Director of Public Prosecutions v Latar
[2015] VCC 1702
•20 November 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-01003
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KIZITO LATAR |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 and 30 June, 16 October 2015 | |
DATE OF SENTENCE: | 20 November 2015 | |
CASE MAY BE CITED AS: | DPP v Latar | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1702 | |
REASONS FOR SENTENCE
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Subject: Sentencing
Catchwords: Plea of guilty to charges of attempted rape and of intentionally causing injury - Diagnosis of paranoid schizophrenia at the time of the offence; Verdins principles;
Legislation Cited: Sentencing Act 1991
Sentence: Community Correction Order with conditions.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J Livitsanos | Office of Public Prosecutions |
| For the Accused | Mr S. Moglia (Plea) Ms A. Panuccio-Gray (Sentence) | Taylor Preston |
HIS HONOUR:
1 Kizito Latar, you have pleaded guilty to one count of intentionally causing injury and one count of attempted rape.
2 The circumstances of your offending are as follows.
3 In the early hours of 5 October 2013, you and the complainant were walking across the Princes Highway at Dandenong. You had met the complainant a couple of days before and you had travelled to his home at Cranbourne to view some stereo equipment he had. You and he had travelled there and back by train.
4 On your arrival back at Dandenong you were crossing the highway when, without warning, you punched him in the head. He fell to the ground. You jumped on his head. He managed to get to his feet and attempted to cross the highway but he fell while doing so. You continued to punch and kick him in the head and body causing significant injuries including multiple lacerations and bleeding to his face, which would have been obvious to you. The incident was observed by a number of people including the crew of a CFA truck, one of whom filmed at least part of the incident by means of his mobile phone. Your conduct was assessed by the CFA crew to be too brutal for them to intervene. You continued to punch and kick the complainant, even after it must have been clear to you that he was defenceless, or effectively so, and that your behaviour was being viewed by other people in the immediate vicinity.
5 You picked up a wooden stick or branch about 20 to 30 cm in length. You pulled the complainant’s pants down and using a stabbing motion, stabbed the complainant to the buttocks with the wooden stick and then tried to insert the stick into his anus. You continued punching him in the head and kicking him in the head and body. At one point, you took hold of the complainant’s leg and you appeared to be attempting to break it or at least to injure it. The assault was observed by the CFA crew for some 6 and a half minutes. Several members of the public had begun crowding around the incident, with some attempting to convince you to stop your assault. It was not until police finally arrived at the scene that your assault ceased. You were arrested and conveyed to the Dandenong Police Station and interviewed there. I have viewed the film of the incident.
6 The complainant suffered extensive injuries. He suffered facial fractures, four right rib fractures, multiple hematomas, concussion, an avulsed left incisor and multiple lacerations, some of which required sutures. He received abrasions and lacerations in the area around his anus.
7 In a victim impact statement recently completed by him, he described a reduction in his vision as a consequence of the assault, his fear that such an incident would happen again, his lack of trust in people, and the stress resulting from it. He suffered from psychological trauma as a result of your assault. That assault had either reactivated previously existing symptoms or precipitated an onset of psychological trauma including chronic Post-Traumatic Stress Disorder (“PTSD”), anxiety, and a Major Depressive Disorder.
8 If there was ever any reason for you to inflict that violence upon the complainant, it has never been explained by you to the police, or to medical practitioners who have examined you, or to this court.
9 The attack on the complainant was, on any view, violent and frightening. The fact that you continued your attack whilst it must have been clear to you that many other people were observing it, showed an unusual brazenness.
Background
10 You are currently aged 27. You were aged 25 when these offences occurred.
11 You were born in the Sudan and migrated to Australia on a refugee visa in 2004, when you were aged 15.
12 In your childhood, you were exposed to civil disturbances associated with a long running civil war in your homeland. You moved to Khartoum, where you continued your schooling. Later your family moved to Cairo, from where you and your family eventually came to this country.
13 On your arrival here, you spent four months at an English language school and then attended a secondary school for Years 9 to 12 inclusive.
