Director of Public Prosecutions v Konidaris

[2020] VCC 1685

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-00745

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROSS KONIDARIS

---

JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	16 October 2020
CASE MAY BE CITED AS:	DPP v Konidaris
MEDIUM NEUTRAL CITATION:	[2020] VCC 1685

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Roper (For Plea) Ms V. Worrell (For Sentence)
For the Accused	Ms S. E. Lacy

HIS HONOUR:

1Ross Konidaris, you have pleaded guilty to an indictment which contained one charge of burglary, one charge of aggravated burglary, one charge of attempted aggravated burglary, one charge of attempted armed robbery and one charge of common assault.  You also pleaded guilty to three related summary offences, first of entering a private place without excuse, second, unlawful assault with a weapon and the third, another unlawful assault with a weapon.

2The circumstances of the offending were outlined in the prosecution opening on the plea contained in a document which was tendered and exhibited. For the purposes of this sentence, I will summarise the circumstances.

3At the time of the offending, you were 30 years of age and had been living at the Thomas Embling Hospital in Fairfield.  You had been admitted there in 2014.  I will describe the circumstances which caused that admission by a court order.

4By September 2019, you were allowed unaccompanied leave from a low security unit where you resided with access to the community.  On the morning of Friday, 13 September 2019, you told hospital staff that you were leaving to visit your parents and intended to return by 9 pm that evening.  You left at about 6 am driving your car.

5At about 7.15 am, you drove to the suburb of Cairnlea and parked in Ibis Grove.  CCTV footage captured you leaving the car. At the time you were wearing a hooded jumper with its hood pulled over your head and another covering over the lower half of your face. You walked towards Heron Road.

6At about 7.20 am, a 17-year old whom I shall refer to by the letter C was getting ready for school at her home. She looked outside her bedroom window and saw you attempting to look inside several windows at the rear of the house?  She ran to tell her mother and when she returned to the window, you had gone.  She contacted the police. That was on Furlong Road.

7Very soon thereafter, you walked into Lotus Crescent and you entered a residential property, walked towards the backyard and the garage thereto.  Ms H who lived there ran to next-door seeking assistance and returned in company with her neighbour. She searched the garage and you were not there.  In the garage, Ms H noticed cupboard doors had been open and the driver seat in her car had been adjusted.

8About 20 minutes later, she again saw you through the kitchen window, this time walking back out of the garage but she lost sight of you before again running to her neighbours for help. This is the basis of Charge 1 of burglary.

9At about 7.40 am, two persons, D and N, were asleep nearby in their house on Lotus Crescent when you entered the rear yard of the house and began searching for an unlocked door or window. You took a concrete garden ornament and threw it through the glass sliding doors smashing through it and smashing a fish tank on the other side of the room to which the door led.  D got up and came to the kitchen area which you had entered and were holding two knives in your hands.  Ms N had also come into that room.

10You raised a knife and pointed it to them and shouted towards them, 'Give me the car keys'. Both occupants fled through the smashed door and locked themselves inside the garage while screaming for help.

11Ms H from next-door, the victim of the first burglary, heard their screams and ran next-door to help.  She then again rang 000.  CCTV footage of the rear yard at that address shows you walking into the rear with your face covered wearing white gloves and holding a meat cleaver and a knife and smashing the door.  This was the basis for Charge 2 of aggravated burglary and two summary charges of assault with a weapon.

12You then returned to Furlong Road and you entered an address there at about 7.50 am.  The two occupants, A and M, were in the garage which had been converted into a kitchen.  You entered the rear and tried to open the sliding door which was held closed by A.  Ms M screamed in fear.  You tapped on the glass with the meat cleaver but then you left the property by climbing over the rear fence.

13You then went back into the garage at 18 Lotus Crescent, the residence of Ms H, and dropped the meat cleaver and a knife in a cardboard box.  You then took a pair of black-handled scissors from a patio table at that residence and climbed back over the rear fence of the property where A and M lived and you went into the street by the side entrance.  These are the circumstances as a basis for Charge 3 of attempted aggravated burglary.

14At about 8.08 am, Mr C, standing on the driveway on Tom Rigg Street noticed that you were pacing back and forth in the street.  Within a few minutes, you approached him and demanded his car keys.  You said, 'I'm in trouble, I need your car'.  When he refused to hand them over, you said, 'I have a knife'.  Mr C told you he did not have the keys and the car in the driveway was not his car.

15He refused again to hand over anything to you and you advanced towards him and as you did so, you produced a pair of scissors.  You held it towards him in your right hand and believing it to be a knife, Mr C lunged at it taking hold of your right wrist in order to hold the blade away from himself.  A struggle then ensued.  He held your wrist with both his hands to avoid being stabbed and as your wrist was being held, you began punching Mr C to the head.

16You then walked away.  Mr C received minor lacerations to his throat, face and head and defensive wounds to his hands.  These were the factual circumstances for Charge 4 of attempted armed robbery and Charge 5 of assault.

17Police attended the scene and located you on Tom Rigg Street.  You were on foot and you were arrested. You had blood on you and you were still in possession of the broken scissors, a pair of white gloves and a set of car keys.  Back at the Sunshine police station, a forensic medical officer assessed you as being unfit for interview.

18A victim impact statement was written and produced to the court by way of a statement from Ms H.  She writes that she feels unsafe at home still to this day.  She is hypervigilant about safety and shutters her home which deprives her of light and air because of this concern, particularly when her mother is at home alone.  She has experienced anxiety and worry particularly at night and has had sleepless nights.  Her parents have had to fortify the house to bolster security for her.  She is her mother's full time carer since the event.  She is also anxious and Ms H indicates that she will access psychological counselling for herself as a result of this event.

