Director of Public Prosecutions v Panton

[2016] VCC 1744

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-01581

DIRECTOR OF PUBLIC PROSECUTIONS

v

WILLIAM GEORGE PANTON

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JUDGE:	HIS HONOUR JUDGE STUART
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	18 November 2016
CASE MAY BE CITED AS:	DPP v Panton
MEDIUM NEUTRAL CITATION:	[2016] VCC 1744

EX TEMPORE REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S.J. Holmes
For the Accused	Mr M. Brennan

1HIS HONOUR:  You may remain seated Mr Panton.  William George Panton, you have pleaded guilty to one charge of recklessly causing serious injury.  That charge carries with it a maximum penalty of 15 years imprisonment.   You were born on 12 August 1991, and at the time of the offending you were 24 years old. You have been living an itinerant lifestyle, staying in the main at the Gatwick Hotel in Fitzroy Street, St Kilda. 

2In the early evening at approximately 6.55 pm on Sunday, 6 March 2016, your victim, Glynn McMahon who was 50 years old at the time, was on a tram.  He got off the tram at Fitzroy Street at the intersection of Canterbury Road and headed to get a pizza at Domino's Pizza. He walked west to the north side of Fitzroy Street passing the Gatwick Private Hotel and continued onwards towards Park Street.  At the time you were also walking west on that northern side of Fitzroy Street. 

3When your victim walked over Park Street and continued along towards Domino's pizza you also crossed Park Street and continued in his direction.  You then walked quickly past him just prior to the entry of Barney Allen's bar at 14 Fitzroy Street.  You then stopped near the entry of that bar and turned back to Mr McMahon who was now behind you.  You punched him with your right fist, making contact with the upper left cheek of his face with substantial force.  That impact caused your 50 year old victim to fall backwards onto the footpath and he fell heavily, landing on his right side.

4This incident was witnessed by patrons at the bar and an adjoining restaurant and a Trent Thompson attended upon Mr McMahon while others confronted you.  You yelled at them and then walked away on Park Street.  Police and ambulance attended.  Your victim was eventually taken to the Alfred Hospital for further treatment and I will avert to that treatment and the injuries he suffered as detailed in his victim impact statement shortly.

5The injuries that he suffered included a right sided fractured neck of femur and left sided facial fractures including the left maxilla, orbital wall and zygoma fractures.  As a result of those injuries, at the time he made his statement he had to use a walking stick.

6This was a deliberate attack by you.  You selected your victim who you did not know and there was an apparent randomness to that selection.  When you struck him you were reckless as to causing him serious injury and indeed serious injury was inflicted upon him. 

7In his victim impact statement Mr McMahon wrote, among other things:

"I think about the incident often.  I think that if I had seen him coming I could have moved away and none of this would have happened.

“The assault has made me fearful.  I used to do my shopping in St Kilda.  I can no longer go there because I feel that it is really unsafe and a dangerous place. 

“The face trauma specialist at the Alfred Hospital said that the nerve damage to my face may not get better.  That it may be permanent,  a plate was put in the left side of my face, it will remain there forever.  I worry about the long term effects of having a plate in my body.

“The dentist said that the nerve damage in my mouth may be permanent.  It causes me constant irritation and worry.

“At the time of the incident my glasses were broken and I have constant worry that my eyesight will be affected. 

“Because of all the injuries I suffered, I am extra cautious about injuring myself again.  I am careful at work and avoid going high on the ladder.  I no longer ride my bike or do physical activities that I used to enjoy. 

“After the incident I didn't work for three months.  I spent 4-5 weeks in hospital and had 8 weeks of rehabilitation. 

“I don't like to talk about what happened.  I know that it has caused my family a great deal of stress."

8That you should engage in such unprovoked, wanton behaviour towards a man who was going about his business of buying a pizza in a busy street such as Fitzroy Street in the early evening of a Sunday is remarkable.  He had done nothing to you.  What you have done to him has physically damaged him, traumatised him and that trauma no doubt will continue to be in his mind for the rest of his life particularly given, from his perspective, the randomness of your behaviour and the unprovoked attack upon him. 

9You are now 25 years of age and your criminal record from both Launceston and Melbourne Magistrates' Court runs for no less than 12 pages.  I calculate, and these figures are approximate, that you have had some 22 court appearances.  Of those 22 court appearances, 14 have been at the Melbourne Magistrates' Court between 12 February 2013 and 20 November 2015, a period of approximately two years and nine months.

