Director of Public Prosecutions v O'Hagan
[2013] VCC 1210
•17 July 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT LATROBE VALLEY
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHRISTOPHER PAUL O'HAGAN |
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JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 17 July 2013 | |
CASE MAY BE CITED AS: | DPP v O'Hagan | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1210 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Shwartz | |
| For the Accused | Ms S. McCrickard |
HER HONOUR:
1 Christopher O'Hagan, you have pleaded guilty to one charge of making a threat to kill, Charge 1, one charge of making a threat to destroy property, Charge 2, one charge of using a carriage service to menace, Charge 3, one charge of cultivating a narcotic plant, Charge 4; one charge of being in possession of a drug of dependence, Charge 5, and one uplifted summary charge of using a drug of dependence, summary Charge 8.
2 The maximum penalties in respect of those offences are as follows.
3 The maximum penalty in respect of Charge 1 is ten years' imprisonment.
4 The maximum penalty in respect of Charge 2 is five years' imprisonment.
5 The maximum penalty in respect of Charge 3 is three years' imprisonment.
6 The maximum penalty in respect of Charge 4 is one years' imprisonment.
7 The maximum penalty in respect of Charge 5 is a fine of five penalty units.
8 That is the same maximum penalty in relation to the uplifted summary Charge 8.
9 The prosecution sought an order for the disposal of certain items. The making of that order was not opposed.
10 The circumstances of your offending are set out in the Prosecution Plea Opening which was tendered as Exhibit A. In brief, the circumstances are as follows. All the offending occurred between 11 and 13 March 2013. You were in Moe. You were frustrated in your dealings with the local Centrelink office and were trying to get assistance from the office of the New South Wales Ombudsman. You sent emails to a person in the New South Wales Ombudsman's office which include in it the following statements: "Fuck with my intelligence again and you will be on the personal kill list too" and "Now fucking do your job or I swear I will fucking hunt you down and kill you." Those statements are the subject matter of Charge 1. You also said on the emails, "Until you listen I will burning down a Government building every day until you do" and "So we start with burning down with my local Centrelink" and "No problem start expecting Government buildings to be burnt down" and "I now have the bombs to burn these fucking buildings down." These statements are the subject matter of Charge 2.
11 The statements covered by Charges 1 and 2 were sent by email over the Internet. That is the subject matter of Charge 3.
12 A search warrant was executed at your residence on 13 March 2013. Police found 20 cannabis plants in various stages of maturity growing in a hydroponic setup in your bathroom. That is the subject matter of Charge 4. Police also found a small amount of cannabis which is the subject matter of Charge 5.
13 You were interviewed and made full and frank admissions to police. You told the police you were addicted to cannabis and smoked two to three grams daily for the purposes of calming down. That admitted use is the subject matter of Summary Charge 8.
14 You told police you had no plans of carrying out the threats and were just trying to get attention. You were remanded in custody after your arrest and have spent 126 days in pre-sentence detention up to and including 16 July 2013.
15 I have taken into account your personal circumstances in sentencing you. I have derived those circumstances from what counsel said on your behalf and the contents of a report from Dr Aaron Cunningham dated 22 April 2013 which was tendered as Exhibit 1.
16 You are now 33 years old. Your parents apparently had difficulty controlling your behaviour as a child and you were placed in care when you were 11. You were returned to the family home when you were 14 and then lived with your parents, other family members and friends for periods of time. You have two children from two relationships but have not seen either of them for some years. You completed Year 8 at school and have been employed in various jobs including lawn-mowing. You suffered injuries to your knee. You had surgery to your knee at the beginning of 2012 and were unable to work for a period of time.
17 Dr Cunningham's opinion is that you suffer from a major depressive disorder and high functioning autism spectrum disorder. It is Dr Cunningham's opinion that you were predisposed to the development of the major depressive disorder by the abandonment you perceived in your childhood. It is Dr Cunningham's opinion that your high functioning autism spectrum disorder likely contributed to your uncontrollable behaviour. I took that to be a reference to your uncontrollable behaviour since you were a child.
