Director of Public Prosecutions v O'Donohue, Nicholas

[2012] VCC 2131

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-11-02232

DIRECTOR OF PUBLIC PROSECUTIONS

v

NICHOLAS O'DONOHUE

---

JUDGE:	Her Honour Judge Hampel
WHERE HELD:	Melbourne
DATE OF HEARING:	2 November 2012, 15 November 2012, 18 December 2012
DATE OF SENTENCE:	18 December 2012
CASE MAY BE CITED AS:	DPP v O'Donohue, Nicholas
MEDIUM NEUTRAL CITATION:	[2012] VCC 2131

REASONS FOR SENTENCE
---

Catchwords: Sentence – Guilty plea  -    Intentionally cause serious injury – accused believed victim had stolen money from him– vulnerable victim – significant injuries - no remorse – attempts to minimise behaviour –– prospects of rehabilitation good, but guarded – vast disparity between Crown and defence sentencing range – long history of cannabis and alcohol abuse – grieving recent suicide of partner at time of offending - no causal connection between psychological state and offending to enliven Verdins principles- no reduction in moral culpability – psychological state taken into account generally- seriousness of offending – Community Corrections Order or partially suspended sentence not within range.

Cases Cited: R v Verdins; R v Buckley; R v Vo [2007] VSCA 102

Sentence: Total Effective Sentence of six years imprisonment. Non parole period of four years. 88 days reckoned as a period of imprisonment already served.  

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr J. Livitsanos	Office of Public Prosecutions
For the Accused	Ms P. Riddell	Haines & Polites

HER HONOUR:

1       Nicholas O'Donohue, in early October 2010 you engaged the services of Simone Frilay, a sex worker who was at that time working on the streets in St Kilda.  You were living in a boarding house in St Kilda.  In the week following that encounter the two of you spent a considerable amount of time in each other's company.  You were aware she was a user of heroin and other illicit drugs.

2       On one occasion whilst she was at your place she stole money, approximately $2000 from your wallet.  You confronted her and she admitted to stealing the money and spending it on drugs.  She promised not to steal from you again and you apparently accepted her apology and forgave her.  You continued to see each other. 

3       On the morning of 10 October 2010 she came to your room after having worked the previous night in St Kilda. She then went to her own home in Footscray and, by arrangement, you later went to see her there.  You were aware that she had planned to see her three children who were in her mother's care later that day.  While at Ms Frilay's flat you accused her of having again stolen money from you.  She denied it.  She had about $1000 on her which she maintained was her earnings from the previous night's street work.

4       You took the money from her.  She produced a small box cutter which was attached to her key ring.  In what the prosecution accepts was an attempt to disarm her you then assaulted her, punching her to the face with such force that she fell to the floor.  Whilst she was on the floor you repeatedly kicked and stomped on her face and then her hands as she tried to cover and protect her face.

5       She begged you to stop but you continued to kick her, landing further kicks on her face and the side of her body.  At some stage you said to her, "You're not seeing your kids today."  That is taken from the prosecution summary based on Ms Frilay's statement.  When you stopped Ms Frilay's face was bloodied as was her clothing.  There was a lot of blood on the floor.  You told her to clean herself up and took her to the bathroom.

6       Whilst she was washing the blood off herself you attempted to clean the blood from the floor and rinsed her bloodied clothing.  She was unable to see out of one eye, her face was badly swollen and bruised and she was extremely distressed.  You told her to lie down on the bed.  She said she wanted to go to hospital.  She said she would say she had injured herself falling down the stairs.

7       Eventually the two of you left her flat together.  You drove away and she went to a neighbour's home and eventually, after obtaining some heroin, to hospital.

8       Her facial injuries were severe.  She had extensive bruising and swelling over the right side of her face involving her right eye, right cheek and right lip, including the inside of her upper right lip. Further blue bruising was evident on her right ear and from behind her ear extending in an irregular pattern down the right side of her neck.  There was bruising on her forehead which was patterned forming an S shape.  There was blue bruising behind her left ear.  She was unable to open her right eye at all for the examination.