19This is the only victim impact statement the court has received.  However, I can reasonably infer from the agreed factual circumstances of the offending that the others who were put in fear, confronted and fled or Mr C who struggled with you over the weapon you were holding and was injured would have been terrorised by your behaviour on this day. You were clearly intent on achieving the possession of a vehicle until dissuaded by your lack of success and police intervention and had not only covered your face and hands but taken up very dangerous weapons with which to achieve your purpose.

20The entry into the home of D and N by way of an aggravated burglary, the attempted burglary and the attempted armed robbery are in my view serious offences.  These offences are viewed by the legislature as serious.  Burglary carries a 10-year prison maximum, aggravated burglary 25 years, attempted aggravated burglary 20 years, attempted armed robbery 20 years and assault five years.

21These offences can be committed in various different circumstances and the criminality involved covers a spectrum of seriousness. In my view, the aggravated burglary and attempted armed robbery lie both within a middle range of seriousness without need for further categorisation.

22The maxima applicable are to be taken into account as one factor in this sentencing synthesis.  These are offences that are serious because the impact on the safety and security of citizens going about their business place them in fear and physical peril and interfere and invade the private space in which citizens are entitled to feel secure and protected, their homes, endanger their personal safety and property exposing them to violence and to trauma.  The community rightly looks to the court to denounce such conduct, to just punish and deter those who are like-minded to interfere with these rights and thus offer the community protection.

23The synthesis of many factors in the sentencing process is designed to address these principles as well as that of promoting the rehabilitation of an offender.  These principles often require the balancing of different and difficult circumstances and factors.  The sentencing exercise in your case is particularly complex requiring a detailed examination of a number of significant elements which arise from these events and before these events.

24A brief chronology is useful to understand the issues to be considered which includes your personal circumstances. You are now 31 years of age, your parents are aged in their late 50s, your father is a disability pensioner due to medical conditions of sarcoidosis which affects lungs, liver and spleen and emphysema.  Your mother is his carer and receives a carer's pension.  You have two younger sisters, you grew up around Sunshine and completed Year 11 at school.

25Your childhood was largely unexceptional and you had a good relationship with your parents and sisters.  After school, you had a few menial jobs but you were mostly unemployed.  In the next few years, you used illegal drugs regularly.  When you were a teenager, you smoked cannabis every day.  In your early 20s, you used amphetamine and methamphetamine orally smoking and snorting a few times.  You also started using cocaine and used it frequently.

26You have some prior criminal history which relates to the possession of cocaine when you were fined $400 in 2010.  Before that, a 2008 conviction and fine were related to abalone fishing.  You were convicted and discharged in 2014 in relation to cultivation of cannabis but by the time that was dealt with, your mental health had deteriorated and something much more momentous had occurred and you were already in custody.

27On 22 December 2012, you killed both of your paternal grandparents by the use of a gun and set their house on fire in the context of delusional beliefs.  In the two or three-month period prior to that event, you were using cocaine and methamphetamine.  You were charged with murder and remanded in custody.

28In January 2013, you were transferred from prison to the Thomas Embling Hospital having been found suitable to be housed there as a custodial security patient due to your behaviour.  You had no psychotic illness diagnosed before going into custody.  You had gone into the Melbourne Assessment Prison in January 2013 and placed in the Acute Assessment Unit.  You were assessed by a psychiatrist and transferred to Thomas Embling.  You were there in the Acute Inpatient Unit, Atherton Unit, until 9 April 2013.  Initially, you were extremely agitated, paranoid and involved in two serious incidents of violence.

29As a result of the second incident, you were placed in seclusion for a month.  Your state was stabilised by medication, olanzapine and benzodiazepine.  You were then returned to the Melbourne Assessment Prison on April 9.  In June 2013, you were then transferred to the St Paul Psychosocial Rehabilitation Unit at Port Phillip Prison.  Due to a large weight gain in the order of 25 kg, the medication was changed to risperidone.

30In December 2013, you went into the mainstream prison at Port Phillip.  The matter came before the Supreme Court on 26 February 2014 before His Honour Justice Forrest.  He ruled on the defence of mental impairment pursuant to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 on 27 February 2014. You had pleaded not guilty to the murder charges on the basis of mental impairment.

31His Honour was satisfied based on the evidence before him that the defence was established and as he was empowered to do, he directed verdicts of not guilty because of mental impairment and he recorded that verdict in relation to both charges.  He declared that you were liable to supervision under Part V of the Act, you were remanded in custody pending the making of a supervision order under s.26 subject to the receipt by the court of a certificate of available services under s.47 of the Act and a report on the mental condition of you under s.41 of the Act.

32The reasons for the direction by the court in regard to the charges are set out in detail in His Honour's judgment at the R v Konidaris [2014] VSC 89.

33The circumstances before me require some reference in a moment to the details of the ruling given by His Honour.

34On 1 April 2014, His Honour, having received the required certificate and a psychiatric report by the  Senior Psychiatry Registrar, Dr Katherine Sevar, from Thomas Embling Hospital dated 13 March 2014, His Honour ordered that you be liable to a custodial supervision order in Thomas Embling and he fixed a nominal period for that order of 25 years which committed you to the custody of the Victorian Institute of Forensic Mental Health, Forensicare.

35I sought the report which His Honour received and had made reference to some matters contained within it.  I indicated to the parties that I had obtained the report and invited them to make any submissions they wished to make about it.

