Director of Public Prosecutions v Liddell
[2022] VCC 2107
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
CR-22-01011
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ADAM LIDDELL |
---
JUDGE: | HER HONOUR JUDGE KARAPANAGIOTIDIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 November 2022 | |
DATE OF SENTENCE: | 25 November 2022 | |
CASE MAY BE CITED AS: | DPP v Liddell | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2107 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW – Sentencing.
Catchwords: Plea of guilty – Conduct endangering persons – Mental health – Paranoid schizophrenia – Drug use – Good prospects of rehabilitation – Non-custodial sentence.
Legislation Cited: Road Safety Act 1986 s 61E.
Cases Cited:Byast v The Queen [2021] VSCA 344; Navaratnam v The Queen [2021] VSCA 26; R v Verdins [2007] VSCA 62; Worboyes v The Queen [2021] VSCA 169.
Sentence: Community Corrections Order for a period of 18 months.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. Pickering | Office of Public Prosecutions |
| For the Accused | Mr L. Richter | Angus Cameron Lawyers |
HER HONOUR:
1 You have entered a plea of guilty to one charge of conduct endangering person pursuant to s 23 of the Crimes Act.
2 You have also agreed to this court hearing and you have pleaded guilty to the summary offence of driving a motor vehicle while the prescribed concentration of drugs was present in your blood.
Summary of offending
3 The summary of your offending is set out in the Summary of Prosecution Opening dated 17 November 2022. It is noted that the Court imposed sentence in this matter immediately following the formal plea hearing. A summary of the opening was therefore not repeated at that time but it was indicated it would appear in revised reasons, and is outlined below.
4 In brief, at the time of the offending, you were 45 years of age, the holder of a driver’s licence and the registered owner of a red 2000 Mitsubishi coupe registration number PZR952 (“the Mitsubishi”).
5 On 23 January 2020, you drove the Mitsubishi into the Burnley Tunnel at approximately 11.20pm. You entered the tunnel from the King Street entry ramp and travelled east into the tunnel.
6 At the time of entry, and at this part of the tunnel, the applicable speed limit was 40kp/h due to road works taking place.
7 After entering the tunnel at a speed faster than the limit, the Mitsubishi driven by you struck a white BMW sedan registration number QZQ750 driven by Michael Rich.
8 At the time of the collision, the vehicle driven by Mr Rich was in the far left lane but you attempted to pass at high speed on the left side of the BMW. Mr White slowed down and moved to the right to let you pass but you struck the left mirror of the BMW.
9 You then veered into the centre lanes, passing between two vehicles despite there not being a lane to separate them.
10 You continued to drive at high speed through the Burnley Tunnel, moving to the right lane and passing other vehicles. You approached the road works on the right lane and then changed back to the centre lane. You came up behind vehicles which had slowed down due to the road works. You then tried to drive between two vehicles which were in the left and middle lanes.
11 The vehicle in the centre lane was a red Subaru driven by Himi Graham, while the vehicle in the right lane was a white Hyundai driven by Xin Chen.
12 You struck the left side of the red Subaru, then collided with the right side of the white Hyundai. You then lost control of your car, striking the side of the Hyundai a second time.
13 You collided with the rear of a heavy vehicle trailer registration number 1K08K before rolling a number of times.
14 Your car stopped when it collided with the concrete barrier on the right side of the Burnley Tunnel.
15 The Metropolitan Fire Brigade and ambulance arrived a short time later.
16 You were able to be removed from your car largely unharmed save for a 2cm deep laceration of your nose, abrasions to your chest from the seat belt and a deep puncture wound to your knee.
17 You were described by MICA paramedic Adrian Schwarz as ‘conscious but agitated and restless’ with ‘unusual motor behaviours’.
18 You were transported to the Alfred Hospital, where a sample of blood was taken on 24 January 2020 at 12.20am. A toxicology analysis of this blood sample showed the presence of methylamphetamine in your blood.
19 You were arrested and interviewed on 23 April 2020 and made a “no comment” interview.
20 Later analysis of the CCTV footage of your Mitsubishi travelling in the Burnley Tunnel immediately prior to and during the collisions established that you travelled between two fixed cameras placed 1.665km apart at an approximate speed of 171km/h in the 40kmh work zone.
