Director of Public Prosecutions v Molloy
[2018] VCC 1199
•3 August 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 17-02519
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL KEVIN MOLLOY |
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| JUDGE: | HER HONOUR JUDGE CANNON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 7 May and 7 June 2018 respectively |
| DATE OF SENTENCE: | 3 August 2018 |
| CASE MAY BE CITED AS: | DPP v Molloy |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 1199 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – Pleas of guilty – Recklessly cause serious injury – Criminla damage – Reckless conduct endangering person – Possess drug of dependence – Resist emergency worker – Possess controlled weapon without excuse – Ongoing serious physical disability effecting victim’s arm/hand - History of drug abuse – History of mental illness – No Defence of mental impairment available - Differing psychiatric opinions as to mental health diagnosis – Psychosis proximate to offending – Finding that psychosis not drug induced but organic in nature – Judgment substantially impaired
Sentence:Convicted and sentenced to 280 days’ imprisonment together with Community Corrections Order of 3 years’ duration – 280 days pre-sentence detention declared as having already been served – s.6AAA Sentencing Act 1991 declaration – Ancillary orders – Forensic Sample and Disposal orders
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Harrold ( Plea) Ms P. Thorp ( Plea and sentence) | Solicitor for Public Prosecutions |
| For the Accused | Ms S. Lacy | James Dowsley Associates |
Pages 1 - 28
HER HONOUR:
1Michael Molloy, you have pleaded guilty to the following charges on the indictment:
2Recklessly causing serious injury, which has a maximum penalty of 15 years' imprisonment.
3One charge each of criminal damage and fail to stop and render assistance after an accident, both of which have a maximum penalty of 10 years’ imprisonment.
4Reckless conduct endangering the person which has a maximum penalty of five years’ imprisonment.
5Possessing a drug of dependence, which, in your case, has a maximum penalty of 12 months’ imprisonment or 30 penalty units.
6You have also pleaded guilty to the summary offences of resist police, which has a maximum penalty of six months' imprisonment or 25 penalty units, and possess controlled weapon without excuse which has a maximum penalty of 12 months' imprisonment or 120 penalty units.
7The maximum penalties reflect the seriousness with which Parliament regards each of the offences and is one matter which I must take into account when sentencing you.
8The prosecution told me that you were 37 years old at the time of the offending, and that you are now 39.
9The principal victim in this matter was 43 at the time of the offending. He lived at an address in Frankston with his wife and his nine year old daughter.
10Your residence backed directly onto the victim’s residence. The two houses were very close to each other but were separated by a low fence.
11The principal victim’s family started experiencing issues with you in about mid-2016, as you were playing loud music late at night for days on end. The victim and his wife both spoke to you on a number of occasions about the music, and the situation improved, with the victim’s family rarely noticing you.
12In late 2016, you began leaving bags of items hanging over the back fence for the victim's family, including toys and food. The victim returned the bags to your side of the fence with a note saying that the items didn’t belong to them. After this, the principal victim felt the relationship with you improved and there were no further problems for a time.
13In the evening of 5 March 2017 you threw a money box at the wall of the victim's house from your property, which split open and spilled a number of coins on the ground. The principal victim and his wife attempted to speak to you about the situation over the fence, but you did not engage in any conversation.
OFFENDING
14On Tuesday the 7 of March 2017, you entered the yard of the victim's property while the family were away from the house for the day. Using pieces of bricks and a concrete block from the victim's back yard, you smashed a number of windows of the house, including four bathroom windows, two lounge room windows, the garage window and a laundry window. A small hole had also been burned into the lounge room blinds. This conduct gives rise to Charge 1: Criminal damage.
15The damage was discovered by the principal victim's wife upon her return from work and was reported to police; however, no officers were available to attend until the following day. As a result of the incident the principal victim and his family feared for their safety and installed CCTV cameras.
16At about 9.25pm on Wednesday 8 of March 2017, the principal victim’s daughter noticed on the CCTV monitor that a vehicle was parked in the common driveway of the units, with its headlights pointed at their house. The principal victim saw your car sitting out the front of the house for “quite a while” and eventually decided to go outside to investigate.
17As he approached your car, the victim realised that it was your car. He went to the driver side window and asked you what you were doing, but you ignored him and stared straight ahead. You then started to reverse your car out of the driveway, so the principal victim turned around to walk back towards the house.
18Suddenly, you drove your car straight back at the principal victim. Hearing the engine revving loudly, the principal victim knew the car was coming towards him and turned his body to the right. Your car struck and threw him into the garden bed next to his house, resulting in a serious injury to his right lower arm. This incident gives rise to Charge 2, recklessly causing serious injury.
