Director of Public Prosecutions v Malatai
[2012] VCC 236
•29 February 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-02390
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JUNIOR LOLLE MALATAI |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 February 2012 | |
DATE OF SENTENCE: | 29 February 2012 | |
CASE MAY BE CITED AS: | DPP v Malatai | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 236 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Pleas of guilty - Aggravated burglary – Causing injury intentionally – Criminal damage – Summary offences – Criminal history associated with drug abuse – Long history of substance abuse – Effects of psychosis at time of offending – Family support
Cases: R v Verdins (2007) 16 VR 269; DPP v Kao [2009] VSCA 273; DPP v El Hajje [2009] VSCA 160; R v Rees [2011] VSC 523
Sentence:Total Effective Sentence 4 years 6 months’ imprisonment with non-parole period of 2 years 6 months’ imprisonment – 133 days pre-sentence detention declared – s.6AAA Sentencing Act 1991 declaration
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr Hannan | Solicitor for Public Prosecutions |
| For the Accused | Mr Thyssen | Victoria Legal Aid |
HER HONOUR:
1 Junior Lolle Malatai, you have pleaded guilty to one count of aggravated burglary on the basis of intent to assault where you knew a person was present. This offence carries a maximum penalty of 25 years’ imprisonment. Further, you have pleaded guilty to one charge of causing injury intentionally and one charge of criminal damage, each of which carry a maximum penalty of 10 years’ imprisonment. The maximum penalties reflect the seriousness with which Parliament regards these offences.
2 Additionally, you have pleaded guilty to two summary charges, being tamper with a motor vehicle, which has a maximum penalty of two penalty units or 14 days’ gaol, and one charge of failing to answer bail, which carries a maximum penalty of 12 months’ imprisonment.
3 Your offending was opened by the Crown as follows:
4 On Friday, 5 August 2011, you were approached in Springvale for drugs by a Christopher Bilski. Mr Bilski said in his police statement that you were “off [your] face on drugs”. You first directed Bilski to drive you to Glen Waverley and then back to Springvale. He complied with your wishes, and at 11am he eventually drove you to Noble Park, parking in a side street. You then left the car, and Bilski assumed you had gone to purchase drugs. Almost straight away, Mr Bilski heard glass smashing and screaming, and yelling. Someone was crying out in pain, asking for help.
5 You had gone directly to the front door of the house of a stranger, being a Kenneth Gillespie. Mr Gillespie, who is the victim in this matter, was expecting a gas repairman, and he opened the main door, leaving the security door locked.
6 You said that you were there “for the ceremony”. The victim told you that you were at the wrong place. However, you continued to ask to be let inside the house to pray, and became increasingly heated and aggressive. You were saying, “You stopped me from praying”. You kicked the glass panel beside the front door, smashing part of it. At about this time the victim saw Mr Bilski, who was standing near the letterbox on the footpath. Mr Gillespie closed the front door.
7 You then moved back and ran at and kicked the glass panel next to the front door, smashing it all over the front entrance. You had caused damage to the full-length glass panel and also to the security door, which was bent. You then went inside the house, through the space that you had smashed open. (Charges 1 and 3.)
8 Once inside, you grabbed Mr Gillespie around the neck and punched him hard in the face. The victim was 68 years old. He fell to the floor and was hit again. He managed to get up and ran to the lounge room. However, you grabbed him again and threw him to the floor and kicked him a number of times. (Charge 2.)
9 Mr Bilski came into the house and told you to stop assaulting Mr Gillespie. You went outside, and Mr Bilski asked the victim if he knew you. Mr Gillespie said that he did not. Mr Bilski went into the kitchen and took a knife, saying he would use it to scare you. Mr Bilski left the house and soon drove off quickly in his Corolla sedan, whilst the victim rang Triple‑0.