10Of the 14 court appearances, two of those have involved you being dealt with for unlawful assaults.  Further, you have been dealt with in those 22 court appearances for something in the order of 168 offences.  An appalling number of charges.  Though I acknowledge that many of them relate to the itinerant lifestyle that you lived in Launceston and in Melbourne as exemplified by the numerous occasions where you have been dealt with for failing to answer bail. 

11The offences are also consistent with offending at a relatively low level, though frequent, in order to support your lifestyle and your drug addictions.  Nonetheless, there are 11 charges that relate to violence; two involving resisting police officers and six involving resisting emergency workers as they go about their work - it appears that of those offences, six arose from two incidents.  In addition, as I have mentioned, you have been dealt with for two matters of assault.  The first being your first court appearance in Launceston, Court of Petty Sessions on 30 May 2007 for common assault when you were but 16 years old.  I put that aside because of its age.

12More relevantly, you have been dealt with in Victoria in the Melbourne Magistrates' Court for unlawful assault on 30 May 2014 and resist police as well as a further matter of assault some five months later on 10 October 2014. 

13You have been placed on probation on three occasions and been breached probation orders on four occasions.  You have been placed on community corrections orders on no less than nine occasions and breached on seven occasions.  You have received one wholly suspended gaol sentence and two partially suspended gaol sentences.  You have been dealt with in the Launceston Court of Petty Sessions in relation to contraventions of detention gaol orders on some seven occasions.  You have breached bail conditions on 22 occasions. 

14Turning to more recent matters concerning court dispositions, the following all occurred at the Melbourne Magistrates' Court.  On 10 October 2014 you were placed on a community corrections order for 12 months for offending which included the unlawful assault and a charge of unlawful assault.  A little later, on 14 January 2015, you were again before the Melbourne Magistrates' Court and sentenced to 56 days imprisonment which had been your pre-sentence detention and you were placed on a second community corrections order for 12 months.  The following day, 15 January 2015, you were dealt with for the original community corrections order that was imposed on 10 October 2014 and that order was continued for a period of 18 months and included on it a condition of judicial monitoring. 

15A little over four months later on 29 May 2015 you returned to the Melbourne Magistrates’ Court on two charges of breaching each of those two community corrections orders in relation to the second community corrections order which was imposed originally on 14 January.  That order was varied with an expiry date of 13 January 2016, again, with judicial monitoring conditions.  The third community corrections order was varied to 18 months commencing on 10 October 2014, it also had a condition for judicial monitoring, the expiry of which would have been in early 2016. 

16On 30 September, some four months later, you again breached on both of those two community corrections orders and the orders were cancelled with no further order made.  I don't know why this occurred. 

17Finally, on 20 November 2015 you were dealt with for a number of offences and sentenced to an aggregate period of two months' imprisonment.  Those offences were, in the main, dishonesty offences and involved one charge of committing an indictable offence whilst on bail.  Pre-sentence detention was one day.   On my calculations you would have been released around 19 January this year.   Within seven weeks of your release you committed this offence against your victim Mr McMahon. 

18It is fair to say that you have treated orders of the court, whether they be probation orders or community orders, particularly community correction orders, in Victoria as but pieces of paper.  You have not in any way been deterred from offending despite your 22 court appearances. 

19The offending that brings you before this court is of a higher order by a considerable margin than the offending for which you have been dealt with in the past.  Its randomness and its unprovoked nature is frightening. 

20I have been much assisted by your counsel, Mr Brennan, in his careful plea and have the benefit of two psychiatric reports.  The first is dated 25 May 2016 and is a joint report of Dr Gornell and Dr Patel both from the Victorian Institute of Forensic Mental Health which became Exhibit WP1.  It is necessary for me to read some portions of that report.  As to how you accounted for the offence, the authors wrote:

"Mr Panton recounted two particular incidents he noted were related to his most recent offences in the course of the interview.  He noted whilst at Crown Casino, he was involved in a physical altercation with a person who was cleaning a bin in an outdoor area.  He reports he was able to tell this person was a ‘cannibal’ and a ‘psychopath killer’ by their ‘demeanour’ and ‘aura’ which was a ‘fucking disgrace.'  He stated that he felt they were ‘testing me' leading him to throw his glass on the ground in an aggressive gesture and approach the person, striking them on the face with his fist.  He reports this led to contact with Crown Casino security services who promptly attended,  he noted however 'I'm all right with them, they know me'.  He reports police were called and he was taken to the Alfred Hospital following."

