Director of Public Prosecutions v Patterson (a pseudonym)
[2023] VCC 359
•3 March 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KIERAN PATTERSON (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE LYON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 3 March 2023 | |
CASE MAY BE CITED AS: | DPP v Patterson (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 359 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords:
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act1991 (Vic);
Cases Cited:Bugmy v The Queen [2013] HCA 37, Worboyes v The Queen [2021] VSCA 169, Marrah v R [2014] VSCA 119, DPP v Drake [2019] VSCA 293, DPP v Herrmann [2021] VSCA 160, R v Verdins [2007] VSCA 62
Sentence:42 months imprisonment with a non-parole period 26 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Robins | Office of Public Prosecutions |
| For the Accused | Mr J. Moore | Peter Lunt Lawyers |
HIS HONOUR:
1Kieran Patterson[1], you have pleaded guilty to the following charges which carry the following maximum penalties:
[1] A pseudonym.
| Charge No. | Offence | Maximum Penalty | Additional |
| 1 | Causing injury recklessly contrary to s 18 Crimes Act 1958 | 5 years | |
| 2 | Persistent contravention of family violence intervention order contrary to s 125A Family Violence Protection Act 2008 | 5 years | |
| 3 | Causing serious injury intentionally contrary to s 16 Crimes Act 1958. | 20 years | Category 2 offence |
| 4 | Common assault contrary to Common Law | 5 years | |
| Related Summary Charges 3,8,26 | Unlawful assault | 3 months |
2You have admitted to your prior criminal history, which is only peripherally relevant to this offending. I will say only a little more about that during these remarks.
Circumstances of Offending
3The Crown tendered the summary of prosecution opening as Exhibit A. A summary of your offending is as follows:
(a) You were 28 / 29 years old at the time of your offending. Your partner Nina Conway[2] was 31 / 32 years old. You were in a relationship together for about two years;
[2] A pseudonym.
(b) The relationship was marked by difficulties: you have a recognised intellectual disability and Ms Conway has schizophrenia. You were both homeless when you met in a refuge and you were both using methamphetamines. Your childhood had been marked by dysfunction, dislocation and violence. In short, it appears neither of you had the life or social skills to remediate the relationship when things went badly. It appears also that you physically dominated Ms Conway during the period of the relationship;
(c) The period of offending spans from October 2020 to 28 December 2021;
(d) The first charged incident occurred in October 2020 when you were both living in a tent in the backyard of your mother's place. An argument started where you were expressing jealousy. You grabbed the complainant by the neck to control her and punched her to the left side of the face around the eye. That is Summary Charge 8;
(e)
Next, indictment Charge 1, a charge of recklessly cause injury, occurred on
16 November 2020 during the course of another verbal argument in the kitchen area at your mother's place. You threw a piece of wood which struck the complainant in centre of the head beneath her hairline, causing a deep laceration. An ambulance was called and you controlled the complainant's behaviour. She was eventually treated at a GP clinic where she received five stitches;
(f)
Summary Charge 26 occurred at a hotel when you punched the complainant to the face. She was noted at check-in to have two black eyes, however, the charged period for this offending is 10 September 2021 to
22 October 2021;
(g) You were served with a family violence intervention order on 27 November 2021. The charge of persistent contravention of the Family Violence Intervention Order is constituted by six particulars of assault;
(h) On 27 December 2021 you were living in a tent in your mother's backyard. You were drinking alcohol and you were intoxicated. An argument occurred where you pushed the complainant to the ground six times (indictment Charge 2, particular 4 and Summary Charge 3);
(i) On 28 December 2021, you continually pushed the complainant to the ground. You dragged her through the house and yard by her hair (that is particular 5) of Charge 2. The police were called. They noted that you were aggressive and noted blood on the complainant's clothing. You controlled the complainant’s communications with the police;
(j) After this, you became impatient with the complainant when she was getting ready to visit friends with you. You pushed her to the ground continually, you kicked her and dragged her by her hair down the stairs. That is particular 6 of Charge 2. While inside the house, you pushed the complainant around. You grabbed her hair and pulled her to the ground. When she attempted to get up, you pushed her back down. That is particular 7 of Charge 2.
