Director of Public Prosecutions v Nyibol
[2022] VCC 2161
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-00504
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LUAL NYIBOL |
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JUDGE: | HIS HONOUR JUDGE HOLDING |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 December 2022 |
DATE OF SENTENCE: | 6 December 2022 |
CASE MAY BE CITED AS: | DPP v Nyibol |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2161 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence.
Catchwords: Plea of guilty – criminal record – summary offence – causing injury recklessly – intentionally damage property – resist emergency worker on duty – failure to comply with curfew condition – mental health – serious offending – fitness to plead – warrant – schizophrenia – special reasons – police powers – search - refugee – concurrency – police.
Legislation Cited: Crimes Act 1958 (Vic) - Mental Health Act 2014 (Vic) - Sentencing Act 199 (Vic)
Cases Cited: R v Verdins& Ors [2007] VSCA 102.
Sentence: Total effective sentence of six months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms Patterson | Office of Public Prosecutions |
For the Accused | Mr A. Cameron | Angus Cameron Lawyers |
HIS HONOUR:
1Lual Nyibol, you have pleaded guilty to charges on Indictment M12105790 as follows: recklessly cause injury to Tessa Carter; intentionally damage property being a glass door belonging to 7-Eleven; resist Tessa Carter, an emergency worker on duty, being reckless to whether Tessa Carter was an emergency worker; and resist Nicholas Chung, an emergency worker on duty, being reckless to whether or not Nicholas Chung was an emergency worker. Both these people were police officers that are defined by law as being emergency workers.[1]
[1] These charges all relate to the Crimes Act 1958 (Vic).
2You have also pleaded guilty to the uplifted summary offence of failing to comply with a direction of an authorised officer, namely the Chief Health Officer direction requiring you to abide by curfew conditions.
3A prosecution summary has been read to the court previously and filed. I will briefly set out some of the circumstances of your offending but the opening should be read in conjunction with these reasons.[2] Before I do this, it is necessary for me to say something of the procedural history in relation to this matter.
[2] Exhibit A on the Plea.
Procedural history
4After your arrest you were remanded in custody. The prosecution opening details the chronology of your charges proceeding through the courts. It indicates that a number of proceedings were adjourned because it was not clear whether you were prepared to plead guilty to the charges. There were also ongoing negotiations between the Crown and defence as to what were the appropriate charges.
5You were granted bail on 31 March 2022, having served 176 days of
pre-sentence detention since your arrest on 7 October 2021.6You confirmed in the Magistrates' Court that you would plead guilty to these charges and no committal was necessary.
7Your plea hearing was listed before me to proceed on 12 August 2022. On that day when you were being arraigned you made verbal comments during the process of arraignment that cast some doubt upon your intention to plead guilty.
8It became apparent through further discussion with your counsel, Ms Clark, who appeared on your behalf that day, that she had had a limited opportunity to confer with you and go through the details of the prosecution opening. In those circumstances, I adjourned your case for two further mention hearings, neither of which you attended.
9Your counsel indicated at those mention hearings that she was having difficulty contacting you. A warrant was issued for your arrest because of your failure to appear at a mention hearing in this court on 29 September 2022. That warrant was executed upon you shortly after it was issued and you were subsequently brought before the court on 30 September 2022.
10Your case was subsequently listed for a further plea hearing on 7 November 22. On that day, it had to be adjourned once more because of a deterioration in your mental health and a concern raised by the defence that on that day you were not fit to plead.
11Your case was subsequently adjourned to today's date, being 6 December 2022, and proceeded this morning as a sentence indication hearing. I indicated at that sentence indication hearing that should you plead guilty to the offence, I would impose a maximum total effective sentence of six months' imprisonment.
12As a result of me giving that sentence indication you have pleaded guilty to the offences before the court. I am now explaining my reasons for the sentence that I indicated that I would impose during the sentence indication hearing.
