Director of Public Prosecutions v McMillan
[2019] VCC 1611
•26 September 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-19-00640
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| MARK McMILLAN |
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JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 August and 25 September 2019 | |
DATE OF SENTENCE: | 26 September 2019 | |
CASE MAY BE CITED AS: | DPP v McMillan | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1611 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Recklessly causing serious injury – Hepatitis C infection constituting serious injury – schizo affective disorder
Legislation Cited: Crimes Act 1958 s 17
Cases Cited: Johnston v The Queen [2013] VSCA 362
Sentence:421 days imprisonment and 16 month Community Corrections Order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms H. Bate | Office of Public Prosecutions |
| For the Accused | Mr B. Newton | Chester Metcalfe |
HIS HONOUR:
1 Mark McMillan, on 12 August 2019 you pleaded guilty to one charge of recklessly causing serious injury for which the maximum penalty is 15 years' imprisonment.
2 The circumstances of your offending are set out in the summary of prosecution opening which was tendered on the plea and marked Exhibit P1. It is an agreed summary.
3 On 7 March 2016 you attended the High Street Medical Centre in Preston. At approximately 7.30 pm Dr Bast, a general practitioner, took you into an examination room. You had not met Dr Bast before.
4 Upon opening your electronic medical file a ‘pop-up’ warning appeared on Dr Bast's computer warning that you were a drug seeker and that other practitioners had refused to see you. Dr Bast asked how he could help you.
5 You said you wanted a prescription for OxyNorm and Endone. Dr Bast told you that the clinic could not readily provide those medications as they are restricted drugs of addiction. You became agitated and accused Dr Bast of wasting your time. You demanded to be told how else to obtain the drugs. Dr Bast suggested that you attend a hospital emergency department.
6 You then attempted to bargain with Dr Bast and asked for a limited number of tablets. Dr Bast refused. You told him that you had been prescribed these drugs at the clinic in the past. In response, Dr Bast said that each prescription was at the discretion of the doctor.
7 You then requested a prescription for Valium which was also refused. At this point you became verbally aggressive and you approached Dr Bast until your faces were approximately five centimetres apart. You spat a large amount of saliva into his face and eyes and you then hit him.
8 Dr Bast tried to push you away, however, you pinned him up against a wall and continued to hit him while he attempted to shield himself. You squeezed Dr Bast's testicles and punched him several times in the face. Dr Bast managed to open the door to the examination room and called out for help. Several patients in the room came to assist. You shouted abuse as you left the clinic.
9 Dr Bast sustained a laceration to the base of his nose and significant bruising to his face. In the course of the assault he became covered in blood. He was treated by a nurse at the clinic. A photograph of the injuries was tendered at the plea hearing and marked Exhibit P2.
10 You were interviewed by police on 23 June 2016 and later charged. You denied assaulting the doctor. You blamed him for assaulting you.
11 Approximately seven weeks after the assault Dr Bast became extremely unwell and was diagnosed with viral acute hepatitis C; specifically HCV genotype 1b. You are a carrier of that form of hepatitis C. The prosecution relies on Dr Bast's hepatitis C infection as constituting the serious injury element of the offence. At the plea hearing it was accepted by your counsel, Mr Newton, that you caused Dr Bast's hepatitis infection.
12 I turn to your background and personal circumstances. You were born on 1 October 1964 in Melbourne. You are now aged 54. You were 51 years of age at the time of this offending.
13 You grew up in the Melbourne suburb of West Heidelberg. Your parents separated when you were six years of age. Your father has not been a part of your life since the separation. He, it would seem, returned to the United States. Your mother, with whom you had enjoyed a close relationship, passed away in September 1993 at the age of 64. She was employed as a laundry worker in a hospital.
14 After your parents separated your mother entered into a relationship with Leonard McMillan and, following his death, when you were aged 15, she married Gordon Stewart. He too has passed away.
15 You are the youngest of six half siblings. You each share the same mother. Two have since passed away but you claim to remain in contact with the others.
