dr Carroll said:
"He is therefore not in receipt of the optimal multi-disciplinary rehabilitative care that he requires. In this sense therefore, imprisonment is having an adverse effect on his mental health”.
Although you are understandably distressed by your incarceration, Dr Carroll states that there is no clear evidence that incarceration has thus far led to any deterioration in your mental health. I suspect, however, that a more prolonged sentence, especially when you move from the assessment prison, may lead to some deterioration in your mental state and behavioural stability.
20As for your criminal responsibility, Dr Carroll stated, at paragraphs 139 and 140:
"Having considered all of the charges that he faces, in my opinion, there is no evidence that at the relevant times he was at any stage unable to reason with respect to the nature and quality of his actions or respect to their wrongfulness …"
"… In my opinion, Mr Klement would not be eligible for a mental impairment defence.”
Notwithstanding the above, there are clearly significant causal links between your array of psychiatric problems and your offending. So what that means, is that your illness is not so great that you could say, I did not know what I was doing, but that your illness direct contributes to your offending. In other words, if you were not unwell you may not have offended.
21At paragraphs 141-144 Dr Carroll identified that:
"A major priority will be effective management of his ongoing psychotic symptoms. It is encouraging that his symptoms appear to be responding, at least in part, to a substantial increase in dosage of his antipsychotic medication. The long term impact of this remains to be seen".
Therefore, the increase in your dosage seems to be working and seems to be contributing to a better state of your health.
"If he remains actively symptomatic after a prolonged period on his current combination of drug therapy, then he would be a good candidate for clozapine medication. This medication, however, cannot be readily commenced within the prison setting….”
“He will certainly require long term case management from his local Area Mental Health Service on an indefinite basis, most likely subject to a Community Treatment Order given his rather limited insight.”
“In the longer term, the risks that he poses to other people and himself will be best managed by a coordinated multi-agency, multi-disciplinary approach to his long-term care in the community".
22So Dr Carroll is saying that for long term case management you are going to be in the community and lots of different agencies need to be involved.
23Dr Carroll continues at paragraph 144:
"Clearly, he will remain at risk of homelessness and further eviction if his propensity for aggressive behaviours to others living in his environment is not adequately managed".
Now, what that means is if you were to repeat breaking into a neighbour's home because you believe that they are breaking into yours, or you are hearing voices saying that they are laughing at you, then you are going to lose your accommodation and you will be on the street. To prevent that outcome you need to take your medication on a regular basis.
24You are also going to need support to remain abstinent from cannabis in the long-term. Cannabis is not good for you because it has a completely harmful reaction with your medication, and thus a bad effect upon your mental health.
25Dr Carroll concluded:
"It would be very important that the various agencies providing his care act in coordination, and to this end DHHS (possibly assisted by Multiple and Complex Needs Initiative) will need to remain involved longer term.”
26It is to be noted, Mr Klement, that you have spent 210 days in custody awaiting sentence on this matter. This is the longest time that you have ever spent in custody in your relatively young life. Whilst on remand, I am told that you have been in the sub-acute ward at the Ravenhall Correctional Centre.
27Your counsel, Mr Sala, submitted to the Court that a sentence combining a term of imprisonment with a CCO would meet the objective gravity of this offending. In support of that submission, he relied upon the connection between your mental illness and your offending, your plea of guilty, your remorse (that is, that you are sorry for what you have done), and on the opinion of Dr Carrol, that your prolonged detention in prison would have an adverse effect upon your mental health.
28Mr White, for the prosecution, fairly accepted that your offending was driven by your delusional beliefs and that, although not sufficient in depth or extent to afford a defence of mental impairment, nonetheless reduced your moral culpability and the need for general and specific deterrence. In short, Mr White accepted that the principles of the well-known case of Verdins[1] were engaged.
[1]R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269
29I view that as an important concession by Mr White. It enabled me to consider a sentencing disposition that I would not otherwise have done, whilst seeking to ensure the Court's duty of protecting the community was also discharged.
30The prosecution accepted that a sentence combining a term of imprisonment and a CCO could meet all relevant sentencing purposes in your case. However, Mr White, as I would expect counsel as enabled as him to do, submitted that weight be given to considerations of protection of the community in any order that I made.
31I proposed to release you into the community if the appropriate supervision was in place. I adjourned matters to hear from the various health care professionals, with a view to establishing a picture of the treatment that you would receive in the community with a residential address on your own.
32This remains, to date, unhappily, an outcome that I cannot secure. Indeed, I was told on 1 December 2017 that effectively your options were either homelessness or you returning to live with Ms Poulter at her address in Reservoir. Ms Poulter is your domestic partner against whom you have committed various acts of family violence, resulting in many intervention orders being issued by the courts. That was a choice that the Court was reluctant to embrace.
33I have received a mental health assessment order no. 185954, dated 6 February 2018, tendered on the Plea as Exhibit 7RK.
34This assessment order means that upon my ordering your release, you will be escorted from this building to the Royal Melbourne Hospital for assessment. It will then become a matter for the clinician at the Royal Melbourne Hospital to determine how your ongoing care in the community will be managed and what consequential treatment orders, if any, will be made.
35I am now satisfied that in combination with the powers under the Mental Health Act 2014, a CCO with conditions can sufficiently address both your rehabilitative needs, and the protection of the community.
36Mr Klement, your behaviour on 15 December placed your victims in fear and there can be no doubt that it was a serious act and you understand that, do you now?