Objective gravity of offending
21 Mr Liddell, your offending conduct is a serious example of reckless conduct endangering persons. The objective gravity of such offending would ordinarily call for a term of imprisonment. As submitted by Mr Pickering on behalf of the prosecution, your driving posed a high risk to the safety of members of the public and general deterrence is usually of prominence in such cases. Mr Richter noted at the indication hearing that it was extremely fortunate that no one was injured and that you, yourself, survived relatively unharmed. Notwithstanding my assessment of your offending as objectively grave, as I previously indicated, I do consider that there are significant matters mitigating your moral culpability and ultimately, justifying the imposition of a non‑custodial sentence. The most significant matter concerns your mental health at the time. It is best to address this at the outset of my reasons, given it is informative and was really the only contentious issue between the parties.
22 At the sentence indication and on the subsequent plea, a number of expert reports were tendered and relied upon by the parties. Both Mr Pickering and Mr Richter called upon the court to consider the opinions in their presently untested form and make relevant findings.
Medical reports
23 I will commence, Mr Liddell, with outlining the factors that emerge from the body of expert reports and that do not appear to be in dispute between the parties:
a) First, you have a well-established diagnosis of paranoid schizophrenia, formally diagnosed sometime between 2008 and 2012.[1]
[1] Dr Sanghvi states diagnosed in 2012; Dr Batten’s report notes that the GP report records diagnosis in year 2008; Dr Walton notes your psychiatric history dates back to around 2008.
b) When you are unwell you experience psychotic symptoms such as paranoid delusions and auditory hallucinations,[2] along with poor sleep and high anxiety.[3] When unwell, you fear that your life is in danger and have concerns that 'people are after me' and you worry for your safety.[4] In 2017, you reported a serious suicide attempt by wrist cutting. At the time you were certain that people were trying to kill you so you thought you would 'get in first'.[5]
[2] Letter of Dr Sanghvi dated 12 July 2021.
[3] Forensicare Report of Dr Batten dated 16 August 2022; [25].
[4] Psychiatric Report of Dr Ong dated 13 November 2022; 4.
[5] Forensicare Report of Dr Batten dated 16 August 2022; [27].
c) Over the years, you have been admitted to psychiatric units[6] and treated with a range of antipsychotic medications. In 2018, you were case managed by a community health care team and placed under a community treatment order in September 2018 through to September 2019. Next, after your discharge from that order, you continued to have almost weekly contact with your treatment team on a voluntary basis. During this time, you reported being partially compliant with your oral medication. Sometimes when paranoid you became too scared to return home and, therefore, could not access your medication which was stored there.[7]
[6] Psychiatric Report of Dr Walton dated 2 August 2022; 2.
[7] Forensicare Report of Dr Batten dated 16 August 2022; [31].
d) In terms of drug use you first experienced illicit drugs around the age of 20 in the mid-1990s when you smoked cannabis. In 2005, you started using MDMA in the context of your mother's ill-health and passing. By 2015, you were using methamphetamine and continued such use until the current offending. You now report total abstinence from drugs.
e) Further, you report that in the months prior to January 2020, you were becoming increasingly paranoid.[8] You had lost trust in your family and your treating team and you no longer felt safe.[9] You believed people wanted to capture and torture you and if you stayed in your house people would come and burn it down. Your treating psychiatrist, Dr Sanghvi, noted that you were prescribed the antipsychotic aripiprazole in tablet form but that you were erratic in taking it regularly which is likely to have contributed to you becoming unwell.[10]
[8] Forensicare Report of Dr Batten dated 16 August 2022; [39].
[9] Psychiatric Report of Dr Ong dated 13 November 2022; 8.
[10] Also see: Forensicare Report of Dr Batten dated 16 August 2022; [42].
f) You report taking some ice at the time, but only in small amounts, mainly to try and stay awake at night as you were paranoid symptoms were worse then.[11] For about a month prior to the offending you remained paranoid and cut off all social ties.
