Director of Public Prosecutions v Olive

[2021] VCC 360

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-01594

DIRECTOR OF PUBLIC PROSECUTIONS

v

MALCOLM OLIVE

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:	5 March 2021
DATE OF SENTENCE:	29 March 2021
CASE MAY BE CITED AS:	DPP v Olive
MEDIUM NEUTRAL CITATION:	[2021] VCC 360

REASONS FOR SENTENCE

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Subject:  Criminal Law

Catchwords:

Legislation Cited:  Crimes Act 1958 ss 18, 20, 22, 197(1);

Control of Weapons Act 1990 s 6(1)

Cases Cited:  Brown v The Queen [2020] VSCA 212;

R v Verdins (2007) 16 VR 295

Sentence:  Total effective sentence of 4 years imprisonment; 31

months non-parole period

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. MacDougall	Ms M. Resznecki
For the Accused	Ms A. Waldin

HIS HONOUR:

1Malcolm Olive, you have pleaded guilty to the following offences which carry the following maximum penalties.

2First, reckless conduct endangering life carries a maximum penalty of ten years' imprisonment.  Second, threat to kill carries a maximum of ten years' imprisonment.  Third, cause injury intentionally carries a maximum of ten years' imprisonment. Fourth, common assault under the common law carries a maximum of five years' imprisonment.  Fifth, criminal damage carries a maximum of ten years' imprisonment and the summary charge of possess a controlled weapon without excuse carries a maximum penalty of one year imprisonment or 120 penalty units.

3Before I go any further do both counsel agree with those maximum penalties as stated?

4MS MACDOUGALL:  Yes, Your Honour.

5MS WALDIN:  Yes, Your Honour.

6HIS HONOUR:  Thank you.  Mr Olive, you have admitted your prior criminal history.  I shall return to that later in these sentencing remarks.

7The Crown tendered the Summary of Prosecution Opening as Exhibit A.  A summary of your offending is as follows:

8At the time of your offending you were 30 years of age.  The complainant to your initial and principal offending was your half-sister, Danajah Bell, who was 22 years of age at the time.

9The offending occurred at your family’s home in Seaford on the morning of
16 August 2019. Your mother, Shahree Bell, and stepfather, Douglas Bell, had dropped your two young children at day care.  Your mother has legal custody of the children.  Your mother had, relatively recently to that time, allowed you to come to the house from time to time.

10When your mother and stepfather returned from the drop-off, you were at their home.  They then heard Danajah yelling for you to get off her.

11Danajah had been cleaning up in the kitchen when you begin throwing her clothing onto the laundry floor. She asked you to stop and you gathered up the clothes into a washing basket and threw the basket at her. You started pushing and shoving her and screaming, ‘You stupid c-, shut the fuck up. It is only laundry’.

12You grabbed Danajah with both your hands around her neck and throat. You were squeezing her neck.  That forms part of Charge 1, conduct endangering life. You changed your grip to a single-handed grip around her throat with the other hand raised to punch her.

13Your mother and stepfather intervened to get you away from the complainant. When your stepfather separated you both, you pursued her as she ran through the door. You chased the complainant into the front yard and grabbed her by the throat with both hands. You crushed her throat so that she could not breathe and she thought she was going to die.  That is also part of Charge 1 continuing.

14As you used both hands to strangle her you said, “I want you to die”, “die c-“ and “die c-, die c-, why won’t you just die?”  That forms Charge 2, the threat to kill.  The complainant briefly lost consciousness.

15You lifted the complainant by her throat and then headbutted her and then repeatedly punched her to the face.  That is Charge 3, intentionally cause injury; comprising the headbutt and punching. You threw the complainant to the ground.

16Your stepfather prised you away from the complainant and threw you against a fence. You punched your stepfather, striking him to the jaw and right shoulder. You then picked up a child’s scooter and threw it at your stepfather, striking him to the shoulder.  All of these assaults comprise Charge 4, common assault.

17When the family re-entered their home, they saw that you had spread cleaning product over your half-sister’s clothing and over the lounge room floor. You had also smashed your half-sister’s computer screen.  That is Charge 5, criminal damage.

18As you attacked your half-sister, your mother rang the police. By the time they arrived, you had left the home.

