Director of Public Prosecutions v Mulcahy

[2019] VCC 1711

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No.       CR 19-00007

DIRECTOR OF PUBLIC PROSECUTIONS

v

WILLIAM JOHN MULCAHY

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:	21 October 2019
DATE OF SENTENCE:	21 October 2019
CASE MAY BE CITED AS:	DPP v Mulcahy
MEDIUM NEUTRAL CITATION:	[2019] VCC 1711

REASONS FOR SENTENCE
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Subject:  

Catchwords:                  Sentence – intentionally cause injury – damage property – intimate partner violence - schizophrenia or schizo-affective disorder – isolated elevation of symptoms – moral culpability reduced – remaining capacity to appreciate wrongfulness of conduct – good prospects for rehabilitation – sentence of imprisonment warranted – time served – community correction order - Verdins principles applied

Legislation Cited:     
Cases Cited:            
Sentence:                 

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms H. Bate	Office of Public Prosecutions
For the Accused	Ms M. O'Brien	Paul Vale Criminal Law

HER HONOUR:

1       By 1 August 2018, you, William John Mulcahy, had been living with your partner for approximately 10 years.  You had known each other from about the age of 18.  The relationship, it would appear, had been of about 12 years' duration and for 10 years of which you had been living together. For all of that time you had also been living with schizophrenia or schizo-affective disorder.

2       From about 27 July 2018, your partner noted that your behaviour was out of the ordinary.  On the evening of 27 July, you and her had been at your parents’ address and she noted that you were saying some strange things. The following day you said you did not want to be near your partner and you told her you had not slept well the previous night. 

3       By 31 July, she discovered that you had stayed awake overnight and had been posting some strange, nonsensical messages on Facebook.  When she came home from work on 31 July, you were no longer distant from her but were quite receptive to her.  You took your prescribed anti-psychotic medication and became drowsy by about 6pm.

4       The following day, your partner decided to stay home from work because she was concerned about you.  You had an argument in the morning when you demanded she get you some KFC and did not accept her telling you that the shop was not open.  She left the house and came home sometime later, gave you some sushi, which you ate, and you then went to your bedroom and you stayed there for most of the day. 

5       By about 8.30 that night, your partner was in the lounge room and watching a movie.  You came into the lounge room and accused her of being a prostitute.  You appeared angry and aggressive.  She started to stand up out of the chair where she was and you pushed her in the chest with such force that she fell back in the chair and the chair was pushed further back into the room.  She tried to stand up again and again you pushed her and this time said to her, 'Tell me the truth'. 

6       One of your interests was building skateboards and you picked up a skateboard that you had been building and threatened her with it.  You pointed it at her and said, 'What does it say?'  She said, 'I didn't know.'  In fact, what was written on it, and would appear to have been written by you, was this warning, 'If you value your own life as much as I value this skateboard, don't fuck with it'.

7       She picked up her phone and told you that she was calling your parents and calling 000.  You grabbed the phone and there was a scuffle.  The phone slipped out of your hands and it landed on the floor.  You then smashed the phone with the skateboard.  It is that smashing of the phone with the skateboard that gives rise to the charge of wilful damage to property, to which you have now pleaded guilty.

8       You then said to her, 'I'm going to Gator you'.  She understood that to be a reference to an American skateboarder who had been imprisoned for murdering his girlfriend.  You then held the skateboard in both your hands and started to strike her to the face and head with it.  She was trying to protect her head and face by putting her hands around her head and she screamed at you, 'Bill, stop.  You're going to kill me.  Stop'.  She continued pleading with you to try and make you stop.  You kept hitting her with the skateboard and then started to punch her.  She ended up on the floor, again still trying to protect her face and her head.  You punched her repeatedly to the area of her left eye.  You then pinned her to the ground.  She could not breathe properly. You eventually stopped of your own volition and told her to get out. 

