Director of Public Prosecutions v Newton
[2024] VCC 1759
•1 November 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Unrestricted Suitable for Publication |
Case No. CR-23-00324
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRETT RAYMOND NEWTON |
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JUDGE: | HIS HONOUR JUDGE DEMPSEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 June 2024, 26 September 2024 | |
DATE OF SENTENCE: | 1 November 2024 | |
CASE MAY BE CITED AS: | DPP v Newton | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1759 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – sentence
Catchwords: Causing injury recklessly to police officer, resisting an emergency worker on duty. Immediate imprisonment and presumptive term of not less than 6 months to serve applicable in absence of ‘special reasons’. Special reasons conceded by Crown, Mature offender, Plea of guilty, No prior history of imprisonment, would be very vulnerable first-time prisoner, no re-offending, history of drug and alcohol abuse accompanying severe post-traumatic stress disorder, chronically psychotic at time of offending, paranoid schizophrenia, impaired mental functioning at time of offending, reduced moral culpability, application of Verdins, optimistic prospects for reform, suitable for CCO.
Legislation Cited: Sentencing Act 1991, Crimes Act 1958, Mental Health Act 2014, Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Cases Cited:R v Verdins [2007] VSCA 62, DPP v Haberfield [2019] VCC 2082, R v Mooney (Unreported, 21 June 1978, Full Court), R v Anderson [1981] VR 155, DPP v Milson [2019] VSCA 55, Boulton v The Queen [2014] VSCA 342.
Sentence: Convicted and sentenced to 18-month CCO with conditions.
s.6AAA – term of imprisonment followed by lengthy CCO.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B. Nibbs | Office of Public Prosecutions |
| For the Accused | Ms S. Buckley | Geelong Lawyers Barristers and Solicitors |
HIS HONOUR:
Introduction
1Mr Newton you have pleaded guilty to:
(a) Charge 1 – causing injury recklessly on 19 May 2022 to Acting Sergent Zachary Savva. The maximum sentence for the charge of causing injury recklessly contrary to s18 of the Crimes Act 1958 is 10 years.
(b) Charge 2 - resisting Acting Sergent Zachary Savva on 19 May 2022 - an emergency worker on duty contrary to s31(1)(b) of the Crimes Act 1958. This offence carries a maximum penalty of 5 years.
(c) Charge 3 - resisting Senior Constable Lauren O’Brien on 19 May 2022 - an emergency worker on duty contrary to s31(1)(b) of the Crimes Act 1958. This offence carries a maximum penalty of 5 years.
2This was a frightening episode where you were aggressive, violent and delusional.
3Where the victim is an emergency worker (as the case is here), Charge 1 is a Category 1 offence within the meaning of the Sentencing Act 1991. This means you must be sentenced to a term of imprisonment (not in combination with a CCO) unless the Court is satisfied a ‘special reason’ exists. You are also liable to a mandatory custodial sentence of six months' imprisonment pursuant to s10AA(4) of the Sentencing Act 1991 unless a 'special reason' exists.
4In this case, Ms Buckley relied on the following matters as making good the test of 'special reasons':
(a) at the time of the commission of the offence, you had impaired mental functioning; and
(b) there is a causal link between the impaired mental functioning and the commission of the offence; and
(c) the impaired mental functioning substantially and materially reduces your moral culpability.
5The totality of the material presented on your plea makes out 'special reasons' within the meaning of the Act. Mr Nibbs on behalf of the Director sensibly and fairly agreed that this was so. You will not be sentenced to a term of imprisonment, but rather a CCO with conviction and conditions.
6The reasons for that outcome follow.
Offending[1]
[1]Taken from Exhibit A, summary of prosecution opening (SPO)
7On 19 May 2022 at 7.30 pm, Officers Savva, O’Brien and Gardner were attending to an unrelated welfare check in Brooks Street, Norlane. All members were in Police uniform with marked operational equipment such as marked protective vests. They were wearing Body Worn Cameras (BWCs).
8Police members noticed you screaming from a house nearby and that a female was trying to push you back into the Unit.
9After attending to their unrelated task, the Police members returned to their marked Police vehicle.