18 Dr Cunningham says:
"Individuals with high functioning autism spectrum disorder exhibit concrete thinking and do not adapt well to change. In my opinion Mr O'Hagan's living instability precipitated his major depressive disorder. In my opinion, Mr O'Hagan's major depressive disorder burdens his thinking and reasoning skills through symptoms of depressed mood, loss of interest in activities, sleep disturbance, psychomotor agitation, fatigue, feelings of worthlessness, diminished ability to think and recurrent thoughts of death. Mr O'Hagan stated he was experiencing increased symptoms of depression prior to his incarceration due to his financial stress. In my opinion Mr O'Hagan's high functioning autism spectrum disorder combined with his major depressive disorder would have impaired his ability to exercise appropriate judgement with respect to his offence behaviour and their consequences."
19 It is Dr Cunningham's opinion that if your major depressive disorder were untreated that a term of imprisonment would weigh more heavily on you compared to an individual without that disorder. Further, it is his opinion that there is a serious risk that imprisonment would have a significant adverse impact on your mental health. Dr Cunningham says that your major depressive disorder requires psychological intervention over a number of years to adequately treat. It is also his opinion that you could receive support for your high functioning autism spectrum disorder through Asperger's Syndrome support network. Dr Cunningham suggests that ongoing engagement with mental health services would reduce your risk of re-offending and improve your prospects for rehabilitation.
20 You have admitted a prior criminal history which includes driving and dishonesty offences. You do not have a criminal history involving acts of violence against people directly. You do have some prior court appearances which in my view are relevant to these offences. In 1998 you appeared in the Ringwood Magistrates’ Court on charges including a charge of making a threat to kill. Your counsel said that was in the context of disputation with your mother. In respect of that charge and other charges you were sentenced to detention in a Youth Training Centre for a period of six months. You have two previous appearances in respect of charges of criminal damage. You also have a previous court appearance for the use and cultivation of cannabis. You were fined in respect of that offending. Your previous sentences have included suspended sentences and Community-based Orders. You have previously breached an Intensive Correction Order and were sentenced to serve 166 days of imprisonment.
21 The context of your offending in respect of Charges 1, 2 and 3 is clearly described by you in your record of interview. Your counsel said your instructions to him are identical to what you said in the record of interview. He provided some further details. It appears that you had been in receipt of a pension but came off that pension at the beginning of 2013. You closed your bank account because of problems with the bank then could not obtain Centrelink benefits because you did not have a bank account or know anyone whose account you could use. You could not open a bank account because you did not have 100 points of identification. You became very frustrated and tried to obtain assistance from organisations such as the New South Wales Ombudsman's Office. No one was apparently able to assist you with a solution that you could implement. You were unable to pay for food and rent and became increasingly frustrated and angry. You said in your record of interview that you thought back to your past and felt that you could only get attention and help by making threats. Your counsel said and I accept that you were growing the cannabis for your own use. He said you have not used in cannabis in custody and intend to remain abstinent.
22 In sentencing submissions your counsel relied on the applications of principles set out in the case of Verdins. Your counsel submitted that those principles ought operate in moderation of your sentence. Your counsel relied on Dr Cunningham's opinion that your autism spectrum disorder combined with major depressive disorder would have impaired your ability to exercise appropriate judgement in respect of your offending behaviour. Your counsel submitted that this ought to operate in reduction of your moral culpability. He also submitted that your mental state ought operate to reduce the significance of general deterrence in your sentence.
23 Your counsel said that your mental health state had improved in the last few months and that you are coping relatively well in custody, despite the overcrowded conditions in the Metropolitan Remand Centre.
24 Your counsel also relied in mitigation of sentence in your early plea of guilty and your admissions to the police.
25 Your counsel submitted that you had no prior history of making threats against public authorities and that the context of your offending in terms of your mental health state and frustration ought to be taken into account.