14 After leaving school, you obtained work as an apprentice diesel mechanic but you did not complete that apprenticeship because of your employer’s lack of business activity and through no fault of your own. You later obtained work as a crane controller for two to three years. You left that job because you considered that travelling for 40 minutes to get to and from work was excessive. Immediately prior to your committing these offences, you had been unemployed for about two years.
15 You have a three year old son who resides with his mother. You are separated from her. I was told that you have regular telephone contact with your son and you see him quite often.
Prior convictions
16 You do have prior convictions of relevance.
17 In August 2011 you were convicted of recklessly causing serious injury and of possessing a prohibited weapon without exemption. You were convicted and sentenced to a Community-Based Order for 18 months, a condition of which was that you were ordered to perform 200 hours of unpaid community work. Shortly after that, on 21 February 2012, you were convicted of affray and on that occasion sentenced to a Community Correction Order for 12 months with various conditions including treatment for alcohol abuse and an anger management program.
18 On 11 December 2012, you were convicted of failing to comply with the earlier mentioned Community-Based Order and also charged with recklessly causing serious injury, and possessing prohibited weapons. The original Community-Based Order was varied to one of six months.
Psychiatric Diagnoses
19 You have a history of drug abuse from about the middle of 2013 or earlier.
20 Dr Owens, a consultant psychiatrist, examined you at the request of your solicitors on 1 May of 2015. He had perused the clinical notes of your former GP, Dr Lal, and those of the Cranbourne Mental Health Service and made a number of references to them in a report that was tendered. It appears that in July of 2013 you underwent a drug screen which tested positive to cannabis. At that time Dr Lal referred to your marijuana abuse and accompanying paranoid thoughts. He diagnosed you as suffering from a depressive anxiety disorder. On that occasion, notwithstanding the result of your drug screen a few days earlier, you denied that you had ever been involved in drug use.
21 You have previously been diagnosed with paranoid ideas. Practitioners have noted your history of hearing voices. On 12 September 2013, you proceeded to damage your girlfriend’s house after an argument. You had consumed an excessive amount of antidepressant medication which resulted it seems in paranoid delusion and further hearing of voices. You were admitted to hospital. At that time you were making bizarre claims that you were getting taller and your skin colour was changing.
22 Upon your discharge from hospital, a CATT team visited you each few days and you were prescribed anti-psychotic medication. Your family reported that you were generally not taking your medication.
23 This pattern seems to have continued through September of 2013. The CATT team planned a further admission to hospital but no beds were available at that time. You failed to attend an appointment with a CATT consultant psychiatrist. Your parents reported that you were staying out all night and only taking your medication occasionally.
24 You were referred to a psychologist, Dr Sandahl. She recorded that you were unwell and suffering from paranoid ideations and polysubstance dependence.
25 In summary, it is clear that prior to the committing of the subject offences, you had been diagnosed by a number of practitioners as suffering from psychotic symptoms including delusional ideas about people wanting to kill you, bizarre notions about your body changing shape, auditory hallucinations, visual hallucinations, referential delusions relating to events around you, some odd symptoms including a feeling of facial paralysis, and disorder of language so that you had difficulty making sense to people. Your depression, anxiety and irritability had increased.
26 Following these offences, you were arrested and placed on remand. On 14 October 2014, whilst you were in custody, you were admitted to Thomas Embling Hospital where, I assume, you received regular medication and did not partake in illicit drugs. This led to an encouraging improvement in your behaviour and personality which was observed by members of your family.
27 Nevertheless, in December 2014, a jury found that, at that time, you were not fit to plead to the charges that had been brought against you. The evidence of psychiatrists, at that time, was unanimous to that effect.
28 However, the opinion of psychiatrists is that your condition has improved since that time and the unchallenged medical evidence or medical opinion now is that you are currently fit to plead. Initially, I was advised that you intended to plead not guilty on the basis that at the time of your offending you were suffering from a mental impairment. Later, you elected to plead guilty to these offences.
