Director of Public Prosecutions v Luxton

[2019] VCC 1145

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-01955

DIRECTOR OF PUBLIC PROSECUTIONS

v

SAMUEL LUXTON

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	24 July 2019
CASE MAY BE CITED AS:	DPP v Luxton
MEDIUM NEUTRAL CITATION:	[2019] VCC 1145

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr A. Sprague
For the Accused	Mr D. Gurvich QC and Mr T. Bourbon

HER HONOUR:

1Samuel Luxton, you have pleaded guilty before me to one charge of aggravated burglary, one charge of intentionally causing injury and two charges of possessing a drug of dependence, they being MDMA and cannabis, both drugs being found on your person as will become clear when I go into the fact scenario underlying your offending.  They were small amounts for your personal use.  The facts underlying your offending are as follows.  At the time of the offending, you were 27 years of age and the victim in this matter, James Black, was an old friend of yours from when you were quite young.  You had been in a casual intimate relationship with Chelsea Airton, who with another young woman, Josie Emanuel, shared premises with Mr Black at Apartment 1,
83 Johnson Street, Fitzroy.

2On 22 November 2017, at about 3.30 in the morning, you attended that address and from the footpath on the corner of Johnson and Fitzroy Streets, you began to call out to Ms Airton whose bedroom window was open.  At this time she was asleep inside on the second level of that building.  Ms Airton woke to the sound of your voice and whilst you were calling out to her, you took off your right sandal and threw it through the window onto her bed.

3Ms Airton went down to the front door and tried to call your phone, as she recognised your voice.  Meanwhile, you used a wheelie bin to climb up on an air-conditioning unit and then got onto an external window ledge to enter
Ms Airton's bedroom window.  You left a set of keys, a sandal and a pair of sunglasses on the footpath.  Once inside, you went through Ms Airton's bedroom to a hallway and next door into Mr Black's bedroom.  Mr Black was asleep at the time.  Your actions in entering the building as you did underlie Charge 1 on the indictment, aggravated burglary and are based, as the prosecution informed me, on a burglary that is entering as a trespasser with intent to assault.  Once inside Mr Black's bedroom, you turned on the light and yelled at him and then used a small screwdriver to stab Mr Black about seven times on his body and head, causing puncture wounds.  Mr Black sustained seven puncture wounds to his head, arm, torso and buttocks.  Those actions underlie Charge 2 on the indictment, intentionally cause injury.

4Unsurprisingly, Mr Black began to scream and yell out and Ms Airton came upstairs and walked down the corridor, at which time you stopped stabbing
Mr Black and came out of his bedroom.  Mr Black in the meantime closed his bedroom door and called Emergency Services.  You stood in the doorway and told Ms Airton that people were trying to rape you and you asked if she was okay.  You rambled on and walked back into her bedroom.  There you pushed over a clothing rack to block her door and asked her again if she was okay.  You continued to say people were trying to rape her, then you moved towards the open window and straddled the windowsill, still holding the screwdriver in your hand, but then placed that and a set of keys on the windowsill and asked
Ms Airton for her phone.  Police arrived at about 3.40 am and Ms Emanuel, the other house resident, went down to meet them.

5You leaned out of the window and spoke to police on the ground below.  You were holding a black diary, told them you were a victim of a rape, that your mother and brother had tried to rape you.  You said all the evidence was in the diary and you threw it down to police.  Police then asked you to come down and you did this.  You were there placed under arrest and told police 'I shanked him', you told them it was with a screwdriver, which you had left on the ledge outside the window.

6Police found those other items, along with the screwdriver inside the bedroom, including a small zipped bag with plastic containers, containing some pills, tape and a small vegemite sachet.  Police searched you and located a small amount of cannabis and four capsules which you told them contained MDMA.  Analysis confirmed that the capsules did contain MDMA, in a total amount of about half a gram.  Your possession of this drug underlies Charge 3 on the indictment, possession of a drug of dependence.  The cannabis which was seized weighed .81 grams and your possession of this underlies Charge 4, possessing a drug of dependence.  You were taken by police to the Melbourne West Police Station, where a forensic medical officer determined you were not fit to be interviewed at that time and you were charged and remanded in custody to appear for a filing hearing at the Melbourne Magistrates' Court the next day.

