Director of Public Prosecutions v McDonald, Zachariah Dennis
[2013] VCC 469
•15 April 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-11-01711
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ZACHARIAH DENNIS McDONALD |
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JUDGE: | His Honour Judge McInerney | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 February 2013 | |
DATE OF SENTENCE: | 15 April 2013 | |
CASE MAY BE CITED AS: | DPP v McDonald, Zachariah Dennis | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 469 | |
REASONS FOR SENTENCE
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Subject: Criminal law – plea – sentence
Catchwords: false imprisonment – causing injury recklessly – indecent assault – mental illness – report and certificate of authorised psychiatrist obtained pursuant to s.93 of the Sentencing Act 1991 – authorised psychiatrist recommended imposition of a Restricted Involuntary Treatment Order
Legislation Cited: s.18 of the Crimes Act 1958 – s.39 of the Crimes Act 1958 – s.93 of the Sentencing Act 1991
Sentence: Restricted Involuntary Treatment Order imposed for a period of 2 years
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. O'Halloran | Ms F. Martin (Office of Public Prosecutions) |
| For the Accused | Mr. T. Marsh | Victorian Legal Aid |
HIS HONOUR:
1 Mr Zachariah Dennis McDonald pleaded guilty to the three charges on Indictment Number B11188870.1, a charge of false imprisonment, for which the common law applies by way of penalty, a charge of causing injury recklessly, for which the maximum penalty prescribed by Parliament is five years, and a charge of indecent assault for which the maximum penalty prescribed by Parliament is ten years.
2 Insofar as Mr McDonald's prior offences are concerned, Mr Marsh, you appeared on his behalf and accepted the accuracy on Mr McDonald's behalf of the prior criminal convictions. They are essentially of a minor nature but in the sense that there is the matter which was originally heard in the Magistrates' Court and then went on appeal, of recklessly cause injury, as Mr Marsh said, that was a contretemps with a police car after he had left a party. It had overtones of mental illness, as it would appear did his earlier prior in 2004 for criminal damage. He was discharged and diversion was completed in that matter.
3 The prosecution summary tendered as Exhibit A and agreed to by the parties as the appropriate summation, sets out the background which is essentially the relationship between the victim and Mr McDonald. The problem was, it appeared, that Mr McDonald's views were different to the victim at this stage, as to the terms of the relationship. It would appear that he certainly had different views than Ms Kapela as to its continuation, and it was in that context, and the context of florid mental functioning at the time, that these offences took place. As Mr McDonald said in this record of interview, he did not want her to leave, but she had become upset and maybe he should have let her leave, they were talking, he wanted to talk to her. Eventually, of course, she effected some self-help by hitting him with a piece of broken wine bottle, causing a cut to the upper part of his ear.
4 The circumstances insofar as the false imprisonment are concerned would have been quite frightening. Equally, insofar as the circumstances described in the summary as to the recklessly causing injury, there was pain and swelling on the mouth as a result of the use of the belt, and the gagging, and then the indecent assault itself.
5 The victim impact statement was tendered as Exhibit B. I am not fully cogniscent of all the background of the victim, but there seems to me a much broader context and much broader issues involved than only the reaction to these crimes. I have taken note, as best I can, of the circumstances, there is no doubt that the victim would have been terrified and placed in a particularly precarious position, by the actions of Mr McDonald.
6 In reading the materials, it became quite obvious to me from the circumstances, that there was a mental issue involved, and indeed, in that regard, Mr Marsh called the mother of Mr McDonald, who herself is a psychiatric nurse and is a manager of the organisation, Headspace, in Collingwood.
7 The mental issues that Ms Denton’s son has had, have been present with him for some time. It would appear somewhere around May 2011 he was certainly having manic issues, on her evidence, was acting in an erratic manner from approximately March to May 2012. Mr McDonald had grandiose ideas and thoughts and she had been particularly concerned, and had called outpatients expressing that concern about him on a number of occasions. As has been put, unfortunately it would appear that he was not engaging in treatment at this time and this circumstance has just got the better of him.