16 You attended Olympic Village Primary School and then Heidelberg High School where you completed Year 11. Since leaving school and up until approximately 2008 you had a number of regular jobs including four years with Spicer’s Paper Industries in Fairfield until it relocated to Dandenong; 12 months as a storeman with Edwards Dunlop; two and a half years as a builder's labourer; factory work and forklift driving; as well as cleaning for a period of 12 months in 2008. You have not worked since that time.
17 In December 2003 you were diagnosed as suffering a hepatitis C infection.
18 I am told that in 1989 you were run over by a car after leaving the Ivanhoe Hotel. You were seriously injured and suffered injuries to your right leg, pelvis and shoulder blade. You were taken to the Austin Hospital where you spent two to three months as an in-patient. You underwent three operations over a period of 18 months including bone grafts to the tibia and fibula, insertion of a plate and treatment for blood clotting, all at the Mercy Private Hospital.
19 You instructed your counsel that you received traffic accident compensation in an amount of $23,000 in 1991.
20 In 2005 you moved into a unit at 1051 Plenty Road, Kingsbury. You lived at that address until the time of your arrest for the offence before me and other matters on 2 June 2018.
21 A letter from Mark Tilders of the Salvation Army's Prison Initial Assessment and Planning Section confirms that despite your remand in custody the unit is being held for you on a temporary absence basis granted by the Preston Housing Office. Mr Newton made contact with Mr Tilders and was advised that the temporary absence basis will expire on 28 September 2019.
22 Mr Tilders' letter to the court, Exhibit D6 on the plea hearing, advises that he will provide ongoing Outreach Support to you with the aim of facilitating access to support services 'that underpin a person's ability to sustain a tenancy and to reduce offending'. He further states that you have always maintained a respectful and polite engagement with him and that you possess the motivation to sustain your tenancy upon release.
23 You have a lengthy history of drug abuse. You commenced using cannabis in your twenties but have not used that drug since 2007. You have a history of opioid use including the use of OxyContin, Subutex which is Buprenorphine, as well as heroin. Your use of opioids commenced in an effort to deal with pain management of your left leg and of arthritis, both of which developed as a result of the car accident. You were first prescribed Buprenorphine in 2004. You also had a dependency on Valium in the past as treatment for panic attacks.
24 I have had regard to the reports of consultant psychologist, Gina Cidoni, which have been filed and marked Exhibits D2 and D4. You were assessed by Ms Cidoni on 7 August 2019. She referred to the motor vehicle accident in 1989 and your report of chronic pain since that time. She noted you were prescribed opioid painkillers and that you were on Buprenorphine for some 10 years. You became dependent on prescribed medications such at OxyContin and Valium as well as heroin.
25 Ms Cidoni noted that you were heavily preoccupied with a conspiracy regarding the police, believing the Federal Police and FBI were colluding. This is linked to your father who lives in the United States, according to you.
26 A number of psychological tests were employed by Ms Cidoni including the Wechsler Adult Intelligence Scale, the Brief Cognitive Status Exam and the Minnesota Multiphasic Personality Inventory-2.
27 In her opinion you presented with average intellect and intact memory function. You also presented with the effects of chronic mental illness where the assessment supported a diagnosis of schizoaffective disorder and substance abuse disorder now in enforced remission.
28 Ms Cidoni stated that the condition of drug alcohol intoxication seems to have been operating at the time of offending that would exacerbate your mental health symptoms and this can be associated with increased autonomic activity, perceptual disturbances and behavioural and psychological changes that would disturb usual thought processes and judgment.
29 She noted that the offending occurred in 2016 where you minimised the extent of your drug dependency and it was inferred that you were unable to make good decisions or exercise appropriate judgment. There were possibly phases of acute psychosis where you would not be aware of what you were doing.
30 I consider that this latter opinion of Ms Cidoni's does not go so far as to establish a realistic causal link between your mental health illness and the commission of this offence.