26 Your counsel submitted that an appropriate sentence would involve the prospect of your release from detention in custody in the near future. He submitted that that would be sufficient to meet the sentencing requirements, including specific deterrence and just punishment. Your counsel suggested you would benefit from supervision on parole. He said that you now do have identification documents and would be able to live with a friend near Horsham before moving to Western Australia to obtain work. I understand that that is what you wish to do in the long-term.
27 The prosecutor submitted that I should take into account that you had a very serious addiction to cannabis which may have been relevant to your offending, including the threat offences. The prosecutor accepted that you have a level of concrete thinking as described by Dr Cunningham's report. The prosecutor submitted that, taking into account the matters set out in the report and your admissions, the appropriate sentencing range would be a head sentence in the range of two and a half to four years with a non-parole period of one and a half to two and a half years.
28 The most serious aspect of your offending is the threats made. These threats involved threats to kill a known individual and threats to bomb buildings. Those buildings nominated by you would have had many people in them. These threats were totally unwarranted and were made to a person or about persons employed to provide services to the public. Such persons ought not to be subject to this type of behaviour. Such people are often dealing with situations which are very frustrating for the public and also for the persons attempting to provide services. Anyone who engages in this kind of behaviour towards such people ought to be appropriately punished. It is to be hoped that that punishment will stop that person re-offending and deter others from similar offending.
29 It appears that the person who received the threats in this case was aware that you were in a different State from her but nevertheless your offending must have been very frightening. Your repeated, strongly worded threatening statements in the context of repeated expressions of frustration and anger must have been very alarming. I accept that you had no immediate plan to implement your threats. Indeed it appears that you stopped listing bomb-making ingredients from instructions sourced on the net when you realised the instability of those ingredients.
30 I accept Dr Cunningham's diagnoses and that your disorders adversely affected your ability to exercise appropriate judgement. It seems to me that you were able to foresee your consequences of your actions as you actually achieved the results you wanted: attention and help. From what you told police you were becoming desperate and took desperate action to get assistance. I consider that your mental state, tendency to concrete thinking, inflexibility and difficulties in communicating with and relating to others did make a contribution to your offending but to a degree that would result in only a moderate reduction of your moral culpability. Your sentence should be reduced only to a moderate extent in application of Verdins principles concerning moral culpability and the appropriateness of your sentence as an expression of general deterrence.
31 I accept that imprisonment is more difficult for you because of your major depressive disorder. It appears from what was said by your counsel that your mental state has improved rather than worsened during the time that you have been in custody. In respect of the cannabis offending it appears to me that you clearly understood that was illegal but continued to use and grow cannabis. I accept that you were growing the cannabis that police found for your own use. I do not consider there is any material to suggest that the use of cannabis affected your thinking in relation to your offending in the first three charges.
32 You are entitled to a significant discount for your plea of guilty. Your early plea has saved the cost, inconvenience and trauma of a trial. To a limited extent I consider that your plea of guilty is an expression of remorse. I also consider that your cooperation with the police and your full and frank admissions ought to be taken into account in mitigation of sentence. I do not consider those matters to have been an expression of remorse given your statements to the police in the record of interview that you had no trouble making the admissions because maybe then you would start getting the help you needed.
33 I am concerned about your prospects for rehabilitation. You engaged in the threatening behaviour quite deliberately, despite having been dealt with by the courts previously for threatening and damaging behaviour. You apparently knew what you were doing would get you into trouble with the law. That did not deter from using this method to get assistance. Your major depressive disorder has not yet been treated and you have not received support in relation to your autism spectrum disorder. Without that treatment and support particularly in the community I consider that there is a significant risk that you would offend again if you were in a similarly frustrated situation and wish to attract the attention of the authorities to your plight. I am concerned, for example, that if you do not get the job in Western Australia that you wish to get that you would again feel frustrated and angry.
