Director of Public Prosecutions v Lynch-Ibbotson
[2021] VCC 940
•13 July 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00125
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHRISTOPHER LYNCH-IBBOTSON |
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JUDGE: | HER HONOUR JUDGE TODD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 May 2021 (for Plea) | |
DATE OF SENTENCE: | 13 July 2021 | |
CASE MAY BE CITED AS: | DPP v Lynch-Ibbotson | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 940 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL
Catchwords: Plea of guilty – history of substance misuse, mental health issues and sexual abuse - circumstances of COVID-19 pandemic
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited:Brown v The Queen 62 VR 491 ; DPP v Worboyes [2021] VSCA 169
Sentence: 47 days imprisonment with a 24 month Community Corrections Order and a fine of $100
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Roper (for Plea) | Office of Public Prosecutions |
| Ms R. Bergshoeff (for Sentence) | ||
| For the Accused | Ms N. Low | Victoria Legal Aid |
HER HONOUR:
Introduction
1Christopher Lynch-Ibbotson, on 9 July 2020 you were living in supported accommodation and attacked one of your housemates. You went to his room and assaulted him. You punched him, strangled him and stabbed him with a pair of scissors. You then threatened to stab the house supervisor. When the Police arrested you, you were deemed unfit to be interviewed. You had smeared your own faeces over the wall and floor of the Police gaol cell.
2You have now pleaded guilty to three charges of common law assault, one charge of aggravated burglary (intent to assault, knowing or being reckless as to whether a person was present), one charge of causing injury intentionally, and the related summary offence of acting in a way that was prejudicial to the good order of a Police gaol.
3The offence of common law assault carries a maximum penalty of 5 years imprisonment. Aggravated burglary carries a maximum penalty of 25 years imprisonment. Intentionally causing injury has a maximum penalty of 10 years imprisonment and the charge of acting prejudicially to the good order of police gaol carries a maximum penalty of 10 penalty units.
Circumstances of the offending
4The circumstances of your offending were set out in the Summary of Prosecution Opening dated 22 April 2021. That document was marked Exhibit A on the plea and is attached to and forms part of his reasons. I will not repeat it here but refer to parts of it in summary.
5‘Mind Australia’ operates a residential facility for young people with homelessness and mental health problems on Heidelberg Road in Clifton Hill. Each resident has their own bedroom but uses communal bathrooms and kitchen; staff are on site 24 hours a day.
6You were a resident at this facility on 9 July 2020. Another resident was Sean Howe; he was 23 years old. Matthew Gill was the staff member on duty that evening.
7On 9 July 2020, Mr Howe was asleep in his room; he was woken by banging in the corridor outside. He opened the door and saw you in the corridor. You rushed towards him, throwing punches. Mr Howe was pushed back into his room; you followed him in.
8You continued to punch Mr Howe to the head, causing him to bleed. He fell to the ground. You placed your hands around his neck, strangling him. Mr Howe tried to get away but could not. He could not breathe. After some time, you took your hands away and left the room. (Charge 1: common law assault).
9Mr Howe stayed in his in his room for a minute, then went to the shared bathroom to wash the blood from his face. As he was leaving the bathroom, you confronted him again, and again began to punch him, forcing him to the ground, punching him to the head, back, and shoulders.
10Mr Gill, the staff member, was woken by the noise and found you and Mr Howe in the bathroom; Mr Howe was on the ground, his face covered in blood, and you on top of him, with your hands around his neck, shaking him. (Charge 2: common law assault).
11You were yelling about Mr Howe and others stealing your belongings, and that you were ‘over your stuff being stolen’. Mr Gill pulled you off Mr Howe and tried to calm you down, telling you that no one had been in your room.
12As Mr Gill tried to take you to your room, Mr Howe yelled at you that you were a ‘dog,’ you tried to jump towards him again but Mr Gill stopped you.
13Mr Gill stayed with you for a time, trying to calm you down. He then left you to go and call Police.
14While he was speaking to 000, Mr Gill heard you running back down the corridor. You went into Mr Howe’s bedroom and began to assault him (Charge 3: aggravated burglary). You punched Mr Howe to the head several times. You climbed on top of him, sitting with your weight on his legs, and put your hands around his neck.