36His Honour noted that the report had been of great assistance and particularly about ongoing issues at that time.  His Honour noted that you had little insight into your illness, retained delusions as to the necessity of your actions, seemed to have no understanding of the role of medication in controlling your psychosis and he noted relevantly that,

'He does seem to understand at least that illicit substances impact adversely on his mental health.'

'It is clear [His Honour added] that the path to recovery from the contents of the report will be protracted.'

37Some aspects of His Honour's decision are worth recapitulating.  The direction meant that His Honour was satisfied you knew the nature and quality of your conduct but not that it was wrong.  Both prosecution and your legal advisers agreed that the evidence established the defence of mental impairment so that the propositions I have just stated were agreed.

38The agreement was based on the preponderance of the expert psychiatric opinion.  You had experienced paranoid thoughts and were behaving erratically in the period leading up to the deaths of your grandparents at a time when you were using cocaine and methamphetamine.  I need not repeat that evidence in detail nor the details as to their death.  It is set out in His Honour's judgment.

39You told police you had consumed a couple of lines of cocaine prior to going to your grandparents' house but a substance induced psychosis was not the likely diagnosis.  According to expert evidence, three psychiatrists, who in the end all agreed that you had developed paranoid schizophrenia.

40His Honour noted as of April 2014 that you were drug-free in the prison setting and showed little sign of psychiatric illness being medicated with antipsychotic medication.  However, at that time deluded beliefs persisted confirming the schizophrenia diagnosis after 16 or so drug-free months.

'Mental impairment [as His Honour noted] is synonymous with the term "disease of the mind".  If the underlying cause of the mental state was
drug-induced psychosis, that would not amount to a disease of the mind.'  (See R v Martin (2005) 159 A Crim R 314).

41As I have previously noted, Dr Sevar's report to the court as supervised and endorsed by Dr Ryan, the Assistant Clinical Director at Thomas Embling and a Forensic Psychiatrist, included some notable aspects that are relevant to my exercise.

42The doctor interviewed you on 13 March 2014, the day of the report.  You could not describe what paranoid schizophrenia was.  When prompted, you said it was an illness in your head; 'I have paranoia and voices.'  You did not believe the antipsychotic medication was doing anything and you were taking it because the doctors told you to take it.  Your explanation, paragraph 13, as to why your symptoms have largely resolved is, 'because you were no longer using drugs'.  I quote this because the question as to your awareness, knowledge or belief is relevant in this current matter.

43It is not to the point that it was contrary to the opinion of three of the most experienced psychiatrists in the State.  You were making a connection at that time between symptoms of mental illness and drug use and its consequences.

44You discussed your previous drug use with Dr Sevar, you denied cravings for drugs at that time and stated that you were fearful that you will begin to feel paranoid or that your voices would return if you were to use drugs again.  You said you were willing to engage in drug counselling at Thomas Embling, your understanding as to the relationship between symptoms and schizophrenia and the role of medication to resolve them however was limited.

45The chronology in the next five years is this; in April 2014, you were then admitted to the Argyle Unit at Thomas Embling Hospital.  Ten months later in February 2015, you went to the Bass Unit but June 2016, you were back at Argyle, a backward step given that Argyle is the Acute Unit.

46Generally speaking, according to Dr Owens who gave evidence before me, people admitted to Thomas Embling and to the Acute Argyle Unit as their condition becomes less acute, they can move to the subacute units like Bass where there is increase in freedom and then typically to Daintree Unit and Jardine Unit which although are still fenced and with a locked gate lies outside the hospital perimeter.  I will return to this evidence in a moment.

47In September 2019, you went back to Bass.  In August 2017, you had gone to Daintree and in February 2019 you then got to Jardine.  I should make clear that I am undertaking this chronological analysis not as a criticism of the way in which you progressed through Thomas Embling Hospital to a period around the offending when you had accessed substantial leave out of the hospital custody but to make clear the evidence and facts about the important issue upon which the plea focused; that is your moral culpability for these offences before me and the impact of that on the sentence itself.

48After you committed these offences, you were discharged from Thomas Embling into incarceration in a prison.  Two documents which Dr Owens who was called by the defence relied on and which were tendered this morning and exhibited were, (1), a physical health plan for you by Thomas Embling Hospital dated May 19th, (2) a detailed discharge summary dated 13 September 2019 and, (3), extracts from a Justice Health file for you from September 2019 to November 2019.

49The first report summarises the medication being administered and a medical condition being dealt with including obesity and diabetes.  This report notes that your paranoid schizophrenia is in complete remission with polysubstance abuse currently abstinent in a protected environment.

50The discharge summary contains many relevant notations.  I will not recite them all but the most salient and relevant ones are these; the backward step from Bass back to Argyle Unit occurred after several occasions upon which you appeared to be affected by an intoxicating substance and several incidents where the staff was of the opinion that you had been involved in use of illicit substances including synthetic cannabis.

51As opposed to your delusional beliefs and superficial insight in 2014, by the discharge date, your mental state was described as stable, calm, alert, cooperative, logical in speech, no evidence of thought disturbance, good insight regarding your symptoms of mental illness and the need for medication.  You were abstinent from drug use and your paranoid schizophrenia was in complete remission.

52The section which pertains to your treatment and your progress, Part 13, refers to the several occasions in March 2016 related to appearances drug affected and added in that April 2016, you returned a urinary drug screen sample that was positive for sympathomimetic amines requiring your leave to be withheld.  These refer to a group of drugs which include amphetamine, LSD and others.

53It is noted you completed a number of therapeutic and educational programs including a dual diagnosis group which addresses substance abuse.  You remain compliant with antipsychotic medication and you were considered suitable to access by January 2019 unescorted leave into the community.