7Meanwhile Mr Black was taken by ambulance to the Royal Melbourne Hospital where his wounds were treated and he was released from there later that day.  Mr Black sustained a total of seven puncture wounds to his forehead, left temple, right forearm, left armpit, upper right thigh and two to his right buttock.  They were described as superficial, but the wounds to his thigh and buttock were described as deep.  All were small and did not require any stitches.  Mr Black had swelling at the side of the wound to his left temple and multiple scratches on his upper torso and arms.

8A contested committal hearing was ultimately held on 21 September 2018.  It was conceded by the prosecution that this was a narrowly conducted committal, at the end of which you entered guilty pleas to intentionally cause injury and two charges of possessing a drug of dependence, but maintained your not guilty plea to the aggravated burglary.  Ultimately, on 19 February 2019, you offered to plead guilty to charges on the indictment, after the prosecution had given an indication on sentence.  You were arraigned and pleaded guilty in this court on 1 March 2019.  The maximum penalty for aggravated burglary is 25 years imprisonment.  The maximum penalty for intentionally causing injury is 10 years imprisonment.  The maximum penalty for possessing MDMA in a small quantity for personal use is one year's imprisonment or 30 penalty units and the maximum penalty for possession of drug of dependence of cannabis in a small quantity is five penalty units.

9A victim impact statement was tendered which had been compiled by Mr Black.  It is clear that your actions that night caused him enormous fear and insecurity.  He said that the period between you being charged and ultimately entering a plea of guilty was one which caused him an amount of emotional impact.  He said he still struggled to feel safe, particularly because the attack upon him was perpetrated by someone he had known for over 20 years.  He stated that he had eventually moved to a new home as a result of your offending.  He suffered constant nightmares and he said he had since left Australia in an attempt to feel safe again.

10Undoubtedly, this was a terrifying attack and normally it is a situation that persons who enter the homes of others, as you did, and then unleash an attack upon them, can only expect to be dealt with sternly by a court and usually by way of a term of imprisonment to be immediately served.  However, it is quite clear, as was in fact probably obvious from the prosecution opening, there are some rather exceptional circumstances attached to this offending. 

11You are now 29 years of age and you have no prior or subsequent convictions.  The clue to the exceptional circumstances can be seen in the way in which you conducted yourself on that night, which was clearly in a delusional and bizarre state and indeed, you were found unfit for interview by the forensic medical officer called by police.  Ultimately on the plea, I received a report from a consultant forensic psychiatric, Dr Andrew Carroll, who is well known to these courts.

12His conclusion was that you had, as a teenager, correctly been diagnosed as suffering from a bipolar effective disorder, which had come and gone in your life for brief periods of time, you, for example, experiencing periods of hyper mania, accompanied by periods of deep depression, but in between, were able to operate normally within the community and indeed, progress down the normal paths of your life, that is via education and the obtaining of tertiary qualifications.

13There are some fairly tragic circumstances in my view, attaching to your development of this disorder and I will now turn to your personal history in explanation of that.  As I have said, you are 29 years of age.  You were born into a financially affluent and comfortable home and you reported a close family relationship, both with your parents and your brother.  There appears to have been, from what I can glean from Dr Carroll's report, a history amongst close relatives, of depression, that means, some pre-disposition to the development of this disorder, that although there was no sign of that in you until you attended a generally extremely prestigious boys boarding school.  In Year 10 at this school, you were subjected, I am not going into the details of it, but you were subjected to severe bullying, meted out under the tradition of initiation, which left you terrified.  That involved a large amount of bullying and intimidation of senior boys in the school and this ultimately led to your being the subject of a serious sexual assault.  Thereafter, you developed a number of mental health symptoms which included extreme depression and an inability to focus and ultimately, you left that school in Year 11 and attended another school for a while, but eventually completed your Year 12 at the RMIT TAFE.

14You then undertook a number of activities, employment wise.  You undertook a carpentry apprenticeship, but were unable to continue that.  You tried another university course.  But eventually, you were successfully enrolled in an environmental science degree at Latrobe University.  You completed that degree and you achieved high distinctions.  I should add that these difficulties and outrages perpetrated upon you occurred in about 2005.  But you ran into some further difficulties on the sudden death of your father in 2012 and then ultimately gave testimony to the Royal Commission into Institutional Responses to Child Sexual Abuse. 

15It would appear that both those incidents were particular stressors for you.  Since 2006, you have been under the care of a psychiatrist, Dr Steven McConnell and I received a report from him, to which I will shortly refer.  But in any event, it is clear you became unwell and this was recognised at an early stage.  You attended upon Dr McConnell on a regular basis and for much of the time, according to Dr McConnell's report, you appeared to be coping well.  You would have brief periods of mental unwellness and then if I could put it in a rather un-legal way, you would come good and keep going with your life.