(k) Again, while the complainant was on the ground on this occasion, you stomped on her left shoulder with your bare foot and on the left side of her head with the bottom of your foot. That is particular 8 indictment Charge 3 of intentionally cause serious injury. You stomped on her head which injured her ear, requiring medical treatment and broke her nose. You grabbed a broom handle and struck the complainant multiple times, causing severe bruising and a small puncture. That is part of particular 8.
(l) You forced the complainant into the bathroom to clean up the blood on her face so you could go out as planned. As she cleaned herself in the bathroom sink, you grabbed her head and forced it under the running water. That's indictment Charge 4, part of the Common Law assault and particular 9. You pulled her head away from the sink towards the bowl. The bowl contained water and you pushed the complainants head underwater with your hand for a few seconds and that is, again, part of the Common Law assault and particular 9);
(m) When went on to your friend's place as planned, the complainant showed a person present her injuries and told her of your actions. That person took the complainant to the police;
(n) You were arrested on 29 December 2021. You were interviewed by police but you did not make any specific admissions to your offending; and
(o) You have remained in custody since you were arrested and have now spent 429 days on remand by way of pre-sentence detention which I will declare as reckoned as already served.
Objective Gravity and Moral Culpability
4I turn now to the objective gravity of and moral culpability for your offending.
5The seriousness of the offence of intentionally cause serious injury is marked by the maximum penalty imposed by Parliament of 20 years' imprisonment. Moreover, it is categorised as a Category 2 offence, which means that a period of imprisonment and not a combination sentence with CCO must be imposed unless certain conditions exist. Mr Moore did not submit those circumstances exist in your case.
6I understand the case was settled on the basis that the serious injury occurred when you stomped on the head and shoulder of your victim causing the injuries to her ear and nose, which I have outlined, and the shoulder injury. I shall say more about the shoulder injury in a moment.
7Although the definition of serious injury can incorporate an accumulation of injuries, I am not satisfied that the injury to the ear or the nose satisfy the definition of serious injury and cannot contribute to an accumulation of the shoulder injury. Rather, I take into account in my assessment of the seriousness of your offending the circumstances in which you caused the injury to the shoulder, which involved a stomp to the shoulder and to the head at that same time, each by a single stomp with your bare foot.
8Serious injury is defined as an injury or injuries that are either or both life threatening or protracted.
9The shoulder injury in this case involved a subluxed humeral head, which means that the humeral head slips out of its socket/cavity. In addition, the humeral head was fractured. Finally, there was a tear to the labrum which is the tissue which holds the shoulder in place. The injury required the victim to wear a sling and undergo two bouts of surgery. The rehabilitation extended over a period of about eight months.
10It is agreed that the serious injury in this case is that the shoulder injury was protracted in nature rather than life-threatening. However, I agree with the Crown position that within a range of examples of such an injury, it is at the lower end of the definition of serious injury.
11Mr Moore submitted that I should conclude that this injury was at the lowest end of the range of seriousness, that it was caused by a single barefooted stomp and was absent of the use of weapons or being associated with other serious offending.
12I conclude, as I have said, that it is indeed at the lower end and I take into account the report provided at the earlier mentioned dated 8 September 2022 by
Dr Pennington which stated that, on review in August 2022, that the shoulder now had a good range of movement with some expected restrictions long-term. In all, there has been substantial but not complete recovery of movement.13An assessment of the objective gravity of your offending cannot focus solely on the one offence. It must take into account:
(a) The period over which all the offending occurred;
(b) That it occurred in a setting of family violence where you persistently dominated the victim, contravened a Family Violence Intervention Order on 28 December and inflicted acts of violence on her;
(c) On one occasion, you assaulted her with a broom handle; and that
(d) The indictment contains a rolled up count of two identifiable instances of assaulting the victim by holding her head underwater.
14In relation to that last matter, you will be sentenced only for one charge of assault. Even though it is rolled up and the law states I must take into account the two incidents, the maximum penalty remains fixed for the single charge of assault. It will, however, lead to an increase in penalty for this offence, in contrast to a single isolated incident.