10At that point, you ran aggressively towards Police. You had a clenched fist and further pointed at Savva. He asked you words to the effect of 'Are you alright mate?' to which you replied 'Fuck you, you protect cunts' and 'kid fuckers'. O’Brien activated and aimed her taser.
11You then drew your right arm back and punched Savva forcefully to his mouth and nose region. He described the punch as 'full force', he felt pain and suffered a laceration to the lip. His nose later became swollen (Charge 1- Causing injury recklessly).
12He brought you to the ground. Gardner deployed OC spray but this had little effect on you given your heightened state. Savva struck you multiple times, but this too proved ineffective in subduing you.
13O'Brien assisted Savva in trying to arrest you, but you flailed about and refused verbal commands to place your hands behind your back. During the arrest process you continued to hurl verbal abuse at the Police.
14It took about three minutes to finally handcuff you. (Charges 2 and 3 – Resisting an emergency workers on duty).
Post arrest
15You were placed in a holding cell due to being intoxicated and otherwise being unfit to be interviewed.
16It would be inaccurate though, to ascribe your behaviour during this frightening offending and afterwards as simply the result of self-induced intoxication. You had, by all accounts, only a relatively modest amount to drink that evening. Rather, the offending should be seen through the lens of your serious mental illness at the time of offending.
17You were subsequently released and not interviewed in relation to these matters. You have served no time in custody for them.
18Savva was treated for his injury by Dr Boyd at the Emergency Department in Geelong on 19 May 2022. He had swollen bruised lips, a wound to his upper lip that did not require sutures and bleeding from the nose.[2]
[2]See photos at Dp76 and following.
19He was provided a tetanus vaccination, pain relief and an ice pack to reduce the pain and swelling. He was discharged and required no further treatment.
Case history
20The matter progressed through the criminal justice system in the following way:
Date Event 19 May 2022 Offending
Offender arrested. Unfit to be interviewed
20 May 2022 Offender charged and bailed 27 May 2022 Filing Hearing 19 August 2022 Committal Mention – Committal listed 27 September 2022 Special Mention – Committal date changed 6 March 2023 Committal Hearing – offender committed, not guilty plea entered and related summary offences transferred 3 April 2023 Directions Hearing – administratively adjourned, awaiting depositions 6 June 2023 Directions Hearing – adjourned for defence to obtain psychiatric report 4 August 2023 Directions hearing – adjourned for psychiatric appointment with offender to take place 29 November 2023 Directions hearing – vacated to allow further resolution discussions 11 December 2023 Matter resolved to charges on indictment 24 January 2024 Offender arraigned 30 June 2024 Plea listed in Geelong County Court Circuit
Plea heard and adjourned for PSR26 September 2024 Further plea
Adjourned for sentence1 November 2024 Sentence
21In the two and a half years since the offence was committed, you have not re‑offended.
Matters personal to you
22You were born and raised in Grovedale. You are 50 years old, and 48 at the time of the offence.
23You are the younger of two children born to Pauline and Harold Newton. Pauline was a folk music artist and Harold was an engineer. They are both aged in their late 70s and are retired. Your older brother, Shaun, is a scientist and he has his own family.
24Your parents have always been loving and supportive. Your childhood was stable and carefree one, absent of any exposure to violence or substance abuse.
25You enjoyed playing sport, including competitive cricket and football until about the age of 16.
Education
26You attended Mandama Primary School from Prep to Grade 6 and went on to attend Grovedale Technical School until the completion of Year 10. A culture of bullying and physical fighting there meant that you did not enjoy high school. You rebelled and your grades declined. You were suspended on occasions for fighting with other students. You yourself ultimately left school after a fight which left you with a broken nose, arm and hand.
Employment – Army
27After leaving school, you worked for KFC for about a year before joining the army at age 17.There you commenced a three-year chef’s apprenticeship, working in kitchens in various bases around Australia.
28This was a very difficult period. As a 'new recruit', you were subject to repeated bullying by superiors, including physical assaults, arbitrary punishments and routine humiliations. Suicide was common amongst army personnel. You attempted to assist a friend on base who was suicidal by raising the alarm with seniors who did not heed your warning. Your friend took his own life.
29There was also a heavy culture of drinking in the army and you succumbed to that culture. You appear to have nothing but negative memories of your time in the army.
