Director of Public Prosecutions v O'Toole
[2018] VCC 94
•14 February 2018
| IN THE COUNTY COURT OF VICTORIA AT GEELONG CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
CR-17-01173
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARK O'TOOLE |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 7 February 2018 | |
DATE OF SENTENCE: | 14 February 2018 | |
CASE MAY BE CITED AS: | DPP v O'Toole | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 94 | |
REASONS FOR SENTENCE
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Subject:Criminal law – sentencing – causing serious injury intentionally – paranoid schizophrenic – Verdins principles enlivened – immediate custodial sentence imposed.
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APPEARANCES: | Counsel | Solicitors | |
| For the DPP | Mr D Maguire (Plea) Ms K Swadesir | John Cain, Solicitor for Public Prosecutions | |
| For the Accused | Mr M Brugman | Criminal Lawyers Geelong | |
HER HONOUR:
1 Mark O’Toole, you have pleaded guilty before me to one charge of causing serious injury intentionally.
2 You admitted your prior criminal history when you were arraigned. There are some 32 court appearances spanning the period from 29 July 1993 until 7 July 2016.
3 Of particular relevance, in 1993 you were convicted of recklessly cause serious injury, for which you received a six month wholly suspended sentence at the Geelong County Court. Given the passage of time and your poor memory the details of that incident could not be recalled. In 1998 you were dealt with for assault by kicking; unlawful assault; assault police; resist police; drunk in a public place for which you received an aggregate term of imprisonment of one month. In 2003 you were further gaoled for charges of extortion with threat to inflict injury; robbery and attempted robbery for which you received an aggregate term of imprisonment of two years. There are many other convictions for dishonesty type offending and driving offences.
4 Your past criminal history can in part be explained by your past drug use and also chronic mental health issues to which I will refer to later.
5 The offending the subject of the charge occurred on 25 November 2016 at about 2.30 am. It concerned you attending the unit of Leonardo Francavilla who lived in Yooringa Avenue, Norlane. On that occasion, Francavilla was present with his partner, Julie Betts, and both whom are known to you.
6 When you knocked on the front door of the unit Francavilla answered and saw you standing at the front door. He turned his back to you as he walked back into the nearby lounge room. When he turned around, he realised that he was being attacked and felt what he thought was a punch to the right kidney area.
7 In fact, you had stabbed Francavilla and then stabbed him two more times to the right side of his neck and to the left side of his chest. The knife used was a white handled Wiltshire knife. At the time you were yelling at Francavilla about calling somebody a whore.
8 Francavilla realised he had been stabbed and backed into a corner of the lounge room to get away from you. His partner then intervened and stood between you and Francavilla to stop you further attacking him. She also told you to leave the unit. You did so, and as you did you turned and said, “Don't go calling the Jacks or you're dead."
9 Initially, Francavilla did not want to call police or an ambulance, however, his condition declined rapidly. Police and ambulance were called and attended the unit at about 6.00 am.
10 He was conveyed to the Geelong Hospital where life-threatening injuries were recorded that required urgent emergency surgery. A significant amount of blood was found pooling in the sac around the heart, putting excessive pressure on the heart. He was cut open from his neck to the pubic bone. The sternum was broken by doctors and the rib cage cut open to allow access to repair the damage.
11 Francavilla remained in an induced coma in intensive care for three days before being transferred to the ward where he remained for a further 16 days. He underwent further treatment and physiotherapy.
12 Mr O’Toole, the charge of intentionally causing serious injury, is a serious offence and that is reflected in the maximum penalty prescribed by Parliament, that is, 20 years’ imprisonment.
13 Following your arrest you were remanded in custody.
14 At the time you were interviewed by police in respect to this offending you denied knowing Francavilla and denied any knowledge of the incident. The knife used during your assault was never recovered.
15 The victim of your crime and his partner, Ms Betts, have both declined to make victim impact statements. They were known to you as you lived in the immediate neighbourhood.
16 Mr O'Toole, this was a savage, unprovoked attack with serious physical consequences to Mr Francavilla. The episode would have been terrifying and traumatic for both he and his partner.
17 Mr Brugman, on your behalf, acknowledged the seriousness of your offending. He emphasised a number of mitigating features and described the nature of your psychiatric condition that was operative at the time this offending took place.
18 You are aged 42 and you are a disability support pensioner. You lived with your mother at the time of the offending. You have two sons aged 20 and 18 respectively with whom you have regular contact. You are separated but not divorced from their mother.
19 You do not have any close friends and you were not in an intimate relationship at the time of the offending. You are fully supported by your mother, two brothers and your two sons.
20 You entered a plea of guilty at the earliest opportunity on 9 June 2016 at committal mention. There is real utility in your plea. By that plea, you have avoided the cost and expense of a trial, but importantly you saved the witnesses from being exposed to further trauma by having to come to court to give evidence at the committal and also the trial. You have facilitated justice and your sentence will be discounted accordingly.
21 I am prepared to accept that the plea of guilty is evidence of remorse and an acceptance of responsibility on your behalf for the offending.