15Your counsel accepts that the family violence inflicted on 28 December, 'Represents a serious example of the offence of persist in contravention of a Family Violence Intervention Order.' I agree with Mr Moore. I must, however, be careful in sentencing you to ensure that you are not doubly punished because the particulars of that charge also constitutes separate charges of assault to which you have pleaded guilty.
16In assessing the objective seriousness of your offending, I also take into account the devastating impact of your actions on the victim. It is apparent from her detailed and harrowing account that your actions have left her profoundly psychologically scarred.
17At the time of writing her Victim Impact Statement which was May 2022, she was still in a deal of pain and restriction. Equally, she was depressed, sad and lonely, she was mistrustful of most people and especially of men. Her relationship with her parents was fragile. She lost much of her independence as a consequence of the mental and physical care she required.
18Mr Patterson, you have made Ms Conway's life much harder and sadder. It is to be hoped with time, support and professional intervention she can regain some normality, trust and happiness.
19Ordinarily, your offending must be met by principles of deterrence, denunciation, and just punishment. Your counsel has made careful submissions about the application of Verdins principles, the intersection of your offending with your intellectual disability and your own psychological conditions, together with the effect of your childhood and upbringing on your offending.
20I will therefore say more about these matters and the effect on the sentencing consideration before I conclude on your moral culpability for your offending.
Personal Circumstances
21You are 31 years of age, being born in February 1992. You are currently unpartnered and have no children.
22Your parents separated when you were four and you have seven half-brothers. You did not know who your father was until you were around the age of 27. You then formed a close relationship with him and he passed away shortly before your remand for this offending. Your father had six other daughters and you have never met your half-sisters.
23You describe your own childhood as horrible. Your mother had difficulties raising a large number of children without a stable income. As a result, you were placed in residential care at a very young age where you remained until you were around 17 years.
24During your time in residential care, you report being regularly bullied by fellow children living in care. You were placed in many different residences and you report your experience as very traumatic. You were exposed to violence and witnessed one of your brothers being sexual abused.
25During the later years of your primary schooling, you were diagnosed with an intellectual disability. I have a statement of intellectual disability dated
30 October 2009 from the Department of Families Fairness and Housing. After completing up until grade 5, you had a break from your schooling. You then attended Croydon Community School for 12 months before commencing at Croydon Secondary College.26You only completed up until year 8 and, since finishing your formal education, you have had a limited work history, mainly in unskilled manual labour positions.
27You had been unemployed for approximately four years prior to your remand and had been receiving a disability support payment from Centrelink. Upon your release, you report that you would like to gain qualifications and work as a house painter. You have been a client of Disability Client Services with the Department of Health and Human Services between 2009 and 2013. You are currently the recipient of a NDIS package.
28You have a long standing history of alcohol and illicit drug use. You first consumed alcohol at around the age of about 10, you report to Dr Cidoni. You reported drinking almost daily during your adolescent years and up till the time of your remand. You first experimented with illicit drugs at 13. You became an ice user at around 15 and you have used it regularly as an adult, including up to the time you were remanded.
29Since your remand, you report being abstinent entirely from drugs. You have completed a prison course on drug use and aspire to remain drug free. It is apparent you have also completed a number of other courses aimed at vocation and mindfulness whilst on remand. Upon your release from custody, with your eligibility for your NDIS package, you hope to reside in housing with your younger brother Evan[3], who has severe autism so that you can provide care for him.
[3] A pseudonym.
Report of Gina Cidoni
30On the day of the plea hearing I was provided with a report dated
13 February 2023 from Gina Cidoni, psychologist. As a consequence, I invited further written submissions from the parties on the question of the impact of this report on the submissions already made and the sentencing consideration.31Mr Moore provided further written submissions dated 21 February 2023 and
Mr Devlin provided further written submissions dated 22 February 2023 and I will mark both of them as exhibits on the plea.32Importantly, Ms Cidoni reported that diagnoses of:
(a) Intellectual disability (documented in 2009);
(b) ADHD (which you had intervention as early as 1997 and it was first notified in 2002). Ms Cidoni's testing indicated your symptoms are very high, in the 99th percentile, so that your ADHD poses a very significant problem for you
(c) That you suffer from PTSD; and
(d) That you suffer from substance use disorder in relation to alcohol, benzodiazepines, methylamphetamine and GHB, that these are sustained disorders but in enforced remission. All of these were indicated in her assessment of you.