9       Scans were later taken.  They showed that she had suffered a blowout fracture of the right orbital floor, a fractured nose and a complex depressed fracture of the left maxilla, the area between the cheek bone and the nose.  She also had abrasions and lacerations and an inverted Y shaped abrasion over her left cheek bone and nose.  There was a 1.5 centimetre laceration in the middle of her forehead which extended in a vertical orientation and she had bruising to her back.

10      After leaving Ms Frilay's flat you did not return home.  You went into hiding.  You got rid of your car.  It was not until 15 November, over a month later, that by arrangement you surrendered yourself to the police and submitted to interview.  When interviewed you asserted Ms Frilay had stolen money from you when you were at her flat.  You said you had confronted her and consistently with her account you said that she had denied stealing from you and had maintained that the money she had on her was hers.

11      Nonetheless you took the money.  You said she then threatened you with a box cutter.  You said you then gave her what you described as a backhander.  You later described what you had done during the interview as punching her in self defence. 

12      You were asked on a number of occasions to give more detail about what you had done. Each time you refused.  You said you were not going to go into detail about what you did.  When asked if you had kicked her or stomped on her face you said you did not recall having done that. 

13      In my opinion you were not frank about what you had done to Ms Freelay.  You were keen in interview to point out that you had offered to take her to hospital. When asked why you had offered to do that you said she needed medical assistance.  When asked why she needed medical assistance you said because she had been hit in the face.  When pressed you changed and said that she was a risk to herself and others.  When the police returned to that matter later in your interview you said she might have needed hospitalisation for her injuries. When pressed again about what injuries she had all you would nominate specifically was a bloodied nose.  When further pressed you said it was obvious she needed to go to hospital but you would still not acknowledge what you had done or the extent of the visible injuries to her face. 

14      You have pleaded guilty to intentionally cause serious injury.  By your plea you acknowledge you inflicted the injuries to Ms Frilay that I have detailed.  Your plea is also an admission that you did much more than giver her a backhander and more and worse than punch her.  As the medical evidence makes clear the injuries Ms Frilay suffered are blunt force injuries of a magnitude often seen after a motor vehicle crash.  That is by force consistent with the impact of a motor vehicle accident.

15      They are complex injuries.  That is they were caused by multiple forceful direct impact blows to the face and head.  I am satisfied beyond reasonable doubt of Ms Frilay's account that you repeatedly kicked and stomped on her face and hands after your original punch to her face had caused her to fall to the floor.

16      Your plea also acknowledges that the injuries are serious and that they were intentionally inflicted, that is that you intended to inflict serious injury and that you had no lawful justification or excuse.  That is that you were not acting in lawful self defence. 

17      On your behalf it was put that you were initially acting in self defence as Ms Frilay had threatened you with the box cutter. The plea clearly acknowledges that your conduct, at least in kicking and stomping on her face while she was down on the floor, is not justifiable as self defence. 

18      It was put on your behalf that you attacked her as you did because you were provoked by her stealing money from you.  This it was submitted was a mitigatory matter which should be taken into account in your favour. Ms Frilay denies stealing from you on this occasion.  She admitted to stealing on the first occasion but maintained the money you found on her on this occasion was hers, her earnings from her sex work in St Kilda the previous night.  It was common ground she had worked in St Kilda the previous night and had gone home after visiting you at your place when she had finished.

19      In the circumstances I am not satisfied on the balance of probabilities that the money that you found on her that morning when you went to her place was yours and that she had stolen it from you.  Even if I had been satisfied on the balance of probabilities that she had stolen money from you that morning I do not consider that to be a mitigatory factor.  You knew that she was so desperate or had fallen to such a low level in her life that she had once before stolen from you despite your friendship and intimacy.