Circumstances of the offending
13Your offences all occurred in the early hours of the morning of 7 October 2021. On that day, residents of Metropolitan Melbourne were subject to the unusual direction of the Chief Health Officer to abide by curfew conditions, in order to restrict the spread of the Covid virus. These conditions required residents to be home each evening between 9 pm and 5 am, except in the case of an emergency.
14It was in this context that Constable Tessa Carter and First Constable Nicholas Chung were performing their duties as police officers and were patrolling the Fitzroy suburb in a marked police vehicle.
15At approximately 1 am on 7 October 2021, these police officers approached you when you were sitting on the footpath outside a 7-Eleven. They asked you why you were out past the curfew hours. You responded that you did not know there was a curfew and you were about to head home after getting some dinner. You were advised by the police to do that and you provided your personal details to the police.
16Approximately half an hour later these police officers against drove past the same 7-Eleven and noticed you were still there. First Constable Chung describes in his statement what happened next as follows:
I pulled the vehicle up alongside him, facing north on Brunswick Street. I heard Constable Carter speak to him. She said, 'What are you still doing out?' I said, 'I thought I told you to go home'. He said, 'I'm going home now, I just called a taxi. I just got cash from the ATM'. I said, 'You just got cash. How much? Did you get a receipt?' He said, 'I'm going home now'. I said, 'Just stay there. Do you mind if we search your pockets?' He said, 'Okay'. I exited the vehicle and walked around the front of the van. As I was walking around, I observed Lual reach through Constable Carter's open window and punch her in the face with a right hand. I activated my body worn camera. I heard Constable Carter yell in pain. Lual then sprinted to 7-Eleven. I immediately requested another unit for assistance, due to Constable Carter getting assaulted before speaking to Lual.
17Constable Carter gives a slightly different version of the verbal exchange in the moments before you punched her. Her statement indicates that when First Constable Chung asked you how much money you got from the ATM, you said you did not get any money out and that when First Constable Chung got out of the vehicle to approach you, she heard you say, 'Just fucking shoot me', and at that point she noticed your demeanour had changed and she felt threatened immediately before you punched her.
18It is this punch that constitutes Charge 1, recklessy causing injury. The punch caused Constable Carter's head to snap back and she felt a sharp pain. She thought her nose was broken and she was in immediate fear of further assault by you. She felt trapped in the car and her nose and lip began to bleed immediately.
19She later received treatment at hospital where she was diagnosed with swelling to her upper lip and nose bleed from both nostrils. In the days following the incident she had a sore and aching nose, a swollen and bruised lip and headache.
20After the punch you resisted directions from the police to get on the ground, necessitating the officers to pulling their OC spray and attempt to arrest you.
21You then tried to enter the 7-Eleven store but found the doors had been locked. You then punched and kicked the doors, causing a glass panel in the door to shatter. It is this action in breaking the door that constitutes Charge 2, intentionally damaging property.
22You then ran north along Brunswick Street and the police officers had to drive after you in their police vehicle.
23You were located by police outside a kebab shop named Lamb on Brunswick. Further requests were made by police for you to surrender yourself. Again you resisted these directions and pushed your way inside the kebab shop, despite the workers in that store trying to keep the doors closed.
24The police tried to restrain you inside the store, but you kept flailing your arms around, resisting attempts by police to handcuff you. Eventually another two police officers arrived at the scene. You were physically restrained and successfully handcuffed.
25You continued resistance constitutes Charge 3 and 4, resisting emergency workers in the execution of their duty.
Personal Circumstances
26You were born in Sudan in December 1993 and were 28 years old at the time of your offending. You were one of six children born to your family and had a difficult background. Your family fled the civil war and you arrived in Australia when you were 10 years old, as a refugee.
27Your parents separated around the time, you were raised by your mother. You have limited English language skills and it appears you struggled at school. You were transferred from the Collingwood Secondary College at Collingwood to the Collingwood Alternative School. You finally managed to complete Year 12 at Holmesglen TAFE.
28You have had long-standing mental health issues that seems to have prevented you from engaging in meaningful employment.