21A little later the authors continue:

"Mr Panton indicates he has had approximately two years in prison in total with the longest period of four months relating to an aggravated burglary.  He also noted incarceration in Tasmania for offences relating to theft."

22As for your mental health history you indicated to the authors and I quote:

"Mr Panton indicates he was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) at 7 years of age following contact with a Psychiatrist." 

23A little later they continue:

"Mr Panton reports he has had no prior inpatient admissions to mental health services and denied previous treatment with psychotropic medications.

Mr Panton indicated at the time of interview he was treated with an oral antipsychotic medication, Olanzapine, which he reports was helpful for his sleep.  He denied previous periods consistent with episodes of mania or depression. 

In the course of the interview Mr Panton expressed several fragmentary delusions that were paranoid in nature.  He indicates he believes he is a ‘serphia birth’ which relates to ancient Rome.  He indicated he believed that he was being ‘tested’ by a group which included the ‘13th Roman King’, ‘Maximillian Killius’, ‘Spartans’, ‘Gladiators’ and the ‘Illuminati’. 

“Mr Panton noted at times, he feels he is able to ‘hear people's thoughts’ which he finds is ‘sometimes scary’.  He indicates he is able to hear a ‘voice’, which he believes comes from a person who then ‘the spirits pinpoint’. 

24They further note:

“Mr Panton had difficulty in establishing a clear timeline for the    duration and timing of the symptoms he described.  He had his first experience of hearing others’ thoughts was after ‘the 8 August 2014’ when he reports he was subject to a significant assault.” 

25They continue:

"Mr Paton reported that in January 2015, he “hit” a female who he was in a relationship with at the time.  He indicated he “looked at it with disgust” and subsequently asked a person to cut off his ears as “punishment to please the Gods”.  I went up to him, and he said 'Once I start I won't stop' and then he did it. He reports this resulted in him presenting to St Vincent's Hospital where he received treatment.  He noted this made him like chocolate reflecting that, 'In the past, I thought he was my dad and a role model."

26I interpolate that during the course of the hearing you became agitated and speaking from the dock indicated that you were in fact held down by two other inmates who cut off your ears and as I gather it was not at your request. 

27Returning to the report, the authors note:

“Mr Panton denied any history of chronic medical illness or seizures.” 

28As to substance abuse history the authors state:

“Mr Panton noted extensive use of substances from an early age.  He reports from 9 to 10 years, he would engage in the use of cannabis and alcohol "whatever I could get."  He reports this use gradually increased to approximately 20 years of age when he engaged in daily use of 1-2 grams of cannabis and an average of approximately 20 standard alcoholic drinks.  Mr Panton denied any symptoms consistent with withdrawal at the times when he had no alcohol intake of several days.  He reports his most recent use was in the days leading up to incarceration. 

“Mr Panton noted his first intravenous use of substances was at 16 years of age when he reports he was injecting opiates.  He reports that he had a period at approximately 20 years of age where he engaged in regular use however indicates this was limited to several months.  He reports his last use was several months prior to incarceration.  He notes he began using methamphetamines at approximately 21 years of age and has gradually increased his use up to five points per day.  He reports his last use of methamphetamine was in the week leading up to incarceration.  Mr Panton indicates he has engaged in experimental use of ecstasy, hallucinogenic mushrooms and LSD however denies regular or recent use.  In considering his longest period of absence Mr Panton indicated the only times he was not engaged in illicit substance use has been during incarceration.  He indicates he believes the majority of his offending behaviours have been related to obtaining finances to support the substance use which have resulted in periods of incarceration.  He noted that the majority of the social contacts have been related to substance use and have resulted in strained relations with his family at times.  Mr Panton was unable to identify any effects of substances on his mental or physical health.”

29The authors then continue with the setting out your impoverished background and the fact that you were expelled from school several days into Year 9 stating:

"After expulsion from secondary school, Mr Panton indicates he travelled to various cities around Australia and was supported on Centrelink benefits.  He reports he initially moved to Adelaide where he maintained casual employment for several weeks at a company involved in building fences.  Mr Panton noted he used the money he earned to purchase illicit substances and ceased working."

30In the opinion section the authors note:

“Mr Panton presents with a pattern of symptoms that appear consistent with acute episodes of psychosis.  Mr Panton's mental health at the time of interview, which included active perceptual disturbance and altered thought process, made it difficult to obtain consistent information and impacted his capacity to accurately recall. 