[11] Ibid.
g) You report that on the day of the offending you were waiting for your Centrelink payment to arrive in your account. You had a plan to drive to Torquay and stay in a motel for a few days. You were driving around Melbourne. You had a feeling of being followed. You became disorientated and inadvertently entered the Burnley Tunnel and you recall the feeling that you were going into a trap. You did not want to be captured so you did not pull over. When you saw traffic cones closing some of the lanes in the tunnel, you thought they were set there for you. You attempted to get free by driving faster and shortly after that the crash occurred.[12] Your memory is, thereafter, incomplete and you recall being taken to hospital.
[12] Forensicare Report of Dr Batten dated 16 August 2022; [44].
h) The notes from the Alfred Hospital of 4 February 2020 where you were conveyed indicate that you had informed nursing staff upon admission that you were speeding as you were 'running away from someone who was chasing you'. You also informed staff that upon impact you thought you were going to die and ingested a bag of ice that you had in your possession.[13] On 25 January 2020, you called your usual case manager at Monash and reported feeling unsafe in hospital as 'people were after you'.
[13] Psychiatric Report of Dr Ong dated 13 November 2022; 9.
i) You report that your life has changed positively since these events. You are abstinent from drugs and engaged with mental health support and compliant with medication.[14] In terms of your medication, Dr Sanghvi notes that subsequent to the offending, you have been changed over to the long-acting injection form of the same medication which is administered on a regular monthly basis. You are fortunate in many ways to suffer from a medication responsive illness.[15]
j) Finally, a person such as yourself, suffering from a chronic illness will endure incarceration more onerously than others and there is an elevated risk of relapse and/or decline in mental health.[16]
[14] Forensicare Report of Dr Batten dated 16 August 2022; [49].
[15] Psychiatric Report of Dr Walton dated 2 August 2022; 4; Psychiatric Report of Dr Ong dated 13 November 2022; 10.
[16] Forensicare Report of Dr Batten dated 16 August 2022; [72]; Psychiatric Report of Dr Walton dated 2 August 2022; 4; Psychiatric Report of Dr Ong dated 13 November 2022; 11.
24 Mr Liddell, those matters are generally not in dispute. What is in dispute is the effect of your psychiatric illness on you at the time of the offending. In broad terms, Dr Lester Walton and Dr Kevin Ong agree that you were in a state of psychosis at the time of the offending and had experienced a relapse in your schizophrenic illness which affected your judgment and your understanding. Dr David Batten considers that while you were suffering a mental illness on the day of the offending, it did not affect your understanding of your various conduct and that on that day your behaviour may have been altered due to methamphetamine intoxication.[17]
[17] Forensicare Report of Dr Batten dated 16 August 2022; [71].
25 Briefly dealing with the reports in chronological order:
Dr Walton – 2 August 2021
26 Dr Walton expresses the following opinions in his report:
a) You suffer from paranoid schizophrenia and notwithstanding your history of drug use this is 'not a situation of drug-induced psychosis simplicita'. You were in a state of psychotic panic at the time of the offending. Your ill-considered rapid flight being in response to you perceiving that you were being pursued by potential attackers.
b) It is probable that you lacked capacity to appreciate your acts or the consequences and your capacity to form criminal intent was also significantly eroded. Alternatively, your acute paranoia at the time very likely also rendered you incapable of reasoning with a moderate degree of sense or composure as to the wrongfulness of your acts.
c) Both phenomena - that is your hazardous taking of medication and your drug abuse preceding the offending - likely contributed to the psychotic breakdown which occurred.
Dr Batten – 16 August 2022
27 Briefly, Dr Batten in his report indicates the following:
a) Based on your history and reports your symptoms of paranoid schizophrenia were present in the weeks and possibly months leading up to the offending. It appears you were in a relatively constant state of fear and paranoia. Your use of methamphetamines in the lead-up to your offending likely perpetuated your symptoms. You were suffering from mental illness on the day.
b) You told Dr Batten that you thought that you were fit to drive on the day and had not had ice that day, but the day before.[18]
[18] Forensicare Report of Dr Batten dated 16 August 2022; [46].
c) Although you were suffering from mental illness at the time of the offending, it did not affect your understanding of the nature or the quality of the conduct or your understanding of it being right or wrong.
d) You do not have a defence of mental impairment open to you.
e) There is no evidence, such as an admission to a psychiatric facility to suggest that your perceptions or understandings had significantly changed in the relevant period.
f) Your behaviour was altered due to methamphetamine intoxication which affected your decision-making ability, concentration, attention, and ability to react quickly to changing circumstances. This was consistent with the observations of the attending paramedic and the toxicology certificate.