9       She ran out and around the corner to her neighbour's house where she sought help.  The neighbour let her in and police and the ambulance were called.  Your partner’s left eye was very swollen and bruised.  She was not able to open it.  She had blood coming from wounds to her head and face.  She vomited and she was clearly in pain. 

10      She was taken to the Royal Melbourne Hospital and the examination there found a number of significant injuries.  She had a clot in her left eye and her left eye socket was fractured.  She had a laceration to the top of her head which was 5 centimetres in length. Some estimate of how serious that is or significant that is, is that nine staples were required to close that wound.  There was also a laceration to the top of her left hand that was 1.5 centimetres long and in an L-shape, that is what we would call a defensive injury.  She also had a 1 centimetre laceration to her cheek under her left eye.

11      Both the wound to her left hand and the wound below her eye required stitches.  Her left eye was badly swollen and she had multiple bruises to her face, arms and hands.  A bundle of photographs was tendered that shows graphically how awful those injuries were and how widespread they were.

12      After being treated for those injuries at the hospital, of course they did not go away straight away.  Nearly two months later at a follow-up appointment with the ophthalmology department at the hospital, your partner reported ongoing issues with her left eye and that meant, in October of 2018, three months after the assault, that she needed surgery to repair that orbital floor fracture of her left eye and she has an implant now there as a result.  At a follow-up appointment in December 2018, she was still suffering pain and reporting double vision.  There have been some further follow-up and assessments and I am told that, as of today, your former partner reports that she still experiences pain and double vision. 

13      I expressed, as a result of that description of her injuries, my concerns as to why this was a charge of intentionally cause injury and not a charge of intentionally cause serious injury, because the nature and extent of the injuries and their duration seemed to me to well satisfy the definition of serious injury.  Understanding that sometimes decisions are made in order to resolve issues between parties, nonetheless it leaves me in a position of considerable concern that this is the charge.  The prosecution though has said, and this was not challenged at all by Ms O'Brien in her careful and comprehensive plea, that this is at the high end of the range in terms of the nature of injuries that constitute injury as opposed to serious injury.

14      Having noted the ongoing concerns with double vision and pain, I also note that I was told that your partner is a train driver and that she has been able to return to work and appears not to be sufficiently affected in the longer term, by reason of the eye injury, to prevent her continuing to work as a train driver.  It is as a result of that attack on your partner that you have pleaded guilty to the other charge before me, that of intentionally cause injury.

15      Both charges are punishable by a maximum of 10 years' imprisonment.  Clearly, in the circumstances, the intentionally cause injury is the much more serious of the two charges.

16      The impact on your victim, I would say, is considerable.  Although no victim impact statement has been tendered, it takes little imagination to understand the seriousness of the impact on her.  The two of you lived together.  You had been in a relationship living together for between 10 and 12 years.  This attack occurred in your own home while she was sitting watching television and when, on the material before me, despite your delusional belief, she had done nothing wrong.  Even if she had done something wrong, nothing would have justified what you did to her.

17      Her sense of safety and her sense of trust from a partner has clearly been shattered, so much so that she has brought the relationship to an end and is unable to consider a continuing life with you.  So she has not only suffered the serious or significant physical injuries that she did, but this has brought about the end of a relationship that had obviously been an enduring one to her and for both of you and it has brought about, clearly, a sense of loss of security and a sense of loss of safety in a relationship with you.

18      It is an added loss to her because, from what I was told, she had a loving and close relationship with your parents as well as with you.  They have been loving and supportive towards her and she lived with them for the first three months after she was injured and came out of hospital.  Your parents also looked after the rent for the house that the two of you had been living in whilst she was living with them and whilst you were in custody.  She has since lost that closeness as a daughter-in-law as she is now, at best, a separated daughter-in-law and given that you are living with your parents, her ability to have contact with them must be compromised.

19      Your parents are clearly remarkable people.  It is a measure of the relationship and the closeness of the relationship they had with your partner that the three of them decided to continue with what had been a long planned treat that she would take them to Bali, their first overseas holiday.  And the three of them did so whilst she was recuperating and whilst you were still in custody.  Your parents have accepted and respected your partner's decision to end the relationship and have clearly given each of you their support.