29 In May of 2015, Dr Owens considered that, at the time of the incident in question, you were aware of the nature and quality of your actions; that you had gotten involved in a fight and were, as you perceived it, defending yourself from the complainant. Dr Owens was of the view that there was little doubt that you were suffering from a mental impairment at the time of those offences. He considered that for a month or so preceding the offence you experienced a range of symptoms of mental disorder, some of which were strongly suggestive of a psychotic illness and that you had become uncharacteristically violent. You suffered from delusions that others were trying to kill you. You had difficulty telling right from wrong.
30 Dr Anne Brennan, a consultant forensic psychiatrist, examined you on a number of occasions: July 2014, February 2015, and April 2015. In her report of February 2015, she noted that you had been diagnosed with a number of different conditions including paranoid schizophrenia (in relation to which she then considered that you were in incomplete remission).
31 You were discharged from Thomas Embling Hospital on 16 March 2015. The final diagnosis recorded at that establishment was of paranoid schizophrenia in incomplete remission, and cannabis dependence. You were discharged on antipsychotic medication.
32 Dr Brennan was of the view that by June 2015, your mental state had improved with anti-psychotic and anti-depressant medication.
33 Your plea of guilty to these charges renders any argument concerning mental impairment at the time of offending irrelevant. Nevertheless, your condition generally in the period leading up to the offences and at the time is an important part of your medical history, and relevant to my sentencing considerations.
34 You are to be sentenced on the basis that you are currently fit to plead and that your psychiatric condition at the time of offending was not such as to warrant an acquittal on grounds of mental impairment.
35 The evidence before me does not disclose that, at the time of these offences in early October 2013, your impairment was so severe as to deprive you of your knowledge as to what was right and wrong.
36 Nevertheless, it seems to me, on the basis of:
· Your behaviour over the month or so leading up to the date of your offences;
· The nature of your actions in committing these offences; and
· Your apparent inability to explain, adequately or at all, your offending conduct at any time since –
- that you were significantly affected by your psychotic illness at the time of your offending.
37 I have taken into account the views expressed in the medical reports that were tendered:
· Reports of Dr Ann Brennan dated 18 August 2014, 3 September 2014, 18 February 2015 and 3 June 2015;
· A report of Dr Pei Lim dated 3 March 2015;
· A report of Dr Nicholas Owens dated 19 May 2015; and
· A report of the psychologist Dr Spotorno of September of this year.
Sentencing purposes and guidelines
35 Section 5 of the Sentencing Act 1991 sets out the purposes for which I may sentence a person guilty of a crime. Briefly stated, those purposes include punishment, deterrence, both specific and general, denunciation of your conduct, protection of the community, and to establish conditions within which it is considered by the court that rehabilitation of the offender may be facilitated.
38 Section 5 of that Act requires me to have regard to a number of specific matters of relevance in this case. They include:
(i)The nature and gravity of the offences committed by you.
In that respect, I consider that these offences were serious. The assault by you was violent and unprovoked.
(ii)Your culpability and degree of responsibility for the offences.
Notwithstanding your mental health problems in the period leading up to your offending, I sentence you on the basis that you were able to appreciate right from wrong and that you must have known that what you were doing was wrong and that your assault was likely to result in significant injury to the complainant.
(iii)Whether the offender pleaded guilty to the offence and, if so, at what stage of the proceedings.
In all of the circumstances here, although your plea was late, it does has utilitarian value. Witnesses will not be required to give evidence and there will be a saving of court resources. In addition, I consider that in the circumstances of your mental health history, it would be inappropriate to, in effect, be penalized for not pleading guilty earlier, given that for a significant period after you were charged with these offences, you were not mentally fit to plead at all.
(iv)The offender’s previous character.
Here, I sentence you on the basis that prior to the offences in question, you had been convicted of the offences that I referred to earlier, those offences involving violence.
(v) A number of character references were tendered on your behalf. The authors of those references considered that you have, for many years, been a person of good character and a respected member of your community. They consider that your offending seems to have been out of character.