Dr Ong – 13 November 2022
28 Dr Kevin Ong provided a report and outlined the material he had access to, including the previous psychiatric reports I have just referred to and also the letter from Dr Sanghvi. I note that Dr Sanghvi's letter provides the following:
‘In my opinion, it's likely that Mr Liddell was acutely psychotic and affected by illicit substances at the time of the accident. That he believed he was being pursued by supposed persecutors and was fleeing them. He did not, at the relevant time, have the requisite mental cognizance to realise that he was endangering the lives of others or placing others at risk of serious injury'.
29 Returning to Dr Ong's report, his opinions can be summarised as follows:
a) Your relapses have been in the context of incomplete adherence to medication and are likely to be exacerbated by previous methamphetamine use. The onset of psychotic symptoms appears to have occurred prior to use of methamphetamine.
b) In relation to the index offending, you appear to have been in the throes of a relapse in your psychotic illness. You had been intermittently adherent to your medication. You were adamant that you did not use methamphetamine on the day of the offending itself. You had become increasingly paranoid, did not trust your family or treating team. You had attempted to conceal your paranoid experiences from them. You were living out of your car in the month prior to the offending and likely gambling to excess. In this context, fearing for your safety, you drove into the Burnley Tunnel, felt trapped and subsequently attempted to escape.
c) Given your active psychosis at the time, you genuinely feared for your life and your actions were designed to escape the situation. You could not have foreseen that your actions would have placed others at risk of serious injury.
d) You were experiencing a relapse in your schizophrenic illness at the time which is a serious and enduring illness.
e) Your experience of psychosis directly contributed to the offending.
Analysis
30 The reports were obviously far more detailed then the summaries I have provided above. As the Court of Appeal stated in the case of R vVerdins, the application of the relevant principles demands a rigorous examination of the evidence.[19] The question is whether the evidence establishes on the balance of probabilities that the impairment of mental functioning contributed to the offending in such a way as to render the offender less blameworthy for the offending than would otherwise have been the case. In other words, is there a causal link or realistic connection between the two.
[19]R v Verdins [2007] VSCA 62; [33].
31 Mr Liddell, on the basis of the evidence before me, I accept that you suffer from a serious mental illness and that you did at the time of the offending. In the lead-up to the offending, your compliance with your medication was erratic and you were distrustful of your family and treating team. You were becoming increasingly paranoid and your circumstances were unstable. Your illness has previously been exacerbated by methamphetamine use. However, Dr Ong notes: 'The onset of psychotic symptoms appears to have occurred prior to use of methamphetamine. Mr Liddell does not simply suffer from a recurrent drug-induced psychotic illness'.[20] You have previously rationalised your drug use in the context of paranoid delusions, where you hope the stimulating effects of the drug would keep you more alert, less your enemies attack you. Instead of helping, it is likely the drugs worsened your persecutory ideas.[21]
[20]Byast v The Queen [2021] VSCA 344.
[21] Psychiatric Report of Dr Ong dated 13 November 2022; 10.
32 When you were conveyed to hospital after the offending, drugs were detected in your blood. On the evidence, it seems open at least that they may have been ingested before, on the day or immediately after the offending. Whatever the case may be, taking into account your history of illness, the severity of your symptoms, the month leading up to the offending and the combined opinions of Dr Walton and Dr Ong, I accept that your mental illness at the time may have been exacerbated by the use of methamphetamine but that it exists independent of it. I accept that at the time of your offending you were extremely paranoid, in a disturbed and distressed state, and that you had experienced a relapse in your schizophrenic illness which substantially contributed to your offending. I am satisfied that at the time of the offending your impairment had such an effect on your mental capacity and, in particular, your capacity to moderate your behaviour, that general and specific deterrence should be moderated. I accept that all principles of Verdins on the evidence are enlivened in your case and that appropriate weight must be given to these considerations as part of the instinctive synthesis.
