Director of Public Prosecutions v Pickford

[2020] VCC 1329

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-00067

DIRECTOR OF PUBLIC PROSECUTIONS

v

ERIC PICKFORD

---

JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	19 June, 7 and 14 August
DATE OF SENTENCE:	24 August 2020
CASE MAY BE CITED AS:	DPP v Pickford
MEDIUM NEUTRAL CITATION:	[2020] VCC 1329

REASONS FOR SENTENCE
---

Subject: Criminal sentence
Catchwords: Recklessly cause serious injury – Criminal damage – Two separate assaults – History of alcohol and drug abuse.
Cases Cited: Verdins v The Queen (2007) 16 VR 269; Bugmy v The Queen (2013) 249 CLR 571.
Sentence: Four years and three months imprisonment. Non-parole period of two years and three months imprisonment. 

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Devlin	Office of Public Prosecutions
For the Accused	Mr C. Terry	Stephen Peterson Lawyers

HIS HONOUR:

1Eric Phillip Pickford, on 20 May 2020 you pleaded guilty before me to two charges of recklessly causing serious injury and two charges of criminal damage.  The maximum penalty for recklessly causing serious injury is 15 years imprisonment.  The maximum penalty for criminal damage is 10 years imprisonment.

2The facts of the matter are set out in the Summary of Prosecution Opening dated 16 June 2020, which was Exhibit A on the plea and forms part of these reasons for sentence.  In brief, your offending was committed against two individuals, Mr Grouos, who had been an associate of yours for a brief period, and Mrs Leila Squires, an 83-year-old woman who was not known to you and nor you to her.

3On 5 March 2019, you and Mr Grouos were chatting to one another and Mr Grouos asked you back to his residence at 92 Church Street, Morwell.  He had previously purchased a cask of wine.  You agreed.  Once the two of you were there you sat around and chatted and drank in the front living room.  You were drinking from a tall glass, Mr Grouos from a short glass.  You both drank wine and talked and watched TV until the early hours of the next morning.

4At approximately 2:20am, Mr Grouos went to the front door to look for his cat.  He was outside momentarily, then re-entered the house and returned to the living room.  On re-entering the room, you punched him in the face with your right fist.  You grabbed Mr Grouos with your left hand and continued to punch him in the face repeatedly until he fell over.  Once Mr Grouos was on the ground you pinned him down with your legs and left hand and continued to punch him in the face.

5Mr Grouos had landed on the ground within reach of a hammer that he kept near the room's double doors.  He grabbed the hammer while he was being assaulted and struck you on the head with it, causing you to bleed.  You became involved in a struggle over the hammer.  You wrestled the hammer from
Mr Grouos and struck him in the head with it repeatedly, causing multiple lacerations and skull fractures.  This continued for approximately 10 seconds before Mr Grouos feigned unconsciousness, at which point you struck a few more blows before stopping your attack.

6Mr Grouos received substantial injuries from the attack.  The initial assessment at Latrobe Regional Hospital revealed the following:

(a) left ninth and 10th rib fractured;

(b) right parietal skull fracture;

(c) fractures on the right nasal bone;

(d) large, left fronto-parietal scalp haematoma;

(e) undisplaced fracture of the right zygomatic arch;

(f) fractures at the lateral wall of the right orbit, resulting in numerous fracture fragments;

(g) fractures at the floor of the right orbit interior wall of the right maxillary sinus, posterolateral wall of the right maxillary sinus and right nasal bone;

(h) fracture to the right ring finger metacarpal;

(i) dislocated right thumb of the metacarpal phalangeal joint; and

(j) multiple lacerations to the right forehead, multiple scalp lacerations on the right parietal, occipital region.

7You ransacked the house somewhat and smashed a window on your way out, which is the criminal damage charge, taking the hammer with you.  You headed further down the street, eventually arriving at 91 Church Street, the residence of your second victim, Mrs Squires. 

