Director of Public Prosecutions v Pilli
[2016] VCC 475
•21 April 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-15-01161
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARTIN PILLI |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7, 8, 9, 10,14, 15, and 16 March 2016 | |
DATE OF SENTENCE: | 21 April 2016 | |
CASE MAY BE CITED AS: | DPP v Pilli | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 475 | |
REASONS FOR SENTENCE
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Subject: Sentencing
Catchwords: Negligently causing serious injury to a police officer
Legislation Cited: Sentencing Act 1991
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Grant | Office of Public Prosecutions |
| For the Accused | Mr M. Cahill | Stary Norton Halphen |
HIS HONOUR:
1Martin Pilli, you have been found not guilty by a jury of intentionally causing serious injury and not guilty of recklessly causing serious injury.
2You have pleaded guilty to a third charge, namely of negligently causing serious injury. Accordingly, at the conclusion of the trial, the jury returned a verdict of guilty to that third charge.
3The circumstances of your offending are as follows.
4On 2 October 2014, you had attempted to take your own life in a room at a hotel in Preston.
5As a result of information that had been conveyed to police earlier that day, police formed the view that there was a risk that you might be attempting to take your own life and took steps to locate you and prevent this. It came to their attention that you were staying at the hotel in Preston. Three police officers, including Sergeant Robert Campbell attended at the room.
6Upon entering the room, they found you attempting to hang yourself by a cord wrapped around your neck and attached to hooks at the top of the door.
7Sergeant Campbell was the senior police officer in attendance. He intervened quickly and removed the cord from your neck. You were not pleased with this turn of events. On a number of occasions you yelled to the police officers that you wanted to die. You called upon police to let you take your life.
8A struggle developed between you and the three police officers. During that struggle, you obtained a knife from the floor of the room and it appeared to those officers that you intended to stab yourself in the region of your throat or neck.
9Sergeant Campbell took hold of your arm in order to prevent you from doing so.
10During the course of the scuffle, you placed your hand in the region of Sergeant Campbell’s firearm which was contained in a holster attached to his right thigh. Sergeant Campbell called out to his colleagues that you were attempting to interfere with his firearm. One of the other officers present noticed the position of your hand near Sergeant Campbell’s firearm and attempted to restrain it.
11In the course of the struggle, the firearm discharged whilst it was still contained in the holster. The bullet passed into Sergeant Campbell’s right calf. It shattered his tibia and exited through the front of his right shin.
12A serious injury is defined in s.15 of the Crimes Act as an injury that endangers life or is substantial and protracted.
13There was no issue that Sergeant Campbell's injury was and still is a serious one. The damage to his leg, in addition to the soft tissue damage and orthopaedic damage, resulted in a condition known as “compartment syndrome” which required emergency fasciotomy surgery involving large incisions in the leg to relieve internal pressure.
14He was required to undergo numerous skin grafts which involved skin being removed from his thigh region and grafted onto the calf area. He has undergone orthopaedic procedures to insert various pins and plates in his leg. He has suffered serious infections as a consequence.
15To date, as I understand it, he has undergone some 17 surgical procedures and it is anticipated that further surgery will be required later this year. To describe such an injury as being debilitating would be something of an understatement. It has truly been a permanent and life-changing injury for him. He has been unable to return to work in any capacity and it appears unlikely that he will do so in the future. At times, he has required to use a wheelchair to move about.
16In accordance with the verdicts of the jury, I am to sentence on the basis that Sergeant Campbell’s injury was not intentionally caused by you; nor that it resulted from any reckless conduct on your part.
17Rather, you are to be sentenced in accordance with the jury verdict that the injury was caused by your negligence.
18The evidence before the jury was overwhelming that you were, from the time police entered your room, attempting to take your own life and not intending to cause injury to any police officer or anyone else. Immediately after the incident and on other occasions since, you have stated that you did not intend to injure anyone other than yourself. You told police that when you saw Sergeant Campbell’s firearm in the course of the struggle, you thought you might be able to take possession of it and use it to take your own life – not to injure him or anyone else.
