Director of Public Prosecutions v Lambrianew

[2015] VCC 1792

Pages 1 - 8   IN THE COUNTY COURT OF VICTORIA

Revised Not Restricted  Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00789

DIRECTOR OF PUBLIC PROSECUTIONS

V

DAVID LAMBRIANEW

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	3 December 2015
DATE OF SENTENCE:	8 December 2015
CASE MAY BE CITED AS:	DPP v Lambrianew
MEDIUM NEUTRAL CITATION:	[2015] VCC 1792

REASONS FOR SENTENCE DELIVERED 8 DECEMBER 2015
SENTENCED  ON 3 DECEMBER 2015
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Subject: Criminal law - sentence       

Catchwords:    Pleas of guilty to one charge of recklessly causing serious injury, one charge of criminal damage and two related summary charges – accused suffers long-standing chronic schizophrenia – had consumed cannabis and non-compliant with medication – under delusion that his mother was an intruder – pushed her causing fall which broke her wrist – hospitalised temporarily – mother obtained IV order – failed to appear on bail - several weeks after first offence he returned to mother’s house and tried to break in – police called – unfit to be interviewed – remanded in custody before being admitted to Thomas Embling Hospital – remains unwell but improved – time served appropriate- to be assessed at Thomas Embling for permanent Inpatient Treatment Order.

Legislation Cited: Mental Health Act (Vic) 2014

Cases Cited:Verdins v R (2007) 16 VR 269; Lucas v R [2012] VSCA 245

Sentence: TES 344 days           ---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Albert	OPP
For the Offender	Ms A. Brennan	VLA Dandenong

On 3 DECEMBER 2015:

HER HONOUR: 

1Mr Lambrianew, I have heard the background, as you know, to how these offences occurred and I have heard the details of what occurred on the days in question.

2I am going to sentence you today to a total of 344 days' imprisonment and I shall declare and note on the court record that you have already served
342 days.  That means there will be two more days when you will be subject to this order.  The individual sentences are as follows:

3For recklessly causing serious injury, 344 days.

4For criminal damage, six months.

5For the summary charge of breaching an intervention order, eight months.

6For the summary charge of failing to answer bail, one month.

7The sentence of 344 days is the base sentence, what is called the base sentence, and all the other sentences that I have just mentioned are to be served concurrently, that means at the same time.  That is because although they occurred on different days, they are all linked by the same circumstances. 

8I will provide more detailed reasons for these sentences on Tuesday next week, 8 December, at 2.15.

ON 8 DECEMBER 2015

1David Lambrianew, you have pleaded guilty to one charge of recklessly causing serious injury, one charge of criminal damage and two summary charges -  breaching an intervention order and failing to appear on bail.  This plea follows an inquiry last week in this court as to whether you were fit to stand trial.  A jury found you fit and you then pleaded guilty to a plea indictment and uplifted summary charges.

2Last week on Thursday 3 December, I sentenced you to a total effective sentence of 344 days for these offences.  I declared that the 342 days you had been in custody by then was to be declared as already served and that day I noted it on the court record.  The result was that when you were taken back to Thomas Embling Hospital that evening, where you are residing, you still had two days of the sentence to serve.  I told you last Thursday that I would deliver more detailed sentencing remarks today and these are those remarks.

3I shall describe the events leading to these charges and then set out your background and the context in which the offending occurred.  You are aged 41, having been born on 3 December 1974 and that was exactly 41 years ago last Thursday.  Your family consists of your mother Susan and your sister Melissa.  Your father, who I understand was an important figure in your life, died three years ago.  You also have a daughter but you have no contact with her.

4You suffer from chronic schizophrenia which was diagnosed more than 20 years ago and you have experienced many hospital admissions over the years.  You have often been the subject of Community Treatment Orders, managed in the community by Mental Health Services, but your condition has been exacerbated by substance abuse.

5On 1 November 2014, you were at your mother's home where you had been staying for a few days after your own residence was damaged by fire.  You had been acting strangely and become increasingly confused during the day.  You asked your mother who she was and why she was in your home.  You had not been taking your medication despite a Community Treatment Order being in place and you had been using cannabis.

6That evening, seeing your mother in the kitchen, you thought she was an intruder and you charged at her pushing her on the shoulder or back, the force of which caused her to fall and break her wrist badly.  Having realised what you had done, you helped her to call an ambulance and you waited until the police and the CATT team arrived.  You were arrested and taken to Monash Hospital where you were admitted and remained until 6 November.

7You were then discharged and interviewed by the police, following which you were released on bail.  On 10 November, your mother obtained an intervention order against you which was served on you at the crisis accommodation where you were staying by then.  The terms of the order were explained to you including the prohibition from going to your mother's house.

8On 26 December you found that some of your belongings had been taken from where you were staying and at 8.30 am you went to your mother's house to retrieve some clothing.  Your mother heard the sound of glass breaking and went to investigate.  She found a glass door was broken and you were standing outside wanting to come in.  She told you to go back to your accommodation but you said you could not because you would be killed.

9You then put your hand through the gap and tried to open the door and your mother told you not to.  You then put your foot through and your mother, in a very frightened state, went to her bedroom and locked herself in and called the police.  You entered the house and you were still there when the police arrived and arrested you.  They found you were unfit to be interviewed and you were remanded in custody.  You were admitted to Thomas Embling Hospital on 24 February 2015 where you have remained.