16However, you eventually began to self-medicate by the use of illicit drugs and this appears to have underlain your eventual devolution into the state that you were in at the time that you committed, what I am satisfied, is uncharacteristic offending on your part.  In particular, for about five years prior to this offending, you had been used Ketamine on and off.  You had also, in 2017, travelled overseas.  You went to Amsterdam where you developed a taste for cannabis, which had not previously been a drug you had particularly engaged in use of.  That came back with you to Australia and you continued using it on a fairly regular basis.  It is very well known to the courts that certain person are vulnerable to the effects of cannabis use and in Australia now, most cannabis is grown hydroponically and has a very high THC content and can have disastrous effects on people with a pre-disposition to mental illness.  You had also started using ecstasy, but I am going to again refer to Dr Carroll's report because it is helpful.  He details that you arrived back in Melbourne from your trip overseas, you continued to use cannabis in larger amounts because it was less potent here than the cannabis you had been using in the Netherlands and he notes that you began smoking bongs from the morning onwards.  You also told Dr Carroll you took Ketamine about five times after returning to Australia in late October 2017.  You told Dr Carroll that your mood began to feel uneven and you started having trouble sleeping.  You would become obsessed with things, like carrying out renovation work with a friend.  You were only getting about four hours of sleep a night.

17You said that on 18 to 19 November that you felt slightly hyper manic.  You were talking very fast and finding it hard to sleep.  You said you realised on about the 18th and the 19th that you were not fully well, but thought it was not a problem.  You drove five hours back from Falls Creek to your house and by the next day, 20 November, you said you started to lose touch with reality and had vivid nightmares and you were not sure if they were real.

18You said you took some Ketamine after returning from Falls Creek and that on the evening of Monday 20 November you were with your girlfriend.  You had sex with her, but it all seemed like a very strange experience and you began to think other people might not be who they claimed to be and you were not sure whether or not you were hearing voices.  This is all a classic psychiatric unravelling, Mr Luxton.  You are not the first person to whom this has been described to the court and can I assure you, you will not be the last, but they are sort of classic symptoms.  You had trouble recalling time or seeing things happening in sequence.

19Early on 21 November, you were with a friend and you accused him of trying to sexually touch you.  You said you thought he was trying to rape you.  You thought there were people coming from the future to change the course of time and you had to do something about it and that by the end, you thought that James Black was the devil.  You believed that you needed to flee from Melbourne and go to Mount Beauty.  You packed your belongings in a bag, you left your house and first visited your mother and thought that she was acting weirdly.  You also said that you had your last smoke of cannabis just before you went to your mother's and it is quite clear by the time police picked you up, you had formed very firm and unrealistic beliefs about your mother and your brother, which I need not repeat.  Your mother, in her referral letter, said she had seen your behaviour on that day, which she described as erratic, unpredictable and delusional.

20You said to Dr Carroll, 'I thought I was in an alternate reality.  All the good people were being moved out.  An alternate reality was being created by people from the future'.  You walked from your mother's house at Albert Park to Fitzroy in bare feet, along the tram tracks, because you did not think that cars were safe.  You buried your keys somewhere because you thought they might be a trap and you wanted to warn Chelsea about the people from the future first.  That brings you to her house and brings you to that behaviour.  You said that when you went into James' room, you thought his hair was brighter red than usual.  You thought he was a devil and yelled 'Don't move', trying to keep Chelsea and Josie safe.  You formed the belief that if you did not attack James, then you would be killed by him and that was why you carried out your attack on him, using the screwdriver.

21Now normally this would lay a very firm foundation for a mental health impairment defence, but as Dr Carroll said, this was brought on by your drug use and so the lesson which I am sure you have learned Mr Luxton is where drugs are going to take you, to that appalling psychotic state.  It is quite clear over the years, according to Dr Carroll, that following your experiences at your boarding school:

'His mental suffered significantly and he developed the onset of what has turned out to be an enduring mental illness, most appropriately diagnosed as bipolar effective disorder'.

22I note that that diagnosis was first made by Dr McConnell.  Dr Carroll stated:

'The natural history appears to be that he has brief episodes of mood disturbance, with periods of depression, sometimes with mood incongruence psychotic symptoms and periods of hyper mania.  These periods never seem to go beyond a week or so in duration and there is no evidence of functional deterioration between episodes.  He has never required hospitalisation'.