19The principal victim was in extreme pain and bleeding from the injury to his arm, but he got to his feet and ran to the front door of his house. You reversed your car a short distance and then drove toward the front door of the house, where the principal victim was attempting to get inside. The victim’s wife, who had seen the collision from inside the house, helped her husband through the door as you drove your car towards both of them. The car struck trees and a rubbish bin near the front door, preventing a collision with the house. Your conduct in this respect of this incident gives rise to Charge 3, reckless conduct endangering persons.
20You reversed your car again and waited for a short time out the front of the house before driving away. This conduct gives rise to Charge 4, failing to stop and render assistance after an accident.
21The principal victim’s wife called 000 and the principal victim’s brother for assistance. A neighbour who had witnessed part of the incident also attended to help the principal victim and spoke briefly to the 000 operator when the principal victim’s wife became too upset to continue the conversation. Police and ambulance attended the scene.
22At about 9.50pm, the principal victim’s brother noticed recognised your car parked on the side of the road near the principal victim’s house. He pulled up beside you and told you to return to the scene. However, you attempted to drive away. The principal victim’s brother moved his car forward to block you in. The two vehicles collided and you then attempted to reverse away. You were blocked by the principal victim’s brother several times, resulting in significant damage to both his and your car. Eventually, you were able to escape when the principal victim’s car stalled.
INJURIES
23The principal victim was taken to the Alfred Hospital, and was found to have suffered the following injuries: a fracture of the outer end of his right forearm bone; superficial abrasions on the arms and abdominal skin; superficial abrasion and bruising on the right ear; a laceration to the neck; a blood clot in the right forearm artery (discovered during surgery); and a median nerve injury.
24He underwent surgery for his fractured right arm on 9 March 2017 where a metal plate and screws were inserted near the wrist. Specialist plastic surgery was required for wound cleaning and ulnar artery repair, and a full thickness skin graft was also required to close the wound on the wrist.
25Following the surgeries, the victim experienced a significant reduction in the range of movement of his right wrist and altered sensation in his right ring and little fingers. He also suffered ongoing moderate to severe wrist pain, difficulty sleeping and psychological trauma in the months following the offending, and he has required ongoing occupational therapy as a result.[1]
[1]Report of Annemarie Marshall, South East Hand Therapy.
ARREST and INVESTIGATION
26You were found in your car by police in Prahran at about 4am on 10 March 2017. You ignored several directions from officers to get out of your car, and leaned over to the passenger side, where the officers had earlier noticed a knife.
27In fear for their safety, police physically removed you from the vehicle. They attempted to handcuff you, but you refused to comply with instructions to put your hands behind your back; instead, you attempted to force both hands under your body and roll onto your side. After a short struggle, officers managed to pin you down and force your arms behind your back, enabling them to handcuff you. This event gives rise to Summary charge 6, resist police.
28A search of your car was conducted, during which, a number of weapons were found, including a multi tool, a baseball bat, a carving knife and a steak knife. This gives rise to Summary charge 8, possess controlled weapon. A compound bow with six arrows was also found in your car at the time of this search (this is not a controlled weapon). A receipt found in the vehicle indicated that the bow and arrows had been purchased on 4 March 2017, so only days before you commenced offending against the victim and his family.
29A small plastic zip lock bag was also discovered in the vehicle, amongst a plastic container of leaf material. The zip lock bag contained 2.8 grams of synthetic cannabis, giving rise to Charge 5, possess drug of dependence. It is accepted by the prosecution that you were in possession of the drug for your own use.
30You were initially taken to Frankston Police station but after disclosing an injury to your right arm, you were taken to Frankston Hospital where it was discovered that you had sustained a broken arm during the arrest. This was further explained during the plea hearing after I expressed some disquiet about this aspect.
31After receiving treatment, a recorded interview was conducted during which, you said the following things:
32The people living behind your house had been coming into your property “for a while”, and had left fingerprints and other genetic evidence behind. You said had not reported this to police but had been hearing about the people coming into your house “through the grapevine”. (Q82-90; 165-168, 305)
33You said you were afraid of the people coming into your house and doing things, so you tried to scare the victim away with your car. You had thought to scare the victim by making him think that the car was going to hit him, and then steer it away. However, the victim had started running backwards and fell. You didn’t think that you had hit the victim. (Q143, 169-174, 269-283)
34You said that after the victim went inside the house, you hung around a little while because you weren’t sure if you had scared him enough. (Q176)
35You thought that you had only driven at the victim once. (Q175-177).