10 Once you had left the premises of Mr Gillespie, a Daniel Tuddin, who was working at a factory opposite, called the police after hearing a commotion and seeing two males outside Mr Gillespie’s house. He then saw you go up to a Ford motor vehicle, trying the door handle of this car, which was owned by a friend of Mr Tuddin’s. This gives rise to the charge of tamper with a motor vehicle. When you noticed Mr Tuddin you ran at him, and into the factory to which Mr Tuddin had retreated. You yelled at people in the workshop, and Mr Tuddin’s employer, Glen Bernell, took photos of you on his phone.
11 You then walked away down the road, where you were quickly apprehended by police who had just arrived.
12 Mr Gillespie made a statement to police later that day and saw a doctor, Dr Danny Le, on Monday, 8 August 2011. Mr Gillespie’s injuries consisted of shock, extensive bruising (under his left eye, on the top of his head, to his right forearm, and his left bicep), as well as tenderness over his left posterior ribs and mid-back regions.
13 Police tried to interview you on 5 August 2011 but could not complete this process, as you were not fit to be interviewed and had to be taken to hospital. Police tried again on your return from hospital, but again you were not fit to be interviewed, and you were remanded in custody.
14 On 23 August 2011, the victim identified you in a photoboard, saying, “I’ll never forget that face after looking through the screen door.”
15 The basis for the summary charge of failing to answer bail is that having been remanded from 5 August 2011, you were granted bail on 7 September 2011; however, you failed to attend a committal mention for these matters now before me on 2 November 2011. As at the date of a plea, you had spent 122 days in custody. You have now spent 133 days in custody.
16 Photographs of Mr Gillespie’s physical injuries were tendered on the plea.
17 Mr Gillespie has provided a victim impact statement where he refers to the physical injuries that he suffered. In this regard, some of those injuries were not the subject of a medical report, and I make it clear that I sentence you on the basis of the physical injuries referred to in the medical report and contained in the Crown opening.
18 Mr Gillespie, who is retired, has suffered financial loss of $335 in total, comprising insurance excess and medical expense.
19 Whilst Mr Gillespie’s physical injuries have thankfully healed, the emotional trauma which he has suffered as a result of what you have done is ongoing. He speaks of his anxiety if someone comes to the door, and he has lost his appetite. He feels ill at ease and depressed, and has thought about selling his house because of this incident. He says that he was fearful of how the incident would have ended on the day in question.
20 The trauma that has been suffered by Mr Gillespie on the day of your offending and subsequently is readily understandable. You behaved in a most frightening fashion towards a stranger who was in his advanced years, and who ought to have been able to expect to feel safe in the sanctity of his own home. Your conduct was bizarre, violent and entirely unprovoked. Objectively, I regard your offending as a serious example of the offence of aggravated burglary. It is fortunate that Mr Gillespie’s injuries, although bad enough, were not even worse. You were a strapping, solid 28‑year-old male who, fuelled by drugs, assaulted a 68‑year-old man in a savage fashion. Fortunately you desisted when Mr Bilski told you to stop.
21 Your counsel submitted that your moral culpability in respect of this offending ought to be reduced because of your diagnosis by Dr Aaron Cunningham that, at the time, you met the criteria for substance-induced psychotic disorder. Such diagnosis appears to be based on the interview with you where you stated that you had experienced auditory command hallucinations over the past eight years and had reported visual hallucinations over this period as well. You had said that the hallucinations caused you to become depressed and rarely leave home.
22 Dr Cunningham indicated in his report dated 6 February 2012, based on assessment of you on one occasion, being 1 February 2012, that it appeared that your “history of illicit substance abuse has resulted in [your] current diagnosis of substance-induced psychotic disorder." He went on to say, "He presents with auditory and visual hallucinations, affective flattening and paranoid ideation.” He said that you met the criteria for substance-use disorder and presented with a psychological and physiological dependence to opiates.
23 Dr Cunningham concluded that your “offence-specific risk factor was (your) substance-use disorder". He said, ‘It appears that Mr Malatai was intoxicated at the time of the offence. Mr Malatai presents with a chronic dependence to opiates. Further, Mr Malatai presents with a history of polysubstance abuse.”