23It was Dr Carroll's view that you had the onset of your severe psychiatric illness prior to using illicit drugs as a teenager, but it is quite clear the drug use has exacerbated the symptoms.  You had taken, at the time of your offending, no psychiatric medication since 2014.  Dr Carroll noted that you formed the belief that Ketamine was a useful adjunct to your treatment for mood and that is why you began to use it on a regular basis.

24Dr Carroll stated:

'He gives an account of the onset of hyper manic symptoms around mid-November, followed by the abrupt onset of florid psychotic symptoms, with bizarre delusions and perceptual disturbances from 20 November 2017.  It is clear that the symptoms were the driving motivational factor for his attack on the victim, whom he believed at the time to be the devil and about to kill him.  His psychotic symptoms settled entirely in three to four days of his reception into custody and desistance from illicit drugs'. 

That pretty much says it all does it not?

25Dr Carroll was very clear that at the time of your offending, you had the beliefs I have outlined, that you needed to attack Mr Black in order to save your own life and protect other people.  Dr Carroll stated:

'He did not truly know the nature and quality of his conduct at that time, believing that he was actually attacking the devil.  It follows that he was not capable of reasoning with a moderate degree of sense and composure.  That his conduct would be perceived as wrongful by other people.  He even entertained the view that the police may see his behaviour as vindicated on the night in question'. 

26Again, the problem for you in terms of this being a frank mental impairment defence, is that your psychotic state appeared to have been triggered, as
Dr Carroll stated, by your use of illicit drugs.  It was also Dr Carroll's view that the complex interaction between MDMA, cannabis and Ketamine are likely to have been relevant to your unravelling to the psychotic state, but he makes the important observation:

'This of course occurred on the background of a person with a high level of vulnerability to become psychotic, by virtue of an underlying bipolar disorder'.

27A great deal of very helpful material was tendered on your behalf.  You spent 28 days in custody, both at the Melbourne Custody Centre which is a very difficult place in which to be incarcerated, and then at the Melbourne Assessment Prison.  I received a number of certificates attesting to the fact that you undertook whatever courses were available.  Persons on remand do not have access to an enormous number of activities.  But you have clearly undertaken all the usual courses available about dealing with sleep, dealing with worry, dealing with emotions, coping with emotions, those sorts of things and I received certificates to that effect.

28The report from Dr Steven McConnell dated 23 May 2019 was very helpful.  He noted that he had been providing psychiatric treatment to you since 21 August 2006.  He said that your most recent assessment before writing that report had been on 24 April 2019.  He noted that he had diagnosed you with bipolar disorder.  On your release from prison, you were bailed to reside with your mother and she clearly took you straight off to Dr McConnell, who immediately prescribed Olanzapine and he said this was to act as a prevention against future risk of relapse of mood disturbance or psychosis.

29He described your level of engagement with him as very good, that is in the current time, and he described you as being well engaged with your psychologist, Mr Richard Bennett, who I will refer to in a moment and your mental health occupational therapist, Ms Valia Bazelikie.  He said that the Olanzapine, of which you take about 10 milligrams nightly, was maintaining your current stable mental health.  He said he had reviewed you in November 2018, February 2019 and then in April 2019.  On each occasion, there were no signs of relapse of mood disorder or psychosis.  He said you were 'Presenting in a settled and rational state, with intact insight and judgement'.  The next report came from Mr Richard Bennett, who is a performance psychologist.  You attended upon him on seven occasions, between February 2018 and June 2019.  He described your engagement as excellent.  He said you initiated service, drove service planning, were punctual and diligent in the 'homework' he set you between the sessions. 

30Most importantly, he conducted a mental health assessment of you on 3 June 2019.  He said there were no abnormalities evident in your mental state examination.  He said there was a bit of anxiety in relation to the court appearance, which is normal.  He said that any such anxiety would abate with 'self-management' and he said you had sound ability for decision making and good judgement, perception cognition and insight intact.

31He said you were maintaining good daily habits, in terms of your eating and sleeping.  In terms of the risk assessment, he said you had no thoughts, plans or intent for self-harm or harm to others, nil risk taking behaviour that might pose a danger to others and he noted that you were very involved in rigorous physical activity, which included running, biking and so forth.  He described you as an impressive young man who has taken full responsibility for past actions, through initiating and committing to a sound process of honest reflection and self-improvement.