15There was a further struggle. During this, Mr Howe felt a strike to his back, before being choked by you.
16In the meantime, Mr Gill returned and saw you with a pair of scissors in your hand trying to stab Mr Howe to the side of his body. Mr Howe would sustain an 8cm laceration to his back in the process. Mr Gill grabbed the scissors out of your hand. He pulled you off Mr Howe; you said ‘I'll fucking kill him. Rat. Dog. Cunt.’
17Mr Gill took the scissors from you and took you back to your room. You spoke to him about wanting to ‘smoke some weed and get offsite’, and stated, ‘If he says one more thing. I'll fucking kill him.’ Mr Gill left you in your room briefly, when he returned, you asked Mr Gill to give the scissors back. When he said no, you walked down the corridor to the kitchen and took out a paring knife. You said to Mr Gill: ‘If you don't give me the scissors, I'm going to stab you’ (Charge 5: Common law assault). Mr Gill gave you the scissors fearful of what you would do if he did not.
18You asked Mr Gill whether he had called the Police. When he told you that he had you said, ‘Now I have to stab the cops, you shouldn't have done that’. You went back to your room. Mr Gill went to check Mr Howe and saw that he was injured.
19Mr Howe then left the house; he made his way to the Clifton Hill Railway station, where he was spoken to by Police and paramedics. He was taken to the Royal Melbourne Hospital for treatment. He had suffered:
· an 8cm wound to his back, without evidence of deep penetration, which required stitches; and
· mildly displaced nasal bone fractures with overlying swelling (Charge 4: intentionally cause injury);
· He also suffered bruising and swelling to his face, body, and neck.
Arrest and Interview
20Police arrived at the house at approximately 3:37am; you were handcuffed and cautioned.
21Police attempted to talk with you but you refused to say anything but that your name was ‘Chris’. They found the scissors. You were taken to Melbourne West Police Station.
22At the Melbourne West Police Station you were put into a cell. Soon after, you were observed standing on top of a basin in the cell, reaching up with both hands to the ceiling. Police thought you may be trying to harm yourself. Four Police entered the cell and saw you had smeared faeces all over the floor and walls, and written the words ‘fuck 12’ on the wall in faeces.
23A review of the Closed-Circuit Television Footage showed you using the cell in this way. (Summary Charge 10: act prejudicially to the good order of a police gaol).
24You were assessed by a Forensic Medical Officer and deemed unfit to be interviewed.
Prior history
25You have a very limited prior criminal history. There are two previous Court appearances. In 2012, you were dealt with in the Children's Court at Ringwood. You were given a bond without conviction for what appears to be minor dishonesty and property offending. In 2017, you were dealt with as an adult in the Magistrates’ Court for the charges of assault with a weapon and making a threat to kill. You were given a Community Corrections Order for 18 months with supervision and treatment conditions. I will return to the circumstances of the latter offence later in these reasons.
Nature and gravity of the offending: culpability and degree of responsibility
26Objectively, your offending was grave. It involves repeated attacks on another resident in your facility in his private room. After you were taken out of the situation you returned to repeat the attack. You used a weapon. You overpowered Mr Howe. You persisted after the scissors were taken from you. You rearmed yourself. You apparently acted on a belief that the victim had taken your things. There is no support for that proposition and, even if there were, your offending would remain quite irrational and unjustified.
27The Courts have repeatedly said how confrontational aggravated burglary should be regarded: a maximum penalty of 25 years imprisonment indicates the gravity of your offending. Your actions in confronting Mr Howe in his private room were persistent, violent, terrifying, and unprovoked.
28That said, this does not appear to be a premeditated attack. The entire incident unfolds over approximately half an hour. The day before you committed these offences you consumed a cocktail of drugs including unfamiliar drugs. You were treated by paramedics on 8 July 2021 but refused hospital treatment. You passed out in your bedroom and appeared to be disoriented throughout the evening. You accept that you committed the offences, but lack a clear recollection; witnesses say that you were complaining about your food and belongings being stolen at the facility.