29Tendered on the sentence indication hearing were the following reports: two psychiatric reports from Dr Lester Walton dated 29 November 2012[3] and 26 March 2013;[4] psychiatric report from Dr Anne Brennan of Forensicare dated 4 March 2013;[5] confidential mental health summary from Mental Health Advice and Response Service (MHARS);[6] Forensicare from senior social worker, Amy Meiklejohn dated 25 March 22;[7] psychiatric report from Dr Kevin Ong dated 30 March 22;[8] psychiatric legal report dated 5 November 2012 from Dr Alan Jager,[9] heard by Dr Brown; psychiatric report by Dr Kevin Ong dated 5 December 2022;[10] letter from Mia Copic, Forensicare clinician dated 5 December 22.[11]
[3] Exhibit 3 on the Plea.
[4] Exhibit 5 on the Plea.
[5] Exhibit 4 on the Plea.
[6] Exhibit 6 on the Plea.
[7] Exhibit 7 on the Plea.
[8] Exhibit 8 on the Plea.
[9] Exhibit 2 on the Plea.
[10] Exhibit 10 on the Plea.
[11] Exhibit 11 on the Plea.
30A number of these reports relate to historical court proceedings and the issue of whether or not you were fit to plead in relation to those proceedings.
31You have a criminal history dating back to 2013. On 30 April 2013 you were dealt with in the County Court for offences of intentionally cause injury, affray, and fail to answer bail and were sentenced to 250 days detention in a Youth Justice Centre. It was recorded at the time, you had already served 280 days by way of pre-sentence detention.
32In 2015 you were brought before the Melbourne Magistrates' Court and sentenced for offences including threat to commit serious injury and unlawful assault. Again, you received a period of confinement, that was declared as having already been served, the period being 100 days imprisonment.
33In December 2017 you were placed on a community correction order for six months for offences of contravening a family violence intervention order.
34You have a prior conviction in 2018 when you were sentenced to 270 days imprisonment in respect of a charge of recklessly cause injury in addition to a 12 month community correction order. Again, a period of custody was served by way of pre-sentence detention.
35You were dealt with subsequently for breaching the community correction order imposed in 2017 and 2018.
36Your criminal history reveals that you have real problems complying with the conditions of bail, community correction orders, and family violence intervention orders. The psychiatric reports indicate that in 2012 you were diagnosed by a psychiatrist named Dr Jager, as having chronic schizophrenia disorganised type. Psychiatrist Dr Walton examined you in late 2012 and again in 2013 in relation to questions of whether you were fit and at the time to enter a plea to charges. He made the following comments in two reports at the time:
Mr Nyibol voices rather paranoid ideas about police and other authorities, although not clearly of delusional proportions. When I first saw Mr Nyibol, there was at least a suggestion that he may be entertaining paranoid delusions in relation to police, which seems more probable now that these ideas have subsided in a context of active antipsychotic treatment. Thus I agree with Dr Jager that the most appropriate diagnosis is that of schizophrenia, but the condition is currently in remission.
37The MHARS report indicates that you have had nine episodes of involuntary assessment or treatment under the Mental Health Act 2014 since 2015, and five admissions to in-patient treatment in psychiatric units since 2013.
38The psychiatric report of Dr Ong was prepared in relation to offences before the court. Dr Ong has previously been employed as a consultant psychiatrist with Forensicare, and as well as at the Thomas Embling Hospital in both the acute and psychosocial rehabilitation units and Victoria Prisons.
39He reviewed the brief of evidence in this matter, along with previous psychiatric reports prepared by other psychiatrists, going back to 2012. He interviewed you and noted that there had been at least two episodes in the last 10 years where you did not take antipsychotic medication, including in the lead up to the index offences. He stated that he took you through the brief of evidence and you told him how you became fearful when the police officers wanted to search you, fearing that the police were going to, 'Shoot or bash me, or lock me up for no reason'.