20      Objectively, this is clearly a bad case of intimate partner violence.  The objective circumstances and the impact on your victim clearly require the court to condemn, punish and deter you.  Were those objective circumstances the only sentencing matters to take into account or were the combination of the objective circumstances and the impact on your victim the only sentencing matters to take into account, it is clear that a sentence of imprisonment, and a significant one, would have been the only proper sentence.

21      But, as is often the case, there are complex, sad and countervailing considerations which I am required by law to take into account and which, out of fairness and justice, should be taken into account. However, I want to make it clear that that should not be seen as in any way minimising the violence of the assault on your partner, the importance of the court in sentencing you or in expressing denunciation and giving weight, appropriate in the circumstances, to deterrence of violence in intimate partner relationships and to protection of the community.  The complexity of this case reinforces the fact that the question of what amounts to just punishment in any case depends on all of the circumstances in any particular case.

22      You are a mature man.  You were 43 at the time and you are now 44 years of age. You suffer from what is commonly known as chronic schizophrenia (paranoid type).  The two psychiatrists who have assessed you for the purposes of this plea hearing are both of the view that your diagnosis is properly made as one of a schizoaffective disorder.  Again that is a chronic condition with symptoms that simultaneously include both affective (that is depressive or manic symptoms) and psychotic symptoms.  According to the history given by you and confirmed by your parents, your first contact with mental health services was in 1993.  On my count that would have made you about 18 years of age.  

23      At that stage your symptoms included auditory hallucinations, persecutory paranoia and ideas of reference and it was then that you first attracted the diagnosis of paranoid schizophrenia.  Since then that has become a diagnosis of chronic paranoid schizophrenia or chronic schizoaffective disorder.  You have been under psychiatric treatment or supervision ever since and you have been prescribed various medications over the years, trying to find the one that best controlled your symptoms whilst at the same time providing the least intrusive, invasive and unpleasant side effects.

24      It would appear that, for the duration of your relationship with your now former partner, you were generally compliant with your medication and your condition had become relatively stable.  Not surprisingly, as happens with so many young people when they are first diagnosed, insight and compliance with medication can be a problem.  It was with you too, but you became more insightful and more compliant as the years went on.

25      So stable had you been that it would appear that for the five years before the offending you had not seen your treating or overseeing psychiatrist. The psychiatrist had not thought there was a need.  Your general practitioner who was prescribing and administering your medication also had not seen the need.  You had not detected any elevation in symptoms and it would appear that your partner and family had not either.  And even in the days leading up to this offending, nothing gave an indication that you would act in the way that you did on 1 August last year.

26      Between 1993 and 2006, you had had a number of in-patient admissions, some of them were voluntary, others were involuntary and there was one period in the past where you had been subject to a compulsory treatment order.  That stands in contrast to the last 10 years or more, with the stability of your condition and your compliance with your medication.

27      You had been receiving for the last five years repeat prescriptions for olanzapine, which had been found to be, for a considerable period, the drug best able to control your symptoms and to manage the side effects.  It is a well-known and unfortunate side-effect of olanzapine that it leads to weight gain and lethargy and you had suffered from that and struggled with that.  You tried to reduce your dosage, under medical supervision, to the lowest possible to maintain your stability and yet give yourself some levels of energy and some capacity to manage your weight. 

28      The evidence before me suggests that there had been times, when you had had sufficient insight, that you realised you may have been at risk of suffering increased symptoms and returned to your doctor and ask for an increase in your dosage.  But it would appear that you had been on a very low minimum dose for some time leading up to this offending.

29      Running in parallel or as a consequence really of your mental health, for many years you had been unable to engage in regular employment.  That, it would appear, is a result of the combination of the side-effects of the drugs (the lethargy, the tiredness in the morning) and also the particular manifestation of your disorder which often leads to social anxiety or generalised anxiety in managing pressures and stressors associated with juggling more than one thing at once and dealing with people and stressful situations.  That you have been assessed as being suitable for a disability support pension for many years is indicative of the extent of your inability to engage in regular employment.