30You left the army still a young man of the age of about 20, a changed and somewhat damaged man. You returned to living with your parents. You obtained another chef's apprenticeship at a Greek restaurant, this time Costa's Tavern in Lorne. You worked there for about three years and enjoyed it.
Fatal motor vehicle accident
31Around the age of 23 or 24, you were involved in a fatal motor car collision as a passenger, in which the driver was killed. The car veered off a cliff on the Great Ocean Road and became submerged under water. You were able to extract yourself from the car but you could not assist the driver, who died at the scene. You have a dominant, recurrent memory of the driver’s 'feet caught in the pedals… he was gurgling… it was awful'.
32From then, you report the onset of depression, heavy drinking and itinerancy. Ms Carla Lechner[3] describes the incident as being the catalyst for severe PTSD, which persists to the present day.[4] You also suffer chronic back pain as a result of the accident, exacerbated as I understand it, by a recent motor vehicle accident in 2023.[5]
[3]Exhibit 2 - Report of Carla Lechner dated 19 May 2023.
[4] Ibid at p2.
[5]Perhaps exacerbated by a 2023 motor vehicle accident.
33You returned to work in the restaurant only four days after the incident because it was a busy period in Easter. Much of your chef’s equipment was lost in the car. Unsurprisingly, you were simply unable to continue working and eventually quit the job.
34Soon after, you and your partner at the time moved from Lorne to a rental in Birregurra. You were able to purchase a house with TAC compensation which you received following the accident. You married in 1997. There were no children from the marriage, although you were undergoing IVF in an attempt for your then wife to conceive. At the time of your separation, she was pregnant and elected to undergo a termination.
35Once again you returned to live with your parents for a while, before moving to Ocean Grove where you were working as a chef. You met your ex-partner, Emma, in 2002. You have two children, Jessie and Eden, to that relationship.
36You and Emma travelled around Australia together, spending six months in Coober Pedy, before settling in Kalgoorlie for a number of years, where you purchased a house.
37You gained work as a Site Coordinator at the Mining Hall of Fame (a tourist mine) in Kalgoorlie. You describe it as a ‘great job’ however you became involved as a ‘whistleblower’ in an investigation into financial impropriety at that business. That culminated in the closure of the mine.
38
Emma and Jessie returned to Geelong ahead of the birth of your second child, Eden. It was planned that you would also return to Geelong when the mine closed but this took longer than expected. You spent 12 months apart. Emma
re-partnered during that time.
39She retained full-time care of the children following the separation. You describe having to sell the house in Kalgoorlie and accruing significant debts as a result of the separation.
40You spent time prospecting after the closure of the mine. You were in a fairly volatile relationship with a woman named Tanya, who was a drug-user. This was a chaotic period in your life as outlined by Dr Claire McInerney in her report.[6]
[6]Exhibit 3- Report of Dr Clare McInerney dated 21 November 2023 at [2.2].
41You and Tanya have a son, Lachlan (aged 9), together. Lachlan is currently in the care of his maternal Aunty, and you have video calls with him Wednesdays for about 30 minutes.
42When the relationship with Tanya broke down, you returned to Geelong where you began to study music. This was interrupted by the onset of the pandemic in 2020. You worked intermittently during the pandemic, including at a pizza shop in East Geelong and at Bulla Ice Cream in Colac.
43Up until November 2023, you were working as a chef at the Wye River General Store for about three months. That was the last time you were employed.
Substance abuse
44You have a history of drug and alcohol use.
45You used cannabis intermittently over the years. You used methylamphetamine with Tanya in Kalgoorlie, however, you have not used since you returned to live in Victoria in 2018.
46You have struggled with excessive alcohol consumption over many years. You drink at nighttime only. You concede that you drink to excess during periods of stress. You disclosed to Dr McInerney you drink alcohol to put yourself to sleep, five days per week, using anywhere between five to 30 standard drinks.[7]
[7] Ibid at [5.1].
Forensic history
47Despite your history of trauma and more than a fair share of disappointment, adversity and interrupted life, you did not offend until you were 30.
48You negotiated the challenging years of school, early adolescence in the army and the upheaval of death of your friend, loss of a job and the like without unravelling and transgressing the law.