29There was little, if any, planning involved. The entry into Mr Howe’s bedroom did not involve any use of force. You were a trespasser only inside Mr Howe’s bedroom. The injuries to Mr Howe were, fortunately, relatively minor. The assault on Mr Gill did not involve the application of physical force and the weapon involved was eventually surrendered.
30In a report tendered on the plea, Dr Zimmerman, whose report I will return to later in these reasons, writes that there is a direct relationship between your substance misuse and your impulsive, disinhibited, and poorly thought through behaviour on the relevant day. Given that some of those substances were unfamiliar to you I am prepared to sentence you on the basis that your substance misuse was to some, very limited degree, mitigating, having regard to matters that I will deal with in more detail later in these reasons.
Personal circumstances
31You are now 27 years old and were 26 at the time of the offending.
32You are the youngest of three children to your parents– you also have a younger half-sister.
33
From birth you were raised by your mother and stepfather, your mother
re-partnered with your biological father when you were 12.
34You were the victim of sexual abuse from you brother at age nine and your biological father from age 12. Your siblings have all confirmed that they were also sexually abused by your biological father.
35You disclosed the sexual abuse to your mother and were not supported to make any formal allegations. Unsurprisingly your relationship with both of your parents suffered.
36Whilst your older siblings were able to move out of the family home you remained in the care of your parents until around 2011 when you were 17 years of age.
37During this time you moved with your family to Turkey for 10 months. This was a particularly distressing time for you, in the circumstances of your sexual abuse.
38You struggled at school and were eventually expelled; you have particular issues trusting men.
39You have been in and out of homelessness for most of your adulthood. You have been able to maintain stable accommodation from time to time, however struggle with shared living environments and with strangers. You were previously able to live with your older sister, before she had her own family.
40More recently you have been able to secure housing assistance from Uniting Wesley Homelessness and Support Services. They specialise in providing assistance to young people with homelessness and/or mental health issues.
41It was this organisation that facilitated the referral to the Mind Australia Facility at Heidelberg Road, Clifton Hill, where you lived in staffed accommodation from February 2020 until your offending on 9 July 2020. You then agreed to Personal Safety Orders that prevent you from returning to that accommodation.
42You have been living in motels, serviced apartments and private rentals during your time on bail and this has been funded by Uniting Wesley.
43In terms of employment, you worked as a steel fixer for your brother-in-law from 18-22 years of age.
44Since then, you have struggled to find work due to your mental health. You have also lost connections with family and friends.
45You resumed working with your brother-in-law whilst on bail, however, could not continue due to your mental health.
46You have been diagnosed with borderline personality disorder, depression and post-traumatic stress disorder, though I note that Dr Zimmerman does not make this latter diagnosis; it was contained in a report from a general practitioner.
47Over the years you have self-medicated with cannabis in order to relax and sleep soundly. Recently you have reduced your use of cannabis and agreed to undertake drug and alcohol counselling through the CISP program.
Impact on victims
48I am obliged to take into account the impact on your victims. No victim impact statements were tendered on the plea, however, I will sentence you on the assumption that it was a terrifying attack from Mr Howe’s perspective, and very alarming for Mr Gill who was the facility supervisor and responsible for the residence that evening.
Matters in mitigation
Plea of guilty
49I will now turn to some matters in mitigation. First your plea of guilty. A plea of guilty at any time attracts a significant discount in penalty. Your plea was particularly early, being at the first committal mention hearing. Your case was adjourned only for you to participate in the Court Integrated Services Program. Your plea indicates a willingness to facilitate the course of justice. It contains an aspect of remorse in it. No witnesses were cross-examined; no one had to come to court and face questioning, the community resources in the Courts were spared.
50Your plea has been made at a time when the court system is afflicted by the effect of the COVID-19 pandemic and as such attracts an even more pronounced amelioration of your sentence.[1]
[1]DPP v Worboyes [2021] VSCA 169 at [39]
Remorse
51I accept that an aspect of remorse inheres in your plea. You have expressed your feelings about it to Dr Zimmerman, your psychiatrist, and to Ms Patton, your case manager. Although these statements are untested, taken together, a picture emerges of someone who has not tried to place responsibility elsewhere, you have accepted that what you did was wrong and have committed to making changes required to avoid something similar happening in future. I note that in the two CCO assessments that unfolded after your plea, you are reported to have made statements about the offending, in which you blame others, or apparently take little responsibility for what you did. I will return to the content of those reports later in these reasons.
