Director of Public Prosecutions v Matthews

[2015] VCC 1785

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01236

DIRECTOR OF PUBLIC PROSECUTIONS

v

CODY MATTHEWS

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	7 December 2015
DATE OF SENTENCE:	7 December 2015
CASE MAY BE CITED AS:	DPP v Matthews
MEDIUM NEUTRAL CITATION:	[2015] VCC 1785

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Accused	Mr S. Kandasamy	Victoria Legal Aid
For the Director of Public Prosecutions	Mr M. Roper	Office of Public Prosecutions

HIS HONOUR:

1Cody Matthews; in April 2015 you were living in a boarding house in Dandenong.  So too was the victim.  You came to believe the victim was laughing at you from time to time.

2On 20 April 2015 the victim was in his locked room, simply watching television.  You yelled out to him to stop laughing at you, as you had to come a belief again that he was laughing at you.  When you believed that he had not stopped you crashed his door in and rushed at him, punching him violently to the head, causing bleeding and a loose tooth.  You left then, only to return moments later with a box cutting type knife.  You slashed the victim's cheek area and continued to punch him.  Others in the boarding room heard the commotion and came to the victim's aide, pulling you off the victim.  As you left the room you punched one of the rescuers to the head, causing him to fall to the ground, then you warned everyone not to call the manager or the police.

3An ambulance was called and the victim was taken to hospital for stitches and treatment.  Police also came to arrest you.  When they came you resisted.  You were remanded in custody, where you have remained to date, although you have done some other sentences while awaiting this matter to be resolved.  You were on bail at the time of these offences, thus committing a further offence.  You pleaded guilty to an aggravated burglary and intentionally cause injury, and to the summary offences of unlawful assault, resist arrest and committing an indictable offence while on bail.

4Although you are only 24 you have a long and very concerning criminal history involving serious crimes with regular terms of gaol, and, early on, periods of detention in a Youth Justice Centre.  These terms of confinement have led to a fear in those that have assessed you that you have, or are heading towards, becoming institutionalised.  That is a matter of concern.

5These offences were violent and sustained.  Your conduct was particularly frightening because it was without any provocation, or indeed, any rational explanation.  The victim did not know what was going on in your head.  Your assault of one of the rescuers and aggression towards the police reveals how ingrained violence is in your response to those trying to restrain your loss of control.  You have a propensity for violence, which you readily acknowledge.

6You were placed in state care in your early teens, having run away from your home and your family, which, on all appearances, was a loving and ordinary family.  You lived in residential units, some of them secure, and things did not go well for you at these places. 

7What you told the psychologist, Mr Simmons, was this.  You disclosed that you began running away from home at about the age of ten, explaining that the police would often bring you home, with you running off again.  At the age of about 12 you stated your parents gave up and the Department of Health and Human Services became involved.  You spent time in residential units, including secure welfare.  By the age of 13 you had become involved with juvenile justice.  You explained that you find it difficult to cope with any restrictions, indicating problems with tolerating boundaries.  You said your parents tried everything, with you recalling that your mother was out on the streets at four in the morning looking for you to bring you back home.

8As I said, things in the residential units, and in state care, did not go well.  You took to drugs at the age of 13, using cannabis, prescribed drugs, LSD and ecstasy over the next ten years or so; but your main problem was methamphetamine.

9Of note, you said the following to Mr Simmons - or he wrote the following:  "Methamphetamine was first tried at about the age of 13, but you gave it away for a couple of years."

10What you said was it did not become a problem until you were about 20, when you reported daily use of the drug for several weeks, claiming that you only slept three times during the period.  You were smoking up to a gram a day and said you lost some 50 kilograms over that period.  You were subsequently injecting the drug until your most recent sentence.  You admitted that you had used the drug on several occasions since release from custody last year, but you found the drug affected you mentally; that is, you had an understanding that it had an impact on your mental health.

11You education was interrupted and not a lot happened by way of education, although you were provided with schooling in the juvenile justice system.  You have obtained a Year 12 qualification and some TAFE certificates.  This is to your credit, Mr Matthews.  You have had work in a variety of jobs, but, on your own report, they were short term, and many were terminated because of you getting into arguments with your work colleagues.  Your interests lie in music; in particular, playing the guitar.  It is hoped that you continue with this pursuit.

12An issue in the sentencing process is the role, if any, of problems in your mental health.  I have been provided only with medicolegal assessments from Dr Zimmerman, the psychiatrist, and Mr Simmons, the psychologist.  Their reports and opinions are well considered, but they did not have the benefit from any notes or opinions from any of the mental health practitioners who have treated you in the community, or in a correctional facility.

13Their opinions remain equivocal as to whether your problems are a consequence of a personality disorder, or whether there is a differential diagnosis of schizophreniform illness; which, in the end, Dr Zimmerman said could not be excluded.  The added factor in all this is whether any of the psychotic symptoms that you have displayed or reported are drug induced from your use of methamphetamine.