30      Ms O'Brien told me that you and your parents seemed to be unaware of the fact that you are probably eligible for assistance under the NDIS and hopefully, as a result of this, you may be assisted to make application to the NDIS for support under that.

31      Notably, you have no history of abuse of alcohol or other drugs, that is illicit drugs or prescribed drugs other than the manner in which they are prescribed.  Even more notably, you have no history of any violent behaviour towards your former partner.   Not only do you have no criminal history for violence, you have no criminal history at all.

32      As I have noted in the summary I have already given of the offending, your partner had noticed some strange behaviour in you in the days leading up to the attack on her.  With hindsight it can be seen that you were becoming unwell and in the assessment of the psychiatrist, Dr James Belshaw, who was retained by your lawyers to assess you following your remand in custody as a result of this, at the time of the offending it can now be said that you were suffering from symptoms characteristic of a relapse of your schizoaffective disorder.  One of those symptoms was that you had developed a delusion that your partner was involved with local men in a plot to harm somebody.

33      Police came to your home and arrested you shortly after your partner had fled.  They were so concerned about your mental state when they arrested you that they arranged for a mental state assessment by a forensic medical officer to see whether you were fit to be interviewed.  Whilst you were cooperative in the sense that you identified yourself, acknowledged there had been an incident involving your partner and accompanied the police back, ultimately you refused to be assessed by the forensic medical officer.  As a result, she was unable to determine your fitness for interview and, as a result, no interview was conducted.  You were remanded in custody and it became clear that you were seriously unwell. Dr Pandurangi, the Forensicare psychiatrist who later assessed you, described, by reference to Justice Health records to which he had had access, that you were floridly unwell on your reception to prison and that you continued to present similarly at various assessments over the next months.

34      When first remanded, you told authorities that you thought you had robbed a service station and that you were in custody in order to be transported to America.  You also developed a belief that the floor of the cell where you had been placed at Melbourne Assessment Prison was burning and that paint from that floor had stuck to your right foot and had made it smaller than your left.

35      Against your pre-existing diagnosis of chronic paranoid schizophrenia, both Dr Belshaw and Dr Pandurangi identified a differential diagnosis of schizoaffective disorder (schizophrenia concurrent with periods of mood instability) and ultimately each of them leant in favour of the schizoaffective disorder diagnosis.  In any event, it is clear that you were very unwell and your dosage of olanzapine was increased on your reception into custody.

36      It took some time, but you did gradually stabilise as you remained in custody for the next nine months.  Although your symptoms gradually and generally abated, you continued to hold what the psychiatrists have characterised as bizarre beliefs which you uphold with delusional intensity.  That includes, not only the belief that you still hold that your partner had been drinking with some Maori men in a park and had engaged in sexual activity with them immediately before you attacked her, but also that your foot had been burnt by contact with the paint on the burning floor at MAP and that it had shrunk permanently in size.

37      After nine months in custody and following a number of psychiatric assessments of your state, you were released and bailed to live with your parents.  You have remained living with them ever since.  You have been compliant with your medication and you have engaged appropriately with psychiatric services.  I was told that your mother has given up her paid employment so that she is home to supervise you.  Your family live on a block of land of some size in outer Melbourne, which provides apparently a lovely setting for you where you can do work around the home, ride your bike around the property and enjoy the rural beauty of that area.  You are somewhat isolated though.  You have not engaged or re-engaged with friends, many of whom were mutual friends of you and your partner, and you seem to spend most of your time at home or with your parents.