8You went to a rear window and smashed open the window with the hammer, which forms part of the second criminal damage charge (Charge 4).  You crawled through, cutting yourself on the glass in the process.  Mrs Squires had been trying to go to sleep and was listening to the radio.  She heard glass smashing.  Her home was in darkness and she armed herself with a pole.  You entered Mrs Squires' bedroom and she hit you with the pole.  In response, you struck Mrs Squires multiple times with the hammer, making impact with her head and upper body, causing multiple lacerations, bruising and breaking her nose wide open.  Mrs Squires received substantial injuries from the attack.  The initial assessment at the Latrobe Regional Hospital revealing:

(a) multiple lacerations to head-occipital and left, temporal regions;

(b) large laceration to the bridge of the nose, which required plastic surgery;

(c) blood pooling in left ear; and

(d) right shoulder haematoma, haematoma to right arm, right shoulder pain on movement.

9Mrs Squires fled from you, exiting the rear of her house, going to 89 Church Street, next door.  You then smashed the glass of the front door, but you were unable to open it and you left via the rear door, and that smashing also forms part of Charge 4.

10I received a victim impact statement from Mrs Squires that was tendered on the plea.  I have read it and take all of the matters contained therein into account. 

11I have also seen a photograph of her injuries.  Your actions have impacted upon her greatly.  She states it has destroyed her life, her independence and peace of mind, amongst many other things.  It is disturbing and distressing to our community to see an assault of any nature, let alone a serious one such as yours on an 83-year-old woman in her own home at night in her bedroom.  Obviously, it was an extremely frightening episode for her.

12Mrs Squires is an extremely brave lady for acting in self-defence in the manner in which she did.  Objectively your actions are appalling and deserving of significant punishment.  In relation to the circumstances of the offence some concessions were made.  This is the offence in relation to Mrs Squires,
Charge 3.  Some concessions were made by the Prosecution and they are also apparent on the facts.  You were in complete darkness; you were heavily intoxicated, and you had been struck about the head with a hammer.

13I cannot be satisfied on the evidence that you had a clear intention or purpose for being in the home of another at that time.  What is clear is that you could not have known that the person who struck you with the pole was an 83-year-old woman.  Having said that, your plea acknowledges that you were in an abode where you did not belong and had no right to retaliate with a weapon toward an assailant in the vicious manner in which you did.  It goes without saying that had you caused serious injury recklessly, being aware that you were inflicting injury on an 83-year-old woman, the sentence I impose would have been considerably higher.

14Turning to your personal circumstances, your personal circumstances were set out in your counsel, Mr Terry's, written submissions, which was Exhibit 1.  They were also set out in detail in a psychiatric report prepared by Dr Fiona Best, Exhibit 2.  I also received a letter from your sister at the further plea, which set out in more detail your childhood, teenage years and adulthood.

15In brief, you are 35 years of age.  You were born in Australia and are of Australian Fijian-Indian heritage.  You are the youngest of five siblings with three older sisters and one older brother.  Your parents separated when you were eight years of age and since that time you have rarely seen your father and had no ongoing relationship.  You remain close with each of your siblings and your mother.  Your siblings live in Victoria and your mother has recently relocated back to Queensland.

16You went to school in Victoria after you moved here with your mother and siblings.  You grew up in the south-eastern suburbs of Melbourne.  You completed Year 12 at Lindale Secondary College at Dandenong.  You were good at mathematics and you commenced a Bachelor of Applied Science in Chemistry at RMIT. A long commute to university and the isolation, not having a lot of friends and perhaps a lack of motivation in combination led you to drop out of university after the first year. 

17Preferring work, you worked at a warehouse at a job that you had been doing since late high school, Vic Express. You eventually commenced an apprenticeship in carpentry when you were around 20 years of age.  You completed that apprenticeship, worked for two separate employers at that time. 

18Since being a qualified carpenter, you have mainly worked in that occupation.  You have worked in both domestic and commercial settings.  You are a homeowner.  You purchased a car and a house in Frankston and sold that property after five years and purchased another home in Morwell with the proceeds of the sale.

19In the three years preceding the offences your work was less frequent.  This was due in part, it seems, due to you being a homeowner, living there cheaply, were not feeling financial pressure and you did not feel the need to work regularly.  Your alcohol use escalated during this period.  Your alcohol use was heavy prior to the offending.  This has been your first time in custody.  I was provided with a number of urine screens from custody, all of which have been negative.  You were getting regular visitors, particularly your sisters, before the COVID-19 pandemic.  Your mother also visited occasionally before moving to Queensland.  Since the pandemic, of course, it is well known that since the end of March there have been no face to face visits in the prison system.