19Danajah Bell’s injuries were assessed by a GP a couple of hours after your assaults. She gave a history of being choked and complained of dizziness, nausea, mild blurry vision and tenderness to her right ribs. She was referred to the Frankston Hospital and then sent home.

20On the following day, 17 August 2019, the complainant was examined by a forensic medical officer (FMO). The FMO found:

·     First, bruising and abrasion to the upper left neck area below the left ear;

·     Second, tenderness, swelling and bruising to the left forehead;

·     Third, tenderness to both shoulders;

·     Fourth, vertical lineal bruises to the left upper arm of 3 to 5 centimetres;

·     Fifth, disturbance to a healing burn on her left hand and forearm; and

·     Sixth, bruising to the inner left knee.

21The injuries are consistent with the assault you perpetrated on your half-sister.

22Fortunately, the physical injuries you inflicted could all be managed conservatively. It may be concluded that they were not serious or sustained in their physical, detrimental effect.

23You were arrested on 19 August 2019 and had a pocketknife in your possession  That is the related summary charge of possess controlled weapon without excuse.

24You were interviewed by police and made a largely no comment interview. You denied taking drugs on the day of the offending. You have since instructed your lawyer that you were drug affected at the time of your offending.

25You were remanded in custody and you have now spent 588 days on remand by way of pre-sentence detention excluding today. I will reckon that period as already served.

26The matter did not resolve until 16 November 2020; just short of 15 months after you were arrested and remanded in custody. Nevertheless, the matter did not proceed to committal and must be recognised as a plea made at an early time. I will say more about that later.

27I turn now to the objective gravity of, and your moral culpability for, your offending.

28The offending on 16 August was utterly unprovoked and took place in what was otherwise a welcoming family setting. It took place against a background where your mother was trying to reintegrate you back into the family and had done much to provide your children with a safe and stable home environment. In other words, there was absolutely nothing in the family home environment to provoke or trigger your offending.

29Moreover, you chose to attack a young female family member – your half-sister – who you had known for many years. After that you turned your rage on your stepfather.

30Your offending against each of the two family members was brutish, cowardly and sustained. The words you used to your sister as you had your hands around her neck would cause fear in any reasonable human being. There is ample evidence that she feared for her life during your attack.

31I was provided with victim impact statements of Danajah, Cheyenne, Shahree and Douglas Bell – your family members. Danajah Bell’s statement speaks of the severe emotional and psychological consequences your actions have had on her. Nevertheless, it is a statement of true dignity. Like your other family members, she does not understand where your rage and the ferocity of your attack came from. The statements of your other family members are as equally dignified. Whilst they speak of the hurt you have caused through your actions, they speak of their long time love and support of you and their hope that you will one day return to them as a loving family member.

32Your mother, Shahree’s, statement is particularly telling. It is apparent that you grew up with love and support but drifted from your family as you became more enmeshed in your drug addiction.

33It is a credit to your family that they leave the possibility open for that reunification.

34All of this speaks of the devastation drugs have wreaked on your life. I can only assess your offending as very serious, given the factors I have already outlined, and taking into account the effect it has had on those you hurt in the process; both physically and emotionally.

35You made no admissions when interviewed by police a couple of days later; moreover, you denied that you were under the influence of drugs. This is a position from which you now resile. Moreover, you told the forensic psychiatrist, Dr Pandurangi, that you were drug affected at the time of the offending.

36I am prepared to conclude that you were indeed under the influence of drugs when you committed these offences. There is no other reasonable explanation for your offending. Nevertheless, your drug addiction and the influence of drugs on your actions on this occasion provide no mitigation whatsoever for the violent attack on your family.

37The objective gravity of such offending must ordinarily be met by principles of general deterrence, specific deterrence, just punishment, denunciation and a measure of protection of the community. You must be ordered to serve a period of imprisonment for your offending; and indeed, your lawyer submits on your behalf that you accept this to be the case.

38Nevertheless, it is submitted on your behalf that your moral culpability for this offending is reduced by psychiatric and psychological factors.

39I turn now to your personal circumstances and to the psychiatric report dated 30 January 2021 provided by Dr Pandurangi.

40You are 31 years old, being born on 11 July 1989. You are one of four siblings with three half-sisters.