20      You knew she had a heroin and ice habit and that she was working as a street sex worker to feed her habit.  You knew the pernicious effects of drug abuse and addiction and the need to get drugs or the money for drugs.  Your long term partner who had died only weeks earlier had been similarly addicted.

21      This was a sustained vicious brutal attack on a vulnerable woman in her own home, a woman you had been in what your counsel described as an intense intimate relationship for the previous week. You knew her vulnerabilities.  The effect of an assault of this ferocity on her by a trusted person when she was already vulnerable is to my mind particularly invidious and deserving of condemnation.  It is clear therefore that just punishment, denunciation and deterrence must all be given due consideration.

22      Ms Frilay and her mother both provided victim impact statements.  There was no up to date medical evidence about the long term consequences of the facial injuries or whether Ms Frilay was left with any permanent damage apart from losing two front teeth.  It goes without saying even without any up to date evidence that such injuries as she sustained are disabling, painful and take a long time to heal.

23      The brain scans taken at the time of admission to hospital indicate that there was no brain injury.  That I see as a fortunate outcome for Ms Freelay but not one that can be attributed to any care on your part.  In addition to the physical effects of the attack itself, the extensive facial fractures, the swelling the bruising and the pain, it is not surprising that Ms Frilay has suffered emotionally from this attack and is fearful and less trusting of relationships and of men. She was, as you well knew a particularly vulnerable person. 

24      Ms Frilay's mother and her children are secondary victims of your assault on her.  Her mother felt all the powerlessness and anger one would expect when confronted with the knowledge that her vulnerable daughter had been attacked so violently by a man she knew and trusted. Her children, too young perhaps to appreciate their mother's circumstances, were affected by the response of their mother and grandmother to what had happened to Ms Frilay. 

25      Through your counsel you deny having said to Ms Frilay, "You won't be seeing your children today."  The material before me does not permit me to make a finding one way or the other- that is whether it was said or not and therefore I cannot take it into account either as an aggravating or the absence of saying it as a mitigating factor.

26      What I do take into account is that the subjective fear that Ms Frilay and her mother had that you may have attacked her again and which they refer to in their victim impact statements was not surprising given the ferocity of the attack and your subsequent disappearance.  As I have said I do not take that into account as an aggravating feature of your offending.  It is however and understandable and unsurprising response from them.

27      Dealing then with your circumstances.  You are 41 years of age and you come from a comfortable, successful family.  Like your older brothers, you went to a private school that you parents made sacrifices to send you to.  You completed school successfully with results sufficiently good to enrol in an engineering course at Swinburne.  At that stage you looked to have a future ahead of you that would follow the pattern of your older brothers; study, work, forming a family of your own and a comfortable life.  It did not happen.  Your study was desultory and so after a number of unsuccessful attempts to complete a course of study, was your work.

28      Your brother Simon who gave evidence on the plea said your university life was marked by beer and parties and a failure to follow through.  He said the family, knowing you were intelligent and capable, hoped you would wake up, moderate your partying and engage in meaningful study or work.  Those hopes were ill-founded.  A promising future was abandoned for an aimless life where cannabis and alcohol and short term casual unskilled employment dominated. 

29      While working as a factory hand you suffered tendon damage to your knees, making factory and labouring work difficult and further limiting your employment prospects.  You committed your first offences, dishonesty offences, at the age of 18.  As you drifted from study to work and your drug and alcohol use escalated, you began getting into more trouble.  You lost your licence for drink driving, further undermining your employment prospects.  Eventually your parents asked you to leave home and your life became more aimless, your bouts of employment less frequent and your substance abuse more marked. 

30      You have amassed 23 convictions from eight court appearances between 1989 when you were 18 and 2005 when you were 34.  None are for offences of this gravity.  The only other time you have been before this court is on an appeal against a sentence for charges of assault police, escape from custody and trafficking in and possession of cannabis.  However, your offending history demonstrates a pattern of alcohol and drug abuse, of drug dealing or possession of a trafficable quantity of drugs, dishonesty and property damage offences and most significantly for these purposes, other offences of violence. 