54From January 2019 to March 2019, you had worked in a car wash.  From July 2019, you had worked at Fruitland two days per week four hours per day.  You had purchased a car and drove it but then you were injured by a fall from a ladder at work on 6 August and that left you with significant back pain.  You visited your family twice a week, you attended counselling to address problem gambling leading to financial difficulties as a result of which you instituted a savings financial plan.

55Thomas Embling Hospital considered that your illness remained in remission since stabilisation of your mental state in mid-2014.  The report notes,

'Despite remaining in a state of good clinical stability, having had a relatively rapid transition through the hospital, Mr Konidaris' progress has been impeded by several significant issues including antiauthority attitudes, illicit substance use and intimidation of co-patients.  Drug use is noted as one of the predisposing factors and the first precipitating factor leading up to the index offences.'

56Another of the documents to which Dr Owens referred were extract from a Justice Health file.  On 14 September, these notes include you telling a psychiatric nurse that you had used cocaine in the previous week whilst on leave.  On 16 September, you told a psychiatric nurse that you had used cocaine possibly eight to 12 times over the last couple of months while on unescorted leave.  You said you were feeling low in mood, had a bad argument with your parents whilst on leave, several part time jobs had not suited you and you had financial problems on account of gambling and you were having a shit day when you saw someone you knew would be able to sell you cocaine and you purchased some.  Its use, you said, made you feel better.

57You bought cocaine while on leave whenever you were able to acquire it.  You snorted it on the day of the offending.  You became increasingly paranoid that people were following you and wanted to kill you and you thought you needed to swap cars to avoid being killed.  You are aware your behaviour will have set back your progress a long way and that the paranoia settled within one to two days after ingesting cocaine.  Your report suggested that you had symptoms suggestive of acute psychotic episode while intoxicated.

58By 19 September, a consultant psychiatrist, Dr Pang noted no acute psychiatric disturbance evident. It is noted on 24 October that the MDT, the
Multi-Disciplinary Team, at Thomas Embling was not aware of your cocaine use.

59During the course of the plea it became clear that on 12 September 2019, the day prior to the offending, a positive urine screen was produced by you similar to the one in 2016.  Dr Owens gave evidence about this.  Before turning to that evidence, I will summarise his report to the court dated 15 April 2020.

60Dr Nicholas Owens is a consultant psychiatrist for 17 years.  He has worked at Forensicare between 2001 and 2006 and 2015 to 2017.  He has worked at Thomas Embling Hospital, he treated and supervised forensic patients on extended leave.  He referred to a list of documents in a report that he had access to and interviewed you on 18 March 2020.  He provided a summary of mental health symptoms generally positive with continued and effective medication with no paranoid delusions or hallucinations.

61He recounted your mental health history as I have outlined it.  You were having no psychotic symptoms at all in the months leading to the offending.  The move from Daintree to Jardine Unit at the start of 2019 made you feel more disconnected from staff, more isolated with reduced time with other patients and briefer interactions.  You felt flatter and more isolated.

62You had begun cocaine use twice per week approximately a few weeks before the offending.  Up until the morning of the offending, you had had no paranoid or psychotic symptoms.  You had not told the treating team of the cocaine use.  You had a stash in the car and you used it before driving off that morning.

63Your memory of the events were patchy.  When he asked you why you were wearing gloves, initially you said, 'I don't know', but when asked again, you said, 'So that I didn't leave fingerprints'.  When asked about your face covering, you said, 'So they wouldn't know who I was'.  You told Dr Owens you completed two drug and alcohol counselling courses at Thomas Embling Hospital.

64When asked what you thought about the relationship between your cocaine use and offending, you said, 'It would never have happened if I hadn't used cocaine'.

65Dr Owens did not form the impression of any significant cognitive impairment.  You accepted you had schizophrenia and that you needed to take medication.  Dr Owens noted a detailed chronology and history in relation to Thomas Embling at paragraph 81.  He noted that pre-leave assessment of you on 13 September 2019 at about 5.20 am in the morning of the offending indicated you as polite, pleasant, warm and engaged disposition, calm and relaxed in demeanour.  No evidence of formal thought disorder or perceptual disturbance.

66He summarised your mental state after the offences by way of the Prison Mental Health Staff Records as I have indicated noting no current evidence of psychosis as early as 14 September 2019 and low risk of violence while on medication and off illicit substances.

67In his opinion, apart from the well-established diagnoses of paranoid schizophrenia and substance use disorder, you meet the criteria for a diagnosis of antisocial personality disorder.  He said he thought the cocaine use increased your level of arousal, the likelihood of aggressive behaviour and caused disinhibition.

68He opined that you were in a state of intoxication with cocaine at the time of the offending and that you developed acute paranoid delusions as a result.  He thought it less likely that you were experiencing a relapse of schizophrenia with a lower level of symptomatology and that the cocaine triggered a more acute psychosis presentation as a result.

69He said you clearly knew the nature and quality of your actions and are able to reason it was wrong.  Cocaine use acted to induce paranoid thinking and reduce your ability to inhibit antisocial and violent behaviour.  His conclusion was that you had not developed sufficient insight into the connection between drug use and psychosis and risk of violence associated with this.  I shall return to this conclusion about which I am not persuaded by reference to the Dr Owens oral evidence.

70Dr Owens gave evidence on oath that schizophrenia is a lifelong mental health disability characterised by stability as long as you continue to take your medication and minimise the exposure to destabilising factors which can cause relapse, the primary one being substances.