Background
19By way of background, you are now aged 43. At the time of this offence, you were aged 42.
20You are married but separated from your wife.
21You have three children – twins aged 12 and a third child aged 13. You have had very limited contact with them since your separation from your wife in about August 2014.
22
Two reports from a psychiatrist, Dr Adam Deacon, dated
7 February 2015 and 13 April 2016. They were tendered on your behalf. The first of those reports contains a number of details of your family, educational and social background as obtained by Dr Deacon from you.
23You were raised in Melbourne until about the age of 6 when your parents separated. You then moved to Canberra with your mother and a sibling. You had limited contact with your father from that time until his death when you were aged 12. Your mother re-partnered with a person who was a drug user and provided you with little support.
24When you were aged 15, your mother died. You briefly lived with your paternal grandparents.
25You struggled socially and performed poorly in secondary school following your mother’s death. Notwithstanding, you managed to complete Year 12 at Northcote Technical School.
26Upon leaving school, you commenced a Bachelor of Education degree but did not quite complete it. You worked as a warehouse storemen, as a stonemason and as a cleaner whilst attending university. You have in more recent years continued to work as a stonemason.
27You commenced drinking alcohol and smoking cannabis in your mid-teens and by your late teens, you were regularly using cannabis and amphetamines along with occasional ecstasy and hallucinogens. Your use of these drugs was said to have been an attempt to mask your underlying anxiety but, ironically, they may have exacerbated it. You used cannabis on a daily basis for more than a decade. You were drinking alcohol daily by age 18. By age 24, you had developed alcohol dependency and this continued until your arrest in respect of this offence.
28You developed marked anxiety in your early 20s - from the time that you were attending university. From 2013, you suffered from continuing anxiety and severe depression, conditions which continued up until the date of this offence.
29In November 2013, you slashed your wrists and thighs and locked yourself in a bedroom at the family home. Police and paramedics attended. You initially refused to voluntarily attend hospital for treatment. After some negotiation, you permitted police to escort you to the Northern Hospital for treatment.
30On 22 August 2014, you attempted to hang yourself at your family home. You were found by your son and a friend, who intervened and prevented this attempt to end your life. Again, you were taken to the Northern Hospital where, in the Emergency Department, you were assessed by medical staff from the Emergency Crisis Assessment Team. You refused to voluntarily remain in hospital on that occasion and needed to be physically restrained and sedated. You were admitted at that time as an involuntary patient.
31Shortly after, on 25 August 2014, you and your wife finally separated. On your release from hospital, you stayed with a friend interstate for a short time. You then returned to Melbourne and, to your credit, obtained further employment as a stonemason. You took up residence at the hotel in Preston.
32Earlier in the day on 2 October 2014, you had attended at the Child’s Road Medical Centre in Mill Park where you saw a general practitioner. You requested a prescription for Valium. The doctor declined your request. The long and the short of it is that you declined a referral for further treatment in respect of your mental health issues, and told the doctor that he would not see you again. The doctor in question telephoned police and informed them of his belief that you intended to make an attempt on your life.
33Soon after, Sergeant Campbell and two other police officers attended at the hotel in question and the incident previously described occurred.
Sentencing principles
34The purposes for which a court may impose a sentence in respect of an offence are set out in the Sentencing Act 1991.
35Those purposes include:
· To punish you in a manner that is just in all of the circumstances;
· The denunciation of your offending conduct;
· To deter you and others in the community from committing such offences in the future;
· The protection of the community from the offender;
· The seriousness of the offence, your culpability for the offence, your character, any prior convictions or offences, and any matters relating to your personal circumstances.
· Importantly, in your case, to establish conditions within which it is considered by the court that your rehabilitation may be facilitated.
36In sentencing you, the Act requires me to take into account a number of matters that are set out in s.5(2). These include:
· The maximum penalty prescribed for the offence - in the case of this offence, I note that the maximum penalty ten years' imprisonment;
· Secondly, current sentencing practices of courts;
· Thirdly, the nature and gravity of the offence;
· Fourthly, the impact of the offence on the victim of it - in this case Sergeant Campbell - and his injuries, losses and personal circumstances;
· Fifthly, whether you pleaded guilty to the offence and if so, at what stage of the proceeding;
· Sixth, your previous character; and
· Seventh, any other aggravating or mitigating factor.