14

As was made clear in the recent decision of our Court of Appeal in

DPP v O'Neill

, it is for the accused to establish on the balance of probabilities that he or she has sufficient impaired mental functioning which may give rise to amelioration or aggravation of a number of sentencing considerations.  Counsel for the accused, Mr Kandasamy, has very thoroughly analysed the material in the reports, emphasising that the schizophreniform illness cannot be excluded, and the psychotic symptoms of auditory hallucinations with persistence after your incarceration - which were to the extent of you cutting your head because you believed something had been implanted in it - all told towards a schizophrenic type illness, or a psychiatric illness, at the least, which amounted to an impaired mental functioning.  I should also add that you banged your head against a wall in a prison so as to get x-rays done which would, or may, reveal objects that you believed were in your head.

15Plainly, you have had psychotic symptoms including auditory hallucinations.  You later realised that these are not real, and you can see them as delusions, however they do impact upon you at the time.  You have been medicated with anti-psychotic medication in the past, but that has been stopped of late in the prison.  In relation to this topic Dr Zimmerman wrote the following, and I will quote at length:

"Mr Matthews provided a history of five years of intermittent paranoid beliefs and auditory hallucinations that appear to be short lived, in that you report being able to convince yourself of the falsity of the beliefs after about two weeks from when they occur.  In this sense he appears to be describing short lived paranoid delusions that can nevertheless be very intense while they last; as evidenced by the fact that he cut his own scalp in an effort to discover whether something had been placed in his head.

The auditory hallucinations also appear to fluctuate such that he reports them having been present almost all day a few months ago, but having disappeared after only two weeks on anti-psychotics.  He insists they have not returned since this was ceased," that is, the anti-psychotic medication.  "He also describes having been prescribed an anti-depressant in the community, and having overdosed on this when he was feeling particularly alienated and unable to cope after release from prison."

16He goes on to say that you could not really recall who prescribed this for you.  He went on:

"There appeared to be a tendency in Mr Matthews to downplay what he felt were 'crazy ideas and thoughts', and it is possible that he has not come to the attention of mental health services in the past because of his desire to be seen as well.  His use of drugs, particularly ice, also complicates the picture when it comes to attempting to ascertain the underlying cause of these experiences, as ice use can be associated with paranoia, mood fluctuations and hallucinations."

17He then says:

"I believe that there is no doubt that Mr Matthews has been experiencing psychotic symptoms over the past five years; that these may be attributable to his abuse of drugs - particularly amphetamines - but that a differential diagnosis of schizophrenic form illness cannot be excluded.  The age of onset is consistent with what one would expect in schizophrenia.  Clarifying the underlying cause of his experiences will depend on having him monitored by mental health professionals - preferably while he is not using illicit drugs - to watch for the
re-emergence of any psychotic symptoms."

18It goes on:

"Whether Mr Matthews condition is of a permanent or temporary nature will depend on the underlying cause, which remains unclear at this stage.  In terms of the nature and severity of the symptoms he appears to be currently free of both paranoid delusions and auditory hallucinations, however this was not case a few months ago, when he was commenced on anti-psychotic treatment in the prison.  He also describes paranoid beliefs and probably auditory hallucinations at the time of the offending; regarding the victim laughing at him, and other residents mumbling about him under their breath.  The presence of such symptoms at the time of the offending would have affected his ability to make calm reasoned decisions and appropriate judgments, as he was acting on the belief that he was being persecuted by a man who in fact meant him no harm.  If he had been drinking on the morning this would have added an element of disinhibition to his behaviour."

19In this regard, Mr Simmons wrote the following - he also says that the diagnosis of schizophrenia has not been independently verified, and it remains unclear - although, he says this:

"What is certainly more evident during interview is the fact that
Mr Matthews displays symptoms of a personality disorder, with both borderline and anti-social traits.  Certainly such a disorder could explain the variations in mood that Mr Matthews experiences, as people with borderline personality disorders often have significant issues with controlling their emotional response.  In addition, such people often experience psychotic symptoms, generally when under periods of stress.  There are certainly episodes of self-harm, and Mr Matthews does struggle in maintaining a positive view of the relationships in his life."

20He goes on to say:

"While it is possible that Mr Matthews had developed some paranoid tendencies; especially with regard to the victim, this is equally explainable by a diagnosis of schizophrenia as it is by a personality disorder with borderline traits, as psychotic phenomena often develops in periods of stress.  However, it is also noted that there are marked anti-social traits, with Mr Matthews often having used violence as a way of dealing with issues in the past, as evidenced by the fact that he is currently in the management unit."

21The Court of Appeal in DPP v O'Neill emphasised that the particular diagnostic label was not determinative.  It is the nature and severity of the mental illness and whether its impact amounts to an impairment of an accused's mental functioning.  These matters are often not black and white, and that is the case here.