31      You have two prior convictions for violent offences.  Assault police in 1999 and assault with an instrument in 2004.  You also have two prior convictions for escape from custody, on each occasion running away from police after you had been arrested.  You have not received a sentence of imprisonment to be immediately served before.

32      In a neuropsychological report which was obtained after the original plea, in circumstances to which I shall refer shortly in more detail, Dr Popp said testing showed you had poor problem solving capacity and a performance under testing characteristic of marked perseveration.  That is a tendency to maintain an inappropriate course of action.  He was of the view that these weaknesses were likely to be the result of a combination of the effect of your substance abuse and head traumas you have suffered over the years.  It would appear to me that your poor problem solving and a tendency to maintain an inappropriate course of action has characterised your life choices, including your criminal offending since you were 18.

33      It was put that this offending occurred at the lowest ebb in your life.  By the time of the offence you were living in a boarding house in St Kilda.  You were drinking heavily and abusing cannabis.  You were grieving the death, by suicide of your long term partner Debbie.  Like Ms Frilay, she had had a long history of drug abuse.  Her death and your grief compounded the cycle of alcohol abuse and aimlessness of your existence.  You told Ms Riddell and also Dr Zaks, the psychologist who you saw after your release on remand having been charged with this offence, that in forming the relationship that you did with Ms Frilay, you were chasing a ghost and that you saw a lot of Debbie in her.

34      After you surrendered yourself to the police you were charged and remanded in custody.  You spent just under three months on remand and were then released on CISP bail.  You remained on CISP bail for four months until your progress was deemed to be sufficient to remove the CISP conditions.  You have been on bail since.

35      According to the CISP reports tendered, your primary presenting concerns were identified as alcohol abuse, mental health and grief and loss following your partner's death.  Your family rallied around you.  You lived with one brother and his family.  You were referred to drug and alcohol counselling with Anglicare and attended all sessions directed.  You have attended AA meetings whilst on remand.  Your GP referred you to Dr Zaks under a GP Better Mental Health program.  You attended 12 counselling sessions with her. 

36      Once exited from CISP bail, you continued to live with family members.  You are now living with your parents and you have not been in any trouble, but it would appear from what I have been told, that your life has been on hold.  You stopped attending AA and you have resumed occasional drinking.  I was told you believe you can manage your drinking without any further intervention. 

37      You stopped counselling with Dr Zaks once exited from CISP bail, although in the past four months as the trial date approached and then your plea hearing was fixed, you have returned to see her on three occasions.  It is a little more than the past four months now, it is the past six months I think.  In her report prepared for the original plea hearing Dr Zaks said that you have demonstrated interest in working on your psychological problems which she identified as your grief, now compounded by guilt for causing your parents to suffer.  That is from their concern about the predicament you find yourself in.  That was confirmed in Dr Zaks' most recent report and has now been supplemented by a report from Dr Ramon  Mocellin, a consultant psycho-geriatrician and neuropsychiatrist to whom your mother was referred in May of 2011.  He treated her until April 2012 for what he diagnosed as a anxiety disorder directly related to the acute stressor of hearing of your arrest and charges. 

38      Testimonials and oral evidence from family and friends attested to your good character.  That this offending was out of character was a common theme.  I find it a little difficult to know how much weight to give to these opinions, given that on the material before me you have been largely isolated from your family and the old friends who provided the testimonials from the early 2000s until the time you were charged and returned to family care.

39      Having expressed that reservation, I accept that your circumstances are markedly better now than when you committed this offence and that your prospects of rehabilitation if you continue to be offered and accept family support and to refrain from alcohol and cannabis and to address your grief, are reasonable.  They would be further enhanced if you were motivated to obtain employment and to improve your employment prospects by undertaking some training or education.  I note that Dr Zaks in both of her reports, recommends that you receive assistance also with anger management.