24 Dr Cunningham then goes on to speak about underlying factors, and then says:
“In my opinion, Mr Malatai’s substance-induced psychotic disorder combined with his substance-use disorder, would have impaired his judgment with respect to his offence behaviour and their consequences.”
25 The question for me is whether I am satisfied on the balance of probabilities that you were suffering from an impairment of mental function at the time of your offending which impacted on your moral culpability in such a way that I should regard your moral culpability as being reduced.
26 The further question is whether the principles of specific and general deterrence ought to be moderated and whether I should make allowance in imposing just punishment if I find that you do have a relevant mental impairment. I will return to these matters in due course.
27 Your criminal history commenced on 14 April 2000 in the Dandenong Magistrates’ Court where you were sentenced to a total effective sentence of two months’ detention in a youth training centre for trafficking and using heroin.
28 Most of your offending concerns trafficking heroin, which I was told was your means of obtaining heroin for your own use. You have seven court appearances from April 2000 until 27 May 2003 where you were dealt with for trafficking heroin, and your third occasion of possessing a controlled weapon without excuse.
29 On 15 March 2002 you were dealt with for armed robbery, and sentenced to be detained in a youth training centre for twelve months. I was told something of this matter on the plea hearing, and have now managed to obtain the sentencing reasons of His Honour Judge Anderson, who sentenced you and a co‑offender on 15 March 2002. I understand that counsel for the Crown and your Counsel have received copies of these sentencing remarks and have previously indicated by emails that they did not wish to make any further submissions in relation to the matter.
30 The events giving rise to the offences which were on 26 October 2001 were that you and your co‑offender were, to quote from a sentencing remark from His Honour, “desperate for heroin” (S1). You entered a Caltex service station in Springvale, and your co‑offender went behind the counter, holding a knife to the neck of the operator and demanded money. About $180 in cash and five packs of cigarettes were taken. You stood by and took a magazine and video. You were only 18 years old at the time of the sentence. It was recorded in the sentence that you had been a user of heroin for some years, which had resulted in three previous court appearances for drug-related offences. His Honour Judge Anderson then detailed these prior matters and the excellent progress that you had apparently made whilst within the juvenile justice system. At page 9 of his sentencing remarks, His Honour indicated that, whilst detained in a youth training centre, you would “receive appropriate treatment for your drug problem and any other psychological or educational issues.”
31 On 27 May 2003 at the Dandenong Magistrates’ Court you received a total effective term of nine months’ imprisonment. As your counsel indicated, this was the last substantive matter before the courts until your present offending for which I now sentence you.
32 I was told that after your release from gaol, which would appear to have been early 2004 or perhaps late 2003, you obtained employment at Omega Stainless Steel in Dandenong and continued to work there until 2010. You did not offend at all during that time, and lived at home with your family in Cranbourne. You earned $500 per week and gave half of your earnings to your family for board. You stayed in your room during this period when you were not working. Your father would drive you to and from work, or else your uncle, who also worked at that company, would give you lifts on occasions. This is apparently the period which coincides with you experiencing auditory and visual hallucinations, and your counsel submitted that your behaviour manifested symptoms of depression. However, you were able to demonstrate during that period that you could behave responsibly and in a law-abiding fashion. You were on a methadone program, and it appears that you were able to function properly at work where you performed labouring duties.
33 However, you instructed your counsel that during this time you were becoming, to quote you, "sad" because you had no social life. You became tired of being alone, and so commenced to socialise once more. You met a person by the name of Mary Chhor. She was on a disability support pension and was also a drug addict. Inevitably, you drifted back to heroin. I was told that Ms Chhor is now pregnant, and due to have your child in April. During the time that you were with Ms Chhor I was told that you were using a great deal of heroin.
34 In relation to the offending for which I now sentence you, you instructed your counsel that you do not recall a good deal of it. You had taken a cocktail of Seroquel, heroin and two Xanax tablets before you committed the offences.
35 Your counsel pointed to various matters in support of the contention that you were severely affected by drugs at the time of your offending. I have no difficulty in accepting this whatsoever. The question for me is whether you can call this, or any diagnosed condition, in aid now to reduce your moral culpability. However, I will continue with the course of events in your case.