49Your offending only commenced in 2004 (six charges of resist Police and one of refuse PBT for which you were fined on appeal).
50Years go by before you develop a prior history in Western Australia for disorderly behaviour in public and obstructing police in 2010, and five appearances across 2016 and 2017 for offences including obstructing police and/or breaching police orders. During the latter period, you were using methylamphetamine.
51You have never been sentenced to a term of imprisonment, nor have you ever spent any time on remand. You have never breached Court orders either. You have been on bail for more than two years without repetition of this type of troubling incident.
Present circumstances
52You have been living with your parents in Grovedale since 2018. Your mother has dementia and she has a carer one day per week. Your father is in good health. Both attended the plea with you.
53You help with cooking and other jobs at home. Your devotion and care for them is a protective factor against re-offending.[8]
[8]You had a pre-booked trip to Tasmania with your father scheduled for 6-12 October 2024, as your mother was transitioned into care. Sentencing was delayed for this to happen to 1 November 2024, given the role your relationship with your family plays here.
54With the exception of a close friend or companion, Sonya Day, you are otherwise quite socially isolated.
55You spend a lot of time writing music, playing guitar and making art. You find these to be fulfilling and soothing activities. You perform locally from time-to-time and are working towards earning some money from playing music.
56As I said, you still suffer back pain because of a previous accident and one in mid‑2023.
57You are current currently unmedicated but are open to accepting mental health treatment, explaining 'I just need to find the right people – sometimes I find it difficult to build trust with treatment professionals'.[9]
[9]Exhibit 1- Outline of Plea Submissions dated 27 June 2024 at [30].
Mental health history
58Your psychiatric history is outlined in detail in Dr McInerney’s report.[10] The salient features of that history include the following:
(a) Treatment with a psychiatrist in the late 1990s for PTSD following the motor vehicle accident;
(b) Several short admissions in Kalgoorlie in 2016 and 2017;
(c) An admission to Werribee Hospital for a week in March 2017 following a brief return to Victoria. Paranoid and persecutory delusions were noted;
(d) Self-reported three-month admission to Werribee Mercy Hospital in 2019;
(e) Consistent contact with Barwon Health from 2017-2021, with family members referring you there due to the presence of psychotic symptoms, including delusions and paranoia. You were noted as either reluctant to engage or refusing to do so, voicing a distrust in Barwon Health;
(f) You were referred for mental health assessment again in June 2022, shortly after the index offending. Delusional paranoia was noted.
[10]Exhibit 3- Report of Dr Clare McInerney dated 21 November 2023 at [3.1]-[3.8]
59Dr McInerney broadly observes that, for at least the last six years (and possibly longer), you have displayed a wide range of unusual beliefs.[11] Relevantly, she says 'It appears that [you] have been chronically psychotic since around 2020'.[12]
[11]Ibid at [9.1].
[12]Ibid at [9.10]. I note the majority of medications you have been prescribed in the past have been anti-psychotic.
60Over that time, you believe that you have been targeted, followed, and threatened by criminal associates of a former partner, that your former partner has arranged for you to be poisoned, that she has prostituted your child for financial gain, that a former colleague has been hacking your phone and your identity has been stolen with those who stole it using it to impersonate you and deprive you of Centrelink and medical results and treatment. What happened in May 2022 is the result of similar deluded thinking, as I shall come to in a moment.
61The role that ‘mental impairment’ plays in both the offending and in terms of the application of sentencing principles is dealt with below. One only needs to consider the internal monologue that was occurring for you (see below), bizarre ideas you were expressing the unhinged way in which you expressed them, followed by the violence the subject of Charge 1, to comprehend just how you were functioning at the time.
Offending
Surrounding circumstances
62You were at a friend, Sonya Day’s house on the evening of the offending, cooking dinner. You consumed two glasses of red wine.
63You were putting away the garbage bins when you observed a Police car in the street, a few houses away.
64With respect to your recollection of your thought processes at the time, you disclosed the following to Dr McInerney:
(a) You heard an (internal) voice say 'stop him';
(b) You believed that if you did not somehow intervene, that the police officer was going to get shot;
(c) You had a vision of a gun dropped on the ground, which went off and shot the police officer in the stomach;
(d) This vision 'just took over'; and
(e) You later painted a picture of this scene because it was so vivid.