36You drove away from the scene because you were afraid for your life. You had been hearing through your “people” that “the white supremacists” wanted to kill you and were connected to the victim, who was also a white supremacist. (Q161-163)
37You said you were “not proud” of causing damage to the windows of the victim's house but “did what [you] had to do to scare [the victim] away”. (Q182-188)
38When arrested, you had been unable to get out of your car through the driver side door because it was too badly damaged. You had leaned over to the passenger side only to exit the car, but you were then pulled out by police. (Q205-217).
39You said you had two knives in your car, one being a kitchen knife and a smaller one from home “just in case”. You had bought the kitchen knife after the offending “to scare away your neighbours”, and agreed that you had purchased the bow and arrow before the offending. You said you had the items to scare away the white supremacists and defend yourself from the neighbours who were following you around. (Q219-247)
40The green leaf material was a natural herb mix called “Dreamweaver” which you had purchased from an adult store some weeks before, and could be mixed with cannabis to make it last longer. You admitted the small plastic bag with the Dreamweaver was synthetic cannabis. (Q250-267)
41Mr Molloy, your offending is serious and is deserving of a punishment which is just in all of the relevant circumstances and must be appropriately denounced in such relevant circumstances. Objectively, your offending is most serious and concerning. Your actions toward the victim and his family were extremely frightening and dangerous, especially the driving incident which saw you causing the victim serious injury.
42In your case, a significant aspect of the relevant circumstances to which I have just referred are in respect of the state of your mental health at the time of the offending. I shall refer to the material in respect of your mental health in more detail in due course, as there has been some difference of opinion as between the various professionals involved in your case.
43I will now refer to the victim impact statement in this matter, as I must take into account the effects of your offending on the victim or, rather, victims in this matter.
44As you would expect, the impact on the principal victim and his family has been profound.
45Your actions have greatly affected the quality of life of the principal victim and his family. The principal victim has suffered sleeplessness and he lives in constant fear of someone harming himself or his family. His daughter, who was a confident child, has been unable to sleep in her own bed or go to the back yard to play as she did before, due to her fear of being harmed. She has also had to change schools. Your offending has also affected the family financially, as the principal victim was unable to continue his renovation and maintenance business for a number of months, due to the injuries that you caused. He has had to give up his business and look for other areas of work which do not involve manual labour. The financial impact was devastating, resulting in the victims having to sell their home and rent.
46The principal victim is still not able to use his right hand to its full capacity and he is in constant pain. He has to wear a brace throughout the day to support his hand. He is concerned because of advice from surgeons that he may never fully recover from the nerve damage that his hand has suffered. He said that he expects that the emotional and financial impact of what you have done will endure for years to come.
47Mr Molloy, these are the very real effects of your offending on these people, and I must factor these in when sentencing you.
48In your favour, you have no prior convictions and no subsequent, which are relevant matters when it comes to considering your prospects of rehabilitation and the weight which ought attach to specific deterrence. Further, you entered pleas of guilty at the earliest opportunity which has saved the witnesses, especially the victims, the time and trouble of giving evidence and you have saved the community the time and expense of running contested proceedings. As time has gone on, you have developed a little insight into the seriousness of what you have done and have expressed some remorse for it from time to time. However, you still have a long way to go in this regard. I accept that your ability to be thoroughly insightful and remorseful however is compromised by your mental health issues.
49There has been some delay in this matter to enable your mental health issues to be thoroughly explored. In the intervening period you have shown a capacity to rehabilitate as you have not committed any subsequent offences and I understand you have been free from illicit drug use or alcohol abuse during that period.
50I will now deal with the issue of your mental health as this is a central matter in your case:
51I understand that about ten years ago, you had been treated for several years for major depressive disorder and ADHD by a psychiatrist, Dr Weiss. Various medications had been attempted during this period.
52On 23 February 2017, you were compulsorily admitted to Frankston Hospital Psychiatric Unit, and you were discharged on 3 March 2017-so, you were discharged about three days before the offending commenced. According to the discharge summary, you were diagnosed as having suffered a drug induced psychosis in the context of cannabis abuse. You were reporting that you had been poisoned and that your testicles were burning and shrinking. You reported to staff that you had been having trouble sleeping for the past few days, that you had ADHD which had made it difficult to concentrate and that you also had major depressive disorder.
53You said that you had been smoking half a gram of cannabis every night and had used synthetic cannabis every day. On 24 July 2017, you told Dr Walton that you were also taking ¼ gram of heroin per day for a year leading up to the offences. There has also been mention by you by way of self-report from time to time which is recorded in the materials of having abused alcohol. Indeed, you have not been entirely consistent as to what you were taking and in what measure leading up to the time of the offending.