Psychological Material
52On your plea, a psychiatric report prepared by Dr Nina Zimmerman, psychiatrist, was tendered. Dr Zimmerman notes your history of contact with mental health services since childhood, as well as a history of substance misuse.
53Dr Zimmerman’s report sets out your family history. Your biological father left the family while your mother was pregnant with you. He served significant prison time for sexual offending against children. He returned to your mother when you were 12 after his release from prison. He then proceeded to sexually abuse you. When you told your mother she did not believe you or support you to make an official complaint. You told your sisters and they confirmed that they too had been subject to this man’s abuse. I note that on the plea, the prosecutor confirmed your father’s name was known to the Office of Public Prosecutions.
54Your only adult prior conviction was for threatening to kill and assaulting your abusive biological father. You told Dr Zimmerman that you recall waking up to hear your father yelling in the house and said that your hatred of him welled up and triggered your angry response.
55Dr Zimmerman set out your substance abuse history. You have used cannabis on a long-term basis; you feel it helps you to relax. You have tried other drugs. It seems on the day before this offending you had taken a cocktail of drugs that were unfamiliar to you.
56Dr Zimmerman diagnoses you with a borderline personality disorder and includes, at [85] of her report the particular features she identifies that drew her to that conclusion. She also diagnoses a past history of polysubstance misuse and ongoing cannabis dependence. Moreover, in her opinion you are currently experiencing an episode of depression in association with your borderline personality disorder. She attributes the development of this disorder to your disturbed developmental experiences. She notes that you experience a persistently unstable sense of self, and transient stress-related paranoid ideation, among other things.
57Dr Zimmerman notes that personality disorders are, by definition, enduring overtime, but notes that there is a general reduction in disability from the age of about 30 without treatment. Dr Zimmerman finds that the cause of your disability lies in your abusive and unstable developmental years when you are unable to establish any stable attachments.
58In Dr Zimmerman’s opinion your capacity to cope with a custodial sentence is likely to be substantially impacted by this disorder and by its association with sexual abuse by your father. Particular aspects of prison life, such as being under the authority of officers, often men, is particularly harmful and distressing for you.
59Dr Zimmerman notes that you were heavily intoxicated by drugs at the time prior to the alleged offending, but also finds that there is a direct relationship between your substance misuse and your impulsive, disinhibited and poorly thought through behaviour on the day.[2] Dr Zimmerman finds that it is not possible to draw a direct relationship between your borderline personality disorder and the offending, given the degree of your intoxication but that an indirect relationship does exist in that your drug abuse and dependency is associated with your personality disorder and your inability to manage negative states in less harmful ways.[3]
[2] Report of Dr Zimmerman at [95].
[3] Ibid at [96].
60I find that your condition bears upon the kind of sentence that I ought to impose in all the circumstances. A sentence of imprisonment, I find, has weighed more heavily upon you on the basis of the time you have already served and, if further time were to be served, it would weigh more heavily upon you than upon a person in normal health. Moreover I find there is a serious risk imprisonment would have a significant adverse effect on your mental health. There is an indirect relationship between your mental health problems and your offending so I find there is some limited mitigation in terms of the moral culpability of your offending in that regard. I am conscious of the complex matrix of disability that arises as the result of your diagnosis, and the high levels of distress this causes you in your normal life.[4] I am conscious of the enduring and challenging nature of your mental health problems.
[4] Brown v The Queen 62 VR 491 at [41] and following.
Prospects of rehabilitation
61While your case was in the Magistrates’ Court you engaged well with the Court Integrated Service Program (CISP) offered to you there. You engaged in 17 separate case management sessions often leading discussions and engaging in conversations about your own treatment needs and goals.[5] Each of the CISP progress reports from both the Magistrates’ Court and from the County Court detail your persistent commitment to your rehabilitation throughout this period.