65You told Ms Lechner that you had an 'epiphany' and 'had to move'.[13]
[13]Exhibit 2- Report of Carla Lechner dated 19 May 2023 at p2. I note the way you were guarded with Ms Lechner and expressed suspicion and persecutory ideas as late as May 2023, but not so with Dr McInerney in November of that same year.
66As noted in the summary, you were observed by police to be screaming in the street as they were attending to an unrelated matter. You appeared to the victim to be acting erratically.[14]
[14]Exhibit 1- Outline of Plea Submissions dated 27 June 2024 at [46].
67You ran towards the Police aggressively as they were preparing to leave. You yelled, amongst other things, 'kid fuckers.'[15]
[15]Ibid at [47].
68The Body Worn Camera footage played at the plea hearing bears all of this out. You appear to be completely deranged in your thinking. Of course, the Police had no role in protecting vile child sex offenders. They were doing anything but that.
69Your erratic presentation is more pronounced when one considers how your actions in attacking the Police differs wildly form the command type hallucinations you suggest that you had to protect the Police officer from being shot in the stomach.
Objective gravity
70The conduct forming Charge 1 is a single strike to the face of the victim. It was of momentary duration and relatively impulsive, given what I have said about the command hallucinations.
71In terms of the injury sustained, the following matters are noted:
(a) The victim felt immediate pain;
(b) He sustained a cut to the lip, described as superficial and not requiring stitches;[16]
(c) There was some swelling to his nose and mild swelling to his lips on assessment several hours after the incident;
(d) He attended hospital as a precautionary measure, on the advice of colleagues;[17]
(e) He returned to duties the following day; and
(f) He did not seek any follow up treatment.
[16]Ibid at [50].
[17]Ibid at [50].
72The offending the subject of Charge 1 lacks some of the otherwise aggravating features that would render it a more serious example of the offence. There was no weapon used; you acted alone; it was unplanned, and it was of momentary duration.
73The victim did not make a victim impact statement (VIS). He, being a police officer, is well entitled to be safe in going about his duties. I note he was checking on the welfare of a member of the public at the time you attacked him. He ought not have been attacked in this utterly unprovoked way. You understand this.
74With respect to Charges 2 and 3 of resisting arrest, they occur temporally proximate to Charge 1 and can be considered as part of the same transaction. It is a testament to your extremely heightened state that it took minutes for three members to subdue you.
Post-offence
75After you had been taken to the ground following the offending, you were struck to the face a number of times by the victim who used his fist.
76You were later deemed unfit for interview.
77You were taken to hospital the day after the offending for treatment of your own injuries.
78You were referred to Barwon Health on 1 June 2022. Staff there observed delusional paranoia, but not so extreme as to warrant your involuntary admission to hospital.
Mental impairment and s10A Sentencing Act ‘special reason’
79As I said, Charge 1 creates a number of presumptions with respect to sentencing. Unless certain exceptions are made out, you would ordinarily be expected to serve an immediate term of imprisonment (not combined with a CCO) of a specified minimum duration (in this case six months), unless there is a special reason made out in the way that that term is used in s10A of the Sentencing Act.
80Relevantly here, in order to trigger the exceptions, I must be satisfied under s10A (2)(c)(i) of the Act that you have proven on the balance of probabilities that:
(a) at the time of the commission of the offence, you had impaired mental functioning; and
(b) there is a causal link between the impaired mental functioning and the commission of the offence; and
(c) that impaired mental functioning substantially and materially reduces your moral culpability.[18]
[18]See s.10A (2)(c)(i) of the Sentencing Act 1991.
Impaired mental functioning
81The definition of ‘impaired mental functioning’ under s10(1) of the Act includes, amongst other things, a mental illness within the meaning of the Mental Health Act 2014.
82Section 4 of that Act provides that a mental illness is ‘a medical condition characterised by a significant disturbance of thought, mood, perception or memory'.
83This is different from the way mental impairment is understood in the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (CMIA) legislative regime, but in your case your delusions fall not that far short of what the CMIA contemplates by way of mental impairment.