37In sentencing you, I take into account each of those matters.
38I consider that the offence for which you are to be sentenced is a relatively significant one. Negligent conduct in the vicinity of firearms is obviously conduct which creates a significant risk of serious injury and even of death to persons nearby.
39An aggravating feature of your offending is that it involved a firearm in a congested and restricted area and involved interference with police officers carrying out their proper duties.
40Your plea of guilty was not on the basis of an admission that you had actually pulled the trigger on Sergeant Campbell’s firearm. Rather, the plea was made on the basis that you conceded that your actions in placing your hand on or around the firearm and holster in question was negligent. It created a risk that either you or someone attempting to remove your hand from that vicinity might have caused the firearm to discharge.
41The evidence was that the trigger to the firearm could not be easily accessed whilst the firearm was in the holster. If the firearm was released from the holster, the trigger was readily accessible. However, here, the evidence was that at no time before discharge was the firearm released from the holster. It was, however, possible for a person to push his finger between the firearm and the holster and obtain access to the area of the trigger of the firearm. This was not an easy thing to do but I found that it was possible.
42I accept the evidence of Constable Russo that, shortly before the firearm discharged, he observed your finger protruding into the gap between the firearm and the holster. Whilst I consider it is very likely that, in the struggle that was occurring at the time, it was your finger that protruded into the holster and onto the area of the trigger, it is conceded by the prosecutor that it is not necessary that I sentence you on that basis.
43Rather, it was the submission of both counsel that I should sentence you on the basis that your negligent actions in placing your hand and fingers in the immediate vicinity of the firearm was negligent and that that negligence was a cause of the discharge of the firearm and Sergeant Campbell’s injury.
Mitigating factors
44Your counsel has submitted, and I accept, that there are a number of significant mitigating factors applicable to your sentence.
45The case is indeed an unusual one. You were, on the date in question, making a genuine attempt to take your own life. There could be no doubt that Sergeant Campbell saved your life on that occasion.
46I accept that there is no evidence that you deliberately discharged the firearm or that you intended to cause any harm to any of the police officers who intervened on that occasion. I accept that your intention was to take your own life even after the initial intervention by police. Nevertheless, your conduct was thoughtless and negligent. As a direct result, a police officer has been seriously and permanently injured.
Mental State
47I accept that you were in a deeply distressed state at the time of the offence and that you were genuinely upset that police had prevented you from taking your life as you had intended.
48The psychiatrist, Dr Adam Deacon interviewed you on two occasions - in January 2015 and more recently on 8 April this year. He has also had the opportunity to peruse your Northern Hospital inpatient unit clinical file.
49In his report, 7 February 2015, Dr Deacon opined that:
· You had had a background highlighted by the early death of your parents, childhood bullying and feelings of abandonment and isolation.
· You had a protracted history of alcohol dependence.
· You had a marked personality-based problems consistent with a personality disorder.
· You had a history of a major depressive disorder and anxiety disorder requiring consistent clinical intervention by a general practitioner, consultant psychiatrist and alcohol counsellor. Your response to such treatment in the past has been variable and sometimes very poor.
· Between 2012 and 2014, you required multiple psychiatric crisis interventions as you had become suicidal.
· You disliked involuntary psychiatric inpatient admissions and had in the past required ambulance and police intervention to facilitate such admissions.
· You had exhibited poor impulse control, aggressive tendencies, and a combative manner
· Your mental state at the time of this offence, he thought, was clearly compromised with multiple interacting variables including personality, depression, anxiety, alcohol intoxication, and hypoxia - a deficiency of oxygen consequence upon your attempt to hang yourself.
· Whilst recovering from that brief hypoxic episode, you were likely to have been disorientated and mildly confused but it was unclear whether you had recovered from that hypoxia when you actually went to grab Sergeant Campbell’s firearm.
50He opined that predictably, you were not coping well in prison, although you were likely to be benefitting from abstinence from alcohol.