38      According to Dr Belshaw's report, when you first developed this psychotic illness in your late teens, your treatment was initially complicated by a lack of insight and associated periods of non-compliance with your prescribed medication.  Dr Belshaw noted that, in your youth, there was evidence that there were times during which you were unwell, that you became disorganised and markedly disinhibited, with thought disorder and paranoid delusions.  He noted there was evidence, back at that time, that, secondary to those symptoms, you were more likely to engage in uncharacteristic acts of violence and aggression.  All of that seems to have disappeared completely by the time you formed your relationship with your partner and Dr Belshaw noted that the commencement of a relationship with her appeared to be a stabilising and a very protective factor.

39      In the 12 years before this offending, you had more consistently complied with your prescribed medication and you had been stable in your mental state and it was as a result of that, he noted, that you were discharged both from public and private specialist medical health care and were seen to be well enough to have your condition managed by your general practitioner.

40      As a result of that, although noting the reports of some uncharacteristic acts of violence and aggression in the early years after your diagnosis, I am satisfied that in the last 10 or 12 years violence has not been a by-product of your mental illness and it has not been a feature independent of your mental illness in your relationship with your former partner or more generally.  This can therefore be characterised correctly as an uncharacteristic, isolated act of violence occurring at a time when you are suffering from symptoms characteristic of a relapse of your schizoaffective disorder.

41      It is not surprising, given this history, that your legal advisers considered carefully whether you were fit to be tried and whether you had a mental impairment defence open to you.  For a period after your remand, you were sufficiently unwell to be assessed as being unfit to be tried, although by May of this year your condition had improved sufficiently that you were assessed both by the forensic psychiatrist retained by your lawyers and by the forensic psychiatrist retained by the prosecution through Forensicare as being fit to be tried.  Although Dr Belshaw initially considered that you had a mental impairment defence open to you, the Forensicare psychiatrist, Dr Pandurangi, formed a contrary view when he assessed you in May this year.  

42      Of particular note was that he said that you would have been aware of the nature and quality of your conduct, that is, that you were assaulting your partner.  He was also of the opinion that you would have been able to understand the wrongfulness of that conduct.  Dr Pandurangi noted that you told him that you had walked away from fights, indicating that you understood the wrongful nature of violence.  Your consistent explanation to him that you were trying to defend yourself from your partner, who you continued to characterise as the aggressor, was also indicative of your efforts to avoid violence.  Again, that defending yourself from your partner is part of what I accept to be the delusional belief that you hold.

43      Dr Pandurangi also noted, as evidence of your awareness that violence was wrong and that you had engaged in violence, that you apologised to the police when they arrived at your home after they were called.  He then said this:

“There is also limited evidence of a causal connection … between his mental state and conduct.  So, an erroneous or delusional belief (that his partner may be unfaithful to him), does not, in itself, deprive him of the ability to understand that assaulting [his partner], even if his beliefs were true, is wrong.” 

44      He therefore concluded that, if it were determined that you had committed the offences as charged, then you did not have a defence of mental impairment open to you.

45      Following that assessment, your lawyers had you assessed again by Dr Belshaw, and it was after that that the matter resolved without the need for trial.

46      Although you maintain your delusional belief about your partner's behaviour, you accept, for the purposes of the plea, the circumstances of the offending as set out in the prosecution summary to which I have already referred.

47      I accept in the circumstances that you are entitled to a greater benefit than would ordinarily apply for a plea of guilty entered at the time at which you entered yours. It was proper for your lawyers to properly explore your fitness to be tried and whether you had a mental impairment defence open to you.  And despite the continued existence of the delusional belief, I am satisfied that it is appropriate, and it was appropriate, for them to accept instructions from you to enter guilty pleas to these charges and accept the prosecution summary as a truthful and accurate description of what had happened.  Based on the reports of Dr Belshaw and Dr Pandurangi, I accept that your belief is a delusional one and is, in those circumstances, not indicative of a failure to accept responsibility or evidence of a lack of genuine remorse.  So therefore, the reduction in the sentence otherwise appropriate by reason of your plea of guilty is a significant one and consistent with one entered at a much earlier stage of the proceeding.