84The available evidence establishes that you had at the material time, a mental impairment and thus ‘impaired mental functioning’ for the purposes of s10A(2)(c)(i).
85That conclusion is arrived at by reference of the following material.
86Dr McInerney[19] opines that, having regard to the breadth of your persecutory beliefs, your conviction that incidents of persecution have followed you interstate, and that people from your past continue to target you, those beliefs are delusional in nature. She explains:
'He appears to have made attempts to complain to police about this perceived persecution on at least one occasion and felt that he received an unsatisfactory response. His account to me suggested that he may also at times hold paranoid beliefs about police involvement in the perceived persecution.'[20]
[19]Exhibit 3- Report of Dr Clare McInerney dated 21 November 2023.
[20] Ibid at [9.3].
87She went on to observe that you:
'…appears to hold a pervasive distrust of others and a sense of being treated unjustly as well as longstanding beliefs about special powers, conspiracy- type beliefs, and vague visual and auditory perceptual disturbances'.[21]
[21] Ibid at [9.5].
88Your psychiatric presentation is one that exists against a backdrop of severe trauma and longstanding psychosocial stressors.[22]
[22] Ibid at [9.6].
89Diagnostically-speaking, Dr McInerney considers that your psychotic symptoms are best explained by a diagnosis of paranoid schizophrenia. This is a severe and enduring mental illness, of which persecutory delusions are a common symptom.[23]
[23] Ibid at [9.4].
90It is against a background of having been ‘chronically psychotic’ since 2020 that Dr McInerney opines the following with respect to the impact of your mental health on your offending conduct:[24]
'It is therefore likely that he had those active psychotic symptoms at the time of the incident dated 19 May 2022.
It appears likely that the incident was multifactorial with contributions from Mr Newton’s delusional belief system (noting that he accused the police of sexually assaulting children, similar in theme to his longstanding belief about his son being sexually abused), possible paranoia focussed on the police, his longstanding sense of being treated unjustly, possible perceptual disturbances, and intoxication.
Whilst intoxication would have contributed to the disinhibition at the material time, I think the assault on police was primarily driven by (and would not likely have occurred were it not for) the paranoid delusional belief system markedly impairing his judgment and decision-making.'[25]
[24] Ibid at [9.10].
[25] Ibid at [9.10].
91Ms Lechner also observes that your ability to engage in reflective and consequential thinking is undermined by your suspicious and paranoid thinking.[26]
[26] Exhibit 2-Report of Carla Lechner dated 19 May 2023 at p4.
92Dr McInerney's expert opinion is that your paranoid delusion belief system, stemming from your diagnosis of paranoid schizophrenia, markedly impaired your judgment and decision making at the time of the offending.
93Ms Lechner adds, as I said, 'your suspicious and paranoid thinking impairs your ability to think clearly'.
94The Court in Verdins[27] identified a number of ways in which courts have held that impaired mental functioning might reduce the moral culpability of an offender, as follows:
'Impaired mental functioning at the time of the offending may reduce the offender’s moral culpability if it had the effect of –
a) impairing the offender’s ability to exercise appropriate judgment;
b) impairing the offender’s ability to make calm and rational choices, or to think clearly;
c) making the offender disinhibited;
d) impairing the offender’s ability to appreciate the wrongfulness of their conduct;
e) obscuring the intent to commit the offence; or
f) contributing (causally) to the commission of the offence.
[27]R v Verdins [2007] VSCA 62.
95It is submitted on your behalf that at least items (a) and (b) in the list I have just taken you to, are of direct relevance to your case.
96I find your impaired mental functioning at the time of the offending substantially and materially reduces your moral culpability.
97The criteria in s10A(2)(c)(i) has been satisfied, and accordingly the Category 1 requirements requiring a term of imprisonment to be served immediately and not in combination with a CCO are not engaged.[28]
[28]Likewise, am I am not obliged to impose a minimum of 6 months imprisonment.
98That of course is not the end of the enquiry. All it does is remove from the equation the presumptive six-month period of imprisonment and permit me, if I took a view the offending and the general circumstances were sufficiently serious, to still impose a term of imprisonment in combination with a CCO if I thought the justice of the matter deserved that.[29]
[29]DPP v Haberfield [2019] VCC 2082.