36 You were remanded in custody upon arrest, then subsequently released on the CISP bail program. I was told that you attended several appointments in respect of this. However, apparently owing to your association with your former partner, Mary Chhor, you fell back into heroin use yet again.
37 Your mother gave character evidence for you and said that she agreed with all that your counsel had put on your behalf. She confirmed that when you were a young teenager you started to go off the rails, and she also confirmed that you had been out of trouble for a number of years after being released from gaol in 2003 - it may be, as I have said, that you were in fact released in early 2004, but this is not material. After your release, you attended church with your family each week, at the Victory Worship Centre. You were taking methadone, in a bid to deal with your heroin addiction, and you had been of great help to your mother and your father during this period. Your mother said that she had visited you in gaol and told you that you had to stop taking drugs. You told your mother that you were sorry for what you had done to the family and for what you had done to Mr Gillespie. Your mother said that she and your family would always support you and would always give you somewhere to live. She said that you were a good boy and were very sorry for what you had done. Mr Malatai you are very fortunate indeed to have the love and support of your family. Many offenders who come before this Court do not. Upon your release from gaol, you ought to look to them rather than any associates from the drug world, including Mary Chhor, to assist you with your rehabilitation.
38 Your counsel said that there was the hope that as you grew older the attraction of drugs would be diminished, and that you had family to return to. You had also done a number of courses whilst at Metropolitan Remand Centre, and that you plan on doing further courses when at Loddon Prison. He submitted that these matters stood you in good stead in terms of your prospects of rehabilitation. I take these matters into account as well as your family support when assessing your prospects of rehabilitation.
39 By way of background, I was told that you were born on 4 April 1983 in New Zealand and, as I have already indicated, you are now 28 years old. You came to Australia with your family when you were three years old. Your father is retired, and had worked as a taxi driver and cleaner. Your mother had worked as a cleaner and she had also worked at Kmart. You have one older brother, one older sister, and two younger sisters, and none of them have been in trouble with the law.
40 You attended school both here and in Newcastle until completing Year 10. When 13 or 14 years old you commenced having problems with a negative peer group and in respect of drug use. You had also experienced some hardship in your upbringing at home which I will come to in a moment. You commenced using marijuana when you were 14 years old, and at 14 or 15 you were living on the streets at times. You were experiencing problems at school and at home before you left school, and you started getting into trouble as time went on. You have been treated on a methadone program in the past, and you have also received Seroquel, which you were taking on the day of the offending. The Seroquel was said by your counsel to be for “psych problems”, but I was not quite sure as to what was meant by this.
41 Your father was also in court upon the hearing of the plea. Your counsel relied on details of Dr Cunningham’s report in relation to your upbringing, and in particular the difficulties that you have experienced at the hands of your father. You told Dr Cunningham that your father changed his behaviour, but this was too late for you, as you had already commenced drug use and anti-social behaviour. You lived with friends and on the streets for a long time, and never liked to settle down. You told Dr Cunningham that your longest relationship had continued for the past two years, being the relationship with Mary Chhor. Your counsel told me that you had been unable to make contact with Ms Chhor since being incarcerated on this occasion – or at least this is what I understood him to say. You are desirous of developing a meaningful relationship with your child, when or if able to do so.
42 Your counsel told me that you had started using marijuana when you were 14 years old. However, you told Dr Cunningham that you tried cannabis when in Grade 6, beginning in regular use from Year 7. You also used alcohol in Year 7 and began using heroin during Year 8. After leaving secondary school, you began using methylamphetamine, amphetamine and benzodiazepines. You told Dr Cunningham that whilst you were working at Omega Steel you continued to dabble in heroin, and said that your heroin use again increased in 2010. You reported using two grams of heroin per day, and used benzodiazepines combined with heroin. You reported using cannabis and alcohol only occasionally.
43 I was told that you are currently being administered 70 milligrams of methadone, but you have said that the dose was not high enough. You said that risperidone was also being administered since incarceration, which had some impact on the hallucinations from which you are said to have suffered for some eight years.