40Dr Ong opined:
Regarding the index offences, Mr Nyibol was untreated for some time in the lead up. Whilst it is not possible to state that he was actively psychotic at the time of the offence, his suspicions regarding police may have been more prominent and his chronic untreated illness would have made him more impulsive and less likely to consider the consequences of his actions. It is my opinion that his impaired mental functioning contributed to the offending. Mr Nyibol experiences a serious mental illness, namely schizophrenia, albeit with acute symptoms currently in abeyance secondary to treatment. He is likely to find incarceration to be more onerous compared to a prisoner without his condition. He would benefit from ongoing input of prison mental health services to support him whilst in custody.
41Dr Ong has reassessed you more recently on 25 November 2022 and reviewed your Justice Health file which details observations of you and treatment since your most recent remand. He has reaffirmed his original opinion that your impaired mental functioning contributed to the offending.
42There is no doubt that this is serious offending. The prosecution summary indicates that Constable Carter was performing only her fifth shift as an acting officer, having recently graduated from the Police Academy. Although she has not provided a victim impact statement, she describes feeling helpless immediately after being punched and scared that you could punch her again, given the position she was in.
43I have no doubt that this assault and the consequences from it, would have imposed a real and ongoing psychological burden upon Constable Carter feeling safe as she continues work as a police officer.
44To punch a police officer with a clenched fist in the face, through an open window of a car while they are seated and effectively defenceless, is appalling conduct. Police are defined by law as emergency workers and the community relies upon them to perform all sorts of onerous duties that are necessary to maintain a civil society and enhance the safety of the community. It is both difficult and essential work.
45Parliament has recognised the need to deter those who might consider recklessly causing injury to such workers, by providing that unless a special reason exists the court must impose a term of imprisonment of not less than six months.
46Ms Clark, who appeared on your behalf previously, provided written submissions to the court. She relied upon the following matters in mitigation. The circumstances of the offending were unusual and arose out of unusual restrictions, imposed upon you because of the pandemic. There was no premeditation on your behalf to commit criminal offending and the offences occurred in escalation of circumstances where the police were trying to enforce curfew conditions.
47The reckless cause injury charge is based on a single punch. You suffered immediate punishment in the sense of being sprayed with OC spray. The offending is in the circumstances of the one episode of relatively short duration.
48All of the principles in the well-known case of Verdins[12] are applicable relating to your mental health at the time and whilst in custody. You have ultimately pleaded guilty in the time of the pandemic, which entitles you to a significant amelioration of your sentence.
[12] R v Verdins& Ors [2007] VSCA 102.
49Mr Cameron has supplemented those submissions today and indicated that a discharge plan as supervised by public mental health system under the Mental Health Act 2014 (Vic) is a protective factor for you and the community generally. This submission was supported, he submitted, by the opinion of Dr Ong, in the most recent report, that at your more recent review you did not appear to require in-patient treatment.
50He opined that the follow up under the auspices of a community treatment order, following a community treatment assessment order, would suffice.
51The letter from Mia Copic expands on that and in a sense indicates that it is not necessary for you to be assessed under a community assessment order. Ms Copic states that you are currently presenting as mentally stable and do not meet the criteria for an assessment order. However, it states that you will be subject to voluntary follow-up in the community and have been advised to seek support from your general practitioner via a mental health care plan.
52Today, during the sentence indication hearing, it was indicated to me by your counsel that a clinic is available to you and that you can easily attend that clinic by riding a bike there, and that you intended to use those services to receive treatment to deal with your mental health issues. I was very glad to hear that that was your attitude and I am hopeful that you will undertake such a course.
53The prosecution had previously submitted that it was open to impose a sentence involving a head sentence and non-parole period, or a combination of sentence and they pointed to the objective gravity of your offending.
54However today, it was made clear to me that the prosecution has reflected upon all the matters relevant to sentence and now submit that a period of imprisonment the accords with your pre-sentence detention is an adequate sentence in all the circumstances of your case.
55I accept the defence submission that the principles annunciated in Verdins do have application to the circumstances of your offending, for the following reasons.