71He said you had not yet been granted overnight leave but had been granted daily leave beyond curfew hours using leave to visit family, work, attend counselling for gambling and recreational pursuits.  He gave evidence that you had not felt completely comfortable with the transition from Daintree to Jardine Units, that you struggled to feel 'therapeutically contained' with the staff feeling fluttering mood with less interaction between you and other patients and staff, less comradery and social support.

72He gave an outline of what had occurred in relation to your work, your physical health and said that there are a number of aspects of your rehabilitation that he thought were weighing on you to some extent so that you felt you were not quite making as much progress as you wanted.  He was asked by defence counsel, 'How long it takes to travel through the units as an average?'.  Dr Owens said it was a difficult question to answer but he said the fastest scale of progression would be six to eight years from the offending to granting extended leave and other patients considerably longer.

73As to drug screening, Dr Owens gave evidence these were intermittent.  The most recent was performed the day before the offending.  The initial results came back positive for sympathomimetic amines.  You had been prescribed medication for high cholesterol which is known to cause a false positive to these amines so Dr Owens said,

'The sample was subsequently reassessed and a different method showed no amines so that it was likely to be a false sample.'

74He said,

'Cocaine is not included in amines but it is tested separately in the urine screen and that was negative for cocaine.'

75Another test at the beginning of 2019 was similarly positive but when reanalysed by other method again suggested a false positive.  I pause to note that a positive screen in 2016 had the result of suspending leave for you on that occasion.  That unfortunately was not the case in September 2019.

76I do not have any evidence as to when the subsequent reassessment took place, however, your leave was unaffected by the positive result it would appear.  It may be that the reassessment was performed that same day.  If it was not, it was unfortunate your leave on this occasion was not discontinued.

77Dr Owens referred to the discharge summary and in terms of precipitating factors leading up to the offending named drug use as 'the cardinal one'.  His opinion was that cocaine use on the morning of the offending was the trigger for the psychosis you experienced.  Factors that he described as your flatten mood in the months preceding and struggling with the rehabilitative plan reduced your threshold for the use of the drug.

78When questioned as to the causal connection as to the factors that have a causal connection direct or otherwise of the offending, he opined these were your paranoid schizophrenia and your use of cocaine but he said that it is important to take into account that you were not having any symptoms of relapse leading up to that day and after your arrest, you were examined by a number of psychiatrists who did not identify any ongoing symptoms of relapse and delusions which had resolved within a matter of days.  His opinion was that schizophrenia was a necessary component of constellation of risk factors and had a causal relationship to the offending.

79When then asked about the relationship between the schizophrenia and its relationship with drugs, he said,

'Well, this is where things get a little bit less clear.'

80He said,

'People with chronic schizophrenia sometimes have more difficulty maintaining abstinence from drugs, a difficulty in inhibiting impulsive behaviour.'

81You had 'deficits in planning your rehabilitation' with a sense of demoralisation, perhaps depression, and from your history, he said, it appears substance use was a problem which was manifested before the 2012 events and is therefore a technique you rely on to manage the problematic mood states.  Cocaine can bring on psychotic symptoms with someone with an established diagnosis.  Your medication would have been attenuated but not eliminated.

82In examination-in-chief, he said your insight or understanding in the connection between substance abuse and the risk of a relapse is poor and had been poor for some time from a reading of the Thomas Embling material and that your understanding of your illness and nature of symptoms is not very well developed.

83The second point of this answer I have no difficulty accepting.  The first part is what I have difficulty.  When asked to give reasons for this asserted poor understanding, Dr Owens referred, p.30 of the transcript, to your difficulty with abstract thinking, that you have grappled with drug use for a long time and you have tended to resort to it to assist you to deal with stressful circumstances so that that response is central to your difficulties.

84I find this answer less than satisfactory from my purposes.  The questioning turned to risk assessment which he enumerated.  He says that there was a continuing need to assess these risks on a regular basis.  He then addressed the effect of imprisonment upon you.  I then asked him about his opinion as to sufficient insight.  He restated his view, p.34 of the transcript.  He said that as to the frequency of drug screens that although you had been using for a reasonably substantial period of time so that screening had not alerted the hospital as to this, he believed he had seen three or maybe four screens during the year leading up to the offending.

85After being cross-examined, I then went back to this central issue of awareness myself, p.39 of the transcript and following.  He agreed with the proposition that as a result of the earlier offending in 2013.  It would be fair to think that you would have been aware of the fact that connection was alive and cardinal to use his own term.

86Dr Owens answered that,

'That's a very important aspect of an insight because that's the whole opportunity afforded by his rehabilitation through Thomas Embling to ensure that something like that never happens again.'

87He asserted that it was a very significant lacuna in your insight.  When challenged about that opinion and that level of awareness must have developed at some point after the first occasion, he answered that he would need to look at the Thomas Embling notes to determine whether that ever did develop and without that examination, he could not answer the question.

88I explained that it seemed to me improbable that you have progressed so quickly and accessed services and liberty in the fashion that you had unless Thomas Embling Hospital staff was not satisfied that that was at least one of the awareness factors that you had gained during that period, p.41 of the transcript.

89Ultimately Dr Owens' position about this issue was put by him in this way, p.41 of the transcript,

'I just wanted to add to my knowledge of the programs that happen at Thomas Embling Hospital I would be extremely surprised if that particular risk factor, that is awareness of the effect of drug use, was not something that was identified promptly.  In fact, I know that he did undertake drug and alcohol assessment and treatment programs while he was progressing through Thomas Embling.'