(vi)The presence of aggravating or mitigating factors concerning you or other relevant circumstances.
In relation to that, I say notwithstanding the abandonment of your defence that you were not guilty by reason of mental impairment, I am satisfied that your mental health problems in the period leading up to the commission of these offences do constitute mitigating circumstances. Plainly, you were unwell at that time and suffering symptoms of psychotic illness.
39 In terms of general mitigating factors, your barrister submitted there were a number of matters that I should take into account. I accept those submissions. I accept that:
(a) You have a good work history since arriving in this country, at least up until the time about two years before these offences.
(b) You have had a difficult upbringing on any view, in the context of being raised in a country involved in a frightening civil war, having had to leave your home, having had to leave your homeland. I further note that you have had virtually no contact with your father since you were very young. I will just interrupt myself there. There was a reference that he had virtually no contact with his father, but we heard from Mr Martin Latar. Is that not the man's father?
MS PANNUCIO-GRAY: Your Honour, my instructor informs me that Martin is Mr Latar's father.
HIS HONOUR: Yes. Maybe there was a loss of contact for a time, but obviously not at the present time.
MS PANNUCIO-GRAY: That sounds correct.
MR LIVITSANOS: I think that was the evidence, Your Honour.
HIS HONOUR: Thank you for clarifying that.
(c) Your barrister also put, and I accept, that your offending, including the current offences and the prior offences, although serious, appears to have occurred on reasonably isolated occasions.
(d) He submitted that you have reasonably good prospects for rehabilitation. I add to that I accept that you have good prospects for rehabilitation provided that you are able to avoid the use of cannabis and receive appropriate treatment for your mental health issues. It seems that you have good support from your family and from the community, or at least parts of the community. I consider that your prospects of rehabilitation would be a good deal stronger if you were prepared even at this late stage to fully acknowledge your wrongdoing and able to openly demonstrate genuine remorse for your offending behaviour. Even though there might have been a psychotic explanation for the behaviour on this date, your prospects for rehabilitation would be improved if you would acknowledge that behaviour and acknowledge by showing genuine remorse for it.
40 I take into account that you have already served a lengthy period of pre-sentence detention of some 524 days up until the date upon which you were released on bail in March of this year.
41 I take into account that in the period since that date you have complied apparently with bail conditions, including curfew conditions and apparently have complied with the condition that you abstain from drugs of dependence and alcohol.
42 I take into account the oral evidence that was given by Mr Tatenda Madzivire, your case manager at Cranbourne Mental Health Service with regard to your on-going treatment, and your improved attitude towards your treatment especially since June of this year.
43 I take into account the evidence from your father and mother concerning your behaviour since your release on bail compared with your lifestyle back 2013 before being taken into custody.
44
I note with some concern the history that Dr Owens took from you as recently as May of 2015 where he recorded that you had told him that you had never used cannabis or other illicit drugs. This is completely at odds with the medical opinions referred to and your positive result to the earlier screen for cannabis that I have referred to earlier. I do not accept that you were being truthful to
Dr Owens.
45 Mr Latar, in relation to that, the most efficient way of solving the problem is, in my view, firstly to admit that you do have a problem. It is very hard to get on top of a problem if you are in denial about it.
Sentence
46 Having taken all of the circumstances into account, I have come to the conclusion that the purposes for which I am required to sentence you can be achieved without the imposition of a further period of incarceration.
47 With regard to the two offences with which you are charged, intentionally causing injury and attempted rape, I consider that an appropriate sentence is one of a three year Community Correction Order, subject to a number of conditions which I hope will ensure that you continue the current level of your supervision and treatment and lead to a further improvement in your condition. The overall aim of any such sentence is that you recover to the point where you can go back to work and lead a useful life in the community.
48 I am in receipt of a report from Corrections Victoria dated 16 October of this year stating that you are considered to be a person suitable for a Community Correction Order.