20Your counsel, Mr Terry, made a number of submissions, both in relation to the offence and in relation to your personal circumstances that were advanced by way of mitigation. 

21First, of course, your plea of guilty and, as I indicated prior to this matter resolving, that pleas at this time have a very significant utilitarian value.  That is because the trial lists are in a state of crisis.  This matter not going to trial makes it more likely that other unreached trials in the list will now get a place once matters such as this resolve.  For that reason, there is a significant utilitarian value in pleas at this time.  You also plead guilty and continue in custody at a time when the experience in custody is harsher due to the COVID-19 pandemic and the matters I have referred to.

22Mr Terry also submitted that you have a lack of relevant prior convictions and I accept this.  Your history is very limited.

23Submissions were made regarding psychiatric issues said to be linked to the offending behaviour.  Mr Terry advanced that Verdins factors, in particular,[1] a reduction of moral culpability, moderation of general deterrence, a moderation of specific deterrence was appropriate due to a nexus between underlying psychiatric issues and the offending.  This was a matter that I was not in a position to accept and was of the view that the nexus was insufficiently clear at the time of the plea hearing.  After the initial plea the matter was adjourned off for Forensicare reports.  I will come back to that in a moment.

[1]Verdins v The Queen (2007) 16 VR 269

24In relation to the objective gravity of the offending, Mr Terry pointed to some matters in mitigation of the circumstances of the offences.  In relation to the Grouos recklessly causing serious injury there was no evidence of pre-planning.  I accept that there was no rational motive for the offending.  It was an extremely unusual circumstance, suggestive, Mr Terry says, that it was precipitated by mental illness and intoxication.

25The more gratuitous conduct, as Mr Terry described it, occurred after you had been struck to the head repeatedly with a hammer.  There was no use of a weapon by you in the initial attack.  It was only used after you had disarmed Mr Grouos.  I accept these matters are relevant to my assessment of the objective gravity of the offending.

26In relation to Mrs Squires, Mr Terry advanced that the offence occurred in the context of you having entered the home of Mrs Squires without any intent to steal or to assault a person therein.  It occurred in a dark hallway at night after you had been struck with a pole.  There is no evidence of course that you knew the victim of your attack was a vulnerable elderly female.

27Mr Terry submitted that the injuries to Mrs Squires were relatively minor in the context of serious injury.  I emphasise in the context of serious injury.  They were serious injuries, very disturbing and distressing, in particular when occasioned to an elderly female but I accept that on the scale of serious injury in the sense that term is used in these proceedings, relatively minor is an apt description.

28Mr Terry emphasised that totality had a role to play here, which I accept, given that there was proximity in time between the two offences and a link between them,as I find that whatever precipitated the first has flowed over into the second.

29As I have already pointed out, a Forensicare report was sought in relation to you due to the bizarre nature of the offending and the real possibility that there was mental illness playing a role in relation to it.  I did have a report from Dr Fiona Best which was tendered on the initial plea.  Dr Best indicated that you were apprehensive, even paranoid, when speaking with her initially, asking 'I'm not sure why I'm talking to you and it concerns me.  It's weird for me.  I'm not sure why I'm speaking to you.'  She says you were suspicious and guarded.  She was able to conduct the examination and take a history and form opinions thereafter.

30She noted that you had a long history of alcohol abuse and cannabis use.  She noted that you had been admitted on two occasions to acute psychiatric inpatient units for treatment of drug-induced psychosis.  She noted that you had attended six months of community follow-up after discharge.  She noted that you denied psychotic symptoms such as hearing voices, delusions, referential ideas or passivity but she made particular note that you stated you had recently given your home which you owned unencumbered to the Salvation Army.

31She quoted you as saying,

'I donated it to the Salvation Army because I've been reading the Bible a lot and it says you can't have more than one God.  I have no dependents and I find it easy.  It's quite a waste to own my own house.  Money is no concern for me.  And I thought why own the house?  It's an extra stress.'

32Dr Best noted that you reported drinking alcohol more heavily once you purchased your house in Morwell.  You would come home from work and drink every evening.  You told her that you were renting out two rooms in your property and you said one of your neighbours was a drinker and you drank with him and there would be no limit.  You reported drinking a minimum of six beers a night up until the time you were remanded.