90He then agreed that,

'People can say the right thing as to their understanding of the risks associated with it but subsequently it emerges that that they're not actually telling you all the information that you need to know to make that assessment.'

91I take that to have been a reference to you not having told anyone at Thomas Embling that you were using cocaine.

92At the end of his evidence, Dr Owens agreed with the proposition that despite having insight and awareness, someone might still decide for a number of reasons subjective to them to use drugs.  In my view, that is what has happened in this case.

93I recited this long history, documentation, notation and evidence because they are the foundation for a finding about your moral culpability.  This was an important consideration central during the plea and I will deal with it first.

94As I said during the course of the plea in terms of this argument which focused on the first limb of Verdins, I accept that the mental health matrix as it was termed by counsel was a contributing causal factor in the same sense that your personality disorder was a contributing factor.  There is a lifelong chronic and serious condition.  I take it into account in the sense that moral culpability is somewhat reduced or moderated by it.

95However, in my view, that is the only reduction warranted.  In my view, the preponderance of the evidence before me indicates that you were aware of the likely impact of drug taking because of all the factors I have mentioned before.  You were not feeling well and happy so you decided to use cocaine in the face of your awareness that your mental health which was otherwise under control would be severely impacted under its influence and you would behave badly under its influence.

96Whether the existence of an addiction as a causal factor in the offending warrants a reduction in moral culpability depends upon the extent to which a decision to take the drug is freely made.  Here, this was not the case of an addiction proper, as in the matter of R v Wright.  Rather this was a return to frequent use of a drug which use attenuated overtime the effect of antipsychotic medication of a serious psychiatric condition which was still in remission.

97The practically free-made decision to obtain and use cocaine does not warrant such a major reduction.  However, in my view, I cannot deal with you simply as a person who has offended under the influence of drugs as in Wright's case.  The court can have regard to the circumstances which led to the drug-taking, the factors which led to that choice which arose out of the circumstance of being in Thomas Embling Hospital where a still extant diagnosis of paranoid schizophrenia was being addressed.  This context cannot be simply discounted in this case coupled with your incomplete understanding as to the nature of the illness.

98In the end, even Dr Owens had to accept that it was likely you did have a level of understanding that cocaine use would serious undermine your mental health and lead to inappropriate conduct activated by delusional processes of the mind.

99In my view, you had sufficient foreknowledge of the mental state that would be induced by the use of drugs.  The illness in full remission did not rob you of the ability to make a rational choice to use and of your awareness of the likely consequences.  In my view, even if moral culpability is lessened because of mental illness in your case countervailing sentencing considerations would prevail.  These require the difficult exercise of forming a view about your prospects of rehabilitation and community protection which I will come to in a moment.

100The decision as to moral culpability reflects primarily upon the principles of general deterrence and specific deterrence.  While moral culpability is not greatly reduced, general deterrence should nevertheless play a lesser role because of the underlying illness.  It is not extinguished and remains relevant.  Those taking antipsychotic medication comprise a class of people who are properly the subject of general deterrence given the nexus between drug use by such persons and the commission of serious offences.

101General deterrence is usually related to the concept of retribution and punishment and I consider it to be somewhat diminished as an appropriate consideration in such circumstances as pertain in this case.

102Specific deterrence also is to play a lesser role in recognition that the basis upon which it is predicated is the capacity of the individual to appreciate and respond rationally to the punishment.  The existence of mental illness is relevant here but only, I repeat, in slight diminution in application of this relevant principle.

103In my view, you can process and appreciate the seriousness of your current predicament in the sense that the relationship between your condition and drug taking and criminal conduct must be absolutely clear to you by now, as clear must be the response of the law.  Your reintegration in the community will only be possible after a measure of punishment and deprivation of liberty.

104The prosecution at the end of the evidence made some fair concessions in your case.  It agreed your underlying illness is not irrelevant.  It conceded that the existence of impairment which reflects on underlying mental conditions affects the hardship of a sentence of imprisonment as opposed to confinement of an offender to a mental health institution and that such reclusion may constitute a greater burden on the offender than if he did not have a mental illness.  It was also conceded such imprisonment could significantly adversely affect that condition.

105These are Limbs 5 and 6 of Verdins in effect and these clearly are applicable in your case.  I will apply these principles in your sentence disposition.  The Crown did not seek to argue that in the circumstances of this case that the use of drugs was an aggravated feature, a concession which was generous but which I accept and apply without derogating from the significant role as the cause of these serious events that followed.

106This was not a case as the prosecutor asserted where drug taking was merely a catalyst heightening the involuntary effects of your illness.  There was no active psychosis at the time to be heightened.  That is why the mitigatory effect of the illness is moderate.  The only effect it may have had was to lower the threshold to you becoming acutely psychotic, even if you were medicated and in remission because of the attenuation of the effect of your medication by the drug taking. Therefore, to my mind denunciation remains a relevant factor in the sentence.

107The central question involves considering whether the probable consequences of the ingestion of drugs by you were foreseen by you.  In my view, all the material, I repeat, indicates you had insight and could have anticipated these probable consequences going right back to the very grave events which brought you into Thomas Embling Hospital in the first place.  That earlier matter would alone have put you on notice, the years spent at Thomas Embling with its treatment and programs must have made it clear to you that drug use was likely to precipitate criminal offending now that you had access into the community at large.

108I find that your prospects of rehabilitation must still be guarded although may with time achieve a level beyond that by stability and perseverance of medical treatment, a level of supervision and supports.  You have family support and concern and this is a positive factor for your future.

109In this context, I am conscious that imprisonment will be a major setback in your progress towards rehabilitation.  At least that kind of rehabilitation that will enable you eventually to re-enter the community.