“Mr Panton's significant improvement following treatment with anti-psychotic medications is potentially related to a good treatment response, although this may also be an indication of the contribution of substance abuse to his episode of psychosis.  At this time however, it would be premature to rule out the presence of enduring psychotic illness such Schizophrenia (sic).

“I note Mr Panton's description of the offences indicates the presence of psychotic symptoms at the time of both of the incidents he described.  In this context it would appear that psychosis contributed to his offending behaviour.”

31The authors, in paragraph 8 of the opinion section, conclude:

“Further assessment in 6-8 weeks’ time, may assist the court in providing further diagnostic clarification and allow for a more specific recommendations to be made."

32That occurred and I have benefit of the psychiatric report of Dr Leon Turnbull which became Exhibit WP2. In his report, Dr Turnbull noted:

"He had been using 2 to 3 points of ice a day by way of smoking and injecting and at other times used 'as much as I could'.  He was occasionally using heroin but less so in his past." 

33At page 3, the author notes:

"He is no longer experiencing any delusional or hallucinatory phenomena and the olanzapine ‘helps me sleep’.  It is his view that he does not need psychiatric medication medium to long-term and that at some point over the next six months he would likely cease it."

34As to your mental state as at 10 October 2016 when Dr Turnbull saw you, Dr Turnbull writes:

"He was not affected by psychotic process in the form or content of his thinking and was not attending to hallucinations.  He confirmed that he is no longer psychotic.” 

35In the opinion section Dr Turnbull states:

"Mr Panton is fortunate that he has over his years of ice not sustained a chronic mental illness such as schizophrenia, schizoaffective disorder or bipolar disorder.  He has thought brief episodes of drug induced psychosis in, this is in response to ice use. 

“The offending in early 2016 over the space of approximately one month was during heavy ice use and he was paranoid and suspicious about others.  He cannot provide a clear or succinct rationales for the offending other than being in a severely ice affected state, and that of having beliefs that were specifically focused on him especially considering his misshapen ears.”

36The next paragraph of his report, page 5, Dr Turnbull continues:

"While he does not have a psychiatric illness that explains the offending such as schizophrenia that by definition means a mental impairment defence is not available, he was in an altered state of mind simply by the fact that the amount of illicit drugs he was using. His ability to make calm and rational choices was likely grossly affected by being in a fairly advanced state of intoxication and being paranoid to the point of psychosis. 

“His intention to cease psychiatric medication sometime in the future is reasonable as long as he stays abstinent from illicit drugs.  I do not recommend any specific psychiatric treatment ongoing or in the community other than that of drug and alcohol services and I refer to them in terms of their specific recommendations." 

37He continues a little later:

"However now he is free of psychosis there is little to separate him and other prisoners in regard to the onerousness of the regime." 

38He concludes in his final paragraph with these observations:

"In terms of risk of offending I notice he is now 25 and has a fairly consistent criminal history dating back to his teens, and he is either at or reaching the crossroads as to whether he continues to use illicit drugs and offend or makes drastic changes to his life.  It would be mistaken to believe psychiatric services would have much grunt in terms of playing a role in reducing his reoffending, and it is largely in his hands to make the necessary appropriate decisions about his illicit drug use." 

39As to that last paragraph, I fully endorse it.  Your prospects of rehabilitation are dim if you return to any form of drug use or alcohol abuse.  Subject to that, your prospects of rehabilitation are at best guarded.  You have long established poly-substance abuse addictions. Your prior criminal history is extensive and disturbing.  You have not responded to any of the court ordered regimes other than to breach them. 

40It was submitted by your counsel that your culpability, both moral and legal, is reduced for two reasons.  One, because of your impoverished background which is set out in the reports and two, the fact that you were psychotic at the time. 

41Turning to the first, in the judgment of Buchanan JA in The Queen vKim McKee and Cassandra Brooks [2003] VSCA 16, his Honour at paragraph 13 wrote:

“The extent to which a decision to experiment with drugs is freely made, in my view, bears upon the moral culpability of the offender who commits a crime as a consequence of addiction to drugs. Age is relevant to the question, as Spigelman, C.J. acknowledged. I would add that in the case of adults, despair and low self-regard may also play a significant part in the decision to use drugs and that condition may be the result of social or economic disadvantage, poor education or emotional or physical abuse. An addiction to heroin may also bear upon the question of rehabilitation, where the prospects of success will often depend upon the likelihood of the addiction being successfully treated. In my view, a sentencing judge may have regard to the circumstances which led to an addiction that caused the commission of the offence and to whether the addiction has continued or is being treated in deciding upon a sentence appropriately tailored to the personal circumstances of the offender.”