32Importantly in my view, he said:

'Samuel has bravely reconnected with his passions to face deep discomforts, rediscover his inner beauty and potential and the value of cultivating these qualities to share and contribute in a positive way with family, friends and society'.

33He noted that you had obtained a mental health care plan for further psychology sessions to:

'Proactively maintain sound mental health and continue the process of personal development and making meaningful contributions for the greater good of family, local and community and society'.

34I also received a report from Ms Valia Bazalikie, Senior Occupational Therapist, and she also noted that you had attended upon her since January 2018, and attended regularly after that, and that by May of 2019 you were presenting with 'mental ability, a focused future outlet, physical health and grateful for [your] current settled lifestyle'.  You scored normal on the depression, anxiety and stress scale and her testing also revealed what she described as a previous significant level of post-traumatic stress disorder, which given what you endured as a teenager is not surprising.  She said that you reported sleeping well, running daily, hard work, you were taking your medication and she described you as presenting as 'honest, responsible and remorseful for his behaviour and responds well to regular OT intervention'.

35I also received brief reports from two doctors at the Point Lonsdale Medical Group where you attend regularly.  Your mother has a house down there and you often see her there.  Mr Bennett also has his rooms at Torquay, so there is clearly quite an amount of attendance down there for you for sort of medi-psychological reasons.  Both GPs, that is Dr Simon Horn and Dr Daniel McKirdy, described you attending regularly, adhering to your medication and they have overseen your urinary drug screens which were first carried out weekly and now monthly.  I received a large bundle of the copies of them.  The first one dated 23 December 2017, the last being 20 July 2019.  They have always proved negative for the use of illicit drugs, in particular, the drugs that you were indulging in prior to this offending.

36I also received a report from the Court Integrated Services Program, which you undertook for sixteen weeks on your release from gaol.  They noted that you had been referred to Dr McConnell, to Mr Bennett and to Ms Bazelikie.  You were described as engaging well, attending all appointments.  You were described as open in your manner and you reported, which was borne out by the urinalysis, total abstinence from illicit substance, there is a useful list of the activities you seem to have thrown yourself into since your release from gaol, which include meditation, bush walking, surfing, mountain bike riding, gym training, healthy eating and during most of 2018, you were employed part-time in a bicycle shop.  I received a reference from the proprietor of that business, Mr Steve Draper, I think who also attended in court.

37He is a proprietor of Hendry Cycles and in his letter dated 12 July 2019, he said that you had worked consistently in his business for ten months in 2018, but his report was interesting because Mr Draper has qualifications in health and mental studies.  He has worked with youth extensively.  He has an academic health science background.  He was aware of your offending.  He believed in the time that you were working for him, that you had made considerable strides.  In fact he said 'He has come a very long way in making mental health gains and securing his long term health'.

38He described being impressed with your performance in his business.  He is happy to offer you any mentoring opportunities.  He wants you to come with him to a youth sports initiative in East Timor, that he runs and overall, his report was an extremely positive one as to your performance as his employee and as to your progress generally.

39You seem to have thrown yourself into voluntary activities as well.  They are very numerous.  A particularly impressive one in my view was your undertaking the Initiatives of Change Program and in her letter to this court dated 18 July 2019, Kristy Argento noted that you were a participant in the Sustainable Impact Mentoring Program of Initiatives of Change between February and September of 2018.  That program supports people to work in teams, to develop and implement a social community initiative over an eight month period.

40She described you as a dedicated participant who attended all workshops, meeting regularly with your team and mentor and you engaged in the Friends of the Westgate Park Conservation Volunteers, CERES community organisation and you have still been involved in that.  Your team developed environmental bike tours along the Yarra River and the Merri Creek, another location, to support people suffering from stress, anxiety and depression.

41Ms Argento stated:

'From his own experiences, Sam realised his strong passion for outdoor sports and connection to nature as a form of healing and focus and has utilised this to design a project that can help others.  Throughout the program he was busy building an app website and developing a promotional video and refitting a van for bikes to support the project, as well as taking people out on tours and collating feedback'. 

42She said it was delightful to have you as a participant and to see your dedication, focus and commitment to teamwork and that program has remained in contact with you since you completed it. 

43As I said, initially you moved back to live with your mother, but after 21 September 2018, you moved up to Tawonga South in the Mount Beauty Region.  You live there in a house on your own, but it appears you are busy.

44You continue to have contact with your occupational therapist Mr Bennett. 