110Dr Owens wrote in his report that,

'Some issues have arisen as a result of this incident that have implications for your future psychiatric treatment and forensic rehabilitation.'

111The combination of substance abuse and deceptiveness towards those providing treatment in the future elevates risk of further violent offending and makes this risk more difficult to manage according to his report; paragraph 98.

112This is further complicated by the presence of a personality disorder and adds to long-term risk of recidivism requiring ongoing vigilance and maintenance of a strict regime of monitoring for risky behaviours while providing treatment.  He concludes his report by writing that the factors here present are a very significant challenge to the goals of rehabilitation into the community life while developing personal responsibility to avoid risk factors from relapse.

113I note that there is no current indication that you have experienced any deterioration in your mental health thus far whilst in reclusion and you are as expected being provided with ongoing treatment by the Forensic Mental Health Service and it is reasonable to expect that this will continue.  No doubt should your mental state deteriorates seriously or should you cease to take medication, there are orders such as a secure treatment order which could be applied for necessary therapeutic treatment.

114I take into account that you have pleaded guilty.  I accept that the plea is accompanied by some remorse.  In these complex factual and personal circumstances, it is difficult to be certain as to this factor, however, I am prepared to accept that your intention was to obtain a vehicle in response to what you felt at the time.  You did so by terrorising a number of people and injuring one.

115Whether you feel empathy for any of them is difficult to assert but I accept that formally a plea can be evidence of remorse or at the very least acceptance of responsibility.  Your plea has a utilitarian value.  The early plea has avoided a criminal trial and the calling of civilian, police and expert evidence.  It has added value particularly in the current pandemic environment in which the criminal justice system's capacity to deliver outcomes has been severely curtailed.  I take your plea into account in reducing your sentence.

116Among a number of issues subject of submissions during a very thorough plea on your behalf, community protection was raised in order to make the point that the long-term interest and protection of the community lies in your rehabilitation.  I agree that intensive and effective rehabilitative work under a custodial supervision order will provide the framework for future stability.  Currently, however, fortified by the targeted ongoing treatment in prison, this long-term goal must make way for other considerations.

117In this context, parsimony and totality have a role to play.  The events were luckily contained within a short time frame and although there must be recognition of each discrete offence committed by a measure of appropriate cumulation, these events were more in the nature of a course of conduct which require large measures of concurrency.

118It was put that you desisted in your intent on a number of occasions leaving the properties involved and that this was spontaneous offending.  I accept there was not much planning involved but as the series of offences flowed from one to another in pursuit of a stated intent, its inherent spontaneity is not mitigatory to my mind, rather a lack of aggravation by meticulous or sophisticated planning.

119I take into account the personal circumstances as I have recited them earlier.  I take into account the current circumstances of imprisonment subject to the restrictions due to the coronavirus pandemic.  COVID-19 will continue at least in the foreseeable future to impact on your incarceration.  This will impact on your contact with persons, with the family, although alternative arrangements are in place.  Programs, both vocational and educational, have been curtailed and put on hold.

120I reviewed the last statement of conditions issued by Corrections Victoria on 1 October in this context.  Health care teams will continue to provide mental health oversight and care to prisoners with mental illness.  Forensicare is involved in this effort and will review and prescribe medication.

121I accept and take into account that you have spent significant time in your cell in the last few months and that may continue.  You have been mostly held in management units at the Melbourne Remand Centre during your year or more in remand.  I am aware that emergency management at times requires this but sometime will be credited to prisoners as a result.

122The prison environment despite its excellent past management remains one which is vulnerable because of its very nature so that preoccupation over contamination must remain.  Also anxiety over the welfare of your family and friends outside is a proper consideration and I take that into account.

123I take into account a letter of support from your sister which was tendered to the court.  She expresses your regret and remorse to this offending and the family remains supportive of you.

124After the sentence which I will impose in a moment, I was informed the Office of Public Prosecution will notify the Supreme Court of the sentence and make application for a review of the custodial supervision order under s.31 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. The order may be varied by the court to reflect the prison term imposed on you and prospectively varied again at the conclusion of that sentence. I need not express any view about this. The current term of the custodial supervision order is to expire on 1 April 2039.

125The sentence of the court is that on Charge 1 of burglary, you are convicted and sentenced to six months' imprisonment.

126On Charge 2 of aggravated burglary, you are convicted and sentenced to four years' imprisonment.  That is the base sentence.

127On Charge 3 of attempted aggravated burglary, you are convicted and sentenced to one year imprisonment.

128On the attempted armed robbery charge, you are convicted and sentenced to 2,5 years' imprisonment.

129On the assault, you are convicted and sentenced to 12 months.  That is Charge 5.

130On the Summary Offence No.1 of entering a private place without excuse or authorisation, you are convicted and sentenced to one month imprisonment.

131MS WORRELL: Your Honour, I must apologise to interrupt you there.  The questions you asked me in relation to the next summary charges, I have since looked further into it and I have to say I must apologise for any confusion I have caused.  Having looked at it further and considered it in more detail, I actually do agree with Your Honour in relation to the mistake regarding the section.  It should have been separately charged under s.24(2) on the basis that a weapon was used and I sincerely apologise for that.

132HIS HONOUR:  Is that upon you - forgive me for asking but is that upon you receiving instructions or upon reviewing the legislation yourself?

133MS WORRELL:  That was upon reviewing the legislation myself, Your Honour, and also looking onto the OPP policy and sections in relation to those summary charges ‑ ‑ ‑

134HIS HONOUR:  Yes.