49 However, I would not make such an Order unless you agree to it and agree to the conditions that I intend to attach to it. Before I ask you whether you do agree, I should tell you what those conditions will be.
50 There are a number of conditions that are mandatory by reason of s.45 of the Sentencing Act. They are:
(a)That you must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment;
(b)That you must comply with obligations or requirements provided by the regulations;
(c)That you must report to and receive visits from the Secretary to the Department of Justice (or his or her nominee), as directed during the period of the order;
(d)That you must report to Community Correctional Services at 46-50 Walker Street, Dandenong within two working days from the date that this order commences – that is, by 4 pm on Tuesday of next week, 24 November. You will be given some paperwork that sets this out;
(e)That you must notify the Secretary of any change in your address or employment situation within two clear working days after such change. So if you get a job, if you change jobs, if you quit a job, if you get sacked, you must notify the Secretary within two working days after such change;
(f)That you must not leave Victoria except with the permission of the Secretary. Victoria means Victoria. If you go and visit someone at Albury, you have left Victoria;
(g)In addition, you must comply with any direction given by the Secretary that is necessary in order to ensure that you comply with this Community Corrections Order.
51 In addition to those mandatory conditions, there are a number of extra conditions:
(a)You must undergo assessment and treatment (including testing) for withdrawal from or rehabilitation for drug abuse or dependency and for alcohol abuse or dependency as directed by the Regional Manager including, if considered necessary, assessment and treatment at a residential facility. That condition is made pursuant to s.48D of the Act;
(c)You must undergo any mental health assessment and treatment considered necessary;
(d)You must participate in programs that address factors related to your offending behaviour;
(e)You are to be supervised, monitored and managed as directed by the Secretary for the three year period of this Community Correction Order (under s48E).
(f)You are to reside with your parents at 35 Vega Terrace in Cranbourne or at such address at which they may reside from time to time during the term of this order;
(g)You must remain at your parents’ residence at 35 Vega Terrace, Cranbourne (or at such address at which they may reside from time to time in the future) between 10 pm and 6 am each day for the first year of this order, so for one year from now. That is, the year ending 19 November of 2016, except when you are in the company of one or other or both of your mother Antoniata Okikoi Ausa or your father Martin Lelo.
There was a suggestion made on the previous occasion that this matter was before the court that I might include one of your brothers in that group, but I am not inclined to do so at this point and would not do so without evidence before me as to your brother's character, lifestyle and criminal record (if any).
(h)That for the duration of this three year Community Correction Order you shall not use or imbibe in cannabis in any form.
(i)That you be monitored by this court during the course of this Community Correction Order. You shall appear before this court at 9.30 am on Thursday 26 May 2016 for review of your circumstances and treatment and at such other times as directed by the court.
52 Before I ask you whether you consent to those conditions, I will allow your barrister to have a short period of time to explain them to you. Do you have an adequate note of those conditions?
53 MS PANNUCIO-GRAY: Yes, thank you, Your Honour.
54 HIS HONOUR: How long do you think you might need to go through those with your client? Five or ten minutes?
55 MS PANNUCIO-GRAY: About five minutes would suffice.
56 HIS HONOUR: I will stand the court down for five minutes and I will come back in when you tell my tipstaff that you are ready. I will then ask your client whether he would consent to a Community Correction Order with those conditions attached to it, and he will presumably answer yes or no.
57 MS PANNUCIO-GRAY: Thank you, Your Honour.
(At a later stage)
58 HIS HONOUR: I have been corrected. I think I referred to your father as Martin Latar when it should be Martin Lelo. Is that correct?
59 MS PANNUCIO-GRAY: Correct, Your Honour.
60 HIS HONOUR: Mr Latar, do you consent to the making of a Community Correction Order with such conditions?
61 OFFENDER: Yes.
HIS HONOUR: Thank you. Accordingly, I will make that order with the conditions that I have referred to, and I should indicate that I have had regard, in making that order to the information, matters and recommendations made in the report from Corrections Victoria and the reports that have been tendered in this matter and previously referred to.