41Your parents separated in your early childhood. Your mother re-partnered when you were seven years old. You enjoyed a reasonable relationship with your stepfather. You have not been in contact with your mother since your incarceration.  One sister has an IVO against you, and you have no contact with the other sisters.  You have maintained a good relationship with your father.

42You had an unremarkable childhood apart from your parents’ separation. You had no major childhood illnesses or injuries.  You attended primary school with no difficulty. 

43You attended secondary school and completed Year 8. You were mostly a good student until you started to develop bad habits of not attending school and struggling with discipline and attendance. At the start of Year 9, you were asked to leave the school due to poor behaviour.

44In your mid-teens, you left your childhood home. You had a number of jobs assisting in a cabinet making business. However, your reliability at the various jobs was poor and you tended to float from job to job for a number of years. The discipline problems at school and your unreliability in the workplace were related to your alcohol abuse and, later, substance abuse.

45You have had one significant relationship with a woman, which you describe as on-again, off-again. You have two children with your ex-partner. The Department of Health and Human Services became involved in that relationship as both you and your ex-partner were using drugs. You have not seen your daughters for the last two years.

46When you were aged about 14, you started drinking alcohol and engaged in patterns of binge drinking. You started using cannabis from a similar age. Aged around 20, you started using methylamphetamines. This developed into an addiction which has seriously adversely affected your life. You have spent periods of homelessness and living with mates or in share houses. You have never had stable accommodation and you have never owned a property. You have not ever held a driver's licence.

47You have an extensive prior criminal history dating back to 2007. You have convictions for offences ranging through driving, property damage, assault, offences against police, carrying weapons, a broad range of dishonesty offences including theft, stolen goods and burglary, public order offences, jail disruption, contravention of a CBO and a CCO, failing to answer bail and for possession of cannabis and methamphetamines.

48You have served terms of imprisonment; including a sentence of 124 days (time held in custody) and a CCO for 18 months imposed on 4 June 2019. This offence occurred approximately 10 weeks after your release from prison on that occasion and whilst you were undergoing the CCO.

49Since you have been in prison on this occasion, you have undertaken courses in anger management, cleaning operations, and maintaining respectful relationships. Previously in custody, you completed a drug abuse program.

50Your time in custody on this occasion was affected by the COVID-19 pandemic lockdown. The immediate effect was a reduction/suspension of vocational and personal improvement courses, restrictions on your ability to move around the prison, a severe reduction in work available and a suspension of visits.

51You have been affected because those who would normally visit you, your family, were the subject of your attack and the charges to which you plead guilty.

52The other more insidious effect of the pandemic and lockdown was the stress and isolation – that is the fear that the pandemic would penetrate into the prison system and so isolation was used as a strategy to limit close contact.

53I shall take this into account as a mitigating factor in the sentencing process.

54Dr Pandurangi interviewed you on two occasions; on 16 September and
2 December 2020.

55You told Dr Pandurangi that as a child you had seen a psychologist sporadically for years. He further reported that you stated that you attended a psychiatrist through youth support and advocacy services in Frankston and that you believed you suffered from “bipolar” and that you were prescribed medication.

56You also stated that you recalled feeling paranoid. You struggled with mental health for brief periods but that this was never severe or persistent to require psychiatric hospitalisation.

57Dr Pandurangi referred to an earlier psychological report made by Mr David Ball who stated that you suffered from:

'Significant antisocial personality features… He is competitive and largely mistrustful and suspicious of others… Sees himself as having to be assertive, energetic, self-reliant and strong to succeed in life… Justify his antisocial behaviour by pointing to the hostile and exploitative behaviours of others… May be contemptuous of the weak and may not care whether he is liked'.

58Dr Pandurangi notes that Mr Ball diagnosed you with antisocial personality disorder and severe stimulant and alcohol use disorder in a controlled environment.

59You told Dr Pandurangi that you have had issues with your anger since your teenage years and had received counselling in relation to behavioural difficulties towards teachers and other children. You stated that you left school in your mid-teens, used cannabis and alcohol daily and also got into trouble with the law. You were ordered to YSAS counselling and anger management courses. You began seeing a psychologist and a psychiatrist. You stated that you were told that you were bipolar and that you had used methamphetamines since your early twenties and used it heavily after losing the care of your daughters.