135MS WORRELL:  ‑ ‑ ‑ and it appears that it was my error and I sincerely apologise.

136HIS HONOUR:  Ms Lacy, do you wish to say anything about that?  It is probably catching you a bit short but I think it is important that that matter you finalise before I announce any sentence in relation to it.

137MS LACY:  My understanding, Your Honour, is that the plea agreement was made on the basis of the charges and the section number that exists in the charges that are before the court.  If it is the case that there is ultimately no difference in the sentence imposed, then it is probably not of any great moment because it was certainly accepted that there was an aggravating feature of a weapon being present in relation to the charge.

138HIS HONOUR:  Look, it does not make a difference in relation to the sentence that I am imposing.  It would have been that in any event even with the reduced maximum but the appropriate section - s.23 does not make any reference at all to a weapon and appears to be designed for some other type of assault ‑ ‑ ‑

139MS LACY:  Yes.

140HIS HONOUR:  ‑ ‑ ‑ and the mention of a weapon in that circumstance is probably more directly related to the following section.  So without needing to seek an amendment to the - unless I am asked to do that, Ms Worrell, do you wish to seek an amendment to the actual charge section or are you content for me to sentence?  I think that if I am to sentence on the basis of s.24(2), the charge should read that so that it is ‑ ‑ ‑

141MS WORRELL:  I have to agree with that, Your Honour.

142HIS HONOUR:  Do you have anything to say about that, Ms Lacy?  There needs to be a clear understanding as to what the maximum is at least in order for me to then sentence upon those two matters and even though as I said before the actual period that I am intending on imposing is not affected by which particular section is actually being referred to but I think it is of some importance to clarify which section I am sentencing under.

143If the prosecution is satisfied that it should read s.24(2), then I will have that particular portion of that charge sheet amended to read 24(2) and I will sentence on the basis that there is a maximum that attaches to it even though what I have imposed is exactly the same.

144MS LACY:  All of that makes sense, Your Honour.  I have a duty, in my submission, to speak to Mr Konidaris.

145HIS HONOUR:  Sure.  Well, let me give you the time to do that.  I will put everybody else in the lobby.  That is the sort of the terminology we are using these days ‑ ‑ ‑

146MS LACY:  Yes.

147HIS HONOUR:  ‑ ‑ ‑ and I will give you an opportunity to explain things to him and get instructions about that.

148Yes.  All right.  Well, I think that I have ‑ ‑ ‑

149MS LACY: (Indistinct words) my instructor as well, Ms Sutherland, in the room?

150HIS HONOUR:  Yes, absolutely.  Yes, absolutely.  Yes.

151MS LACY:  Thank you.

152HIS HONOUR:  Yes.  I think that I am only to announce the penalty in relation to No.14 and No.15 and then I will go on to the cumulation and other matters in the sentence.  I will give you the time to consult with your client at this juncture of time.  I will just stand down.

(Short adjournment.)

153HIS HONOUR:  Right.  What is the ‑ ‑ ‑

154MS LACY:  Thank you, Your Honour.

155HIS HONOUR:  Yes, Ms Lacy.

156MS LACY:  On behalf of Mr Konidaris, I do not oppose the prosecution's application to amend the charge sheet.

157HIS HONOUR:  Yes.  Yes.  Thank you.  The two summary offences 14 and 15 of the charge sheet will be amended in the section which refers to the relevant section or clause of the Summary Offences Act to read, 'Section 24(2)'.

158I think I had arrived at the point of announcing the sentence for the summary offences or I may have already done No.1 and that was a conviction and sentence of one month.

159On No.14, assault with a weapon, you are convicted and sentenced to two months' imprisonment.

160And on Summary Offence 15, again, assault with a weapon, you are convicted and sentenced to two months' imprisonment.

161I order that one month on Charge 1, four months on Charge 3, nine months of Charge 4, six months on Charge 5 and the two months on Charge 14 and 15 be cumulative on Charge 2, the base sentence, making a total effective sentence of six years with a non-parole period of four years.

162But for your plea, I would have sentenced you to seven years with a non-parole period of five years.

163I declare that you have served 399 days by way of pre-sentence detention excluding today.  I will have that number noted in the records of the court.

164I have signed a disposal order in relation to the items in the schedule.

165Are there any other ancillary orders, Ms Worrell?

166MS WORRELL:  No, Your Honour, just the disposal order.

167HIS HONOUR:  Yes.  Is the calculation in relation to the sentences able to be followed?  I think that I have gone through it thoroughly enough to be able to be correct but in case I am in error, I think that the cumulation amounts to the six years as the head sentence, it having added two years to the base sentence by measure of cumulation.

168In any event, do either of you wish me to repeat them?

169MS WORRELL:  No, Your Honour.  The calculation seemed to be correct from my records.

170MS LACY:  Could Your Honour confirm the non-parole period?

171HIS HONOUR:  Four.

172MS LACY:  Four years.  Thank you.

173HIS HONOUR:  All right.  Now, I think, Ms Lacy, that you were - or I hope you were included in that communication from the Director's office in relation to an application to the Supreme Court.  I do not know when and if that is going to proceed but I understand from the email that I received that that will proceed and no doubt your instructors will be informed about that.  I have no idea what the practice is in fact of when something like this happens, I have not come across that situation before but there may need to be some order made that there is going to be a matter for the Supreme Court.

174MS LACY:  I was included in that communication.  Thank you.

175HIS HONOUR:  All right.  Yes.  Thank you for your assistance.  Sine die.

176MS LACY:  As the court pleases.

‑ ‑ ‑