40      You are entitled to a reduction in the sentence otherwise appropriate, by reason of your guilty plea.  Although it was entered at the start of the trial, I accept it should not be treated just as a court door plea.  You had initially been charged with the rape of Ms Frilay as well as intentionally causing serious injury to her.  I accept that neither you nor the prosecution, was able to make a realistic assessment of your prospects of conviction on both charges until the commencement of the trial before me.  That was due in part to a matter beyond your control, the failure of two prosecution witnesses required to attend at committal who did not attend.  It was also in part, due to a matter entirely within your control.  That is, the production by you of some evidence supportive of your account in interview which you had adverted to when interviewed but had at that time refused to produce.  That evidence was produced also at the commencement of the trial.

41      In assessing the weight to be given to your guilty plea I take into account in your favour that your plea and the resolution of the other charge, was delayed by the inability to cross-examine those witnesses at committal and therefore it should be treated as a plea that gets more weight than a court door plea normally would.  I also take into account your favour, the guilty plea has spared Ms Frilay the ordeal of giving evidence and re-living the events and of course, it is also entitled to weight for the utilitarian benefits in sparing the time and cost of trial.

42      Ms Riddell in the course of her careful and comprehensive plea, submitted that the combination of the circumstances which brought you to such a low ebb and the turnaround in your life since then, place this offence in a most unusual if not exceptional category of cases where a sentence other than one involving immediate imprisonment was justified.  She submitted that a term of imprisonment suspending all but that part which you had already spent in pre-sentence detention or a Community Corrections Order with a sentence no longer than the pre-sentence detention, was appropriate in all the circumstances. 

43      Implicit in those submissions was that if imprisonment were the only sentence appropriate in all the circumstances that a head sentence of three years or less was sufficient to mark the seriousness of the offence and to reflect the matters in your favour.  She pointed out correctly that a Community Corrections Order is not limited to a two year maximum; had many more conditions which could be imposed on it than a Community Based Order permitted. These changes reflected Parliament's intention that Community Corrections Orders were open and available for offences previously thought to be too serious to be dealt with by way of Community-based Order.

44      By contrast Mr Livitsanos on behalf of the prosecution submitted that no sentence other than one of imprisonment immediately served was appropriate and that a head sentence of at least double that available for a suspended sentence, namely a range of six to eight years was appropriate.  That is a vast disparity in submissions on range.  I think the most significant disparity that has been put to me in the whole time I have been on this court. 

45      Although I was far from convinced that a Community Corrections Order was in range, I had you assessed for suitability for it.  The report was favourable but it was of real concern to me that even after the extensive plea hearing when you were being assessed for the Community Corrections Order suitability, you were still minimising your behaviour.  You still maintained in the course of that assessment interview, that you assaulted Ms Frilay to defend yourself.  That tended to confirm the view that I had formed of your responses in the interview and the matters put to me on the plea; that your remorse was directed predominantly to the predicament you found yourself in, and the impact on you and more recently your family.  It appeared to me that you were still blaming Ms Freelay.  Although you were saying things such as, "How could I have done this, it is not in my character to do this", that appeared to me to very self-focused and in my view you expressed no real remorse for the pain and suffering that you inflicted on Ms Freelay.

46      Of course you are not to be punished for not expressing remorse for her.  It is relevant only to the weight to be given in sentencing, to assessment of your prospects of rehabilitation and the weight to be given to encouraging your rehabilitation. 

47      Following the resolution of the trial and the entry of your guilty plea, the plea hearing was adjourned for the specific purpose of allowing a neuropsychological assessment to be conducted.  Dr Zaks in her original report, had suggested such an assessment might be of value given your history of substance abuse.  On the date the plea came before me, no such assessment had been performed.  I was told that Legal Aid had been refused to fund such a report.  The plea was conducted on the basis of Dr Zaks' report, the CISP materials, the character evidence and testimonials and general submissions.