45Your mother in a very helpful reference said that she keeps in close contact with you and goes to visit you.  I also received a reference from your brother.  I am satisfied you have a very loving, supportive and law abiding family.  I regard that as an important protective factor in terms of your future.  You work at a fish and chips shop in Tawonga South, four to five nights a week, but you are also very much engaged in voluntary work with the Mount Beauty Mountain Bike Club and with the Falls Creek YMCA and both those voluntary activities involve you in land care and this, I understand, is your passion, as is reflected in the degree that you undertook.

46So I have gone into quite a lot of detail about your background and in particular, your subsequent activities since being released from custody.  Ordinarily, this would not necessarily be the case because it was indicated by the prosecution that despite the seriousness of this offending, the imposition of a Community Corrections Order would not be outside of the appropriate range of sentencing dispositions available to the court in your case.

47There is, however, an area of dispute between prosecution and defence in relation as to whether or not I should impose a conviction.  It was my question during the plea as to how long this lifestyle you are leading, which has clearly been very helpful and important to your recovery, is likely to last because you have a significant tertiary qualification that undoubtedly you would want to put to use in time.

48Your counsel Mr Gurvich QC indicated to me that it is your desire to obtain work through somewhere like Parks Victoria, which is under the auspices of a government department.  Now clearly, and it was conceded by Mr Gurvich, you would have to let that department know of any offending you had engaged in or the fact you had been dealt with by the courts, but it was submitted that the value of a non-conviction order in your case was that the effects of revealing the offending you had been engaging in would be somewhat softened by the evident imposition of a non-custodial order.

49The prosecution quite properly pointed out that this was extremely serious offending and understandably it was their view that a conviction should be imposed.  The superior courts have made it clear that a non-conviction disposition in relation to offending such as this is exceptional and rare.  I have given this aspect of the sentencing some fairly anxious consideration.  It was pointed out by the prosecution that you were not a young man at the time of this offending and the importance of youth in this respect is that great efforts are always made in the courts to ensure that offending by a young and immature person does not lead to a blighting of their future prospects.  I have decided, however, that it is appropriate that I deal by way of the imposition of a non-conviction order.

50There are, in my view, rare and exceptional circumstances attaching to your case.  They are that as a result of trauma inflicted upon you in 2005, you developed a serious mental illness and that mental illness was ongoing for some time, before you began using illicit drugs.  You formed the view that Ketamine assisted your mood disturbance and you appear to have used that for five years without developing any particular psychotic response.

51What is important for the courts is that if people come before this court for offending, committed as a result of the effects of drug use, whether that is a personality change or in your case, a psychotic episode, if that person is aware that if they take drugs, they will react in that way, the courts will not be sympathetic. 

52There appears to be no history of psychotic devolution by you, despite the use of Ketamine over those years and indeed, to all intents and circumstances, you appear to have been leading a pretty normal life.  You were under the care of a psychiatrist.  You would have short-lived episodes of bipolar activity if you like and then you would go back and manage perfectly well.  It also appears that your mental health difficulties were exacerbated by the death of your father and then, in particular it would seem by giving evidence to the Royal Commission in 2017.  You went overseas after that and then you started using cannabis and ecstasy in Amsterdam, neither of them apparently drugs in which you had particularly engaged before.  Alcohol does not appear to have been a problem.

53You continued using those drugs, in particular cannabis, on a very persistent and regular basis on your return and there was a very short period between your return from overseas and the episode of psychosis leading to this offending.  It was clearly accepted by the prosecution that your moral culpability is reduced because of your mental illness.

54If you were a person who came before this court who had offended previously because of drug use, who had a history of using drugs and developing psychosis, not only would I not be sympathetic to the imposition of a non-conviction order, but I would probably be feeling unsympathetic to the imposition of a Community Corrections Order at all.  In other words, what I am saying to you Mr Luxton is this is a one off.

55I am also satisfied that you have gone to great lengths to rectify the damage that you were doing to yourself.  I am satisfied that you have behaved in a responsible way.  You have attended regularly upon five health professionals, all of whom have submitted reports to this court.  You have strong protective factors in your mother and your brother.  You have engaged in voluntary work, which is commendable and you participated in it enthusiastically.  You have now placed yourself in a setting where you lead a very healthy outdoor life.  You continue to engage with those professionals and in the considerable period of time since the offending, that is, in the twenty months since this offending, there has been clear commendable and impressive progress on your part.  I am satisfied that if you maintain this regime, and I have got every reason to think that you will, you present very little risk to the community at large.  I am satisfied that specific deterrence, that is a sentence imposed to teach you a lesson, is not necessary in your case.  It was conceded by the prosecution that general deterrence which is the imposition of a disposition meant to send out a message to the community, particularly other people, that if you are offend in this way, this is what you will receive when you come to court, is much lessened in your case.