56There is a well-documented history of you being diagnosed with a schizophrenic illness. As far back as 2012 features of the illness was that you experienced paranoid ideas about police officers and other authorities.
57There is well-documented evidence of you having repeated psychiatric treatment both on and in the voluntary and in-patient basis on a number of occasions since 2015. Part of your medical history indicates that when you are non-compliant in taking antipsychotic medication, your mental health issues deteriorate.
58Dr Ong is a well-qualified psychiatrist who clearly expresses the opinion that your impaired mental functioning contributed to the commission of the offending. You told Dr Ong that you were fearful when police officers wanted to search you. You said you feared that they were going to shoot or bash you. To some extent what you told Dr Ong is corroborated in the statement of Constable Carter. She states that immediately before she was punched, she says, 'I can't remember his exact words, but I know he said words, “Shoot me”.’
59Although you were arrested, it is not alleged that when you were remanded in custody, you had any illegal substances in your possession. There appears to be no rational reason why you reacted with such violence to the prospect of being searched when you were not in possession of any contraband.
60I accept that taking into account all the circumstances, you had a genuine mental illness that caused you to be fearful of the police conducting a search upon you, and this contributed to your offending. In my view, this entitles you to a reduction in my assessment of your moral culpability for this offending.
61In my view there has been an unfortunate confluence of circumstances that has contributed to this offending. The offence of failing to abide by the curfew conditions is only punishable by a monetary penalty.
62It is conceded that when you spoke to the police you provided your correct identification details, that were able to be verified by the police at the time. Indeed, in Constable Carter's statement she says you, 'Willingly provided your details' which she was able to check on the 'IRA system'. She stated that while you had an extensive criminal history, you were not at that time wanted by the police for any previous offences.
63It would appear that with your correct personal details having been provided, you could have been issued with a penalty notice for your non-compliance with the curfew direction.
64It does not seem in dispute that the police officers concerned do not allege that they had reasonable grounds upon which to conduct a search of your pockets. I do not intend by making that observation to in any way suggest that the law does not allow a person to consent to a police search, or that it could ever be a justifiable reaction to such a request, to punch a police officer when such a request was made.
65The officers are likely in my view, given your criminal history, to have believed that they were performing a proper duty in ensuring that you were not in possession of some contraband or illicit substance, when you were asked if you would consent to a search. It is however unfortunate that the police officers were unlikely to be aware of your history of mental instability, and in particular your paranoia and fear of police officers.
66During the sentence indication hearing I raised with the prosecutor that the Victoria Police manual provides that in circumstances where police rely upon consent to conduct a personal search, the manual provides that they should complete a Form 246 that allows the person to be searched, to confirm their consent by signing the form. I note that in the text 'Criminal Investigation and Procedure in Victoria', the learned author states at paragraph 4.60:
That police can conduct a lawful search if a person provides genuine consent [and] the police must obtain a signed authority from the person to be searched, including details of the police officer to conduct the search.
67The prosecutor conceded that the brief of evidence did not reveal why the police wanted to search you or why the police did not follow their own guidelines in seeking your written consent before First Constable Chung exited the police vehicle and commenced walking towards you. It may have been that if the police followed the procedures prescribed in their manual of asking you to sign a Form 246 document, it would have come to light that you were fearful of being searched and were to some extent consenting to that procedure out of fear.
68Your reactions to the police were totally unjustifiable and wrong and must be denounced. While the offending warrants that you be punished for your offending and I must incorporate both an aspect of general and specific deterrence, I have formed the view that your period of imprisonment should not exceed six months in the unusual combination of circumstances surrounding this offence.
69Section 10A(2)(c) of the Sentencing Act 199 (Vic) states that if a special reason exists for not imposing the minimum six month period of imprisonment, it does not have to be imposed if the offender proves on the balance of probabilities that at the time of the commission of the offence, he had impaired mental functioning that is causally linked to the commission of the offence, and substantially and materially reduces the offender's culpability. Impaired mental functioning is defined, amongst other things, as a mental illness within the meaning of the Mental Health Act2014 (Vic).