48      After the plea hearing was concluded I fixed the date for sentence and commissioned the Community Corrections Order assessment.  A further report from Dr Zaks was requested by your legal advisers.  There had been some ambiguity in her earlier report as to whether you had attended for further counselling since exiting from the CISP program and the circumstances in which that had occurred.

49      The further report from Dr Zaks was provided on the resumed date.  That confirmed that the original counselling sessions had been conducted between March and August 2011 whilst you were on CISP bail and that three further counselling sessions had taken place between August and November of this year. 

50      In her original report which had been prepared after all counselling sessions had been concluded, Dr Zaks recommended further counselling with an emphasis on anger management as well as further treatment for your depression and alcohol abuse.  Apart from the three counselling sessions that you had had with Dr Zaks before the preparation of that report, no such further treatment has been undertaken by you. 

51      Dr Zaks referred in positive terms, so far as your continued improvement in mental health was concerned, to your abstinence from alcohol on remand and during her counselling sessions.  In the course of the plea I was told that you had resumed drinking but believed that your drinking was at a controllable level.  This does not appear to have been made clear to Dr Zaks as she refers in her reports, to your continued abstinence.  In her final report she repeated her recommendation that a neuropsychological assessment be conducted to assess any drug and alcohol related cognitive impairment. 

52      On the day the matter was listed for sentence Ms Riddell requested a further adjournment so a neuropsychological assessment could be conducted.  She submitted that Dr Zaks' second report expressed the importance of such an assessment in much stronger terms than her earlier one.  The matter was again adjourned so that assessment could be undertaken.

53      I have now been provided with the report of Dr Popp.  In his opinion you are of average intelligence.  On the Welscher Average Intelligence Scale in overall intellectual functioning you are squarely in the average range.  There were some fluctuations in the test results.  On the verbal comprehension and perceptual reasoning sub-tests, you achieved results described as well within the average range.  In fact they were at the higher end of the average range.  On working memory and processing speed sub-tests you were still within the average range but at the lower end of the range.  Your attention or concentration fluctuated during the assessment period.

54      

Although your individual scores on the memory and learning tests varied,

Dr Popp found your performance overall was illustrative of good memory functioning.  You did not score so well on executive and frontal lobe functioning.  Dr Popp said that executive and frontal functions are considered to be a variety of high level cognitive processes that are necessary for appropriate effective and contextual goal directed behaviour.  On the tests he administered your performances varied. 

55      He concluded you had no problems with self-monitoring and inhibition and no problems in following through and maintaining working knowledge of task requirements.  However, in the problem solving area you experienced considerable difficulties with novel problem solving.  Your capacities in that domain were, he said, remarkably impaired.  It was in that field that you showed the tendency to perseverate that I have previously referred to.

56      He concluded that there was little doubt that the psychological state that you were in at the time when the offences occurred, was poor given your recent loss and the trauma associated with it.  He then said this,

"From a neuropsychological perspective Mr O'Donohue demonstrated a varied performance.  In this regard while his general intellectual functioning was intact, he demonstrated a reduced speed of information processing and a reduced working memory attention capacity.  Despite this his memory function was reasonable, although subject to fluctuations in attention.  Examination of his executive function revealed decent skills with the exception of a poor problem solving capacity and a performance characteristic of marked perseveration.  Considering his history Mr O'Donohue's weaknesses are likely a combination of both the effect of his substance abuse as well as the head traumas he has sustained over the years.  He also presents with a significant depression.

The most recent offences occurred at a time when Mr O'Donohue was in a more distressed state than he is now.  It is likely that he had some significant trauma and complex grief that were impacting negatively upon his capacity to regulate his behaviour at the time.  The extent to which this was occurring from a neuro-biological perspective however, is impossible to determine given the passage of time and his currently intact inhibitory function.  I note that he continues to have poor problem solving and it is likely that his pursuit of a relationship soon after his partner's suicide is a significant reflection of this.  It also likely reflects his vulnerable nature.