31 This concern was raised at the first plea hearing and a further report was commissioned from Ms Cidoni. In that report, Exhibit D4, Ms Cidoni stated:
'The offending occurred in 2016 and the assumption is he was suffering from schizoaffective disorder or at least he was having severe paranoid delusions psychosis. His description of the offending was entirely different to what had occurred where it is highly likely he was suffering psychosis consistent with a schizoaffective presentation.'
32 Ms Bate, who appeared on behalf of the Director of Public Prosecutions, did not accept the diagnosis of Ms Cidoni nor that you were suffering from a mental illness at the time of the commission of the offence.
33 Neither party sought to have Ms Cidoni attend court to give evidence as to her conclusions, although it was suggested by the learned prosecutor that a psychiatric report be obtained.
34 Your counsel relied upon each of the six propositions set out in R v Verdins [2007] 16 VR 269 as relevant in mitigation of your penalty. However, it was conceded by Mr Newton that further information was required to make good that submission. Ms Bate conceded the operation of proposition five.
35 I accept that you suffer from a schizoaffective disorder but I am unable to find the causal link between it and your offending on 7 March 2016. Whilst it may have been present it has not been satisfactorily established on the balance of probabilities.
36 The victim of the assault, himself a doctor, did not describe any bizarre or delusional behaviour at the time of your consultation with him and the assault. Whilst you gave a different account in your interview with police as to what occurred, that interview did not take place until 23 June 2016. Of course, the giving of a different account does not mean you were delusional at the time.
37 Ms Cidoni has not adequately explained the basis of her opinion. She has made an assumption and then relied upon your description of what occurred in the doctor's surgery. Ms Cidoni has not referred to the victim's description of the offending, your deliberate conduct in seeking medication and your conduct following the doctor's refusal to give you what you wanted.
38 At the further plea hearing documentation from the Marngoneet Correctional Centre was tendered and marked Exhibit D5. That documentation set out your medical history whilst in custody at Marngoneet, courses you have completed whilst on remand, as well as the results of urine testing.
39 You have been diagnosed with a basal cell carcinoma of superficial type. This is located on your chest area. I am told by your counsel that you are awaiting referral to a specialist. You also suffer from numerous cysts and boils over your body. They have required ongoing treatment whilst in custody.
40 The psychiatric nurse's notes also suggest you are experiencing symptoms of paranoia and delusion. These relate, in the main, to your belief that you have been persecuted by police since the age of 17. Unfortunately you were not able to attend for a psychiatric appointment that had been arranged for you by the prison authorities.
41 Exhibit D5 shows that you have completed courses whilst in custody in Certificate II Cleaning, Certificate II in Kitchen Operations as well as a course in language, literacy and numeracy.
42 I turn to the gravity of your offending. Your offending is clearly very serious. You assaulted a defenceless doctor who was simply performing his job and responding to a warning that you were a drug seeker who had been refused medication by numerous other medical practitioners. He properly suggested you attend the emergency department of a hospital where you might be given appropriate treatment and medication. Your assault upon him was born out of your anger and frustration because he would not give you the drugs that you sought.
43 Apart from the physical injuries to his nose and face, some seven weeks after the attack he became extremely unwell and was later diagnosed with acute viral hepatitis C. It is not disputed that you were the reason he contracted hepatitis C. It is fortunate for him that medical testing shows that he is no longer infected with the hepatitis C virus.
44 I have had regard to the further statement of Dr Bast. This statement was tendered and marked Exhibit P3. Dr Bast stated that your attack on him was terrifying, particularly as he was trapped in the consulting room and that you were younger and physically stronger than him. He stated that you repeatedly punched him to the face. As you fled the clinic you made a further threat to get him.
45 Dr Bast stated that he suffered facial cuts and bruising as well as an undisplaced fracture at the base of his nose. He was severely traumatised and distressed as a result of your assault upon him.
46 In the months that followed the attack he experienced episodes of excessive sweating, fever, nausea, jaundice and extreme fatigue. As stated, he was eventually diagnosed with acute hepatitis C. He was not able to practice as a doctor for some time because of the possibility of infecting others and he had to undergo prolonged treatment. He suffered significant psychological trauma.