22 Mr Brugman relied upon the assessment report performed by Associate Professor Carroll, consultant psychiatrist, whose report dated 12 November 2017 was tendered at the plea hearing. His evidence was unchallenged.
23 Associate Professor Carroll examined you at Port Phillip Prison on 25 May 2017. You described to him some ongoing active psychotic symptoms which you stated were starting to get better. The dominant symptom was auditory hallucinations, that is, you were hearing voices. You reported hearing four to five voices and indicated at times those voices could cause you significant distress.
24 He considered you to be alert and orientated with no evidence of major cognitive deficits. He noted that you accepted the diagnosis of schizophrenia and that there was a need for you to be compliant with taking medication.
25 You indicated to him that you needed to get yourself straight, including working on your propensity to abuse illicit drugs. You recognise that your mental health problems were worsened by illicit drug use.
26 His report confirms that you were a resident at the St Paul’s Psycho-Social Unit at Port Phillip Prison where you were treated for your schizophrenia.
27 He noted that you were working currently on certificates in food handling and cooking and you were awaiting a drug and alcohol course. You receive weekly visits from your mother and have regular telephone contact with both her and your two sons. Your sons also regularly visit.
28 Associate Professor Carroll reviewed the Justice Health clinical files and stated that you now have an established diagnosis of paranoid schizophrenia. You had not had any psychiatric admissions prior to the admission to the St Paul’s Unit.
29 In the community you had been seen by a psychiatrist, Dr Sarkas, at Barwon Health, at a public mental health clinic in Corio, from around 2012 to 2013.
30 You reported to Associate Professor Carroll that your mental problems commenced in 2012. After using four points of ice per day for several years, you began hearing voices in your head. You were commenced on an antipsychotic drug, Quetiapine, which you took for several months and said it “kind of helped”. You told Associate Professor Carroll that at some stage you recommenced this drug, although you could not recall the exact timeframe.
31 When you were recepted into prison on remand, you were reporting visual and auditory hallucinations. You were prescribed the antipsychotic Quetiapine. Bizarre behaviour was noted in the early times of your remand.
32 In February 2017, because of your worsening mental health with active psychotic symptoms, including disorganisation of thought, auditory hallucinations and grandiose and religiose delusions, you were admitted to St Paul’s and commenced on a different antipsychotic, Olanzapine.
33 There was some improvement noted but hallucinations persisted. You were discharged from St Paul's Unit in July 2017.
34 Associate Professor Carroll confirmed that the onset of your psychotic symptoms with prominent hallucinations and associated religiose delusional beliefs commenced some five years before the offending.
35 Your collateral history and presentation at interview he considered to be consistent with the onset of a settled schizophrenic illness of several years’ duration in the context of methamphetamine use.
36 The psychotic symptoms continued for months after your arrest with a peak in severity around one to two months into your incarceration, even with prolonged abstinence from drugs and your symptoms only resolved with antipsychotic medication.
37 He considered that the evidence, therefore, strongly indicated that your mental illness is a primary schizophrenic illness and not simply a substance-induced psychosis and I accept his expressed opinion.
38 He considered that the actions which led to your arrest, that is the stabbing of Francavilla, were entirely driven by acute psychotic symptoms. You described to him the stabbing being prompted by anger because you believed that this person was insulting women by calling them names and this belief was secondary to auditory hallucinations.
39 Taking all of the relevant information (including your clinical trajectory post-incarceration) into account, Associate Professor Carroll considered those hallucinations appear to have been due to a relapse of schizophrenia, rather than being caused by stimulant drugs. His opinion, therefore, is that there is a very clear causal nexus between your schizophrenic illness that was active at the time of the alleged offence and the offending behaviour.
40 Therefore at the relevant time, your judgment was severely impaired: your actively psychotic state would have also led to a degree of disinhibition. Notably, he considered that you did not believe any person including yourself to be under any serious threat from the victim. Notwithstanding your psychotic state, he could find no evidence that you would have been unable to reason that your behaviour in stabbing the victim was wrongful, both legally and morally.
41 Having regard to Associate Professor Andrew Carroll’s expressed opinion, which was unchallenged, I am satisfied that the principles outlined in Verdins,[1] namely principles 1 to 4 inclusive, are enlivened.
[1]R v Verdins; R v Buckley; R v Vo [2007] 16 VR 269 at [32].
42 Therefore, I consider your moral culpability to be reduced so that your condition affects the punishment that is just in all the circumstances and denunciation is a less relevant sentencing objective. I have moderated the need to emphasise both general and specific deterrence to an extent. Your mental condition does, however, underscore the need to protect the community in the future.
43 By way of background, you were married for 24 years but are separated. You are the second youngest of three brothers. Your father died in 1990 when you were 15. You experienced significant problems at school with truancy, and you were suspended and expelled on a number of occasions. There were behavioural issues at school. You left school in Year 8 and you have done some factory work but your employment in the past has been interrupted by a significant forensic history including a number of imprisonments. The longest period that you have worked in one place is 18 months. You last worked in approximately 2010.