44 Dr Cunningham assessed your risk of reoffending as being in the medium-high risk range, and that reduction of risk would entail ongoing intervention to treat your substance-induced psychotic disorder and substance use disorder. He assessed you as presenting a moderate risk of future violent offending. You presented to him, reporting features of depression, anxiety, and panic in your mood state, as well as paranoid ideation. I understand that these are the symptoms that you were experiencing as at the time of the interview, rather than at the time of the offending.
45 There can be no mistake that on the occasion of your offending you were grossly affected by drugs to the point where you were expressing to a stranger the need to enter his premises in order to pray. When he refused this request, you became violent and insistent to the point where you broke into his home and assaulted him.
46 Whilst it appears to be the case that you had an unfortunate childhood, and that the explanation at least in part for you imbibing drugs was feelings of depression, the fact of it is that you demonstrated you were able to remain largely drug-free for six or seven years before taking the decision to imbibe once again. While you may well have felt sad, as you put it, and may have displayed symptoms of depression during those six or seven years, you were able to hold down a job and behave in a responsible fashion. It was your sense of social isolation that saw you going back into a world where you were again exposed to drug use.
47 At the age of 28, having apparently escaped the life of social isolation which had caused you sadness, you were again abusing drugs. I am afraid that terminology such as “substance-induced psychotic disorder” or “substance-use disorder” does not disguise the fact that it was your choice to abuse drugs on the day in question which contributed to your offending, and which has been the cause of your difficulties with your mental health.
48 I am not prepared to find that your taking of drugs on this occasion is an aggravating feature, as I am not satisfied beyond reasonable doubt that you were aware that ingesting them would lead to offending. The sentencing remarks of His Honour Judge Anderson to which I have previously referred indicate that you may well have had an awareness that the need for drugs would lead to offending but this is not the same thing. You certainly recognised that your drug addiction had caused a good deal of trouble for you which was evident from the fact that you stayed away from them for six or seven years following incarceration; despite this, you chose to go back into the drug world.
49 I now turn to the question as to whether I should make allowances in your favour by virtue of the principles in R v Verdins (2007) 16 VR 269.
50 In DPP v Kao [2009] VSCA 273, their Honours Weinberg JA and Coghlan AJA stated
“[T]here is a real question as to whether, as a matter of policy, a person experienced in the use of drugs, and who therefore must know their effect upon him, should be entitled to call in aid the moderating effect of Verdins in relation to reduced moral culpability. In that sense, the problem is not dissimilar to that which presents itself in relation to self-induced intoxication.” [42]
51 It may well be that you did not appreciate that drugs would have the kind of bizarre effect that they did on the day in question, but I must say that I consider that there is a real question as a matter of policy as to whether someone in your position should be able to call in aid Verdins' principles in a bid to mitigate sentence. However, I must be bound by what the law is in this regard.
52 In this sort of case concerning self-induced conditions, it would appear that the critical factor in determining the significance of drug-induced psychosis for sentencing purposes is the degree of foreknowledge on the part of the offender: see R v Rees [2011] VSC 523 at [34]–[35] per Hollingworth J. It would appear to me that what you were experiencing on the day in question was in fact a drug induced psychosis.
53 I am not convinced that you had foresight that that psychosis would occur in the way that it did if you took drugs. It is evident from your bizarre behaviour on the occasion of your offending that you were suffering the effects of psychosis and that this impairment of mental function had a causal link with your offending. I therefore am bound to reduce your moral culpability to some extent, and will make some reduction in respect of the weight that I would otherwise attach to specific and general deterrence. But on the other hand I must attribute not insignificant weight to protection of the community. You have a difficulty with drugs which you have not been able to control and your conduct on this occasion because of psychosis due to drug abuse gives me some concern for the protection of the community from you.
54 In view of your criminal history, which is very much tied to drug abuse, the connection of your present offending with drug abuse, and also factoring in that you were unable to maintain bail conditions because of relapse into drug abuse, I must give fairly substantial weight to specific deterrence, albeit that this is reduced because of the application of R v Verdins' principles. I also give fairly significant weight to general deterrence, allowing for appropriate moderation of this principle due to the application of R v Verdins.