[5] See CISP reports, Exhibits 4 and 8 on Plea.
62You have the support of Uniting Wesley, a community organisation that has been supporting you with access to housing and mental health services. On your plea, a letter from Ms Charlotte Pattern was tendered. She is a worker with the Youth Homelessness and Support Program and advised you that you have been successfully allocated an intensive support package through the ‘Homeless to Homes’ program.[6] Crucially, part of this package will deliver you a single occupancy housing option for up to 2 years. The support you have been offered by this service is remarkable and valuable in the context of your long-term struggle with homelessness. It strengthens my assessment of your prospects for rehabilitation very significantly.
[6] See Exhibit 3.
63On the occasion of the Further Plea, the program had been able to secure you a 24-month lease in a single-tenancy home as well as 18 months wellbeing support from Ms Olga Skalidis, a wellbeing support worker, and I refer to Exhibit 13 for the details of that program.
64Moreover, your sisters provided powerful and affectionate references for you in your Court case. Your sister says she is always and “straight-away” there for you. Both your sisters speak of how, not only they, but you were dealt an extremely difficult hand in your childhood. They remain unequivocally supportive of you, and I am assisted by their letters, particularly their candour in setting out the horrible abuse that each of you was subject to when you were young children. Their affection for you has not been diminished in any way by the suffering that was imposed upon them by the adult world. I note too, that in the opinion of Dr Zimmerman, the condition is likely to be less troubling from age 30 onwards and you are now 27.
65I conclude that your prospects for rehabilitation, if you continue to accept the assistance of the people around you, are good.
Relevant sentencing principles
66I have considered the relevant sentencing principles, in particular the roles for general and specific deterrence in this case. I regard you to be a poor vehicle for general deterrence, given your diagnosis and history. I regard the role for specific deterrence to be best served by your rehabilitation, specifically, by addressing your drug use, which in this case was a significant factor in your offending. On behalf of the community the Court must denounce your conduct. I regard the period of imprisonment already imposed to have been extremely punitive in your particular personal circumstances, and you will be subject to further orders directed at your rehabilitation and punishment.
Impact of COVID-19 Pandemic
67You spent 47 days in gaol before your release on bail. It was your first time in custody. I accept that this time was particularly onerous for you for a range of reasons. I accept that your background makes it particularly difficult for you to trust anyone in custody and particularly men. You would not see mental health professionals in that context. You served 14 days in isolation on your admission to custody. You were subject to frequent lockdowns. Personal visits were suspended on account of the COVID-19 pandemic; you had one personal visit and there were several weeks’ delay before you were able to establish phone contact with your family. This must have been a particularly lonely and distressing time. I have taken this into account in arriving at your sentence.
CCO Assessment
68At the end of your plea, I referred you for an assessment for suitability for a Community Corrections Order. The report found you unsuitable for the order, and I refer to Exhibit 9 on the plea. You were assessed via telephone by a male Corrections officer. Briefly, the assessment went badly.
69I pause here to note that on the original listing of your plea, conducted via Webex during Victoria’s fourth COVID-19 lockdown was adjourned due to my decision that the platform was unsuitable. You were apart from your barrister and your support people, and you reacted badly to this, speaking directly to the Court in a disorganised and challenging way. I note that when your plea was conducted in person, with your counsel in Court and your supporter present your behaviour was impeccable.
70On the return of your case, the content of the Corrections Report was discussed. I asked for a further report to be obtained, conducted face to face, by a female assessor, with a support person present. The second report was also very negative, see Exhibit 10. I note that it was done online, without a support person. Again, this part was at your request. While there is no criticism of those involved, this was not ideal given your history. In the same period the Court was also provided with a CISP finalisation report, which tells a different story and I refer here to Exhibit 11.
71Were it not for the evidence of your engagement with the CISP program, both in the Magistrates’ Court and the County Court, I would have been driven to the conclusion that you were unsuitable for a Community Corrections Order, on the basis of the reports obtained by Corrections on both occasions and this would have resulted in your further imprisonment. Given your history and diagnosis, and given the preparedness for CISP to oversee a ‘warm and thorough handover,’ and I refer to the final paragraph of Exhibit 11, to you Community Corrections manager, I am prepared to view your unwillingness to participate satisfactorily with the assessing officers in the CCO reports as an aspect of your difficulties, as opposed to an insurmountable barrier to your compliance.