33You were tested on the Ontario Domestic Assault Risk Assessment, known as ODARA. The ODARA is known to be valid when predicting family violence in relationships and has been cross validated. You scored six on the assessment. According to the table, 53 per cent of risk category 6 persons commit another assault against their partner or future partner. That comes to the attention of the police within an average of about five years. So in other words, you still pose a significant risk of committing further offences of domestic violence.
34Ms Cidoni considers that your chronic mental illness and intellectual disability would reduce your moral culpability. She states your:
Lack of self-control in terms of the offending is linked to his mental presentation, indicating difficulty with self and goal-directed thinking, while PTSD and ADHD also affects his ability to regulate and manage his emotional states and impulses. His ability to see beyond himself, to considers others’ perspectives and long-term consequences is also reduced.
35In this respect, Ms Cidoni recommends the need for psychiatric evaluation therapy to address or ADHD and your PTSD.
36Ms Cidoni concludes that your drug use has been a form of self-medication for your various mental health problems. She recommends residential drug rehabilitation. Ms Cidoni states that while ‘prison provides a “timeout” before you are released, but it does not equip you with tools needed to live your life without relying on drugs.
Sentencing Submissions
37Mr Moore submitted the following factors should operate to mitigate your sentence:
(a) The plea of guilty and the manner in which the case has been conducted;
(b) Remorse is present;
(c) That you have suffered severe social deprivation and there are therefore, what I call, the extended Bugmy considerations;
(d) You have suffered under the onerous conditions caused in custody by lockdowns and strategies;
(e) You have limited history for prior family violence;
(f) The application of Verdins principles must be applied in this case;
(g) That I must have regard to totality;
(h) Your drug problems need addressing in order for you to rehabilitate; and
(i) You have at least fair prospects of your rehabilitation.
38As I say, I invited Mr Moore and Mr Devlin to file further submissions in the light of the Cidoni report. Mr Moore further submitted that, in light of the report, that I should conclude that:
(a) The Bugmy submission was strengthened;
(b) The report highlights the dysfunction of both you and your partner in the relationship;
(c) Third, there is further evidence of your remorse for your offending; and
(d) In addition to principles 5 ad 6, principles 1 and 3 of Verdins were enlivened.
39Whilst Mr Moore properly submitted that a prison sentence with a non-parole period was the only sentence available, he further submitted that the sentence should be moderated, taking into account your own health considerations, as I outlined earlier, and that a lower non-parole period providing you with the opportunity of a lengthy parole period, should be imposed.
40Mr Devlin who appeared for the Crown submitted that the only appropriate sentence is a term of imprisonment with a head sentence and non-parole period. The Crown concedes that the following matters are relevant as mitigatory considerations:
(a) Your plea of guilty must be given weight in mitigation. The plea has been on offer since the committal;
(b) Your plea is attended by remorse for the fact that you took steps to ensure the complainant was not ever required to give evidence or to attend court; and
(c) Your plea attracts the principles enunciated in the cases of Bugmy and Hermann.
41In his further submissions Mr Devlin agreed that principles 1 and 3 of Verdins are enlivened but further submitted that, in relation to the objective gravity of your offending and your moral culpability for the domestic violence you inflicted, you are in effect coming off a ‘high base’. In other words, although the Crown concedes that there should be some moderation of your sentence for these factors, the objective starting point for sentencing was already very high.
Analysis
42I turn then to my analysis. I am satisfied that the sentence that I impose should reflect your plea of guilty, the expression of remorse (which I accept as genuine), the so-called Worboyes principles that relate to the onerous nature of the time you have spent in custody during the COVID pandemic and the principle of totality.
