Director of Public Prosecutions v Porter
[2024] VCC 1549
•3 October 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-24-00711
CR-24-00988
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ADAM PORTER |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 September 2024 |
DATE OF SENTENCE: | 3 October 2024 |
CASE MAY BE CITED AS: | DPP v Porter |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1549 |
REASONS FOR SENTENCE
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Subject:Plea - sentencing
Catchwords: Criminal damage - intentionally causing injury - entering a private place without authority - acting in disruptive manner in police gaol - sexual exposure
Legislation Cited:
Cases Cited:
Sentence:30 months' imprisonment, non-parole period 20 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Duckett | Office of Public Prosecutions |
For the Accused | Mr J. Livy | Tyler Tipping & Woods |
HIS HONOUR:
1Adam Porter, in relation to Indictment Q10636622 you have pleaded guilty to an offence of criminal damage, for which the maximum penalty is imprisonment for 10 years, and you have asked me to take into account and have pleaded guilty to a related summary offence of without authority entering a private place, for which the maximum penalty is imprisonment for six months or a fine of 25 penalty units.
2In relation to Indictment P11734039 you have pleaded guilty to an offence of intentionally causing injury, that injury being to the victim Samantha Clifford and for which the maximum penalty is imprisonment for 10 years, and you have asked me to take into account and have pleaded guilty to two related summary offences, one of acting in a disruptive manner in a police gaol, for which the maximum penalty is a fine of 10 penalty units; and the other being sexual exposure, for which the maximum penalty is imprisonment for two years.
3You have admitted prior convictions, which are listed as having been committed in Victoria, New South Wales and Queensland. The earliest Victorian recorded conviction is in September 2001, the earliest in New South Wales is in March 2007, and in Queensland in January 2018. There are other convictions in New South Wales during 2022 and 2023 and in Queensland through 2019. A number of the offences listed on your criminal record involve assaults or violence of various kinds, and a number involve damaging property and drugs.
4The victim of the assault the subject of the second of the two indictments to which I have referred has provided a victim impact statement which she has just read to the court and which sets out the significant impact, both physically and emotionally, that your assault has had upon her.
5The facts in relation to the first indicted offence in order of time - that is, the offence of damaging property which occurred between 3 January and 5 January 2023 in Morwell - involved you damaging a window at a private property in Morwell. You were 38 years old at the time, and between those dates you used a rock to break a window at those premises. The property was owned by the Department of Families, Fairness and Housing but was vacant at the time of your offending.
6You were found at the property when a person associated with the owners attended on 5 January 2023 to undertake maintenance work. The property was found to have a broken window. Police were called. You had left the area prior to the police arriving, but you were identified and located. On 15 April 2023 you were arrested and interviewed by police. You made admissions to breaking the window at the property with a rock and entering the property. You falsely claimed that the property was a mate's house, but you indicated that you had used a rock to break into the property and that you had entered the property to sleep. That gives rise to both the indicted offence of damaging property and to the related summary offence of entering the property without authority.
7In relation to the second indictment in order of time, the facts are as follows. At about 4.45 pm on 11 August 2023, your victim, Ms Clifford, was walking her dog through Crinigan Road South Reserve in Morwell. There was apparently a reported incident of some children who claimed that you had touched them. You were observed in the park with your pants down and your buttocks exposed near a community park playground.
8Ms Clifford, was approached by three children, who told her that they had seen you with a needle in your arm. Ms Clifford approached you. You were sitting down against a fence. She remained about 10 or 12 metres from you and asked you what you were doing. She pointed out that there were children nearby and that if you were using drugs, it was not appropriate for you to do so.
9You stood up and began to approach Ms Clifford. You become confrontational towards her, shouting and ranting at her. You continued to approach her. She tried to back away and calm the situation. You moved to within very close proximity of her and suddenly began punching her in the head. Ms Clifford continued to talk to you, shouting at you to stop and using her hands to protect her face. You grabbed the jacket that she was wearing and pulled it up over her head before grabbing her long hair - that was tied in a ponytail - and pulling her to the ground. You knelt on top of her legs before punching her in the head several times.
10An unknown male approached you and kicked you in the head. You then chased the unknown male and, unable to catch him, you returned to Ms Clifford. You dragged her to the ground and again punched her numerous times in the head. You also stomped on her head with your foot.
11A second unknown male approached you wielding a metal star picket. He threatened that he would hit you with the star picket if you did not get off Ms Clifford. Other witnesses observed what you were doing. Nearby members of the public called Triple 0. Police arrived and located you. You were arrested and cautioned.
12Ms Clifford sustained injuries that were immediately obvious in the form of abrasions to both sides of her head, significant bruising to the temple and to the left side of the head and abrasions to the hands. She was transported to the Latrobe Regional Hospital for assessment and treatment. She was assessed and discharged from hospital later that evening. She sustained bruising, swelling, skin grazes, a large haematoma of the left temporal region and tender palpation over the left parietal region.