37ACCUSED: Yes, Your Honour.
38HIS HONOUR: But in sentencing you I have the task of trying, to the best of my ability and judgment, to balance your personal circumstances with the circumstance of your offending. In my view, your personal circumstances and the matters to which I have had regard and which were urged upon me by your counsel and the fair concessions made by Mr White for the prosecution, are such as to permit of a disposition that does not require your further confinement.
39So stand up, please, Mr Klement.
40On the charge of aggravated burglary, you are sentenced to a term of imprisonment of six months and you will be further placed upon a Community Correction Order for a term of three years.
41The conditions of the Order will include supervision. That is, you must be under the supervision of a corrections officer throughout that period of three years. There will be judicial monitoring. That is, Mr Klement, you will come back in front of me on a regular basis so I can see how you are doing. Now, I stress, I do not have the power myself to revoke any Order but I want to see how it is going.
42There will be a condition of treatment and rehabilitation. You must undergo assessment and treatment, including testing for drug use or dependency as you are directed by the regional manager. Ms Coath will take you through these conditions, I am sure, after I have risen, and to explain them to you.
43You must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility, again, as directed by the regional manager. So where the regional manager tells you to go, you must go.
44You are to attend at the Royal Melbourne Hospital for assessment under the Mental Health Act, s 101 Assessment Order. That is a condition. You must go from this Court to the Royal Melbourne Hospital. You are not to absent yourself, that is to say you are not to leave the Royal Melbourne Hospital, until the assessment, which is the subject matter of this Order, has been completed. If you leave you are breaching this Order immediately. Yes, so what are you going to do?
45ACCUSED: Stay there.
46HIS HONOUR: Yes, you are. You are to comply with all and any orders or directions that are made under the provisions of the Mental Health Act as to your assessment and treatment. So the Mental Health Act has a regime under it whereby practitioners can make orders as to your treatment in the community. Taking drugs on a regular basis and the like, and whatever directions are given to you as to your care in the community, I am ordering, as a condition of your Order that you have to abide by. Is that clear?
47ACCUSED: Yes, Your Honour.
48HIS HONOUR: If an order is made for you admission into hospital, you are not to leave the hospital until your formal discharge, all right? So, if you are admitted as an involuntary or voluntary patient you cannot say, no, I have had enough, I am leaving. Am I clear?
49ACCUSED: Yes, Your Honour.
50HIS HONOUR: Because if you do that you are breaching the terms of the condition to your CCO.
51If an order is made for your treatment in the community, you are to comply with the terms of any such order. Whether or not you are subject to an order under the Mental Health Act, you are to present when and where requested to receive your medication.
52You are to attend as and when requested at the offices of the Inner West Area Mental Health Service or the Mental Health Area Service for the region in which you reside. Let me explain what I intend by that. If Inner West Area Health Service say, we want to place you here, you go there. You do not say to them, but I want to live with Ms Poulter. Ms Poulter, I am sure, will understand that it is important you have your own residence and, as I understand it, Inner West Area Mental Health Service will do their best to negotiate the various channels that will lead you to finding your own accommodation.
53This Order will commence in two days’ time and you will report to Carlton Correctional Services by 9 February 2018.
54Mr Klement, there are other standard terms that apply to this CCO which I will not read out. Ms Coath will take you through them, but can I ask you, do you consent to being placed on this Community Correction Order?
55ACCUSED: Yes, Your Honour.
56HIS HONOUR: Mr Klement, I have directed that you report to Carlton Correctional Services. The reason why I have chosen Carlton is that it is not yet clear yet where you will live and Carlton Corrections have said, yes, we are happy to use our office as a reporting office. Should you then find permanent accommodation out of their catchment area, your Corrections office will be transferred.
57I am asking you to report within two days, that is by 9 February 2018. However, should you be admitted into any unit after your assessment at the Royal Melbourne today, then Carlton Corrections Services will follow up your case, keep in contact with the unit to which you have been admitted, and, of course, Mr Webb will also be following that up. If necessary, the matter will be returned to Court for a variation of the commencement date.
58Is that clear to counsel what we have tried to engineer?
59MS COATH: Yes, it is clear.
60HIS HONOUR: Mr White, thank you for your submissions. I have not made a residential exclusion.
61Had you not pleaded guilty to this matter, pursuant to s 6AAA of the Sentencing Act 1991, I would have sentenced you to a term of imprisonment of 21 months. That is taking into account all the matters as to your ill-health. It was serious offending.
62Mr Klement, I want you to understand that I want you to succeed. That means if you are sitting at home smoking cannabis and not taking your medication, you are going to fail. Yes?
63ACCUSED: Yes.
64HIS HONOUR: And so if you are not displaying a willingness to engage, then the concerns that Mr White, for the prosecution, has raised, that is protection of community, will come to the forefront. I do not want you walking out of here, thinking the judge is going to send me to prison if it does not work, because that is not what I am trying to say to you, but I need you to engage.
65Mr Klement, you are being given an opportunity. Now, do not think of it in terms of last chance. It is an opportunity for you to take some control over your life. Is that clear?
66ACCUSED: Yes, Your Honour.
67HIS HONOUR: I am going to have you back for judicial monitoring on the 16 March 2018, all right?
68ACCUSED: Yes.
69HIS HONOUR: At 9:30am. Please, please be here on time.
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