48      I accept that you are genuinely remorseful.  You have expressed your remorse to your lawyers, to the psychiatrists who have assessed you and significantly to your parents.  Given the support that they have given to your partner and the long and close relationship that they have had with her, their belief in the genuineness of your remorse is in my view significant and that too counts in your favour.

49      This is not therefore one of those all too frequent cases one sees of vicious unjustifiable violence occurring against a background of previous assaults, or other forms of psychological, emotional, or financial abuse or other forms of coercive control in the context of a relationship.  Nor is it violence fuelled in a relationship by abuse of alcohol or other drugs.  This takes it outside the general run of cases of family violence or intimate partner violence.  Therefore, the need to consider how to weigh general deterrence is different from the way it would be if this fell within that more common pattern of offending.

50      In the circumstances, I am satisfied that this is a case where your moral culpability for the offending is low, due to the causal effect of your illness on your offending behaviour.  This is, in my view, a case in which the principles in Verdins relating to the assessment of moral culpability and the weight to be given to general and specific deterrence are properly enlivened.  I also accept that this is a case where, although your mental condition stabilised considerably whilst you were in custody and has stabilised further since you have been released on bail, a return to prison would likely have a deleterious effect on you, greater than that applicable to the general prison population who do not suffer from the mental illness that you suffer from.

51      I am satisfied that you have insight into your mental illness, that you are well and properly engaged with your treaters and that you show every sign of continuing that engagement. That is consistent with your history of your mature adult years in the period leading up to this offending.  In those circumstances, I consider that the risk to the community of further acts of violence is very low and that protection of the community does not need to be given significant weight in the sentencing matrix.

52      I consider that your prospects for rehabilitation are very good.  You have loving and supportive parents and a home with them.  That has also permitted you to engage in gainful work around the home with your parents at a pace and in circumstances that will not produce anxiety or predispose you to an exacerbation of your symptoms.  I am satisfied too that your parents are well placed to detect any exacerbation in your symptoms and that they are understanding, responsible and will be prepared to, and be in a position to, assist you to engage appropriately and more intensively with your mental health treaters in the event that there is an elevation in your symptoms.

53      For all those reasons, I consider not only are your prospects for rehabilitation very good, but the need for specific deterrence in the sentence is low. I have already noted the weight to be given to general deterrence must be moderated considerably by reason of that connection between the delusional belief and the offending.

54      The seriousness of the offending is, however, such that, in my view, even with those significant mitigating features counting in your favour, a period of imprisonment immediately served must be imposed because you did have the capacity to understand that, even if you genuinely believed what you believed, a resort to violence was wrong.

55      In the circumstances, I consider that the appropriate sentence is a combination of a term of imprisonment, less than that which you have already served, followed by a community correction order conditioned upon your continuing to engage in appropriate mental health treatment and to be under supervision for a period whilst undergoing that.  Could you now please stand?

56      William Mulcahy, on the two charges of intentionally cause injury and intentionally damage property to which you have pleaded guilty, you are convicted.  You are sentenced on those two charges to be imprisoned for a period of six months and I note that you have served 280 days in pre-sentence detention and direct that that be counted and reckoned as a part of the sentence already served. 

57      Following that term of imprisonment of six months you are to be released on a community correction order for a period of two years.  This order therefore commences today, 21 October 2019 and ends on 20 October 2021.

58      The mandatory terms that apply to all community correction orders are that you must not commit another offence for which you could be imprisoned during the time this order is in force; you must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations, that is not being impaired by drugs or alcohol and submitting to testing if required; you must report to and receive visits from the Secretary or delegate; you must report to the Community Corrections Centre within two clear working days of the order starting, that is the Community Corrections Centre at South Morang, 4a/545 McDonalds Road, South Morang within two clear days (today is Monday, that means by Wednesday afternoon);  you must let a Community Correction Officer know within two clear working days if you change your address or job;  you must not leave Victoria without first getting permission to do so from the Secretary or delegate; and you must obey all lawful instructions from or directions of the Secretary or delegate.