33You told her you had been smoking cannabis since you were 14 years old; that you increased your use gradually until you were using two grams per day.

34In relation to university, you said you were a good student.  Science and Maths you were good at, but because none of your friends went to university, you found it boring.  You dropped out and you told her about your carpentry and your good work history in that regard.

35In relation to the offences, you said,

'I was drinking at my friend's house and the next thing I didn't even know it was him.  I didn't know what was going on and I started getting hit and I hit him back,  it's pretty much that, I was so drunk taking to the ground and he was hitting me but I didn't know it was him.'

36When asked about further offending with Mrs Squires, you said,

'I don't remember that…. I don't…. I got arrested, nothing added.'

37When asked about strategies to reduce the risk of offending, you said,

'Just don't drink.'

38I pause there to observe that in the absence of clear and cogent evidence otherwise, I accept that excessive alcohol has played a significant role in your offending.  You acted in a way that I accept you had not on any previous occasion when you had engaged in excessive alcohol consumption.  Your observation to Dr Best, 'Just don't drink', is an apt one in the circumstances.

39Dr Best opined that on assessment, you were unwell, grandiose, suspicious, irritable and guarded.  She noted a long history of poor sleep but feeling positive and energised during the day.

40

She noted that you presented with mild symptoms of psychosis and hypomania.  Your presentation she said may be due to a psychotic illness and/or a

mood-related illness and/or to secondary illicit drug use or the long-term effect of illicit drugs.

41Whilst you struggled to give a meaningful account of the offending, she noted that you reported being intoxicated with alcohol at the time.  In her opinion, it was not possible for her to comment on whether you were mentally impaired at the time, however, she did observe that the witness account of Mr Grouos indicates the assault was unprovoked, bizarre and out of character.

42Dr Best said,

'It is possible that a psychotic illness played a part in the alleged offending, but I cannot form a definite opinion as to whether Mr Pickford's current mental illness impacted on his ability to think clearly and/or whether his judgment was impaired as a consequence of these factors at the time of the offence.

'By Mr Pickford's account, he was intoxicated with alcohol.  On assessment today, it is clear, however, that Mr Pickford's mental state is currently unstable and he has a past history of drug-induced psychosis, which makes him more vulnerable to developing a more enduring psychotic illness.'

43She went on to say,

'Mr Pickford's impaired mental functioning as a consequence of his impaired mental state means that imprisonment may weigh more heavily on him than on an individual without those difficulties, and imprisonment may lead to further deterioration in his mental health.’

'Mr Pickford's presentation suggests he is experiencing ongoing psychiatric symptoms.  The aetiology of these psychiatric symptoms is unclear and a period of observation and assessment by a mental health program for the purposes of diagnosis and treatment may assist to clarify this issue.'

44I accept the matters that Dr Best opines in relation to insofar as they go and, as I indicated, my view on the initial plea, the nexus between mental illness and moral culpability was not drawn out to sufficient degree given the limitations of her opinion.  Hence, I sought a Forensicare report.

45There were two attempts by Dr Maria Triglia to interview you and examine you for the purposes of a forensic psychiatrist report.  She wrote to the Court first on 6 July 2020 explaining the failure of the attempt and then again subsequent to that once she attempted to interview you again via video link on 20 July 2020.

46When we came back for a further plea on Friday, 7 August 2020, you explained that you were wary of being examined because you did not wish to be forced to take psychiatric medication.  That is my paraphrasing of your words.

47On that day of the further plea, 7 August 2020, I received the letter from your sister, Lisa Williams.  That letters sheds greater light on your life; in particular, your childhood years and your relationship with your father.  I accept the matters contained in the letter.

48I consider that they enliven to a small degree Bugmy-type considerations.  What I am referring to there is the hardship and trauma you experienced in childhood which, in my view, has a relationship with your subsequent drug and alcohol use.  It is a matter that I take into account by way of personal mitigation.  It is also of note that your father was a man who suffered from mental illness.  He is described in that letter as paranoid and also suffering schizophrenia.