55 I accept that you presently do have some mental health difficulties which, even if caused by drug abuse, will make time in custody more difficult for you than for someone not so afflicted. I therefore make an allowance in your favour in this regard.
56 Your conduct is deserving of just punishment and denunciation in all of the circumstances, including the circumstance that I have allowed for reduced moral culpability. People ought to be entitled to enjoy the sanctity of their own homes without being attacked by drug-riddled strangers such as you, Mr Malatai.
57 You are entitled to a substantial discount in the penalty that you would otherwise receive because of your early plea of guilty which has saved witnesses, especially the victim, the time and trauma of giving evidence, and you have also saved the community the time and expense of running contested proceedings.
58 I do factor in that your criminal history is somewhat dated, and that you have demonstrated your ability to lead a responsible and hardworking life, devoted to your family before this sorry episode. You now have a child on the way, and I am sure you will appreciate that it is imperative that you take every opportunity to avoid descending back into drug use for your sake, your family’s sake, and the sake of your child soon to be born. The difficulties which you experienced in your own childhood should help you realise how important it is that you are a positive and present role model for your son as he embarks on his childhood.
59 I accept that you have expressed genuine remorse in relation to these matters, and it is to be hoped that you will develop full insight into the connection between your drug abuse and offending. I put you on notice, Mr Malatai, that there is certainly a connection between the two, and if you reoffend whilst being affected by drugs, this may well be seen as an aggravating feature which will negatively impact on any sentence you receive in the future.
60 You have a fine family who are prepared to support you and welcome you back into their home upon your release from custody. However, you have a good way to go in terms of dealing with your drug addiction, and when I weigh up your prospects of rehabilitation (including your ability to obtain steady employment) I can only find that they are fair. It appears to me that you need to find a happy medium between locking yourself away, burying yourself in home and work, and, on the other hand, mixing with undesirables who expose you to drug use. But you have demonstrated in the past that you are capable of behaving in a responsible fashion and I trust and hope that you will again.
61 The Crown submitted that an appropriate sentence in your case is in the range of four to six years head sentence with two and a half to three and a half years non-parole period.
62 Your counsel submitted that a sentence toward the lower end of this range would be appropriate, and then mentioned particular figures in this regard which came below the lower end of the range. I was referred to DPP v El Hajje [2009] VSCA 160 and the sentencing snapshot in respect of current sentencing practice. I have had regard to these. It was agreed by your counsel that the range given by the Crown was open to me. However, he submitted that the figures that he gave were also within the appropriate range. He impressed upon me the need to have a lengthy parole period to ensure that you are able to receive appropriate supervision for an appropriate period to assist you with your rehabilitation. I agree that this is called for in your case.
63 Please stand up, Mr Malatai.
64 In relation to Charge 1 on the indictment you are convicted and sentenced to four years’ imprisonment.
65 In relation to Charge 2 you are convicted and sentenced to two years’ imprisonment.
66 In relation to Charge 3 you are convicted and sentenced to six months’ imprisonment.
67 In relation to the summary matters - tamper with a motor vehicle - you are convicted and sentenced to one day imprisonment.
68 In relation to fail to appear on bail, you are convicted and sentenced to four months’ imprisonment.
69 I order that six months of the sentence on Charge 2 on the indictment be served cumulatively with the sentence on Charge 1 on the indictment, but that otherwise all sentences imposed be served concurrently. This leads to a total effective sentence of four and a half years, and I order that you serve two and a half years before becoming eligible for parole.
70 Pursuant to s.6AAA, if not for your pleas of guilty I would have sentenced you to a total effective term of six years’ imprisonment and a non-parole period of four years.
71 I declare that you serve 133 days in custody.
72 HER HONOUR: Are there any further matters, counsel?
73 MR HANNAN: No Your Honour.
74 HER HONOUR: Thank you. You may remove the prisoner.
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