Mental impairment and the Verdins principles
99It is submitted that limbs 1 to 6, enunciated in Verdins, are enlivened in this case.
100The analysis outlined already under the cover of ‘special reasons’ is relied on to support the proposition that there ought to be a substantial reduction in your moral culpability for the offending (Limb 1). I have accepted that this is so.
101It follows the principles of just punishment and denunciation are also moderated as relevant sentencing considerations.
102Further, there will be a significant moderation of both general and specific deterrence (Limbs 3 and 4). Your mental impairment, present both now and at the time of the offending, make you a less suitable vehicle for general deterrence and a less appropriate medium for an example to others.[30]
[30]R v Mooney (Unreported, 21 June 1978, Full Court) cited in R v Anderson [1981] VR 155 at 160.
103It is submitted that your experience in custody will be more burdensome for you than a person in normal health (Limb 5). Ms Lechner posits that:
'…he would find an immediate term of imprisonment difficult to negotiate given his current presentation. He would likely interpret the tensions within such an environment as personal to him and react inappropriately. He is not likely to understand the nuances of the verbal and non-verbal language and I would anticipate an increase in his level of anxiety.'[31]
[31] Exhibit 2- Report of Carla Lechner dated 19 May 2023 at p6.
104It is also submitted there is a serious risk of imprisonment having a significant adverse effect on your mental health. Dr McInerney says:
(a) 'Imprisonment is stressful, and this stress can have a disproportionate effect on people with severe mental illness such as this, possibly leading to an exacerbation of psychotic symptoms.'
(b) You are at risk of a deterioration in your mental state if incarcerated, including a greater risk of low mood and anxiety;
(c) Noting the history of thoughts of self-harm when unwell and agitated, you are at a higher-than-average risk of self-harm or suicide and would require careful monitoring against suicide risk.[32]
[32]Exhibit 3- Report of Dr Clare McInerney dated 21 November 2023 at [9.11].
105I accept all of those propositions.
Plea of guilty
106You pleaded guilty at the earliest available opportunity.
107You were originally charged with intentionally causing injury. The matter proceeded to a brief committal hearing in March of last year, where issues relating to injury and causation were explored.
108The matter resolved post-committal when the Crown accepted the defence's offer that you would plead guilty to recklessly causing injury.
109The plea of guilty reflects your acceptance of personal responsibility for this offending and is an acknowledgment of your own wrongdoing. There is objective evidence of remorse to be drawn from the plea.
110The plea has facilitated the course of justice and has significant utilitarian benefit. You will receive the benefit of the course you have taken.
Sentencing purposes
111Principles of deterrence (both specific and general), denunciation and just punishment are important considerations in cases such as the present. Whilst these are key sentencing factors in cases such as this, and Parliament has focused the mind of judges to the harm such offences cause to our emergency workers by the presumptive sentencing regime I have just been dealing with, I do find here there is a sound basis to appropriately reduce their application.
112Despite the serious nature of Charge 1, it is submitted Verdins principles substantially reduces your culpability and influence the formulation of a just sentence by ameliorating considerations of denunciation, just punishment and deterrence. I accept that this is so.
113Your prospects for reform are optimistic, in light of:
(a) No subsequent offending and compliance with bail for more than two years;
(b) High level of support from your loving parents, with whom you live and have a close relationship;[33]
(c) Solid employment history;
(d) Recent uptake of positive, self-soothing prosocial activities; and
(e) A willingness to engage with therapeutic interventions.
[33]Though I note in the insightful CCO report, this does not necessarily equate with a wider range of protective, pro-social connection with the broader community.
114You would be a very vulnerable, first-time prisoner, Mr Newton. You are socially and psychologically ill-equipped to manage the unique stresses associated with prison.
115It is not in your interests, nor the community's to incarcerate you. Ultimately, I form the view the community is best protected by your rehabilitation.[34]
[34]Sections 5(1)(c) and (e) Sentencing Act 1991 (Vic). See DPP v Milson [2019] VSCA 55 at [71].
Sentencing submissions
116It was submitted that a suitably fashioned CCO of appropriate duration is warranted in the circumstances of the case.