56In all the circumstances, given your lack of previous history, the way in which you came to be in the psychotic state you were at the time, the impressive and sustained efforts that you have made in regaining and sustaining your mental health, plus the fact that you are a well-qualified person who should be able to go on and put those qualifications to use, that is, to be a highly contributory member to the community, it is my view that this should not be discouraged and that any assistance the court can give in that regard is deserved in your case.

57It is, however, a one off Mr Luxton and it is extremely rare and only in these exceptional circumstances that a court will take the action that I am prepared to take this day.  I should also add that I noted from your mother's reference that from the time you came home from gaol, you were stricken with remorse for what you had done.  Remorse is also noted in the references I received from other family, friends and I was also impressed by the letter you wrote the court.

58Receiving a letter from an accused person is a bit of a parlous exercise.  All too often they are self-serving and unconvincing.  However, I found what you wrote to the court to be a genuine expression from you.  You noted that in July of 2017, 'I gave evidence in person to Justice Jennifer Coate' and of course as I have said, the timing completely fits in.  You found that extremely stressful, then you went overseas including Amsterdam, started using a combination of drugs and away you went really.  You talked about your remorse, what you described as:

'The pain and trauma I have caused James, his family and friends, Josie and Chelsea and all those effected.  I have battled through many months of dark thoughts and distress at the damage I have done and the fact that I can now be perceived as a violent person, capable of these acts'.

59I note that you also now have a GP in Wodonga and support from the Northeast Board of Mental Health Service.  You said you have also been to see the Adult Community Mental Health Service which has a 24 hour crisis line, to make sure you have got immediate help if you need, which is again, very responsible behaviour on your behalf.

60In reaching the conclusion that I have, insofar as conviction is concerned, had reference to s.8 of the Sentencing Act, which dictates that in exercising my discretion I must have regard to the nature of offence, which as I have already said, is a serious one, the character, in particular, past history of the offender, that is you, which I have outlined in detail.  I have also considered the impact of the recording of a conviction on your economic or social wellbeing, or on your employment prospects and I think I have sufficiently explained that. 

61I do regard a conviction in this case to be inappropriate because of the impact it may well have, on which shall otherwise be a very bright future.  So I am prepared to place you on a Community Corrections Order Mr Luxton, after all of that.  Could you stand up please sir.  I can only place you on a Community Corrections Order if you consent to being placed on this order and I need to explain what the conditions of it are.  They are that you must report to the Community Corrections Office within two working days of the making of this order, which will be by Friday of this week.  You will be reporting to the Wodonga Community Corrections Office.

62It would be a really good idea if you took with you the folder that Mr Gurvich was going to hand up to me.  Simply because it contains all the details that the Community Corrections Office will need to know.  It is my experience that when I place people on a Community Corrections Order, they already have a regime in place and that Corrections will not interfere with that; they will simply oversee it.  So they will want to know about that and as I said, the written materials were really helpful.  So I would be taking that with you.

63Whilst on the order, which will last for two years, you must not commit another offence punishable by imprisonment.  That does not mean you have to come before a court for an offence and be gaoled.  It means that if you commit an offence for which theoretically you could be sent to gaol, like stealing a box of matches from Woolworths, that will breach the order and you will be brought back before me and I will re-sentence you in relation to this.  You must report any change of address or employment to the Community Corrections Office within 48 hours of the making of that change.  Whilst on the order, you may not leave Victoria except with the permission of the Community Corrections Office. 

64You must report to and receive visits from the Community Corrections Office.  You must not attend upon the Community Corrections Office under the influence of drugs or alcohol and you must obey all lawful directions of the Community Corrections Office.  I am going to order that undertake 250 hours of unpaid community work.  You are to attend for assessment and treatment for drug use.  You must attend for assessment and treatment for mental health difficulties, all right?  As I have said, you have already got that sort of regime in place.  I expect you will probably be sent off to receive some - to attend a drug program, but as I remarked during the plea, my experience is that they will probably send you off to their standard program which is four sessions, all right?  It would be a good idea to take all those urinalysis certificates with you to show the Corrections Office.