60Specifically, you stated that you used “a lot” of cannabis every day from early teens but stopped using it at age 20. You stated that you experimented with other drugs such as amphetamines, ecstasy and hallucinogens during your teenage years but did not use those drugs regularly. You were introduced to methamphetamines in your early twenties and used approximately 1 g of the drug every day by smoking it. Prior to your arrest you said you were using “less than 1 g” per day of ice.

61Dr Pandurangi concluded that you:

'Demonstrate a lack of self-direction and deficits in interpersonal functioning, including an inability to develop relationships or to understand other persons perspective or an inability to manage conflicts. This is manifested in difficulties and emotional experience in regulation, impulsive behaviours, lack of consequential thinking, inability to reflect and learn from past behaviours and lack of long-term goals.'

62Dr Pandurangi concludes that you would be diagnosable with a moderate personality disorder with a prominent detachment, dissocial and a disinhibition pattern. Dr Pandurangi reached this conclusion after measuring the deficits in your personality function in relation to: first, your awareness of your identity; second, your ability to aspire or set reasonable goals that is life goals, that is self-direction; third, your ability to empathise; and, fourth, your experience and level of intimacy. Dr Pandurangi diagnosed the impact of your personality disorder as severe.

63On Dr Pandurangi’s assessment, there is no indication that you suffer from bipolar disorder.

64Dr Pandurangi concludes that your personality disorder and the use of illicit drugs would be considered a necessary but not sufficient factor to explain the offending. As he puts it, Dr Pandurangi assesses that you would have appreciated the wrongfulness of your actions but the ability to make reasoned decisions or control your emotions would be affected.

65Dr Pandurangi concludes that as a highly structured environment, imprisonment has not affected you adversely. You would however benefit from psychological treatment to address aspects of your underlying personality disorder and of course your use of illicit drugs.

66Ms Waldin, who appeared on your behalf, submitted the following factors should operate to mitigate your sentence:

67First, the early plea of guilty. You pleaded guilty at an early time and the matter proceed by way of straight hand up brief. I accept the plea of guilty has a utilitarian effect. Through your lawyer, you sought to apologise for your offending. Your lawyer submitted that your plea of guilty exhibited remorse.

68I accept the plea of guilty should mitigate your sentence for its utilitarian benefit. I hold some concern about using it as an expression of remorse. The case against you was overwhelmingly strong. Moreover, I look to the assessment of Dr Pandurangi; especially as to the severe level of your personality disorder incorporating an assessment of your compromised ability to empathise.

69In the end however, I am prepared to find, although it was indirectly provided and almost hardly articulated, that you have some remorse for what you did to your half-sister and your family.

70Ms Waldin submitted there are reasonable prospects for your rehabilitation. You have engaged (so far as you can) in courses and you have kept yourself constructively occupied in prison. Moreover, I heard and received after the plea a letter from your father indicating that you have reconnected with him and that he is able to offer you six weeks accommodation to you upon your release from prison.

71I am more guarded about your prospects for rehabilitation. Your extensive prior convictions and over a range of different offences makes it clear that you have much work to do to readjust to living a normal life within your community. You have a poor work record, you have burnt a significant bridge with your family (although they seem to be making an attempt to rebuild it) and you have your underlying psychological issues to deal with. Most of all, you must make a significant and sustained commitment to overcoming your drug addiction. Until you come face-to-face with that, I fear that you will become increasingly isolated and will spend further time in prison.

72The real test for you will be upon your release into the community. If you commit, under the supervision of a parole officer (assuming you are granted parole) to address your psychological and drug issues, then you will have a real start to improve your prospects of rehabilitation.

73Ms Waldin submitted that I must have regard to principles of proportionality and totality. Essentially, totality means I must not impose an overall sentence which, taking into account each of the individual sentences I must impose for each of the six offences, is crushing. Nor must I be so overwhelmed by factors such as the circumstances of your offending or your previous criminal history such that I impose a sentence which is disproportionate to the offending.

74Finally, Ms Waldin submitted that Dr Pandurangi’s conclusion that you would be diagnosable with a personality disorder operates to reduce your moral culpability for your offending and thereby operates to moderate principles of general and specific deterrence.