47 Exhibit P4 is a report of Dr Alex Marceglia of the Victorian Institute of Forensic Medicine. Dr Marceglia stated that Dr Bast is no longer infected with HCV and does not require any further testing or following up in regards to the HCV infection.
48 I consider that your moral culpability is high and that it is not mitigated by your mental health or any other factor.
49 I was provided with a copy of your criminal history. I note that on 12 November 2014 you were convicted of unlawful assault and theft. You were placed on a Community Corrections Order for a period of six months. You breached that order.
50 You also have a number of other convictions, most of which relate to theft occurring between 2004 and 2009. Included in those convictions was a failure to comply with a Community Based Order imposed on 21 April 2004.
51 You also have convictions in New South Wales between the years 2000 and 2003. Of concern is that you were convicted of assault occasioning actual bodily harm and common assault on 3 December 2001 for which you received imprisonment of 18 months, which was suspended on you entering into a bond. You were also ordered to perform 100 hours of community service. There is no suggestion you breached that bond or the community service order.
52 You have now been in custody for a period of 481 days of which 421 days relates to the matter before the Court. It is not insignificant that this is your first time in custody.
53 The 60 days not part of your pre-sentence detention relates to an appearance at the Heidelberg Magistrates' Court on 30 October 2018 on charges of theft, failing to answer bail, handling stolen goods and using a false document. You were convicted and sentenced to 60 days which was reckoned as already served.
54 The delay between your arrest for this matter and it being heard by this court was because you failed to appear on 21 September 2016. A warrant was issued for your arrest but was not executed until 2018 when you were arrested for the matters that were dealt with at the Heidelberg Magistrates' Court to which I have just referred. For some reason the warrant was not executed any earlier despite you continuing to live at the same address for the last 15 years.
55 You have been at Marngoneet Prison since 26 August 2018 and apart from the courses you have completed you have actively been working in the horticultural area each day of the week. I am also told that you have had no contact with your siblings since being remanded.
56 You were interviewed by police on 23 June 2016. You did not then admit your responsibility for the assault but blamed the doctor for assaulting you. However, on 3 April 2019 at the committal mention at the Melbourne Magistrates' Court you pleaded guilty. It is a plea of guilty entered at the earliest opportunity and your plea has spared the victim and other witnesses the stress of having to give evidence at a committal hearing and at a trial. You have also spared the community the time and cost of a trial. That is, there are utilitarian benefits to your plea which are significant and will be taken into account in the sentence I impose. There is no evidence before me that you are genuinely remorseful for your conduct and so I am unable to take that factor into account.
57 Your counsel, in his outline of submissions, submitted that you have solid prospects of rehabilitation. He relied upon your sustained work history until your late 30s, the fact that this is your first time in custody, and that you have been fully cooperative with police and made a valuable plea of guilty.
58 Mr Newton also relied on your willingness to participate in mental health treatment as expressed in the CISP report and noted that Ms Cidoni reports the treatment for your mental health and drug dependency should be mandated upon release. Ms Cidoni further considers that a psychiatric opinion for appropriate pharmacological treatment be obtained.
59 I am not able to find that you have solid prospects of rehabilitation on the evidence before me. However, that does not mean that you are incapable of rehabilitation. The time that you have spent in custody should provide you with strong incentive to obtain the treatment you need to rehabilitate. I also take into account the courses you have completed in custody and the fact that you have chosen to work whilst on remand. Those matters weigh in your favour on the question of rehabilitation.
60 I was referred by Mr Newton in the course of argument to paragraphs 14 and 15 of Johnston v The Queen [2013] VSCA 362 where Redlich JA stated, at paragraph 14:
'For a sentencing judge to be satisfied that an offender was affected by a particular mental condition so as to reduce his moral culpability there must be a realistic connection between the mental condition and the commission of an offence. It must have caused or contributed to the offending or have been causally linked to it. The argument raised here that the appellant's moral culpability should be reduced on the basis of an indirect causal link between the offence, his drug addiction and an underlying mental disorder must be rejected.’