8 To assist the Court to fully comprehend the background, insofar as these offences are concerned, was tendered Exhibit 1, the report of his treating psychiatrist, Dr Keane, dated 18 February 2013, who summarised the most recent admission as occurring in a setting of a documented decline in mental state, characterised by preoccupation with delusional ideas, thought disorder, declining self-care, guardedness and irritability. The diagnosis of the condition is made at paragraph 3, which is a schizo-affective disorder and the condition has features of both bi-polar disorder and schizophrenia and is a permanent condition, of which Mr McDonald suffers.
9 Mr McDonald’s current capacity, at the time of the report, it was said to be fair to good. There was, because of the condition, a superficial acknowledgement of the diagnosis apparently. Dr Keane set out very clearly, the very likely and high risk of relapse in Mr McDonald's psychotic disorder symptoms, if he was imprisoned. Also tendered were two earlier reports of Dr Keane, Exhibit 2 is dated 14 March 2013, and Exhibit 3 is the report of 6 March 2012. Exhibit 4 is the medical chronology.
10 It is noted in Exhibit 3, albeit back in March 2012, the ongoing debilitating symptoms of the mental illness that Mr McDonald suffers. Dr Keane notes at that time, and it seems to be totally consistent with the current position, that Mr McDonald presents with history and symptoms of schizo-affective disorder requiring assertive outreach to enable effective management. Despite a recent increase in treatment, he continues to be observed to have significant symptoms of a mental illness. Associated with this illness, are problems of persecutory belief.
11 It was with that background that the Court comes to consider these offences. The gravity in the sense of culpability is obviously dramatically affected by such reports. It is clear that at the time, he had, as Mr Marsh put it, disengaged from treatment and had stopped taking medication.
12 Obviously, Mr McDonald, it is not necessary for me to tell you how important it is to stay on your medication. I am sure that your mother advises you regularly about it, and no doubt, your specialist psychiatrist tells you as well, but for all our sakes, it is very important for you to maintain your treatment, which I am certain, you are well aware of. Ms Denton indicated from her observations, that her son has not, and is not on drugs which was a pleasing circumstance for the Court.
13 It was in those circumstances, and looking at these crimes, that the Court adjourned to get a report under s.93(1) of the Sentencing Act 1991. That report was prepared again in each instance by Dr Keane. The first report, Exhibit C, is the report of the authorised psychiatrist, pursuant to the provisions of the Act. Dr Keane has recommended the making of a Restricted Involuntary Treatment Order under s.93 and advises the Court that there are facilities or services available at the approved mental health service, named above, being Alfred Health, for the treatment of Mr McDonald.
14 Further, in accordance with the requirements of the Act, Exhibit D was tendered, which is the certificate of the psychiatrist for a Restricted Involuntary Treatment Order. Dr Keane proffers the opinion that Mr McDonald is mentally ill, that his mental illness requires treatment and that involuntary treatment of Mr McDonald is necessary for his health, and in order to protect both himself and other members of the public, and he sets out the reasons why he makes such a recommendation.
15 Given the receipt of such document, the opportunity was given to both Mr Marsh and Mr O'Halloran this morning, to comment on the same. Those documents were tendered without objection and I intend to make the order under s.93(1), which has been recommended.
16 There is also a forensic sample order that I have signed. Mr Marsh, you might point this out, but Mr McDonald, this is simply to get a forensic sample in regard to yourself. You will be obliged to render this sample by attending at a police station where simply a saliva sample is taken. Mr Marsh will explain it to you, but you are given a list of various police stations where you can attend, so I have signed that document as well. That is really ultimately designed for your protection as well as everyone else's and we hope that it is never needed, but it is important for you to do and technically, the police, if you don't do it, you can be brought back here and I can make an order forcing you to do it, so it is much better if you would be good enough to do that voluntarily.
17 Formally therefore, based upon the material that I have detailed, upon the submission of Mr Marsh and indeed, the DPP in these circumstances, being fully aware of such recommendation, I make the following order under s.93 of the Sentencing Act 1991, that instead of imposing a sentence on Mr McDonald, he having pleaded guilty to these offences, I make the Restricted Involuntary Treatment Order because I am satisfied by the production of the appropriate certificate, in regard to Part A and that such is necessary and again, under Part B, having received the appropriate report, recommending the making of an order and the advise to the Court that that facilities are available.