34 You clearly have the intelligence to understand the position of the person against whom you made threats but considered your own need for assistance outweighed that consideration. It appears that you have received at least some assistance in respect of practical matters and have achieved a degree of stability whilst in custody. I note that you have been working five days a week in custody doing welding work. You have been able to cease using cannabis and want to remain abstinent. These matters are encouraging but at present I would assess your prospects of rehabilitation as being less than reasonable. Those prospects would improve if you received appropriate treatment and support. You may then be in a position to develop appropriate strategies for dealing with frustration and anger and for obtaining assistance or appropriate services.
35 I have taken the matters to which I have referred into account in mitigation of sentence. In my view, given the seriousness of your offending, a sentence of imprisonment is warranted in respect of each of the first three charges for the purposes of denunciation, just punishment and appropriately moderated general deterrence. I also consider specific deterrence should be given weight in your sentence, albeit moderated, in order to deter you from similar offending. I consider the offending in Charge 1 to be the most serious offending. An individual was personally threatened. That charge carries the greatest maximum penalty. The offending involved in Charge 2 was closely linked and in my view there ought to be only a very limited cumulation of sentence in respect of that charge. You used the internet to make your threats. That is separate offending but is essentially the same conduct which is covered by Charges 1 and 2 and accordingly there ought to be no cumulation in sentence in respect of that charge.
36 You have been fined before in relation to the cultivation of cannabis. You had 20 plants growing in different stages in a relatively basic and unsophisticated hydroponic system. A short period of imprisonment is warranted for the purposes of denunciation, just punishment, general deterrence and specific deterrence. In these circumstances the possession of an additional small amount in your admitted use should not attract any additional penalty.
37 In considering the appropriate sentence I have taken into account the principles of totality and proportionality. I also consider that a sentence which provides for the possibility of a reasonable parole period would be appropriate.
38 In sentencing you I have taken into account my understanding of current sentencing practices. The statistics provided in the Sentencing Advisory Counsel's Sentencing Snapshot No. 143 May 2003 in relation to threat to kill is of limited utility as there is no description of the circumstances in which the threats were made. My general experience in the statistics do suggest that a sentence of imprisonment is within the range but that the range suggested by the prosecution may be too high. I could only find one case in the Victorian Sentencing Manual with similarities which was the case of Gibson [2006] VSCA 258. In that case relatively short periods of imprisonment were imposed for threats against a person providing services. There was a much closer physical connection. My view is that the range contended for by the prosecution would be more appropriate to a situation where threats were made face to face or with some more direct physical proximity. In the circumstances of this case, including the matters in mitigation and your plea of guilty, I consider that the range contended for by the prosecution is significantly higher than is warranted.
39 In respect of Charge 1, making a threat to kill, you are convicted and sentenced to 12 months' imprisonment.
40 In respect of Charge 2, making a threat to destroy property, you are convicted and sentenced to 8 months' imprisonment.
41 In respect of Charge 3, using a carriage service to menace, you are convicted and sentenced to 6 months' imprisonment.
42 In respect of Charge 4, cultivating a narcotic plant, you are convicted and sentenced to 3 months' imprisonment.
43 In respect of Charge 5, being in possession of a drug of dependence, you are convicted and discharged.
44 In relation to Summary Charge 8, use of a drug of dependence, you are convicted and discharged.
45 In respect of the State charges on Charges 1, 2 and 4, the sentence on Charge 1 is the base sentence. Two months of the sentence on Charge 2 and one month of the sentence on Charge 4 are to be served cumulatively on each other and on the sentence on Charge 1. The total effective sentence is 15 months' imprisonment. I fix 8 months as the period required to serve before you are eligible for release on parole. The Federal sentence on Charge 3 is to commence today and is to be served concurrently with the State sentences imposed. In respect of the State sentences I declare that the pre-sentence detention of 126 days is to be reckoned as served and is to be deducted administratively. In respect of the Federal sentence that period of pre-sentence detention is also to be regarded as a period reckoned as served and ought be deducted administratively.
46 I have made the orders for disposal that were sought. I repeat that the total effective sentence is a sentence of 15 months' imprisonment with a non-parole period of eight months.
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