10Because of the state of your mental health and need for an inquiry as to your fitness for trial, you were unable to enter a plea until the inquiry was completed.  At that stage you indicated your intention to plead guilty subject to a sentence indication hearing before me which was held on 3 December.

11At the completion of that hearing you were arraigned and pleaded guilty which was in effect the first available opportunity to do so.  Accordingly you are entitled to a discount on your sentence for having avoided the need for a trial and for having spared your mother from having to come to court to be cross-examined.  I also accept it as an indication of remorse.

12During the inquiry, I heard evidence from two psychiatrists, Dr Hemlata Ranga and Dr Nina Zimmerman.  Both doctors concluded that despite being unwell, you were fit for trial.  They both confirmed the nature of your illness and that you have neurocognitive deficits which means that you sometimes struggle in making complex decisions and you can be impulsive at times if you are frustrated. 

13Dr Ranga has seen you twice, the first time in August, the second time just recently and she considers that you have improved over time.  Dr Zimmerman has also seen you twice in May and then a week ago.  She reported that you became quite distressed when she was talking to you about the trial but having observed you in court last week, she thought you were coping better but your mental state fluctuates.

14I also had a letter from Dr Emily Moriarty, the psychiatry registrar at Thomas Embling who stated that after being sentenced, you would return to Thomas Embling and be assessed under the Mental Health Act to determine a plan for your eventual discharge.

15Victim impact statements were provided by your mother and your sister.  Your mother described the injury to her wrist which was and remains very painful.  She had to have surgery and spent three weeks in hospital and she may need further surgery.  She is now quite limited in what she can do.  Just as bad as the pain and physical limitations is the fear she feels because of the attack on her, and her great sorrow at no longer being able to look after her grandson.

16Your sister explained that as a single mother working in a demanding job, she has relied on your mother to help her look after her son and as this is no longer possible, her life has become very difficult.  She has had to reduce her hours of work as a result.  Both your mother and your sister understand that you behaved the way you did because of your illness and they expressed their great sorrow about this.

17The maximum penalties for these offences indicate that they are serious matters. For recklessly causing serious injury, the maximum penalty is 15 years' imprisonment; for criminal damage ten years; for breaching an intervention order two years;  and one year for failing to appear on bail.

18In this case there is little need for me to consider the need for general deterrence because your illness distinguishes you from other people in that your moral culpability is very limited.  Some punishment has of course been necessary, together with the need to protect the community and that punishment has taken place.

19The details of the sentence are as follows:

20For recklessly causing serious injury 344 days in custody.

21For criminal damage six months.

22For breaching the intervention order eight months.

23For failing to answer bail one month.

24The sentence of 344 days is the base sentence and all the other sentences are to be served concurrently with it.  That is because, although they occurred on different days, they are all linked by the same circumstances.  The result is a total effective sentence of 344 days.

25As I said before, you had already served 342 days which is declared as already served and has been noted on the court record. I have made these sentencing remarks to explain the sentence that I imposed last week. Under s.6AAA of the Sentencing Act so I need not go over that again.  But if you had pleaded not guilty, I would have sentenced you to a further six months in custody, which would only have delayed the assessment that has been undertaken at Thomas Embling.  Nonetheless it would appear in your history as a lesser sentence than would otherwise have been imposed. 

26Are there any other matters, Mr Albert, that I have neglected.

27MR ALBERT:  The forensic sample order, we have a copy, Your Honour.

28HER HONOUR:  All right, yes.  Is there consent to that, Ms Brennan or not opposed?

29MR ALBERT:  We had this argument the last time.

30HER HONOUR:  Did we?

31MR ALBERT:  Yes, we did.

32MS BRENNAN:  I indicated it was not consented to but I did not make any submissions and Your Honour said in those circumstances you would make the order.

33HER HONOUR:  Thank you.  Presumably I did not actually make the order last time, is that right Mr Albert?

34MR ALBERT:  That's right, Your Honour.

35HER HONOUR:  Mr Lambrianew, I am making an order that you provide a sample of saliva to the police and they have the power to use reasonable force if necessary to obtain that sample of saliva but I trust that that will not be necessary.  Ms Brennan, have you had an opportunity to talk to Mr Lambrianew about that and explain it any further?

36MS BRENNAN:  There was some confusion about the mechanics of how that might occur, given that he is not in custody technically but he is not able to present himself in all likelihood at a police station.  I ask perhaps if I can have another moment with the video link.

37HER HONOUR:  Yes, certainly

38MS BRENNAN:  I can just explain that the police will attend upon him in all likelihood at Thomas Embling.

39HER HONOUR:  That is right.  That is the way the order is drafted.

40MS BRENNAN:  Yes, I understand that from my learned friend today.

41HER HONOUR:  I will let you have a talk to him after I have left the Bench.  Anything else, Mr Albert.

42MR ALBERT:  No, Your Honour. 

43HER HONOUR: Given that the matter is now over, I would like to thank both counsel and of course Ms Sleeth and your instructors for all the assistance given to me during the trial and the other matters.  Thank you.

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