54In his report dated 26 April 2018, your GP, Dr Taylor also indicated that you had been addicted to heroin in the past. I understand that, in the past, you had been dependent on Oxycodone and were currently on methadone.
55Going back to your time at Frankston Hospital which occurred shortly before the offending you were prescribed 5 mg Olanzapine daily and 10 mg nightly and you were given these medications while you were staying in hospital with the effect of your symptoms settling somewhat.
56You gained some insight about your paranoia and thought that this might just be a simple case of poisoning. You also believed that chronic substance use might have contributed to your admission to hospital. You agreed to abstain from drugs and were discharged from hospital with advice to continue on antipsychotics for at least six months, which your mother agreed to supervise.
57You were discharged from hospital on 3 March with acute psychiatric service follow up but, as was observed by Deborah Kendall, senior psychiatric nurse, from the Forensicare Mental Health Court Liaison Service, there is no record of any follow up ever taking place.
58You commenced commission of the offences for which I now sentence you on 7 March 2017-so, as I have said, three days after you were discharged from Frankston Hospital.
59You were arrested and interviewed on 10 March 2017 and you were seen by Ms Kendall, Forensicare Mental Health Court Liaison Service on 15 March 2017 at 10 am. You were still expressing paranoid beliefs in relation to your neighbour, and said that you thought that the police were also involved. You denied use of any drug since discharge. Ms Kendall opined that you were suffering an acute psychosis, which may have been drug induced or a schizophrenic type illness, and that further treatment and assessment was needed. You did not accept that you might have been suffering a psychotic disorder.
60On 7 April 2017, you were neurologically assessed by Ms Susan Carey, clinical neuropsychologist. She was unable to determine if you had an acquired brain injury as you were still experiencing acute psychiatric disturbance. She said that your substance abuse history suggested that you were at risk of a substance related acquired brain injury, and that you might have been minimising your substance abuse history. However, she was of the view that you were still experiencing acute psychiatric symptoms, as at the time that she saw you, and she could not give an opinion in respect of whether you had an acquired brain injury until your condition stabilised.
61Dr Lester Walton consultant psychiatrist then saw you on 24t July 2017, 27 November 2017, 26 April 2018 and 5 July 2018. Initially his role was to assess whether in fact you had a defence of mental impairment, and as I understand it also to assess whether you were sufficiently fit to plead.
62In his first report dated 27t July 2017, he was of the view that the preferred diagnosis of was one of drug induced psychosis. However, he said that he was concerned that you still seemed to have some residual deluded notions which raised the possibility that you might be suffering from schizophrenia complicated by drug use. He acknowledged the significance of the medico-legal ramifications in respect of the issue.
63He also said that ADHD could be excluded as a current diagnosis. He said that you had no defence of mental impairment available to you, ‘because of the particular nature of your psychiatric condition’. However, he said that your drug induced psychosis at the time of the offending was ‘relevant to you overreacting to the neighbour with likely disinhibition of aggression and poor judgment with inadequate consideration of the consequences of (your) actions.’ He said that it was certainly possible for the most accurate diagnosis to be arrived at with the passage of time although this was likely to take ‘some months.’
64On 4 August 2017, having examined you at the Melbourne Assessment Prison, a Dr Pandurangi psychiatrist from Forensicare, was of the view that your presentation, as at that time, was suggestive of ongoing psychotic symptoms in relation to the offending. He noted that your beliefs, which were persecutory in nature, had ‘persisted for a prolonged period of time, despite being on assertive treatment and in a relatively drug free environment in the context of you having spent a long time on AAU-(Acute assessment unit). He said that, "I believe he has an enduring mental illness such as schizophrenia.’ He went on to say that in view of the serious nature of the offending, your ongoing persecutory beliefs about your neighbour and poor insight, that, if you were to be released from gaol (at that time on bail), you would need to be transferred to an inpatient unit on an assessment order so that your medication could be ‘rationalised’ and community placement reviewed. Therefore, you were still seriously unwell five months after the time of your offending and apparently without having imbibed illicit substances.
65In his report dated 30 November 2017, Dr Walton noted that your account of the events which gave rise to the charges had altered somewhat. You said that you had been the victim of a nasty neighbour and that you went to confront him which led to your neighbour abusing you. You said that you revved the engine of your car to scare him and that he fell over and hurt himself. You expressed some remorse for what you had done, notwithstanding this skewed account. You reported being on a number of medications, including anti psychotics. Dr Walton concluded that, in the absence of any prison medical record, the proper diagnosis in respect of what you were suffering at the relevant time, that is the time of the offending, was one of drug induced psychosis.