70For the reasons outlined above, I find this particular special reason exits and there is therefore no legal obligation to impose a minimum six-month period of imprisonment.
71I am aware that through your non-compliance with bail conditions you have in fact now served longer than a period of six months imprisonment. Although I regard there as being a special reason in the legal sense, that your mental health condition engages the limbs outlined in the case of Verdins, I still regard the sentence of six months imprisonment as a just sentence, taking account of all the circumstances of your case.
72Charges 1, 2, and 3 carry maximum penalties of five years' imprisonment. Although I accept you had a genuine fear, you punched a policewoman forcefully to the face when she was in a relatively helpless position, sitting in a motor vehicle. You have a history of being non-compliant with medication, committing violent offences. To some extent, you must be aware of your problems with impulse control when unmedicated.
73I take account of the fact that you have pleaded guilty and this has facilitated the course of justice. It was also not in dispute that you have served your period of imprisonment in more difficult circumstances due to the pandemic restrictions. I take those matters into account in amelioration of your sentence.
74Although the different charges encompass different aspects of criminality in the unusual circumstances of this case, it is appropriate in my view that the periods of imprisonment in respect of each offence should be served concurrently.
75Taking all of the matters into consideration, the material presented to me, the submissions made by the parties and balancing the various purposes of sentencing, I have determined that the appropriate sentence is as follows.
76On Charge 1, recklessly cause injury to Tessa Carter, you are convicted and sentenced to six months' imprisonment.
77On Charge 2, intentionally damage property being a glass door belonging to 7-Eleven, you are convicted and sentenced to one months' imprisonment.
78On Charge 3, resist Tessa Carter, an emergency worker on duty, being reckless to whether Tessa Carter was an emergency worker, you are convicted and sentenced to one months' imprisonment.
79On Charge 4, resist Nicholas Chung, an emergency worker on duty, being reckless as to whether he was an emergency worker, you are convicted and sentenced to one months' imprisonment. These sentences are to be served concurrently.
80On the uplifted summary offence of failing to comply with a direction of an authorised officer, namely the Chief Health Officer's direction requiring you to abide by curfew conditions, you are convicted and discharged.
81Pursuant to s18(4) of the Sentencing Act1991 (Vic), I declare that the period of 194 days that you have been in custody be reckoned as time already served under the sentence passed today, and I direct that this be entered into the records of the court.
82I appreciate that in fact you have served a longer period of custody since this offence was imposed and that I need to apply the principle of totality in relation to the time that you have spent in custody in relation to unrelated matters.
83Pursuant to 6AAA of the Sentencing Act 1991 (Vic), I declare that had you not pleaded guilty I would have imposed a sentence of 10 months' imprisonment.
84Can I ask counsel were there are any other further orders that I need to make?
85MS PATTERSON: No, Your Honour.
86MR CAMERON: No, Your Honour.
87HIS HONOUR: Mr Nyibol, can you hear me okay?
88OFFENDER: Yeah.
89HIS HONOUR: Look that was a very long exposition of the reasons of sentence but if I can say this to you, I accept that you have got some serious mental health issues and you were in fear when you punched the police officer, but unfortunately, it is still serious and you have done this type of thing on previous occasions and received sentences of imprisonment. So it is really important that you try your best to receive medication that stops you acting so impulsively when difficult situations arise, because there is no doubt that they will arise again in the future and the likelihood of you getting into trouble is much less if you are on medication and you are receiving help with your mental health issues. You understand?
90OFFENDER: Yes.
91HIS HONOUR: Now you have already served a significant punishment for punching this policewoman, but you need to understand also, she is just trying to do her job, she was only a new policewoman, and it is going to make her life more difficult. So it was still serious offending. So please try your best. Ride your bike to the clinic, get the help that you need and try and take the advice from your mum and the people who care about you and try your very best when things are going off the rails to ask people and to seek help. Do you understand?
92OFFENDER: Yes.
93HIS HONOUR: All right. Can I thank counsel for their assistance and we will adjourn the court.
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