Plea of guilty
33 Your case, Mr Liddell, resolved after a sentence indication on 15 November 2022, when you entered a plea to the charge.
34 I take into account your plea of guilty and I accept that it attracts a significant utilitarian benefit. As submitted by Mr Richter, on the evidence, you had an arguable defence. Doctor Sanghvi and Dr Walton considered that you had a defence of mental impairment available to you and Dr Ong called into question whether you were even able to form the necessary intention or to experience the subjective appreciation of the creation of risk entitled by your conduct. I accept that your conduct of this matter has minimised the resources and time of the courts and the community in pursuing this resolution.
35 I also accept that your plea indicates your willingness to facilitate the course of justice and is demonstrative of remorse. Further, I accept that your remorse is reflected in your conduct since the offending. I was told that you now ride a bike and have not driven a car since the incident and do not plan to. You are no longer using drugs and you are engaged and compliant importantly with your medical treatment. I also note the heightened utilitarian value of your plea in line with Worboyes principles.[22]
[22]Worboyes v The Queen [2021] VSCA 169.
Personal history
36 Your personal history, Mr Liddell, has been canvassed in the various reports and by your counsel, Mr Richter, and also in my earlier sentencing remarks.
37 Briefly, you were 44 at the time of the offending and you are now 46.
38 You were raised in Oakleigh by your father and your mother. You have an older sister with whom you are close. Your mother passed away from motor neurone disease in 2010, which caused you significant depression.
39 You completed halfway through Year 12 before leaving school to commence paid employment. You last worked with Monash University for some nine years up until around the period that your mother passed away. The reference of Paul Fallanca, who first met you while you were working at the Monash library, refers to you as reliable and genuine and as treating staff and clients with respect and understanding.[23] You also volunteer supplying emergency food provisions for the needy. The letter from Hayden Jones of Enjoy Church, confirms that you are a valued member of the team which restocks food bank every week for those who are disadvantaged in our community.[24] You also assist your father on his rural property, tending and maintaining the market gardens there.
[23] Exhibit 10.
[24] Ibid.
40 You have a teenage son from a previous relationship. He lives in country Victoria with his mother with whom you have maintained a good relationship and you have contact with your son mostly during school holidays.
41 You have no prior criminal history, aside from one unrelated matter from approximately 20 years ago for which you received a modest fine.
42 You have a history of mental illness and also of drug use which I have already canvassed. As noted, in the lead-up to the offending, you had become increasingly paranoid, distrustful and there was a steep decline in your personal circumstances.
Prospects of rehabilitation
43 You are currently well supported by family and your treatment team. You are in receipt of a Disability Support Pension and you continue to live in the bungalow at the back of your father's property. Your father indicates his full support of you in his reference and also speaks proudly of the diligence and initiative that you have shown in recent times concerning your work and treatment.[25] You are engaged with the treating psychiatrist who reviews your progress. You receive monthly intravenous antipsychotic medication from your general practitioner who you also see regularly. You respond well to medication. You are currently free of paranoid symptoms. You have good insight into your illness and comply with your current treatment regime.
[25] Exhibit 10.
44
You also, Mr Liddell, previously engaged in counselling with the clinician through Monash Health, having weekly sessions initially for a period of
six months. I received a letter from the drug and alcohol clinician, Kim Rule, who described you as engaging in open, honest and meaningful counselling. She states: ‘It's rare to find a client so completely honest and able to step into recovery and maintain it in such an unwavering fashion’. You have now developed insight into the detrimental impact of methamphetamine use.[26] You have also developed good insight into your previous gambling and are motivated to abstain.[27]
[26] Psychiatric Report of Dr Ong dated 13 November 2022; 10.