22I am sure here, you, Mr Matthews, have auditory hallucinations, and did at the time.  It is clear, whether by reason of some delusion, or voices, you believe the victim was laughing at you, but you have long considered that the merest sign of another person not showing respect, or staring, or slighting you, must be dealt with by you with physical violence.  It is your entrenched way.  In that respect there are aspects of an ingrained personality disorder.  But considering all the material, it is hard to ignore your psychotic symptoms of auditory hallucinations and delusions, albeit episodic and brief.  Thus, in finding, as I do, that you have suffered from an impaired mental functioning, I am not of the view that it was severe, so that in the end the moderation that I make to your moral culpability is really quite slight.

23Because of your propensity for violence, the role of your personality disorder, and your prior history, I consider that protection of the community is an important sentencing consideration.  This is one of those cases where your psychological makeup means protection of the community is given more weight than might otherwise be the case.

24In accordance with O'Neill I do not consider the community would be uncomfortable if I determine that you should face the full weight of general deterrence.  General deterrence is important.  Vulnerable occupants of boarding houses must be protected, and the message must be sent to others via the sentence I impose on you that the courts will deal sternly with those in boarding houses who take to other vulnerable occupants.

25This is a case where some slight amelioration of moral culpability is appropriate, but there need not be, and will not be, any reduction in the weight afforded to general deterrence.  

26Likewise, I am clear you well appreciate that if you continue to offend sentences will become more, or increasingly stern.  Your mental state does not impact on you such that you do not have insight into that simple concept that if you continue to offend the sentences will become severe; thus specific deterrence, or deterrence to you, is a weighty matter, given your history, and it will not be moderated.

27You are comfortable in prison, unfortunately, and perhaps more so than in the community, but you continue to commit violence in prison.  This is troubling, as you now, at the age of 24, face the dreadful prospect of a long gaol term, and a good deal of it may well be served in 23 hour lockdown.  This is a grim prospect.

28Your rehabilitation at age 24 is not overlooked, but it can be no more than guarded, if not bleak.  In this regard Mr Simmons said as follows:

"It is therefore most likely Mr Matthews will continue to have ongoing difficulties for many years, as the ability to access services, both in prison and in the community, are very restricted.  Mr Matthews pattern of behaviour has become entrenched, and it is difficult to see that changing in the future.  However, a more in depth psychiatric assessment with attempts to obtain all the information about his involvement with mental health services, as well as observing him over a period of time to evaluate changes in mental state, may assist in clarifying any further diagnosis.  Given Mr Matthews history it is most likely that he will be before the courts again in the future."

29Mr Matthews, your speedy plea of guilty is important, and it means that the sentence that I will impose upon you will be less than it otherwise would have been. 

30In the end there can be no other sentence but imprisonment.  No one suggested otherwise.

31As to a parole period, you are pessimistic yourself as to whether you will be granted parole, but those questions are for others, not me.  There are no fixed formulas in respect of head sentences and minimum terms, but I too take into account your recidivism and your entrenched behaviours.  You will need some period of supervision on release if you are, in fact, released on parole.  I do not intend to have available an overly long period of potential parole.  I impose what I see as the appropriate sentence, which includes the minimum period of incarceration that justice requires.

32I have taken into account in respect of your sentence your deprived upbringing, which I have outlined, in the terms that you really were, and have been, in state care, and institutionalised in that regard since the age of about 13.  But in the end there must be appropriate punishment for what you did. 

33I will impose an aggregate sentence upon you because these crimes were really committed in one outburst.

34The sentence that I impose for committing the crime of aggravated burglary, Charge 1; intentionally cause injury, Charge 2; unlawful assault and resist arrest is the following.  I impose a sentence of four years with a minimum term of three years.

35In respect of committing an indictable offence on bail I impose a separate penalty of seven days, to run concurrent with the sentence that I have just imposed.

36You have done 101 days of prison that is attributable to the sentence that I have just imposed.  I will ensure that this declaration is entered in the records of the court so the prison authorities are left in no doubt that you have already served 101 days of the sentence that I have imposed.

37Had you pleaded not guilty to these matters and been found guilty of them, I would have imposed a sentence of five years and six months with a minimum term of four years and six months.  Is there anything else required?

38MR KANDASAMY:  No, Your Honour.

39HIS HONOUR:  Mr Matthews, you'll have to go with the prison authorities.  I'm not, in the sentence that I have imposed, doing anything other than allowing for some hope.  Maybe there'll come a time when you'll pull up and get your life back, otherwise it's just going to be a life sentence by instalments.  It's a matter for you.  Mr Matthews can be removed.  I'm very grateful for your assistance, Mr Kandasamy and Mr Roper.  These are not easy matters.  There's nothing further?  Thank you.

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