65I was debating whether or not I should place a judicial monitoring condition in place.  That is one I often impose, where at regular intervals I get a report from Corrections about how a person is going and I have a conversation with you and your Community Corrections officer.  I am going to do that, but I am not going to order one on a regular basis as I usually do.  With a lot of people I will do it sort of six weekly, three monthly, that sort of thing.

66I think you are well equipped to undertake this order, but I am going to - I think it would be a good idea if in six months, we just had a check in.  Now if you are still living up in that area, all you have to do is go to the Community Corrections Office and they will beam me in, so you do not have to come down to the court.  So we will get a - 25 February, it will be at 9.30 and I would be very grateful if you would be on time sir.  A lot of my judicial monitoring people are late and it just wrecks the rest of the day, all right?  Are you prepared to enter this order?

67OFFENDER:  Yes.

68HER HONOUR:  Thank you, have a seat Mr Luxton, we will prepare the documentation. 

69The Community Corrections Order will be imposed in relation to the first three charges on the indictment.  On Charge 4, I am going to fine you $300, without conviction and I will give you six months to pay.  Your solicitor will talk to you about how you go about paying that.  It is often not a bad idea to just pay it off as you go.  So $50 a month will get you to $300 after six months, I mean that is obvious, but that is often a good way of doing it.  Yes, all right thank you.  Thank you, we will get you to sign that.  Thank you.  Yes, thank you.

70I will not grant the 464.  I will sign the disposal order.  Is that here?

71ASSOCIATE:  Yes.

72HER HONOUR:  Thank you very much.  I think that is everything.  Good luck with that Mr Luxton.

73MR SPRAGUE:  Your Honour, the final matter is this s.6AAA.  In circumstances where it's a CCO of two years or more ‑ ‑ ‑

74HER HONOUR:  Really?

75MR SPRAGUE:  Yes, Your Honour.  Sorry for (indistinct).

76HER HONOUR:  One of the nice things about CCOs, I usually do not have to do it.  Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of three years and order that you serve a minimum term of two years. 

77MR GURVICH:  Your Honour pleases.

78MR SPRAGUE:  As Your Honour pleases.  And Your Honour made the disposal order, is that so?

79HER HONOUR:  I did, I signed that.

80MR SPRAGUE:  Thank you, Your Honour.

81HER HONOUR:  We will give you a copy of that.

82ASSOCIATE:  Yes.

83HER HONOUR:  I did not know that.  I am going to give twenty-three month Community Corrections Order from now on.  All right, thank you.  Is there anything else I need to attend to?  I thank counsel very much for their assistance, the paperwork was terrific and made it much easier and Mr Sprague, I do not know if you were the author of that prosecution opening.  Were you?

84MR SPRAGUE:  Yes with some help, but yes.

85HER HONOUR:  Well it was really well done.  It was really, really clear – I think that is worth commenting upon.

86MR SPRAGUE:  Thank you, Your Honour.

87HER HONOUR:  Thank you very much.  I should add that I referred to the two authorities handed to me by defence counsel.  The matter of McFarland, a decision of His Honour Judge Mullaly in my view did not really have appropriate application because of the brevity really and the - because it is an example of an aggravated burglary fell far lower - at a far lower end of the scale than did this offending, however, the matter of Cadenza, which I believe was Judge Smallwood.  But I note the comments of Their Honours in this case, in particular, Their Honours comments in the matter of Cadenza, decision of the Court of Appeal, 2003, VSCA 91.  At paragraph 14, Their Honours stated:

'A sentencing disposition that does not result in a conviction can only be justified in rare and exceptional circumstances'. 

88Their Honours there referring to two charges of armed robbery.  However, at paragraph 15 Their Honours noted:

'It is important to bear in mind that the discretion which the common law commits to Sentencing Judges is of vital importance in the administration of our criminal justice.  It is they who are vested with the onerous to exercise the sentencing discretion'.

89And they went onto say that in that case:

'The seriousness of the offences should not wholly dictate the punishment that is appropriate'.

90Thank you very much.  I think that is it.  Good, so we are done.  Thank you very much.  Family all okay?  Does everyone understand what has happened today?  Yes.  It is not easy is it going through - no.  Anyway as I said, I think it sounds as if your son and brother are going to be fine and I will just do the check in six months.  I just like to make sure that things with Corrections and the person on the order are as we say in law, ad idem or in tandem.  After that, I am sure I will not need to make another appointment.  Thank you very much.  We will adjourn to 10 o'clock tomorrow morning.  Thank you.

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