75In the end, Ms Waldin submits that I should provide you with the opportunity for a lengthy period of parole so that you can (if granted parole) spend a significant time in the community under the supervision and structure of the Parole Board which will in turn pave your way to reintegrate into the community.

76Ms MacDougall, on behalf of the prosecution, accepted you had an underlying personality disorder at the time of interview which would exist at the time of sentence. Ms MacDougall accepted the presence of the personality disorder at the time of sentence should lead to some moderation of general and specific deterrence. Nevertheless, she submitted that both loomed large in this case.

77The Crown submitted that the fact that you committed this offending whilst a CCO was in operation aggravated your offending.

78The relevant principles for moderating sentencing objectives of general and specific deterrence was set out in the Court of Appeal case of Verdins. In that case, the Court of Appeal stated:

'Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both. 

Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.'

79I have considered the judgment of the Court of Appeal in the case of Brown. It is worth noting in passing that Dr Pandurangi came to his conclusion as to your personality disorder according to the diagnostic tool the International Classification of Diseases 11^th Revision; an approach which is referred to favourably in Brown.

80As I have outlined, it is apparent that Dr Pandurangi considers that at the time of your offending, your actions were affected by both your personality disorder and your drug use. These factors detrimentally affected but did not dictate your decision-making in your offending.

81Furthermore, Dr Pandurangi notes that you are not greatly adversely affected by imprisonment.

82These are all important factors in the sentencing consideration.

83I am prepared to find that your personality disorder still operates at the time of sentence. It appears to have operated at the time of your offending, but in the way that I have already outlined.

84As I have outlined, your personality disorder operates such that your decision-making is poor and impulsive, and you have an inability to manage your own anger or emotions.

85In the end, I am prepared to find that your personality disorder should somewhat moderate general and specific deterrence. In the circumstances, and for all the factors I have outlined, I consider that the moderating effect can only be slight. Nevertheless, I will impose a slightly lesser sentence (of course, taking into account all the other mitigating factors to which I have referred) than you would have received had you not suffered from this disorder.

86Further, I am mindful of the principle of totality and for the fact that the conduct across Charges 1,2 and 3 effectively flowed into each other. For this reason, I have somewhat moderated the periods of accumulation to be served.

87So the sentences are as follows:

88On the charge of reckless conduct endangering life, you are convicted and sentenced to 33 months' imprisonment.

89On the charge of threat to kill, you are convicted and sentenced to 24 months' imprisonment.

90On the charge of cause injury intentionally, you are convicted and sentenced to 39 months' imprisonment and that is the base sentence.

91On Charge 4, the charge of common assault, you are convicted and sentenced to 12 months' imprisonment.

92On the charge of criminal damage, you are convicted and sentenced to four months' imprisonment and on the summary charge of possess a controlled weapon without excuse, you are convicted and sentenced to three months' imprisonment.

93As I say the base sentence is 39 months, so to that 39 months I cumulate five months of Charge 1, three months of Charge 2 and one month of Charge 4.  The sentence for the criminal damage charge is concurrent and the sentence on the summary charge is concurrent.  If my maths is correct, I intended you to serve a total effective sentence of 48 months which is four years.  I order that you serve a non-parole period of 31 months before you are eligible for parole.

94I declare the period of 588 days pre-sentence detention, not including today, reckoned as already served and the 6AAA order is that but for the plea of guilty, I would have sentenced you to a period of five years with three and a half years to serve.

95Ms Waldin, did you get all the figures and do you have any queries?  Is that clear.

96MS WALDIN:  That is clear, Your Honour.

97HIS HONOUR:  Thank you.  Ms MacDougall, are there any other orders sought?

98MS MACDOUGALL:  Your Honour, firstly I agree with the arithmetic.  Secondly, Your Honour, a disposal order was sought in respect of the pocket knife.

99HIS HONOUR:  Ms Waldin, anything to say about the disposal order?  I think you agreed to it last time, did you not?

100MS WALDIN:  Yes, I did, Your Honour.  It is not opposed.

101HIS HONOUR:  Thank you.  I will make that order in chambers after we cut the link. 

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