66He said that whether or not your grievance with your neighbour was delusional or factual, there was no other evidence of current psychosis. You were abstinent from illicit substances and you saw your previous drug abuse as being relevant to the offending. I note that at this time, you were taking medication which I would have thought would be expected to alleviate psychotic symptoms so it is not entirely clear to me as to why it is that Dr Walton takes the definitive view that he does in respect of your diagnosis at the time of the offending. It was apparent in my view that Dr Walton had not seen Dr Pandurangi’s report as at this time.
67Dr Walton saw you again on 26 April 2018. You continued to say that you were provoked by the victim, but you also expressed remorse. He found that you were symptom free apart from some residual depression. You were still receiving anti-psychotic medication. He said that he remained of the view that you had suffered from a previous drug-induced psychosis.
68In early May 2018, after a good deal of effort on the part of your mother and instructing solicitor, you were seen by Dr Paul Brown, psychiatrist, having been referred to him by your GP. He had seen you on three occasions as at the time of the last plea hearing. In his report dated 30 May 2018, he made reference to the various reports of Dr Walton and to his opinion. Dr Brown used a mental state tool for assessing paranoia and schizophrenia from the internet called ‘Psych Central’, which, he said, was the largest and oldest independent mental health online resource.
69Having conducted the assessment, he was of the opinion that both at the time of the attack and at the present time, you manifested and continued to manifest a paranoid disorder. He said that as you had stopped taking illicit drugs for over a year, your psychiatric diagnosis had shifted from drug induced paranoid psychosis to an autonomous paranoid schizophrenia.
70I was told at the further plea hearing today by Ms Lacy on your behalf that having consulted with Dr Brown he was still of the view as to your diagnosis and had not changed that view, having heard of Dr Walton's. Further he gave some information as to the appropriateness of your medication.
71Your Counsel indicated that she did not rely on the opinion of Dr Walton, and submitted that the opinion of your treating psychiatrist was to be preferred.
72Ms Lacy took the opportunity to have Dr Walton review the report of Dr Brown and other material including the opinion of Dr Pandurangi.
73In his further report dated 19 June 2018, having noted the opinions of Dr Pandurangi and Dr Brown, Dr Walton said: ‘If it is accepted , as he asserts, that Mr Molloy had not been indulging in any illicit drugs for some months then it is most unlikely that he would have remained in the grips of a drug-induced psychosis to explain the paranoia, if any. However, it is recognised that in a relatively few cases, a drug induced disorder may be quite protracted. I am not convinced that is the case with Mr Molloy.’
74Therefore, Dr Walton appears to take the view at this stage of his report that your symptoms are not likely to be attributable to a drug induced disorder. He noted that Dr Brown’s diagnostic approach was reliant on your self-report rather than his own direct observations. He said that he had not heard of the assessment tool, ‘Psych Central’, but that he was rather confused as to how the personality testing had led to a diagnosis of schizophrenia which was an illness, rather than a personality disorder.
75Dr Walton said that he had assessed you on a number of occasions and was in a position to compare your presentations over the relevant period. He said that his striking impression of you as at the time of his latest consultation with you, was one of normality, and that therefore he was disinclined to the view that you suffer from paranoid schizophrenia which is an enduring psychotic illness although he acknowledged that the illness could certainly ‘wax and wane in severity independently of any drug abuse.’
76In his final report, dated 10 July 2018, Dr Walton indicated that he had read all of the material previously sent to him but only referred to material in his previous report which he found to be ‘essentially relevant.’ He referred to the medications that you were receiving, which he found rather perplexing in some respects, apparently in view of your treater’s diagnosis of you. I should say that Ms Lacy, having spoken with Dr Brown, has indicated that Dr Brown has medicated you in the way that he has because of in part his concern for protection of the community.
77In any event Dr Walton said that your level of depression had improved. He said that you appeared to be untroubled and noted that you reported that you had not imbibed cannabis since you last arrest. You maintained your view that your neighbour had been aggressive toward you, but, otherwise, Dr Walton found that you did not have any deluded ideas. You said that your present treatment regime made you feel better.
78 He ultimately accepted that his diagnosis was not infallible and that your illness was not one of text book drug induced psychosis, but, at this stage, he did not seek to change his opinion. He concluded, by saying: ‘Whether or not Mr Molloy has suffered from a drug induced psychosis now in remission or that he suffers from schizophrenia, the latter condition must be reasonably mild given the apparent degree of recovery he has enjoyed, which certainly is favourable in the longer term, regardless of the precise diagnosis.’