117In particular, conditions requiring assessment and treatment of your mental health and drug and alcohol abuse and/or dependency would be of utility to facilitate re-engagement with mental health services and appropriate counselling. Supervision and Judicial Monitoring presented themselves as attractive safeguards to manage you in the community on any CCO.
Assessment
118I received a CCO assessment report on 23 September 2024.
119Those reports were provided to the relevant parties, and I invited further submissions to be made about them. Neither party wished to be heard.
120The report is comprehensive and insightful. You are eminently suitable for such an order. It confirms your enduring fragile mental health and notes you still suffer from some delusional persecutory ideas. You also display some problematic lack of insight into drug and alcohol use. I expect it will require work for you and Corrections to overcome your guarded and suspicious nature to build a real therapeutic relationship.
121Understandably, they highly recommend a mental health condition (which it seems you are motivated about engaging in) as well as a drug and alcohol treatment and testing conditions.
122Further conditions recommended are supervision to assist you maintaining healthy social connections which can be provided, noting that you are still somewhat socially isolated.
123Judicial monitoring has been recommended so that you can be monitored by me as you negotiate your obligations under the CCO.
124Unpaid community work is not recommended, given your persistent pain.
Sentence
125It appears to me I can denounce your conduct, punish you, deter others as well as you and foster conditions that will assist in your reform by imposing a CCO with conditions. This provides a more flexible sentencing option, enabling both punishment and rehabilitation purposes to be served together.[35]
[35] Boulton v The Queen [2014] VSCA 342.
126As I said, I consider the community is best protected by your reform, and that reform has the greatest prospect of taking root and succeeding at present in the community with tailored supervision and treatment.
127Provided you consent, I propose to convict and sentence you to a community corrections order for a period of 18 months.
Core conditions
128Every community corrections order, including this one, contains certain conditions. The core conditions are:
(a) You must not commit another offence punishable by imprisonment.
(b) You must comply with any obligation or requirement prescribed by the regulations.
(c) You must report to, or receive visits from, the Secretary during the order.
(d) You must report to the Geelong Community Correction Services within two days of the commencement of the order.
(e) You must notify the Secretary of any change of address or employment within two days after that change.
(f) You cannot leave the state of Victoria, without permission; and
(g) You must comply with any direction given by the Secretary that is necessary for them to give, to ensure that you comply with the order.
Additional conditions
129In addition to those core conditions, I propose to impose the following additional ones:
(a) That you be the subject of supervision by the Office of Corrections.[36]
(b) You undertake assessment and treatment including testing for drug abuse or dependency as directed.[37]
(c) You undergo assessment and treatment including testing for alcohol abuse as directed.[38]
(d) You undergo mental health assessment and treatment as directed.[39]
(e) You be the subject of Judicial monitoring.[40]
[36]Sentencing Act 1991 s.48E.
[37]Sentencing Act 1991 s.48(3)(a).
[38]Sentencing Act 1991 s.43 (3) (a).
[39]Sentencing Act 1991 s.38D(3).
[40]Sentencing Act 1991 s.48K.
130I will order Judicial Monitoring, because I believe it is both beneficial and necessary. The first date of that Judicial Monitoring will be 18 December 2024 at 9.30 am sharp.
131I can only impose such an order if you consent, Mr Newton. Do I have your consent to impose such an order? Mr Newton?
132OFFENDER: Yes, Your Honour.
133HIS HONOUR: All right. You do consent?
134OFFENDER: Yes, Your Honour.
135HIS HONOUR: You need to understand that if you breach the order in any way, by committing another offence, or not complying with any of the conditions I have just mentioned, you could be charged with breaching the order.
136The offence of breaching a CCO carries a penalty of up to three months' imprisonment. If you were to breach the order, you would come back before me to be sentenced for the breach and you would also be resentenced for the original offences before me at a later date.
s.6AAA Sentencing Act
137Making a declaration under this provision is particularly difficult in these circumstances, given the special reasons I have alluded to would have already still been evident had you been convicted by a jury.
138Doing the best I can, but for your plea of guilty I would have sentenced you to a term of imprisonment followed by a lengthier CCO.
139I want to thank Counsel for their considerable assistance in the matter.
140Anything arising?
141MS BUCKLEY: No, Your Honour. As the court pleases.
142MR NIBBS: No, Your Honour.
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