43Your remorse and your desire to plead guilty were exhibited in your desire to ensure that Ms Conway was spared the trauma of court hearings. The issue which prevented an early plea of guilty focused on the legal definition of 'serious injury' which was essentially a lawyer's fight and not the question of whether you caused the injury and I accept that you offered to plead guilty and never intended to really take the matter to trial from the outset.
44I accept that the objective gravity of your offending is high, especially for the fact that the various assaults occurred in the context of the ongoing relationship with your partner. Your offending occurred over a long period during the course of the relationship. You were aided by the physical inequality between you and your partner which enabled you to maintain your dominance over a woman who felt perpetually helpless.
45I do, however, bear in mind the dysfunction you both brought to the relationship.
46
In relation to the charge of intentionally cause serious injury, I take into account that it was a plea to the serious injury, being a protracted injury rather than
life-threatening. I also take into account that, notwithstanding the Victim Impact Statement, the doctors noted considerable recovery had been made and expected given further time.
47In this respect, I looked at a range of sentences set out in the Victorian Sentencing Manual Case Summaries, especially those set out under the heading 'Less serious injuries.' Unfortunately, those sentences provided little assistance by way of comparable cases. Mr Moore made a submission to that effect after his review of the same summaries. The problem was not helped by the fact that the summaries were inaccurate in their reporting of the case of Mercer, upon which Mr Moore initially sought to rely.
48Can I just pause in the sentencing reports and check that you both received the email that I sent out about the effect of Mercer.
49MR MOORE: Yes, Your Honour, I received that. I read the VCA decision and note the error that the JCV made and that I in turn made by relying on them.
50HIS HONOUR: Yes. Mr Moore, if I haven't described it, I said it is an entirely understandable and explicable mistake. I've notified the JCV of the error and they will update the summary.
51MR MOORE: Yes, Your Honour.
52HIS HONOUR: Continuing with remarks.
53Importantly, I take into account the convergence of your childhood and upbringing, with your intellectual disability, your PTSD and ADHD which together call into consideration what I refer to as the extended Bugmy principles and Verdins principles. As I have already set out, your childhood was unstable and marked by neglect from the outset. Your mother, it appears, has an intellectual disability and was herself the victim of sexual violence. Your father in the relationship was an alcoholic. Your mother formed a number of further violent, unstable relationships and gave birth to a number of other children which provided you with a plethora of siblings and half siblings.
54You were placed in care at a very early age and, whilst in care, you were passed around different families and residences. It appears that you have been subjected to violence for much of your life. You witnessed sexual abuse of a couple of your siblings at the hands of your mother's partners and then again whilst in care. You were exposed to and used alcohol and drugs from an early age, although, the age you report differs. It appears it could be as early as 10. When you were then placed in the care of an older brother in your mid-teenage years, you were subjected to a near daily routine of violence and drug use.
55
In short, you have never had a role model for your own care, nurture or development, let alone any model which would enable you to foster those features in the relationship you formed with Ms Conway. This all sits in conjunction with your documented intellectual disability. Ms Cidoni was unable to measure your
full-scale IQ but your verbal comprehension index score, measuring your verbal reasoning and concept formation, was measured at only one per cent above your peers.
56Not surprisingly, you still suffer from PTSD, emanating from your exposure to violence from an early age in childhood. As I stated earlier, your ADHD has been measured as a significant problem for you from your early childhood. I put aside your drug use disorders for the moment whilst I make an assessment of your moral culpability for your offending.
57I am satisfied from the material provided to me that there is a nexus between your childhood experience and your offending, such that your sentence must be mitigated by, what I call, the extended Bugmy principle.[4] The Court of Appeal in Marrah v R [2014] VSCA 119, [16] stated:
The frequency with which criminal conduct can be explained by such disadvantage does not relieve each sentencing judge of the obligation to take such matters into account. Although they do not provide an excuse for offending behaviour, they must be given due weight in the sentencing calculus.
[4] See also Cidoni [105].