79According to your GP, Dr Taylor (report dated 26 April 2018), who has seen you over a number of years, you have suffered from significantly disordered perceptions of the world and seemed to be unable to establish normal significant relationships, saying that you were lacking in interpersonal skills. He said that if you were to be imprisoned you ought be psychiatrically assessed early as you would be vulnerable in gaol. He noted that your drug addiction was a commonplace problem of patients with a psychiatric illness. He also noted that you had suffered psychosis on 15 December 2017, but I must say that I assumed that he was referring to your hospital admission in 2018.
80According to your treating psychologist, in her report dated 30 March 2018, you are severely depressed and needed further neurological follow up.
81In the end, factoring in all of the material in respect of your mental health, as it was at the time of the offending, and as it is now, I make the following findings:
82It is clear that as at the time of the offending, you were suffering from a psychosis, the effects of which appeared to have endured for a considerable period after the offending, and the symptoms of which emerged shortly prior to the offending. At the time of the offending, you were abusing drugs and had been for some time. After your arrest, you ceased to abuse drugs, but your symptoms persisted, albeit that they alleviated over time, but also in the context of taking anti-psychotic medication. I must say that I am somewhat perplexed by Dr Walton maintaining his opinion in the face of the observations of you whilst in gaol, which was the very thing that he had indicated might well impact on his views. The observations ran counter to his diagnosis, as did the opinion of your treater, but he maintained his view. However, he also said that it was unlikely that your symptoms would last as long as they were said to have if your psychosis had been drug induced.
83Weighing up the competing views and observations of you, including those of your GP, who had seen you for longer than anyone, and factoring in the expertise of all of those involved, and the quality of their reasoning, I am satisfied on the balance of probabilities that at the time of the offending, you were suffering from a psychosis which was not drug induced, but rather, was of an organic nature-a condition which you may well have been self-medicating for some time. While the drugs would not have helped your condition as at the time of the offending, I do not find that they were the cause of the psychosis which you suffered.
84Therefore, I allow for a fairly substantial reduction in your moral culpability and the weight that would otherwise attach to specific deterrence, and I make a fairly substantial reduction in the weight that would otherwise attach to general deterrence:-In your deluded state, you behaved in this most frightening and harmful way toward your neighbour/s, as your judgment was substantially impaired, as was your ability to make calm and rational decisions.
85Further, in view of the material before me, I am of the view that your mental health at the time of the offending and now is relevant to the type of disposition that is appropriate in your case. I also find that any time in gaol would be harsher for you than for someone who is not labouring under your present symptoms, which are in the nature of depressive symptoms, although somewhat improved, and that incarceration may well lead to the deterioration of your mental health. In this regard I also note that you have physical health issues in relation to your cardiac situation regarding your cardiac condition. On the other hand, I must give fairly substantial weight to the need to protect the community.
86In terms of the harshness of imprisonment I should also add that I am also of the view that your overall presentation would place you in a more than usual position of vulnerability. I take into account your background which was set out in the written submissions:
87You are 39 years old, and are the only child of your parents’ marriage. You were born in New Zealand, and your family migrated to Australia in 1982 when you were three years old.
88Your father became an alcoholic and you witnessed him being violent towards your mother when you were a small child. Your parents separated when you were seven years old and you have had little contact with your father since this time.
89You have an older step sister but have no contact with her.
90You completed high school then worked quite consistently in tool manufacturing, retail and security work until 2012. I understand that you suffered damage to your back and knees caused by using jackhammers in manual labouring jobs, which then led you to self-medicate with opiates and cannabis. As I have said, it appears to me you were also self-medicating in relation to mental health issues.
91You have had one long term relationship which ended in 2012. Since 2012 you have received the disability pension due to your mental health issues.
92You lived independently until you were remanded. You now live with your mother and her husband. Your mother has been very attentive to your needs and treatment for a good while. You are very fortunate to have her in your life, as I am sure you appreciate.
93You are now being effectively treated in the community, and have not committed any further offences. Your prospects of rehabilitation are very much caught up with you continuing to address your mental health issues and your drug issues, but you have been doing for some time and I hope that it does continue. In view of your early pleas of guilty, lack of criminal history or subsequent matters, your firm support and supervision from your mother and practising professionals, as well as the treatment regime you are now following, I regard your prospects of rehabilitation are guardedly good.
94The prosecution submitted that you ought be sentenced to a term of imprisonment with a non-parole period. The Crown also submitted that Verdins did not apply in circumstances where they submitted the weight of the psychiatric evidence was against the finding that you were suffering from an organic psychiatric illness.
95Your counsel submitted that it would be appropriate to impose a gaol term on the basis of time already served in gaol in combination with a suitably crafted community corrections order so that you would be able to continue on the path of rehabilitation that you have been on for some time.