51
When Dr Deacon saw you earlier this month, he noted in his report dated
13 April 2016 the following:
· Your mental state was notably different and improved since his earlier interview with you.
· Your mood was calm and regulated.
· You displayed more insight into your complex mental health problems.
· You were reasonably optimistic and realistic with regard to your future.
· Your mental health had slowly improved and that you had benefitted from counselling provided by a senior social worker.
· You were still prescribed anti-depressant medication.
· Whilst your mental health remained stable and you refrained from alcohol, your risk of relapsing into risky states of heightened aggression and associated interpersonal violence was likely to remain low.
52He thought that on your release from prison, you should be referred to a general practitioner and to an experienced psychologist with forensic expertise. Short-term psychiatric inpatient stays might be required in the future during crises.
53He considered that you should be referred for ongoing alcohol counselling as you must be considered to be at risk of relapse. Alcohol, he thought, was considered to be the most prominent risk factor for both mental health decline and for interpersonal violence.
54He considered that whilst your mental health remained well and stable, your risk of violence in the community was low.
55He considered that if your accommodation, employment, alcohol, mental health and Family Law issues are all adequately addressed, your risk of violence will remain low.
56Nevertheless, both your ex-wife and police need to be cautious and vigilant.
57I accept that at the time of this offence, you were suffering from very severe depression and that that condition was a direct cause of your offending.
Verdins
58Your counsel submitted and I accept that principles set out in the Court of Appeal in its 2007 decision in the matter of Verdins are engaged so as to:
· Reduce your moral culpability for your offending conduct;
· To moderate the relevance of principles of specific and general deterrence; and
· To bear on the sentence to be imposed upon you.
59I accept that any further prison term imposed on you will weigh more heavily on you than most others in the community because of your mental health problems.
Prior Convictions
60I note that you do have prior convictions.
61In June 1994, you were convicted of unlawful assault and fined the sum of $500. Your counsel informed me that this offence resulted from a dispute following a minor road accident.
62In June 1995 you were convicted of assault with a weapon and of possessing a pistol or imitation pistol without a licence. On both charges, without a conviction being recorded, you were sentenced to a community-based order for 12 months and directed to perform 75 hours of unpaid community work. It appears that you complied with the conditions of that order.
63Your counsel informed me that this offence related to a university prank involving an imitation pistol.
64In relation to those convictions, they were committed a long time ago and did not involve conduct in any way resembling your conduct on 2 October 2014. I do not consider it appropriate to take them into account in sentencing you on this occasion.
Remorse
65I accept that you expressed remorse for injuring Sergeant Campbell within a very short time after the incident and you have continued to be remorseful in that sense.
66I accept that you offered to plead guilty in July 2015 to the offence for which you were ultimately convicted but that offer was not accepted by the prosecution. I accept that that offer was indicative of remorse on your part for your negligent offending.
Current Sentencing Practices
67With regard to the direction in s.5(2) of the Act that I am to have regard to current sentencing practices, I was referred by counsel to a number of decisions of the Victorian Court of Appeal and other courts. Both counsel agreed that the vast majority of convictions for this offence occurred in the context of the negligent driving of a motor vehicle which had resulted in serious injuries to a passenger or other user of the road. Neither counsel was able to refer me to any decision with facts remotely similar to those in this case.
68Perhaps the closest in facts was the matter of Jorgensen v The Queen [2010] VSCA 171 where the offender, in the course of committing an armed robbery, had accidentally discharged a sawn-off shotgun causing injury to his co-accused. He was sentenced to two years imprisonment on the charge of negligently causing serious injury. In addition, of course, he was sentenced for the armed robbery. But the circumstances of that case were, of course, vastly different to those here.
69I have come to the conclusion that all that can be drawn from such authorities to which I was referred is that often a prison sentence is considered the only appropriate sentence for a person convicted of the offence of negligently causing serious injury.
70The jury, in your case, was not satisfied that you intentionally discharged the firearm and were not satisfied that you recklessly did so. Accordingly, it would be quite wrong as a matter of law to sentence you as if the jury verdicts had been otherwise.