58Then in DPP v Drake [2019] VS CA 293 [32] the Court of Appeal stated:
The profound dysfunction, disadvantage and abuse experienced by the respondent during his formative years were relevant to an appropriate evaluation of his moral culpability. It is recognised by the High Court in Bugmy, those experiences, none of which were of his making, all played a significant role in shaping the respondent's personality and his responses. As a consequence, his objective culpability for the offending in which he engaged could not be equated with that of a person who committed the same offence but had had the advantage of a normal, stable and regular home environment during his or her childhood years.
59The observations in Marrah and Drake were approved in DPP v Hermann.
60I turn now to consider the application of Verdins principles 1, 3, 5 and 6. Ms Cidoni stated:
His chronic mental illness and intellectual disability would reduce his moral culpability. His lack of self-control in terms of the offending is linked to his mental presentation, including difficulty with self and goal-directed thinking, while PTSD and ADHD also affect his ability to regulate and manage his emotional state and impulses. His ability to see beyond himself, to consider others' perspectives and the long-term consequences is also reduced.
61On the basis of this report and the other material presented to me which documents your intellectual disability, PTSD and that your ADHD is long-standing, I am satisfied there is a nexus between these conditions and your offending, such that I am also satisfied that your moral culpability should be reduced by the influence of these factors on your offending and ongoing in your life.
62General deterrence will be at least somewhat moderated by the operation of your intellectual disability operating with your PTSD and ADHD because your offending is not an entirely suitable vehicle for the expression of general deterrence.
63I am satisfied your time in prison is made more onerous by the operation of these factors when compared to the general prison population. The sentence should be moderated to take account of this.
64As recognised in Bugmy, Hermann and other cases, whilst I must take into account in mitigation the profound disadvantage you have experienced for your whole life, it raises the question of whether an element of protection of the community is nevertheless warranted. Your prior convictions show previous assault offending. Mr Moore emphasised, however, you have no prior convictions for family violence. At this stage, whilst I will note that in your favour, you do have other convictions for assault related offending.
65Nevertheless, I still consider your prospect for your rehabilitation are guarded. This stems from your myriad of difficulties I have spent some time outlining which still afflict you. It will take a great deal of professional intervention, together with the development of insight and determination, to the extent that you are capable of doing so for you to make progress. First and foremost, it will be necessary for you to address your drug use and alcohol use.
66I am prepared to accede to Mr Moore's request for a reasonably lengthy non-parole period, should you be afforded the opportunity for parole. This will require a great deal of work from you whilst in prison and stability and support when you are eventually released. These are all matters with which you will need a tremendous amount of assistance from others.
Orders
67Accordingly, I make the following orders:
68Mr Patterson, on Charge 1, the charge of causing injury recklessly you are convicted and sentenced to 10 months' imprisonment.
69On Charge 2, of persistent contravention of Family Violence Intervention Order you are convicted and sentence to 21 months' imprisonment.
70On Charge 3 of causing serious injury intentionally you are convicted and sentenced to 25 months' imprisonment and that will be the base sentence.
71On the rolled up charge of common assault you are convicted and sentenced to eight months' imprisonment.
72On related Summary Charge 3, you are convicted and sentenced to one month.
73On related Summary Charge 8, you are convicted and sentenced to two months'.
74On related Summary Charge 26, you are convicted and - - -
75MR MOORE: I've very sorry. I've very sorry, Your Honour. Your screen froze just as you were announcing the sentencing for RSO 26.
76HIS HONOUR: Yes.
77MR MOORE: I did not hear the sentence for RSO 26.
78HIS HONOUR: All right. RSO 26 is two months.
79MR MOORE: Yes, thank you.
80HIS HONOUR: So 10, 21, 25, eight, one, two, two.
81MR MOORE: Yes, thank you, that accords with my note.
82HIS HONOUR: All right.
83Cumulation Charge 1, four months is cumulated on the base and all other sentences. Charge 2, eight months cumulated. Charge 4, three months.
Charge 8, one month. Charge 26, one month. There is no cumulation on Summary Charge 3.84The calculation therefore is a total affective sentence 42 months, non-parole period 26 months. PSD for 29 days, excluding today, reckoned as already serviced. 6AAA, all things being equal but for the plea of guilty, six years, four years to service.
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