96I arranged for a detailed assessment to be conducted by Community Corrections in a bid to see whether you would be deemed suitable for such a disposition but without committing to whether it would be appropriate in your case to impose such an order, and if so, whether a further period in gaol would be warranted before undertaking a community corrections order. You have been assessed as suitable for a community corrections order, although the assessing officer did have some concerns about your presentation.
97I also note from the report that your mother does not intend to continue to have you live with her after these proceedings but would help you find suitable accommodation very close by and would monitor you closely. During the further plea hearing of this matter today the police informant provided the learned prosecutor with a letter from your mother's partner which indicated his sentiment that he wished you to move out of the home.
98In terms of you not living with your mother this has caused me some concern, as you were living on your own when the offences for which I now sentence you were committed and apparently under your mother's supervision and care at that time. However, Ms Lacy told me that your mother would ensure that you lived nearby and could continue to closely monitor you, including you taking your medication. Your mother is present in court today and I understand that this information was very much provided on instruction from her.
99With appropriate supervision and treatment which will be required under a community corrections order, in addition to the supervision to be offered by your mother, I am of the view that you can be adequately monitored. The question is whether I must return you to gaol in order to do justice to all relevant sentencing principles.
100You have been in gaol for 280 days, which is a significant period for a first time offender and for someone with your mental health issues. However, if not for the reduced weight that I have applied to various sentencing principles, I would not have had any hesitation in sending you to gaol for a substantially longer period than the time you have already served in gaol. Protection of the community is an important consideration in your case, and again, their safety from your conduct is very dependent upon you doing all that you need to do in order to address your mental health issues. Further, you must not take any illicit drugs like cannabis or heroin, or anything else for that matter, including abusing alcohol, apart from the medication that you are prescribed to take by Dr Brown or any other treating psychiatrist you might engage with in the future with the approval of Community Corrections.
101I also note that Dr Brown is now seeing you once monthly and he is keenly aware of the need to closely monitor you and appropriately medicate you to avoid any reoffending.
102In my view, the community’s safety is best served by you continuing on the path of rehabilitation that you have already commenced, and I would regard it as a backward step in terms of your rehabilitation and the community’s safety, to return you to gaol. But, Mr Molloy, make no mistake, if you commit offences in the future, or if you do not obey all of the requirements of the community corrections order that I am about to impose, you will face the very real prospect of going back to gaol for a significant period. Do you understand that?
103Would you please stand up? You are convicted of each of the offences both on the indictment and the summary matters.
104In all the circumstances, I do not intend to exercise my discretion so as to make an order in respect of your driver's licence, or ability to obtain one.
105I make an order for a forensic sample to be taken by way of a swab of saliva from the mouth. I make the order because of the seriousness of the offences, because the order is not opposed and because it is in the public interest to make such an order. I warn you that if you do not co-operate with the authorised officer in the taking of the sample then he or she may use reasonable force in order to obtain that sample.
106Further, I make the disposal order which is sought by the prosecution and not opposed by you.
107I sentence you to a term of 280 days’ imprisonment in combination with a community corrections order, the terms and conditions of which I will tell you about.
108I can only place you on such an order if you agree to undergoing the community corrections order, so please listen carefully to what that order would involve.
109The community corrections order would run for three years from today.
110There would be the mandatory terms that apply to all community correction orders, which are:
111You must not commit another offence for which you could be imprisoned during the time that the order is in force;
112You must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations 2011;
113You must report to, and receive visits from, the Secretary to the Department of Justice (or his or her delegate);
114You must report to Frankston Community Correctional Services at 2 pm next Monday 6 August 2018.
115You must let a community corrections officer know within two clear working days of you changing your address or job;
116You must not leave Victoria without first obtaining permission to do so from the Secretary to the Department of Justice (or his/her delegate);
117You must obey all lawful instructions from and directions of the Secretary to the Department of Justice (or his/her delegate).
118The conditions that apply in addition to the mandatory terms listed are:-
Supervision
119You must be under the supervision of a Community Corrections Officer for a period of three years from today.
Treatment and Rehabilitation
120You must undergo assessment and treatment including testing for drug and alcohol abuse or dependency as directed by the Regional Manager, and I require that you undergo intensive and ongoing treatment and monitoring by Community Corrections in relation to these issues.
121You must undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility, as directed by the Regional Manager. In this regard, I request that Community Corrections liaise with your current treaters with a view to maintaining the treatment regime that you are currently subject to, and I also request that Community Corrections contact the CAT team at the Frankston Hospital and make them aware of the need to attend on you in future, if the need arises.