71Nevertheless, because of the serious nature of your conduct in reaching for the firearm whilst struggling with police in a congested area; the fact that your conduct was a cause of the discharge of his firearm; the effect of the discharge of the firearm on Sergeant Campbell and his injuries, I do not consider that the purposes prescribed by Parliament for which I am to sentence you can be achieved by a sentence that does not involve your confinement in prison.
72I consider that it is of vital importance to your prospects of rehabilitation that you obtain proper and appropriate treatment and counselling in respect of your mental health problems generally and in particular, your problems relating to alcohol.
73I have come to the conclusion that the most appropriate sentence, taking all of the circumstances into account, is to sentence you to term of imprisonment of 20 months and to a three-year community correction order commencing on the date you are released from prison, with a number of conditions attached to it.
74I am in possession of a report from Corrections Victoria, dated 14 April 2016, indicating that you were considered unsuitable for a community correction order but only for the reason that you currently do not have contact details that you could provide to Corrections Victoria.
75I am advised this morning that those circumstances are now changed and you had an agreement whereby you will reside with your cousin, Cynthia Pilli, at her home in Doncaster East, following your release from prison and that a contact telephone will be arranged by the time of your release.
76However, I would only sentence you in that manner if you were to consent to such a community correction order with conditions with the conditions I consider suitable. Before I ask you whether or not you do consent to such a community correction order with the conditions, I should advise you about those conditions that I intend to impose.
77Firstly, there are a number of mandatory conditions which apply to all community correction orders.
·They are, firstly, that you must not commit during the term of the order, whether in or outside Victoria, an offence punishable by imprisonment.
·Secondly, that you must comply with the obligations or requirements provided by any regulations.
·Thirdly, that you must report to and receive visits from the Secretary of the Department of Justice, or his or her nominee, as directed, during the period of the order.
·Fourthly, that you must report to the Community Correctional Services office at 444 Swanston Street Carlton, within two working days from the date of your release from prison.
·Fifthly, that you must notify the Secretary of any change of address or employment within two clear working days after such a change. What that means is, Mr Pilli, is that if you change your job or you change where you are living for whatever reason, you must notify the Secretary by going to Corrections Victoria. If you restart an old job, or change jobs for any reason, you must notify the Secretary,
·Sixthly, you must not leave Victoria, except with the permission of the Secretary. Leaving Victoria might mean simply to Albury, Cobram or somewhere like that. If you step over the border, you have left Victoria. You must not do so except with the permission of the Secretary.
·And seventh, you must comply with any direction given by the Secretary that is necessary in order to ensure that you comply with this community correction order.
78Now, in addition to those mandatory conditions, I intend to impose a number of other conditions pursuant to s.48, s.48D and s.48E of the Sentencing Act and they are as follows:
·First, you must undergo assessment and treatment, including testing for drug abuse or dependency as directed by the regional manager, including if considered necessary, assessment or treatment at a residential facility.
·Second, you must undergo any mental health assessment and treatment considered necessary for you.
·Thirdly, you must undergo assessment and treatment, including testing for alcohol abuse or dependency, as directed by the regional manager, including if considered necessary, assessment and treatment at a residential facility.
·Fourth, that for the period of the community correction order - the three-year period of the community correction order, you are to abstain entirely from alcohol in any form.
·Fifth, you must participate in programs that address factors relating to your offending behaviour.
·And sixth, you are to be supervised, monitored and managed, as directed by the Secretary or his or her nominee for the period of the community corrections order.
79I have had regard in proposing those conditions and orders to the information, matters and recommendations made in the report from Corrections Victoria and the reports from Dr Deacon to which I have previously referred.
80Mr Pilli do you wish to discuss those matters, those conditions with your counsel before advising me concerning your consent? Do you want to have a moment with your counsel?
81ACCUSED: Yes, Your Honour.
82HIS HONOUR: All right.
83MR CAHILL: Thank you, Your Honour.
84ACCUSED: Thank you, Your Honour.
85HIS HONOUR: I think I will leave the Bench. I do not anticipate you will be all that long, but I will leave the Bench.