72Initially, I was assisted in this case by helpful submissions both from prosecution and defence in relation to disposition. At the conclusion of the first plea hearing, there was little between the two parties in submissions about what dispositions were available in the sentencing discretion. On one view, the offending was so serious that further time in gaol might be warranted, however there is such a particular and tragic constellation of factors in your childhood combined with your very persistent and manifest attention to your rehabilitation since your release on bail that allows the disposition that I’m about to impose on you.
73After the provision of the second Community Corrections report, I note that the Prosecution withdrew the concession that a combination sentence was available on these materials and argued instead that the only suitable disposition would involve the imposition of a head sentence with a non-parole period. I have taken that submission into account but cannot now agree that by imposing a Community Corrections Order, I must only be setting you up to fail.
Disposition
74On Charge 1: common assault, you are convicted and sentenced to a Community Corrections Order of 24 months.
75On Charge 2: common assault, you are convicted and sentenced to Community Corrections Order of 24 months.
76On Charge 3: aggravated burglary, you are convicted and sentenced to a period of imprisonment 47 days and in addition a Community Corrections Order of 24 months.
77On Charge 4: intentionally cause injury, you are convicted and sentenced to a Community Corrections Order of 24 months.
78On Charge 5: common assault, you are convicted and sentenced to a Community Corrections Order for 24 months
79On the related summary offence of causing prejudice to the good order of police gaol, you are convicted and fined $100.
80Pursuant to s40(1) of the Sentencing Act, I make one Community Corrections Order in respect of each of the offences that I am sentencing you for today.
s6AAA Sentencing Act
81I declare that pursuant to s6AAA of the Sentencing Act 1991, that had you not pleaded guilty but been found guilty after trial, I would have sentenced you to imprisonment of 14 months with a non-parole period of 9 months.
82I declare pursuant to s18 of the Sentencing Act, that you have served 47 days pre-sentence detention pursuant to this sentence.
CCO - Conditions
83You will be first subject to the standard conditions of a CCO. That means, importantly, that you must not commit any other offences that are punishable by imprisonment during the 24 month period. If you get into trouble again, it breaches this order and all gets opened up again and I have to resentence you. You need to understand that if you are brought back to court under those circumstances to be resentenced, absent very powerful reasons, I will be given few options but to reimprison you.
84You must report to the Lilydale Community Corrections Service within two days of today, either in person or by telephone.
85You are required to advise your supervisor in the Corrections office of any change of address where you are living or working and you must do so within two clear working days.
86It is a term of all Community Corrections Orders that you must submit to visits as directed and you must obey all of the instructions and directions of a Community Corrections Officer. You are not to leave the State of Victoria without their prior permission and that is for the entire 24 months.
Special conditions
87There are some special conditions that I will attach to the order.
88You will be required to complete programs to further address your drug use.
89You must report for supervision with your case manager.
90You are required to submit to mental health assessment and treatment. That might just be the continuation of the people that you are already seeing.
91I also require you to participate in judicial monitoring. That means you have to come back to court, you can appear either in person or by video, and you can bring a support person or have a support person with you during those times.
92So, Mr Lynch-Ibbotson, I am now going to invite your counsel just to have a word with you and see if we can get your consent to such an order.
93To be clear, if I have not said so already, there will be drug assessment and treatment and you will need to complete programs as part of the order.
94MS LOW: Thank you for that time, Your Honour. Mr Lynch-Ibbotson will consent.
Ancillary Orders
95I also make the order for forfeiture of the scissors as requested.
96HER HONOUR: I do not know, Ms Low, about what capacity you have to appear at such monitoring but if I can assist your instructors by saying this; it would be helpful if those who instruct you could make you available to assist Mr Lynch-Ibbotson just in the early phases of this order given the difficulties under which he labours and so I would be assisted if you could appear but that is not a direction, you are excused if you need to be.
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