[27] Ibid. See also: 3 Drug Urine Screens between 15 June 2022 and 21 September 2022
45 In all the circumstances, Mr Liddell, taking into account your mature age and also your lack of any relevant prior criminal history, I accept that you present with very good prospects of rehabilitation.
46 As Dr Ong states and as it appears to be agreed between the experts, a disposition that allows your ongoing rehabilitation and stability to continue would be most beneficial to your mental state and by extension, reduce your risk of re-offending.
Sentence principles
47 The basic purposes for sentencing are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In your case, as I have already indicated, these principles require moderation given the findings I have made as to the application of the Verdins principles in your case. As for the protection of the community, I consider that for a substantial period of time now you have been stable, compliant with, and amenable, to treatment. I take into account the sentencing guidelines referred to in s 5 of the Sentencing Act where relevant to your case. I have also had regard to the current sentencing practices for conduct endangering persons, along with the recent cases.[28] I have also taken into account the principles of proportionality and parsimony in your case.
[28] Eg. Navaratnam v The Queen [2021] VSCA 26.
48 Your counsel, Mr Richter, submitted that a Community Corrections Order (‘CCO’) was within range and appropriate in light of all the significant factors in mitigation that you are able to call upon. The prosecution, Mr Pickering, submitted that a combination order was required to reflect all relevant considerations, including the seriousness of the offending. As I have already indicated, given the circumstances of your case and the application of Verdins principles, including in my assessment of your culpability, I consider that a CCO is a just and appropriate sentence. I had you assessed for such an order and you were assessed as suitable.
49 Mr Liddell, I have now arrived at the sentence that I will impose. I will ask you to stand up if you can, please.
Sentence
50 On Charge 1, you are convicted and you are sentenced to an 18-month Community Corrections Order with the following conditions. Those conditions are supervision, treatment and rehabilitation for drug use, treatment and rehabilitation for your mental health. I am also proposing to impose a condition of judicial monitoring and I will nominate a time in around four or five months for that. I just want to see how you are going on the order and it may be that the judicial monitoring continues or it does not. But it allows me to see how the transition is for you.
51 In relation to the charge pursuant to s 49(1)(bb), the driving motor vehicle with drugs present in your blood, taking into account all matters, including the fact that you are a recipient of the Disability Support Pension, I will convict you and fine you a total of $600.
52 Pursuant to s 61E of the Road Safety Act, I also cancel and disqualify any licences you hold for the mandatory minimum period of six months. In relation to the conduct endangering charge, pursuant to s 89 A of the Sentencing Act, I will exercise my discretion and cancel and disqualify any licences you hold for a period of six months. I will order that each term of disqualification run concurrently. Therefore, the total period of disqualification is six months.
53 I am not required to provide a s 6AAA declaration in light of the sentence that I have imposed. But can I indicate this for your benefit, Mr Liddell, that had you not pleaded guilty to the charges I would have imposed a combination sentence. In other words, one that took into account, obviously, all the mitigating factors but that did and would have required you to serve an immediate term of imprisonment. Your plea of guilty has, therefore, spared, as I have indicated, time, resources of the court but it has also resolved this matter and potentially saved you from an immediate term of imprisonment.
54 Now, what will occur, first of all, you can take a seat. Mr Pickering, was there anything else? Are there any other orders?
55 MR PICKERING: No, Your Honour.
56 HER HONOUR: No. Thank you.
57 You'll indicate your consent to the order by signing it in a moment. The judicial monitoring date will be in four months' time, 27 March at 9.15 am.
58 MR PICKERING: Your Honour, may I ask Your Honour, is it Your Honour's practice to have counsel appearing or is it just - - -
59 HER HONOUR: No. Look, I must say no and I appreciate also that there are sometimes funding issues in respect of that. It's not my practice unless there is an issue with the order and then my practice is to have chambers indicate that to counsel and invite them to attend if they wish to. But otherwise, no.
60 MR PICKERING: If Your Honour pleases.
61 HER HONOUR: All right. Thank you. Mr Richter, if you'd like to join Mr Liddell and take him through the order, please.
62 MR RICHTER: Thank you, Your Honour. I certainly will.
63 (Community-based order signed and acknowledged.)
0
4
0