49In relation to moral culpability, a significant part of the plea and consideration in this matter was trying to identify why it was you acted in the bizarre and violent manner you did on these occasions.  It is telling that your actions were completely unplanned and bizarre.  They were without rhyme nor reason.

50Whether it was due to excessive alcohol use, the presence of a psychosis or a combination of the two, I am not satisfied that you were exercising judgment in a clear, rational way.  I am not satisfied that these offences are examples of gratuitous violence.  Your history is limited and not one of violence.  You do not have a history of acting in a violent manner whilst intoxicated.

51Your intoxication possibly precipitating psychosis is certainly not an aggravated feature in a case such as this.  It does attract some mitigation to the extent that it explains this bizarre unpremeditated and unprovoked attack without motive.

52I accept that in relation to the Grouos assault, it was spontaneous, you did not have a weapon in the initial phase of the assault.  The weapon was seized by you after a struggle.

53In relation to Mrs Squires' matter, I have already made some observations, but I accept that your actions were in response to being hit in your confused state.

54The aspect of Dr Best's report that relates to your mental illness is something that makes your experience in custody more difficult.  I accept that.  I accept that it has had some role to play somewhere in the matrix of facts but I am not satisfied sufficiently that there is a nexus to enliven the Verdins reduction in moral culpability.

55Specifically, however, the matters she observes together with my findings in relation to excessive alcohol abuse and you acting in a manner you had not previously, help me assess your moral culpability and allow me to place it in its proper context.

56I am also minded to grant some leniency given your limited history and I have referred to as the Bugmy-type mitigation.[2]  Your counsel asked for a Community Corrections order in Combination with a period of imprisonment.

[2]Bugmy v The Queen (2013) 249 CLR 571.

57Having considered the matter carefully, I have considered that general deterrence, denunciation, punishment despite the mitigation of moral culpability, take a combination sentence out of the sphere of appropriate sentences in your case.

58Mr Pickford, I am going to sentence you as follows.

59In relation to Charge 1, recklessly causing serious injury where Mr Grouos is the victim, you are sentenced to 3 and a half years imprisonment.

60In relation to Charge 2, criminal damage, 14 days imprisonment.

61In relation to Charge 3, recklessly causing serious injury where Mrs Squires is the victim, three years imprisonment.

62In relation to Charge 4, one-month imprisonment.

63Nine months of the sentence imposed on Charge 3 will be cumulative on the sentence imposed on Charge 1.

64That makes a total effective sentence of four years and three months imprisonment.

65I set a non-parole period of two years and three months imprisonment.  That is a significant discrepancy between the head sentence and the non-parole period in part due to what I have observed was your limited history, your prospects of rehabilitation given your work history and your clean urine screens and the indication that you have insight in relation to the excessive alcohol consumption as well as what I have referred to as the Bugmy factors and the leniency I have referred to.

66I declare that you have served 530 days of pre-sentence detention not including today.

67Pursuant to s.6AAA of the Sentencing Act were it not for your plea of guilty I would have imposed a sentence of five and a half years imprisonment with a non-parole period of three and a half years.

68I will make the disposal order that is sought.

69Now, are there any other orders that are required?

70OFFENDER:  The coronavirus, does that take some of the time or what?

71HIS HONOUR:  Yes, I had mentioned COVID-19 briefly, Mr Pickford, in relation to the experience in custody at this stage.  The plea of guilty, significant utilitarian value and also your experience in custody with no visits is a matter I have taken into account and your sentence was reduced from what it otherwise would have been accordingly.

72You might also be referring to any administrative deductions.  That is not a matter for me.  That is a matter for Corrections.  So I have indicated you have served 530 days of pre-sentence detention up until today.  That might include some administrative deductions but, as I say, that is not a matter for me.

73The effect of the sentence is that you have a non-parole period of two years and three months, 530 days of which you have already served.  So, Mr Terry can help you with the calculations in relation to when you will next be eligible for parole.  Is there anything else, gentlemen?

74MR TERRY:  No, Your Honour, and I will just reiterate to Mr Pickford that I will be in contact with him later this week to explain those things.

75HIS HONOUR:  All right.  I am happy to leave it up to you.

76MR DEVLIN:  No further orders are sought, Your Honour.

77HIS HONOUR:  All right.  I will close the court.  Adjourn the court.

- - -