44 Your history of substance abuse commenced when you used alcohol from about age 11. You used cannabis from age 15 and you have had a longstanding amphetamine use problem. Your main substance abuse in the past is heroin. You started using at age 15, increasing over time.
45 You were prescribed Methadone for 20 years off and on and you were also treated with Suboxone. You have never had any detoxification or rehabilitation programs but you have had some drug and alcohol counselling in the past.
46 As stated earlier, you were treated in the community by Dr Sarkas, psychiatrist, in respect to your psychotic symptoms. You never had any psychiatric admissions prior to this offence.
47 Your mother, Lorraine O’Toole, provided a letter to the court in which she confirms in the days and months leading up to the incident you had been suffering delusions. She confirmed that you had been diagnosed with schizophrenia some six years earlier and she considered that you were losing touch with reality, seeing and hearing voices and expressing delusional thoughts.
48 Following your remand in custody she instigated treatment because you were still delusional approximately two months after your remand. It was around this time that you were admitted to St Paul’s Unit.
49 She states that in prison you have settled well with medication and have improved greatly. Her view is consistent with the expressed opinion of Associate Professor Carroll and also your behaviour in court. She confirms that you have her ongoing support.
50 Not long before the commission of the offence, you had been released from custody on 18 October 2016 and had been placed on a 15 month Community Correction Order. The fact that you contravened the order by reason of this offending is an aggravating feature. However, that needs to be viewed in the context of an evolving psychiatric condition that was not treated. I noted, however, that the contravention report confirmed that you were compliant with the order insofar as you had been attending all arranged appointments in respect to your assessment for your mental health and also no substance abuse was noted.
51 You now accept that what you did to the victim was totally wrong and that you understand that there is a need for the court to impose just punishment and your expectation is that you will receive a term of imprisonment. You now have an expressed understanding of the connection between your psychiatric illness and your offending behaviour and the need for you to continue to take medication. You have insight, you feel much better and you understand the need to continue medication into the indefinite future and not to take any illicit drugs.
52 Having regard to your settled psychiatric condition, your expressed insight and your commitment to remain compliant with medication and to avoid illicit drugs, all of those factors combine so that I am relatively optimistic about your prospects of rehabilitation in the future.
53 Upon your ultimate release, it will be necessary for you to be supported and supervised and monitored in the community to ensure that your commitment to remaining healthy and mentally well continues. That will offer you the best prospects for the future and avoid further offending and also provide for the best protection for the community.
54 I note that there were some other physical conditions that you suffer from, namely, osteomyelitis, Hepatitis C with significant liver fibrosis and a thigh abscess for which you have received treatment in prison. You are being regularly tested in respect to your bloods because of the need for you to have ongoing lithium treatment.
55 In conclusion, Mr O'Toole, objectively, I find that this offending is a very serious example of this serious offence. It was an unprovoked, savage attack upon your friend and neighbour in his own home in the presence of his partner. The wounds inflicted were several and potentially life-threatening. It is only by good fortune that the victim’s life was saved. His physical injuries are fully elaborated in the report of Dr Nicole Reid, whose opinion was read during the plea hearing. It is obvious that he will suffer scarring as a consequence of his physical condition and also that he suffers long-term medical consequences that are set out in her report.
56 The context to the offending was that you were suffering from a schizophrenic illness and that there was a clear causal nexus between your illness and the offending.
57 I have had regard to all the matters put in mitigation and I have already announced that I am satisfied the Verdins principles 1 to 4 are enlivened, such that I have moderated the need for both general and specific deterrence and I consider your moral culpability to be less and have adjusted both the head sentence and non-parole period accordingly.
58 In sentencing you I must impose just punishment and provide for the protection of the community.
59 Because of your prior criminal history you are considered to be a serious violent offender, and as such, the court must regard the protection of the community from you as the principal purpose for which the sentence to be imposed is imposed, and may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence, considered in the light of its objective circumstances.[2]
[2]Sentencing Act1991, s 6D.
60 Mr Maguire, on behalf of the Crown, did not seek a disproportionate sentence.
61 Given the seriousness of the offending I conclude that nothing short of a sentence wholly comprised of an immediate term of imprisonment will suffice to satisfy the requirements of just punishment.
62 I have allowed the non-parole period to be shorter than it would otherwise have been to enable your early release, if considered appropriate, in a structured and fully supported manner with appropriate treatment and management of your psychiatric condition.
63 The formal court orders are as follows:
64 On the one charge of intentionally causing serious injury, you will be convicted and sentenced to five years’ imprisonment to serve three years and nine months before becoming eligible for parole.
65 I make the following declaration pursuant to s. 6AAA. But for your plea of guilty, I would have imposed a sentence of seven years' imprisonment to serve five years.
66 I declare that you have served 446 days pre‑sentence detention and direct that that be entered into the records of the court.
67 Pursuant to s. 6F of the Sentencing Act1991, I direct that it be entered into the records of the court that you have been sentenced as a serious offender for this offending. That completes my remarks.
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