86MR CAHILL: I will not, Your Honour. (Indistinct.)
87MR GRANT: Your Honour, if I could hand Your Honour draft orders for the disposal and the s. 464 order?
88HIS HONOUR: Yes, thank you. Have you seen those, Mr Cahill?
89MR CAHILL: Yes, Your Honour.
90HIS HONOUR: Does your client consent to those being made?
91MR CAHILL: He does, yes.
92HIS HONOUR: Thank you.
93 (Short adjournment.)
94HIS HONOUR: Yes?
95MR GRANT: Your Honour, if I could disclose about a personal matter? I am involved in a trial in His Honour Judge Chettle's court at the moment and the jury are waiting at the moment. I wonder if I may be excused if my learned instructor may sit for the remainder of the sentence.
96HIS HONOUR: Yes, certainly, Mr Grant.
97MR GRANT: As Your Honour pleases. Thank you.
98HIS HONOUR: Mr Pilli, you have had the opportunity of discussing those mattes with your counsel. Do you consent to a community correction order with the conditions that I have indicated?
99ACCUSED: Yes, I do, Your Honour.
100HIS HONOUR: Thank you. Mr Pilli, just remain standing if you would.
Sentence
101With respect to the charge of negligently causing serious injury contrary to s.24 of the Crimes Act, you are convicted and sentenced to a term of 20 months' imprisonment.
102In addition, you are sentenced to a three year community correction order commencing on the date of your release from prison. That community correction order will have the same conditions that I have previously read out to you.
103Pre-sentence detention to date - - -
104MR RAIMONDO: Five hundred and sixty-seven days, Your Honour, not including today.
105MR CAHILL: Yes, that is agreed, Your Honour.
106HIS HONOUR: I declare that 567 days of pre-sentence detention, not including today, should be reckoned as served under that sentence, and I direct that a declaration to that effect be recorded on the records of this court.
107It is to be hoped that in the time leading up to your release, you will be able to arrange suitable accommodation and contact arrangements with Corrections Victoria can be confirmed.
108In determining your sentence, I have taken into account the comments of the Court of Appeal in the matter of Boulton v The Queen [2014] VSCA 342 with regard to community correction orders. It is clear from the judgement of that court in that case that a community correction order was not to be considered as some light penalty suitable only for minor offences. I quote from the Court of Appeals judgment: "A community correction order is not and should not be viewed as a mere slap of the wrist. It is a significant punishment, capable of having a substantial deterrent effect - both specific and general."
109Pursuant to s6AAA of the Sentencing Act, I declare that had you not pleaded guilty to this charge, I would have sentenced you to imprisonment for a term of two and a half years with a minimum non-parole period of 20 months.
110Now, pursuant to s.464ZF(2) of the Crimes Act, I order that you undergo a forensic procedure for the taking of a scraping from your mouth or a blood sample, or both, in accordance with Part 3 of the Crimes Act, until a sample of sufficient standard is obtained for placement on the database. I am satisfied that the making of such an order is justified because of the seriousness of the circumstances of your offending and also because you have consented to it being made.
111I should warn you that, notwithstanding your consent to the order relating to the taking of a sample from you, if you do not permit such a sample or blood sample to be taken from you then police are entitled to use reasonable force to obtain such sample or blood sample. Do you understand that, Mr Pilli?
112ACCUSED: I do, Your Honour.
113HIS HONOUR: I will also make the disposal order sought by the prosecution in relation to the knife that was used on that occasion on 2 October 2014. Now, Mr Pilli, there are some documents that you will be required to sign in relation to this community correction order. My associate will give them to you in just a moment.
114It is important, Mr Pilli, that you understand that if you were to breach any of the conditions of the community correction order, that breach is an offence in itself for which you would be brought before the court and sentenced. You understand that?
115ACCUSED: Yes, Your Honour.
116HIS HONOUR: Is there anything else, gentlemen, that requires my attention?
117MR RAIMONDO: No, Your Honour.
118MR CAHILL: No, thank you, Your Honour.
119HIS HONOUR: Thank you. Just adjourn the court temporarily, thank you.
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