122You must undergo programs or courses aimed at addressing factors relating to the offending as directed by the Regional Manager.
123Further, you must attend at court to be monitored by me when required to do so. Ahead of each appointment I will receive a report from Community Corrections so I will know how you are going on the order. Your first monitoring appointment will be on Friday 9 November 2018 at 9.30 am. So on that day you come and see me and we will discuss how you are going on the order.
124If you wish to vary any of the conditions of the order, then you must apply to the Court to do so.
125Mr Molloy, do you consent to the terms and conditions of the order?
126I should tell you that if you do not comply with all of the requirements of this community corrections order then you will face breach proceedings before me. You will be sentenced in relation to the breach and you will be re-sentenced in relation to the charges-in which case you may well be sentenced to a further period of imprisonment. I would regard a breach of the community corrections order as a most serious matter, whether it be because of further offending or because of non-compliance with any of the other conditions of the order.
127Do you understand this? Do you maintain your consent to the order?
128I’ll have my associate have you sign a document which will be provided to you now, which records the terms of the community corrections order and I’ll ask Ms Lacy to assist you in the signing of it, so take a seat for the moment please, Sir.
129I declare that you have already served 280 days by way of pre-sentence detention, so as I say you are sentenced to that term of imprisonment but that time has already been served.
130Thank you, I have signed that order.
131MS THORP: Your Honour, there are just two matters I was wanting to raise. The maximum penalty for the resist police charge is six months' imprisonment and he has spent in excess of that in custody which is 280 days.
132HER HONOUR: In combination, is it?
133MS THORP: It is in combination.
134HER HONOUR: It is an aggregate term?
135MS THORP: It is an aggregate term. I would have to go back and check specifically but I think ‑ ‑ ‑
136HER HONOUR: I think because it is in combination with other matters I do not think that is a problem.
137MS THORP: Yes.
138HER HONOUR: If it is get back to me but I would not have thought it was.
139MS THROP: Yes, I am not sure, Your Honour, so I just thought I would raise that.
140HER HONOUR: I mean if there was no period of imprisonment applicable to that offence that would be a different thing.
141MS THORP: It would, yes.
142HER HONOUR: But it is in combination and it is an aggregate term, fit to plead, so I would have thought I can do it but if I cannot let me know.
143MS THORP: I will look into it more deeply. Also I just wanted to make sure that in relation to the charge of possess a controlled weapon that did not include the bow, which it did say in the summary originally, but that was part of the controlled weapons offence. But it is not actually a controlled weapon apparently, so that does not relate to that offence.
144It is relevant that he was found with it in his car and Your Honour did not say specifically that it was.
145HER HONOUR: It is part of the schedule in the disposal order.
146MS THORP: Yes, and we ask for him to dispose of it.
147HER HONOUR: I would like him to dispose of it too.
148MS THORP: Yes, but just for clarity.
149HER HONOUR: Thank you for that. I will revise my remarks and if I have ‑ ‑ ‑
150MS THORP: You did not specifically say it was.
151HER HONOUR: No, I did not think I did.
152MS THORP: No, you just mentioned that it was found in the car.
153HER HONOUR: That is what the opening said, yes.
154MS THORP: That is right. When I was on my feet doing the opening I pointed out that it did not refer to the bow but I just wanted to make sure that that had not been forgotten.
155HER HONOUR: Do you ask that I revise my reasons to make that clear?
156MS THORP: No, Your Honour, no, but if Your Honour already has said that, these words at the end, that it does not apply to that.
157HER HONOUR: Yes, thank you. Anything, Ms Lacy?
158MS LACY: If I can just advise Your Honour for Your Honour's own knowledge that apropos of the letter that was received this morning ‑ ‑ ‑
159HER HONOUR: I am sorry, I did not even ask you about that.
160MS LACY: No, that is fine. Contact was made with Mrs Roadstead's brother and he is going to take Mr Molloy in for the next few weeks. He lives nearby too, so that while they find other accommodation in order to ease the pressure that was a concern for the informant.
161HER HONOUR: That is good to know. That is very good to know.
162MS LACY: But his family is on board in assisting.
163HER HONOUR: Yes, and I was going to say I am sure they know and his mother has been assiduous in this, but if he looks like becoming dangerous again obviously he has just got to go and get the help that he needs from whoever it is and probably inform the police to make sure that no-one else is harmed. I am sure she knows all that.
164MS LACY: Yes.
165HER HONOUR: Thank you. Mr Molloy, I am going to see you in November and I will get a report to see how you are going on the community corrections order and I am sure it will be good news and I hope it is, otherwise we will have to have a pretty stern chat. Yes, thank you, we will now adjourn.
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