61 At paragraph 15 His Honour stated:
'Where offending occurs in circumstances where the offender was affected by drugs or alcohol his substance abuse is not generally to be regarded as a factor in mitigation. Circumstances must be quite exceptional before the effects of drugs or alcohol at the time of offending can mitigate the offender's moral culpability. The underlying reasons sometimes advanced is that where a crime is the predictable consequence of a rational choice to take the drug, that choice establishes moral responsibility for the condition at the time of the offence. Where a person's mental state is affected by voluntary drug taking it will only constitute a mitigating factor in the rare circumstance where it is established that the offender did not have any fore knowledge of the mental state that would be induced by the taking of drugs. Where an offender suffers from a mental disorder the disorder is not to be treated as a mitigating factor because it explains the offender's recourse to drugs.'
62 As I have already stated, I am not able to find a realistic causal connection between your mental illness and your offending in the absence of further evidence. Accordingly, I do not find that your moral culpability is reduced by reason of your mental illness.
63 Mr Newton submitted that there was no evidence that you were affected by drugs at the relevant time. Indeed, it was the prosecutor who raised the possibility that you were affected by drugs or were, at least, withdrawing from the effects of drugs at the relevant time. In any event, I do not consider and it was not submitted that your offending would come anywhere near the exceptional or rare circumstance referred to at paragraph 15 of His Honour's judgment. There simply is no evidence of that. Further, it has not been suggested that your mental disorder explains your recourse to drugs or that it should be considered a factor in mitigation on that basis.
64 There is also no evidence before me that suggests there is a serious risk of imprisonment having a significant adverse effect on your mental health. However, I do accept that your schizoaffective disorder has meant that your time in custody on remand has weighed more heavily on you than on a person in normal health and will continue to do so if you are required to spend any more time in custody. The prosecution conceded that point.
65 In sentencing you I must have regard to the protection of the community, the deterrence of others from committing similar offences, as well as deterring you from committing further offences. However your mental illness, which I accept you suffer, will operate to moderate to some degree both general and specific deterrence.
66 I am also required to express the court's denunciation of your conduct and I do so. Your assault upon a conscientious doctor performing his job was, to put it simply, an outrageous act.
67 Your counsel submitted at the first plea hearing on 12 August 2019 that a combination of custody and Community Corrections Order sentence was appropriate. He maintained that submission when the plea hearing resumed on 25 September 2019.
68 The learned prosecutor submitted that I should impose a head sentence with a non-parole period but that a combination sentence was also open.
69 I have had regard to current sentencing practice. I am not aware of any similar case and counsel was not able to direct me to any case where the serious injury caused was hepatitis C. However, having regard to the offence of recklessly causing serious injury generally I consider that a combined custody and community corrections order sentence is available to me as a sentencing option.
70 In my opinion, given that this is your first time in prison and that you have now been in custody for a total period of 481 days, approximately 14 months of which is for the matter before me, I am able to sentence you to a penalty that will mean your immediate release from custody.
71 Subject to your agreement which is required under the Sentencing Act I propose to place you on a Community Corrections Order that will enable you to continue with your rehabilitation. I consider that such a penalty will best serve the protection of the community.
72 I need to also warn you that if you agree to enter into a Community Corrections Order and breach it you may be brought back before this court to be resentenced.
73 Before outlining the proposed conditions I note that you were assessed on 25 September 2019 by a Community Corrections officer. She has provided an assessment outcome report to the court and considers that you are suitable for placement on an Order with conditions. You told that officer that you are willing to comply with an order. That assessing officer was also of the view that you demonstrated remorse and understanding for the consequences of your actions. You acknowledged to her your need for assistance in relation to your addiction to painkilling medication.
74 The conditions that will attach to an order are as follows:
75 The mandatory terms that apply to all Community Corrections Orders are that you must not commit another offence for which you could be imprisoned during the time that the order is in force. You must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011. In general terms, Mr McMillan, that means you must not attend at the Office of Corrections in a drug affected state.