The betrayal of this new partner, that is the theft of money, likely held great symbolic significance for Mr O'Donohue insofar as it triggered emotions related to his previous partner's then recent betrayal, that is her failure to reveal her miscarriage and subsequent suicide.  Thus Mr O'Donohue's assaultive response was likely occurring in the context of a significant level of emotional anger related to his previous trauma. 

Mr O'Donohue's difficulties with perseveration, tendency to maintain an inappropriate course of action, likely contributed to the continuance of the assault being more extended than may otherwise have been the case had he not had such brain dysfunction.  The presence of perseveration impairs one's ability to exercise appropriate judgment through the maintenance of appropriate action."

57      I am not satisfied that the reports of Dr’s Popp and Zaks establish a causal connection between any psychological condition or neuropsychological deficits and the offending which bring the first Verdins' principle into play.  It follows I am not satisfied the weight to be given to moral culpability should be reduced.  Nor am I satisfied that they provide any support, that is the opinions of Dr’s Popp and Zaks, provide any support for applying Verdins so as to moderate the weight to be given to general and specific deterrence. 

58      

The highest Dr Popp puts it is that you were in a poor psychological state given your recent loss and trauma associated with it.  That is consistent with

Dr Zaks' opinion.  It is clear from the reports that you had a pre-existing tendency recognised by you, to snap and to fail to control your anger. 

Dr Popp concluded your poor psychological state impacted negatively upon your capacity to regulate your behaviour.  He said, "It was impossible to determine the extent to which this was occurring from a neuro-biological perspective."  These are matters proper to take into account as contextualising the offending and explaining it, but they are not of a nature or quality to enliven the Verdins' principles which depend upon a causal connection between a psychological condition and the offending, which affects the assessment of moral culpability and the weight to be given to general and specific deterrence.  As I understand it, as a result of a discussion I had with Ms Riddell this morning, she did not press for the application of Verdins but rather pressed for these matters to be taken into account generally.

59      

I note also that the account that you gave to Dr Popp of the offending, in particular the number and nature of the blows you delivered to Ms Frilay was much more detailed than the account you gave in interview and what was put to me in the course of the plea hearing based on your instructions.  To

Dr Popp you admitted a number of blows to the face and the head but you did not include any account of stomping on Ms Frilay's face; of kicking her or of continuing to assault her once she had fallen to the floor.  Again, I consider this to be further evidence of your minimising your behaviour.

60      

Dr Popp in expressing the opinions he did, expressly accepted your account as the factual foundation for his opinion.  He accepted your account also that the assault was precipitated by your response to the discovery that

Ms Frilay had stolen money from you again.  A matter I have already found, I do not accept.  The factual foundation therefore for his conclusion that your response was likely occurring in the context of a significant level of emotional anger related to the previous trauma, is not accepted by me and therefore diminishes the weight to be given to that part of his opinion.

61      I do accept that you suffer from depression and have for a considerable time and that the depression is likely to make imprisonment more onerous for you, just as it does for any other of that large percentage of the prison population who suffer from depression, when compared to the cohort of prisoners who do not, and I take that into account.

62      Having regard to your age, your past criminal history, the long history of alcohol abuse and your resumption of alcohol use, the cessation of counselling and what I see to be your passivity in respect of vocational and recreational disputes, and despite the family support and absence of further charges, I consider your prospects for rehabilitation to be at best good, and consider that reflects a guarded optimism. 

63      After long and anxious reflection I have come to the very clear view that no sentence other than one of imprisonment immediately served, is appropriate in all of the circumstances to mark the seriousness of the offending.  I do that taking into account the circumstances of the offending, your past and present circumstances and your future prospects.  That is in properly balancing the needs of just punishment, denunciation and deterrence both general and specific, with your plea of guilty and the matters counting in your favour to which I have referred and my assessment of your prospects of rehabilitation.  I have come to the very clear view that the maximum head sentence available if I were to consider a partially suspended sentence, is too low.  I should add that even if I thought three years was sufficient as a head sentence, I consider that the 88 days that you have served to date to be insufficient to count as the only time to be actually served.