62 Pursuant to s.6AAA of the Sentencing Act, I am required to state the penalties that I would have imposed in the event that you had pleaded not guilty to these offences and had been convicted of them. Had that been the case, I would have sentenced you to a total effective term of imprisonment of three years and I would have directed that you not be eligible for parole for two years.
63 Mr Latar, pursuant to s.464ZF of the Crimes Act, I order that you undergo a forensic procedure for the taking of a scraping from your mouth and/or a blood sample until a sufficient standard is obtained for placement on the database. What that means is they take a sample to enable your DNA to be entered on the database and kept for future reasons. I make that order because of the seriousness of the circumstances of your offending and, further, because that order is not opposed by your counsel, or was not opposed by Mr Moglia on the earlier occasion. I am obliged to tell you that, notwithstanding your consent or notwithstanding your lack of opposition, that if you do not ultimately cooperate with the taking of the sample, reasonable force may be used by Victorian Police to obtain a blood sample from you. Do you understand that?
64 My associate will have you sign the relevant documents relating to the taking of that sample and also the Community Correction Order. Mr Livitsanos, Sex Offenders Registration?
65 MR LIVITSANOS: No, Your Honour.
66 HIS HONOUR: Not applicable here, thank you. Any other ancillary orders sought?
67 MR LIVITSANOS: Yes, Your Honour will recall the disposal order.
68 HIS HONOUR: There is a disposal order, that is right. I have signed that order and there are a number of matters there were crossed out. I thought it was inappropriate for his clothing and the like to be forfeited and disposed of.
69 MR LIVITSANOS: As Your Honour pleases.
70
HIS HONOUR: And I have signed that order. Just one final statement,
Mr Latar. You would now know I think that your behaviour back then in early October of 2013 was violent and it was unacceptable. Such behaviour would normally attract a significant additional period in gaol.
71 You must surely be aware by now that you do suffer from some mental health problems which need attention, they need treatment, medication in the main. It seems to me that the worst thing you could do from here on would be to pretend or deny that you do have such problems or that you do not require medication for your problems. Further, it must surely be evident to you by now that your use of marijuana in the past, possibly when combined with alcohol, has been a big trigger for your problems, and it is a condition of this Community Corrections Order that you do not use marijuana at all. If you do use it or if you do not comply with any of those other conditions that I read out earlier and that you have agreed to, you will be in breach of that Community Correction Order which is an offence in itself punishable by imprisonment.
72 The imposition of the Community Correction Order in this case in these terms and with those conditions hopefully gives you a chance to stay out of gaol, live at home in a stable environment, hopefully find some work, and receive appropriate treatment for your problems. If you do not take this opportunity then you face the prospect of wandering in and out of courts like this and in and out of gaol for a very long time in the future - not something that you would want, I would think.
73 My associate will give you some documents. You might accompany my associate to the dock if they need explanation.
74 MS PANNUCIO-GRAY: Thank you, Your Honour.
75 HIS HONOUR: You are free to leave court with your mother and I wish you every success in the future.
76 OFFENDER: Thank you.
77 MR LIVITSANOS: Before Your Honour actually rises, can I just raise one matter, just so that we are clear. My instructor has left and she reminded me that Your Honour has proclaimed the disposition, and can I just clarify there is no term of imprisonment that is being received by the accused in relation to Your Honour's sentence. Is that right?
78 HIS HONOUR: That is correct.
79 MR LIVITSANOS: Thank you, Your Honour.
80 HIS HONOUR: No further term of incarceration, I thought I made that clear. It is a straight Community Correction Order. What you are suggesting is I could have imposed a term of imprisonment so long as it was less than 524 days.
81 MR LIVITSANOS: Correct.
82 HIS HONOUR: It could have been done that way. I have not, and I am not inclined to change things now.
83 MR LIVITSANOS: As Your Honour pleases. I hear that, thank you, Your Honour. Thank you for your patience with this matter too, Your Honour, it has been a long matter.
84 HIS HONOUR: Yes, thank you.
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