76 You must report to and receive visits from the Secretary or his or her delegate. You must report to the Community Corrections Centre at South Morang Community Correctional Services within two clear working days of this order starting.
77 You must let a Community Corrections officer know within two clear working days of your changing of address or job.
78 You must not leave Victoria without first getting permission to do so from the Secretary or his or her delegate.
79 You must obey all lawful instructions from and directions of the Secretary or his or her delegate.
80 Now the conditions that I will also impose are as follows.
81 You must be under the supervision of a Community Corrections officer for a period of 16 months.
82 You must undergo assessment and treatment including testing for drug abuse or dependency as directed by the regional manager.
83 You must undergo any medical assessment and treatment and that may include general or specialist medical treatment or treatment in a hospital or residential facility as directed by the regional manager.
84 You must undergo any mental health assessment and treatment and that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the regional manager.
85 You must also attend for judicial monitoring review on 18 December 2019 at 9.30 am before me.
86 I do not intend to impose any work conditions because of your mental health and physical difficulties. However, I stress the need for you to undertake treatment for your drug, mental health and medical issues as soon as practicable.
87 If you do not agree to enter into the order your case will be adjourned for a short period while I consider an alternative sentence.
88 Mr McMillan, do you agree to enter into the order on those terms and conditions and before saying so do you wish to speak to Mr Newton?
89
OFFENDER: No, I don't, Your Honour and I do agree to those conditions,
Your Honour.
90 HIS HONOUR: You understand each of the conditions?
91 OFFENDER: I do, Your Honour.
92 HIS HONOUR: And you understand what may happen to you if you breach the order?
93 OFFENDER: I do.
94 HIS HONOUR: All right. Mr Newton, do you want to say anything in respect to that?
95 MR NEWTON: No, Your Honour.
96 HIS HONOUR: All right, thank you. Mr McMillan, you are convicted and sentenced to a term of imprisonment of 421 days and pursuant to s.18 of the Sentencing Act I declare and reckon as the period of imprisonment already served under the sentence to be 421 days.
97 I further order that with conviction you be placed on a Community Corrections Order for a period of 16 months on the conditions which I have just read out to you, both mandatory conditions and those additional conditions.
98 I will hand down the Community Corrections Order for signature, Mr Newton.
99 MR NEWTON: As Your Honour pleases. May I approach the dock to assist my client?
100 HIS HONOUR: Yes, of course. Just before you do, Ms Bate, is there anything in relation to those conditions that you wish to be heard on?
101 MS BATE: No Your Honour, nothing in relation to the conditions. A forensic sample order is sought. I understand that's by consent.
102 HIS HONOUR: Thank you.
103 MS BATE: If that can be granted. Thank you.
104 HIS HONOUR: I declare that pursuant to s.6AAA had you not pleaded guilty to the offence I would have sentenced you to a term of imprisonment of two years and six months with a non-parole period of 20 months.
105 I make the orders sought by the prosecution pursuant to s.464ZF2 of the Crimes Act. I do so on the basis of the seriousness of the offence and the fact that the order is by consent.
106 Mr McMillan, that means that you must undergo a forensic procedure for the taking of a mouth scraping and/or blood sample in accordance with the provisions of the Crimes Act until a sufficient sample is obtained for placement on the database.
107 For this purpose you are to report to the officer in charge of the Mill Park Station at 151 Centenary Drive during the period of four weeks commencing 28 days after the day of sentence or once any instituted conviction appeal is finally determined and the conviction for the forensic sample offence is upheld.
108 If at the time of the request for a sample you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that procedure to be conducted.
109 HIS HONOUR: Do you understand that?
110 OFFENDER: I do.
111 HIS HONOUR: Mr McMillan, I will see you on 18 December 2019. At that time I'll be receiving a report from the Corrections officer and I hope that it's a positive report. I wish you all the best.
112 OFFENDER: Thank you, Your Honour.
113 HIS HONOUR: Please adjourn the court.
114 MS BATES: As the court pleases.
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