64      Even if I had been of the opinion that a three year head sentence was sufficient, I would have considered that the fixing of a non-parole period was a better option for assisting your rehabilitation and protecting the community, rather than suspending part of the sentence.  I have structured the sentence I am about to impose and consistently with the reports and recommendations of Dr’s Zaks and Popp, to allow for what I consider to be a significant period of parole supervision. 

65      Mr O'Donohue could you now please stand.  On the charge of intentionally causing serious injury to which you pleaded guilty you are convicted.  You are sentenced to be imprisoned for a period of six years.  I fix the period of four years as the time you must serve before being eligible for parole.  I declare that you have spent 88 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served.

66 Pursuant to s.6AAA of the Sentencing Act I declare that but for your plea of guilty I would have sentenced you to be imprisoned for a period of eight years and I would have fixed a non-parole period of six years.

67      Are there any further orders that are required to be made? 

68      MR LIVITSANOS:  If I can take Your Honour back to 2 November, on that day Your Honour I sought at s.464 retention order.

69      MS RIDDELL:  No opposition to that order.

70      HER HONOUR:  And a disposal order?

71      MR LIVITSANOS:  Yes Your Honour.

72      HER HONOUR:  I have some ancillary orders to make Mr O'Donohue.  You can take a seat while I do those.  I have been asked to make an order for the retention of the forensic sample that you provided on 15 November 2010 and I propose to do that having regard to the seriousness of the circumstances of the offending and noting that it is not opposed.

73      I have also been asked to make a disposal order which relates entirely to forensic samples taken from Ms Frilay's home and from Mr O'Donohue's car and that is not opposed either is it Ms Riddell?

74      MS RIDDELL:  No Your Honour.  I do not know whether that related to any seized items.  I believe some materials have already been returned or there were arrangements.

75      HER HONOUR:  Do you want to check that?  The schedule looks to me as if it is mainly forensic samples, including swabs taken from the steering wheel of your client's car.  I think only the last two items Ms Riddell were from a place other than Ms Frilay's home. 

76      MS RIDDELL:  Yes Your Honour there is no opposition to the disposal order. 

77      HER HONOUR:  Ms Riddell did you have a signed original of Dr Popp's report?

78      MS RIDDELL:  I do not Your Honour.  It came to me via email.  I could obtain one and we could forward that to Your Honour.

79      HER HONOUR:  Could you do that?  I think as a matter of prudence, although it is obviously convenient to have one emailed through quickly.  But a signed one should be provided.

80      MS RIDDELL:  Yes Your Honour.  Sorry my instructor does have a signed copy Your Honour. 

81      HER HONOUR:  Thank you for that.

82      MS RIDDELL:  Thank you Your Honour.

83      HER HONOUR:  Any further orders that are required to be made?

84      MR LIVITSANOS:   No Your Honour.

85      MS RIDDELL:  No Your Honour.

86      HER HONOUR:  Can I thank both of you, Ms Riddell particularly, but also you Mr Livitsansos.  This has been a very complex matter.  It has taken much longer than most matters that come before this court on pleas.  I have been enormously assisted by the care and attention that each of you has taken and the careful analysis that each of you has taken of the materials that have been presented to me.

87      MS RIDDELL:  Thank you Your Honour. 

88      HER HONOUR:  It would have been a much more difficult task for me had I not had such significant and welcome assistance from both of you.

89      MR LIVITSANOS:  Thank you Your Honour.

90      HER HONOUR:  I think you can both GO away thinking neither of you could have done anymore to assist in this complex task than you have. 

91      MS RIDDELL:  Thank you.

92      HER HONOUR:  Could you please remove Mr O'Donohue? 

---