42In the judgement of Justice Vincent in paragraph 21, I will extract a portion of his Honour's judgment.  His Honour wrote:

“I accept that such experiences and drug addiction itself are capable of producing serious corrosive effects that may continue to influence the conduct of the person concerned well into adulthood and from which, in some circumstances, they may never completely escape. That possibility is one which, in my opinion, must be seriously taken into account for a variety of sentencing purposes. These would include the assessment of the moral culpability of an offender with respect to the commission of a specific offence and therefore could assume relevance when considering the significance to be attributed to the notion of retribution for wrongdoing as a sentencing consideration."

43His Honour then continued and I emphasise the following:

"Of course, it does not follow that individuals who come before the court with the type of history to which I have referred do not make choices or that they cannot be held fully accountable for conduct in which they voluntarily engage or which may be the ultimate product of deliberate lifestyle choices made by them. However, and obviously, in the determination of an appropriate sentence in an individual case, regard must be had to the particular circumstances of the offender concerned. As Buchanan, J.A. has pointed out, the background against which an offence was committed could also possess relevance when a sentencing judge came to consider the offender's prospects of rehabilitation. It may indicate the presence of a need to endeavour, through the sentencing process, to protect the public and affect the weight given to specific deterrence in the determination of an appropriate sentence.”

44Whilst in no real way it can be said that you have made deliberate choices given your background you have from time to time over your life had choices as to whether or not you would continue on with your current lifestyle.  The extent to which you have described your work history is a work history that involved you working and then spending the money on drugs.  Indeed, your addiction to drugs is all consuming and the only time that you have been addiction free has been when you have been in custody. 

45As to your use of drugs, I return to the report of Dr Turnbull, where at page 3 he outlines the following:

"In regards to his future plan with illicit drugs he was initially ambivalent but was able to be more direct with some further more insistent questioning - 'I'm a danger to myself and other people when I have too much ice'."

46I earlier quoted passages from page 5 of his report, I deliberately omitted to quote this passage earlier, Dr Turnbull stated:

"Despite the repeated offending, the accumulation of charges and its direct association with him using ice, he was initially surprisingly bland in regards convincing plans to stay off the drugs.  Having said that, he was, with some prompting, then able to at least clearly articulate that he is a risk to himself and others when using the drug.  It is his illicit drug use where the priority lies in terms of his recovery and success in preventing future offending." 

47Thus, you knew that you were a risk, that you were a danger to yourself and other people when you have too much ice as you had.  That was your choice and your choice in my view led directly to this offending. 

48In those circumstances I am satisfied that you must be held fully accountable for your conduct both legally and morally.  I am further satisfied consistent with the statements in both psychiatric reports that critical to your rehabilitation is your abstinence from any drugs.  I consider your capacity to remain abstinent in the community to be entirely problematic.

49Your offending in this way is a dramatic escalation of the violence that you have engaged in in the past and the eggregious nature of your previous offending. 

50You have pleaded guilty at the earliest possible opportunity and I take that into account, both as to its utility in avoiding contested committal hearing and any trial which would have taken a week or so to complete.  Further, I am prepared in the circumstances to treat your plea of guilty as some evidence of remorse. 

51At the age of 25 I am satisfied that you pose a significant risk to the community as exemplified by your past criminal history and the offending that you engaged in on this particular occasion.  You have no clear plan for avoiding illicit drug use in the future.  The sentence that I pass therefore must have the protection of the community as a significant matter which I must take into account. 

52In addition, you must be further deterred from further offending.  General deterrence, deterring others from this type of activity also is a significant sentencing matter just as is just punishment and a denunciation of your outrageous conduct on this Sunday evening.  Stand up.

53On the charge of recklessly causing serious injury I sentence you to be imprisoned for a period of four and a half years and I set a minimum non-parole period of two and a half years.  Take a seat.

54But for your pleas of guilty I would have imposed a sentence of six and a half years with a minimum non-parole period of four and a half years and I declare pre-sentence detention to be 179 days which will be administratively deducted from that sentence. 

55MS HOLMES:  As the court pleases.

56HIS HONOUR:  Anything arising?

57MS HOLMES:  No, Your Honour.

58MR BRENNAN:  As the court pleases. No, Your Honour.

59HIS HONOUR:  Yes.  Remove Mr Panton, please.

60(OFFENDER REMOVED)

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