18 I thereby impose a Restricted Involuntary Treatment Order upon Mr McDonald, and I specify the period of two years as being the duration period of the order.
19 One understands that having made such order, the obligation for treatment pursuant to the provisions of the Mental Health Act 1986, passes to the Mental Health authorities and they will review Mr McDonald, pursuant to these provisions. I am advised that he is currently on a Community Treatment Order and he will now be treated by the same staff as I understand it, in regards to this Restricted Involuntary Treatment Order.
20 Mr McDonald, I just want to say, most importantly, you have got to make sure you look after yourself, do what your mother tells you and do what your psychiatrist tells you, and do not get yourself into this sort of trouble. All right. If you think you are getting into difficulty, go and seek some help before these things occur, so good luck.
21 There's no reason why Mr McDonald cannot come out of the dock is here. All right, as I say, my associate will file the appropriate forms, and we will advise you accordingly. Thank you both for your assistance, and as I say, Mr McDonald, good luck.
(At a later stage.)
22 HIS HONOUR: Yes?
23 MR MARSH: I think I should fall on my sword Your Honour, I have inadvertently led this Court into - - -
24 HIS HONOUR: That is all right, not a problem. At the back of my mind I knew that I had done this before but I was not quite sure of the mechanics of it.
25 MR MARSH: My prior experience was as I explained to your associate, was with clients who were in custody and looking at - - -
26 HIS HONOUR: Yes I think they have to go back to custody to be released then.
27 MR MARSH: - - - (indistinct) whereas this scenario is - - -
28 HIS HONOUR: Yes.
29 MR MARSH: - - - (indistinct) I think we're now in a position to proceed - - -
30 HIS HONOUR: Do it correctly.
31 MR MARSH: Indeed Your Honour. Dr Greg Keane is here in Court.
32 HIS HONOUR: Thank you doctor, I am sorry to put you through this but I think it just has to happen formally anyway that he has to go into your custody so we gave him a bit of freedom before and perhaps should not have, but there you are. Mr McDonald I apologise for messing you around. At the back of my brain I knew there was something that needed to be done and it was Dr Keane's presence so we formally and gladly I suppose give you over to Dr Keane's care, who you know well anyway, and doctor as I have already said to your patient, we only wish him well and as long as he remembers to take his medicine and does what you tell him, everything should be fine, we hope. So we do not want to see him back here, that is the main thing. So thank you and thank you for your three reports that I have read, they went back to March and also your certificate and the formal documentation, thank you. As you will observe, these are not usual orders that we make in the Courts. Thank you gentlemen.
33 So I formally make the order and I release - I suppose I should say, release Mr McDonald into Dr Keane's custody.
34 MR MARSH: I've spoken to Dr Keane - - -
35 HIS HONOUR: Care, I think is probably the better word.
36 MR MARSH: Care, is probably the right paradigm. Dr Keane will be taking him to the Alfred now to do the necessary paperwork.
37 HIS HONOUR: I mean doctor, what happens then? What formally happens, there is an assessment made, is there?
38 DR KEANE: I will have a chat to Zac and do a sort of (indistinct) I haven't seen him for about three weeks so we'll have a chat and I'll transfer to care to the appropriate community treatment order from the hospital.
39 HIS HONOUR: Right. So the purpose of this order is really to allow you, if necessary, if there's any necessity for it, to make that - - -
40 DR KEANE: Decision.
41
HIS HONOUR: Decision, and also make any other decision along the track for the next two years. In the sense if you need to have a - what is the
word - -
42 MR MARSH: Involuntary?
43 HIS HONOUR: - - -involuntary - no, you have got that anyway.
44 MR MARSH: Inpatient (indistinct) - - -
45 HIS HONOUR: Inpatient, yes. But that is all covered for in that proceeding but at the moment you do not need that.
46 MR MARSH: No.
47 HIS HONOUR: Subject to the assessment I suppose. All right thank you very much, much appreciated.
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