59      In addition, you must be under the supervision of a Community Corrections Officer for a period of two years and you must undergo any mental health assessment or treatment and that may include psychological, neuropsychological, psychiatric treatment or treatment in a hospital or residential facility, as directed by the Regional Manager. 

60      Do you understand the effect and conditions of this order?

61      ACCUSED:  Yes, I do, your Honour.

62      HER HONOUR:  And do you consent to it being made?

63      ACCUSED:  Yes, I do.

64      HER HONOUR:  Thank you.  I will have that handed to Ms O'Brien.  She can check it and take it down to you.  Sorry, yes.  It is on Charge 1 that you are sentenced to be imprisoned for a period of six months, not on Charges 1 and 2.  Thank you.  On Charge 2, this all - and then it is on Charges 1 and 2 that there is the community correction order imposed.

65      Pursuant to s 6AAA I declare that, but for your pleas of guilty, I would have sentenced you to a total effective sentence of imprisonment of three years and fixed a period of 18 months as the time that you would have been required to serve before being eligible for parole.

66      MS BATE:  As your Honour pleases.

67      MS O'BRIEN:  As your Honour pleases.

68      HER HONOUR:  I will now sign those ancillary orders.  Now, is Eltham the closest police station?  There is not a South Morang?

69      MS BATE:  Not a 24 hour one, your Honour.  That I have seen, Eltham is the closest 24-hour police station - - -

70      HER HONOUR:  All right.  Thank you.  Now, so far

71      MS BATE:  - - - for the forensic sample.

72      HER HONOUR:  Yes.  Now so far as the forensic sample is concerned, Mr Mulcahy, I am directing that that is to be taken by way of a Buccal swab or a mouth sample.  That means that you must put a swab, like a cotton bud on the inside of your mouth and rub until a sufficient sample has been obtained.  If you do not cooperate in the provision of the sample, the police are authorised to use reasonable force to obtain it and they may well use the more invasive means of taking a forensic sample, namely a blood sample.  Do you understand that?

73      ACCUSED:  Yes, I do, your Honour.

74      HER HONOUR:  So far as the forensic sample is concerned, it is a very complicated timeframe.  You must wait from today for 28 days until the time for appeal in respect of this hearing has expired.  And then within 28 days after that, you must go to the Eltham police station and provide that sample.  Ms O'Brien will explain that to you again and maybe write out a calendar of dates for you, so that you understand that.  So, I have signed the forensic sample order.  I have counter-signed the community correction order.  The disposal order that has been provided is a draft.  Can I ask your instructor to send a completed form now and I will sign that in Chambers later?

75      MS BATE:  Yes, your Honour.

76      HER HONOUR:  Given that 280 days have been served in pre-sentence detention, and that is greater than the six months of imprisonment that I have directed that Mr Mulcahy serve and given that he is now on bail, it is my understanding he does not have to be taken downstairs and to be processed through the cells.  Is that correct?

77      MS BATE:  That is my understanding, your Honour.  Yes.

78      HER HONOUR:  It is only when someone is actually in custody that they have to be taken back?

79      MS BATE:  Yes.

80      MS O'BRIEN:  Yes.

81      HER HONOUR:  Right, all right.  Thank you.  Once a copy has been made of the community correction order, Mr Mulcahy, and provided to you and that will happen as soon as I have left the bench, you will be free to leave the court.  And once I have left the bench you can leave the dock and wait in the body of the court with your parents for that photocopy to be made.

82      ACCUSED:  Thank you very much for your time, your Honour.  Thank you, very much.

83      HER HONOUR:  I do hope that this is the last time I see you and that any other court sees you and that this sad and sorry episode can be one that will be a reminder to you, not only of how lucky you are to have such wonderful parents, but of the importance of monitoring your symptoms and keeping up your medication and keeping in contact, regular and good contact with your treaters.

84      ACCUSED:  Thank you very much, your Honour.

85      HER HONOUR:  Thank you, Ms Bate.  Thank you, Ms O'Brien, very much for your assistance.

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