13You were transported to the Morwell police station. You were described as being highly erratic and irrational in your behaviour and not suitable to be interviewed. You removed all your clothing shortly after being lodged in the cells and proceeded to masturbate your flaccid penis continuously for several hours. That supports the related summary offence of acting in a disruptive manner in a police cell.
14Your counsel provided me with an outline of defence submissions dated 4 September 2024. He invited me to conclude that in relation to the assault on Ms Clifford, although the charges to which you have pleaded guilty are serious, the causing injury intentionally charge could be categorised as mid to low range in that there was no weapon used by you, it was not related to family violence, there was no premeditation, the injuries sustained were at the lower end - although serious enough - and you did not obstruct the victim from receiving medical care.
15In particular, your counsel relied upon your plea of guilty and the need for rehabilitation arising from your drug abuse. He invited me to conclude that the Bugmy and Verdins principles need to be applied to sentencing and that you have some prospects of rehabilitation. He acknowledged that you have a criminal record. He pointed out that a major contributor to your offending, both past and present, arose from your substance abuse, in particular of methylamphetamine. Your counsel conceded that there was a degree of connection between your substance abuse and your mental health. He submitted that it appeared from the facts and circumstances that your mental health had broken down significantly, leading to the commission of the offences.
16I was provided with an assessment report by psychologist Sandra Cokorilo dated 14 March 2024. That report is useful in setting out details about your personal and family history, education and employment, relationship history and mental and medical history. The report goes on to describe your history of alcohol and substance abuse and refers to your prior criminal history and the circumstances of the offending before me. It deals with a mental health examination and a risk assessment which puts your risk of general reoffending as high.
17Some factors that were noted were the fact that over a period of some years now you have been experiencing auditory and visual hallucinations and that you had been diagnosed with schizophrenia in 2004. Whether that schizophrenia is arising from your childhood or from your substance abuse is not clear, but Ms Cokorilo noted that the testing that she performed revealed a borderline range of intellectual capacity and further symptoms, which she described as moderately severe, of post-traumatic stress disorder, general anxiety disorder and major depressive disorder. She opined that your mental impairments and your impairment in self-regulation are likely to make imprisonment more onerous for you than an offender without your psychological profile.
18The detailed report of Ms Cokorilo indicates that you had a troubled upbringing to say the least. You left your mother's care at the age of 14 in favour of living on the streets and smoking marijuana with friends. It is clear that your drug abuse had origins in a deprived and abusive childhood. The report provides a basis for concluding that Bugmy principles do apply and that there are reasons to accept that your drug abuse, which may well have provided a foundation for some of the mental impairments, arose at an early age from that background.
19It is submitted, therefore, that Bugmy principles and, to some extent although overlapping, Verdins principles apply to reduce your moral culpability. I am inclined to accept that. But your inability to self-regulate and your tendency to engage in violent conduct, spontaneous and unprovoked as it was, illustrates the need for the court to give proper weight to the need for public protection.
20Nevertheless, I was persuaded that I should consider a term of imprisonment coupled with a community correction order to assist in your rehabilitation and in particular in dealing with your drug abuse. For that reason, I ordered that you be assessed for suitability for a community correction order. Perhaps unsurprisingly, the assessment has come back with a conclusion that you are unsuitable for a community correction order. A number of reasons are given for that which I do not need to go into, but which concluded that you were assessed as a high risk of general reoffending, arising in part from your history of non-compliance.
21There is no point in making a community correction order in circumstances where it is effectively setting you up to fail. In those circumstances, I reject the submission that you are a person that should be the subject of a community correction order at this time.
22It is necessary for me to punish you adequately for your offending. The assault upon Ms Clifford was cowardly, sustained and nasty. It was fortunate that she did not suffer more serious injury. But otherwise it is hard to see a redeeming feature of your conduct. It seems clear that you were drug-affected at the time. That is not mitigation, but it may provide some explanation for the unprovoked nature of your conduct and points out the need for me to give proper weight to public protection. So not only is the principle of general deterrence significant, individual deterrence is significant and has to be given full weight; there is also a need, as far as it is possible, to provide you with an opportunity of rehabilitation.
23Taking all those matters into account as best I can, I sentence you as follows.
24Dealing with the first indictment in order of time, for the offence of intentionally damaging property you are convicted and sentenced to imprisonment for two months. For the related summary offence of entering a private place without authorisation, you are sentenced to imprisonment for one month, which I order to run concurrently with the sentence of two months on the intentionally damaging property. The total effective sentence is therefore two months' imprisonment on that indictment.
25In relation to the second indictment in order of time, for the offence of intentionally causing injury you are convicted and sentenced to imprisonment for two years and six months. For the related summary offence of acting in a disruptive manner in a police gaol, you are convicted and discharged. In relation to the related summary offence of sexual exposure, you are convicted and sentenced to imprisonment for one month. That will run concurrently with the sentence of two years and six months for the offence of intentionally causing injury. The total effective sentence, therefore, on that indictment is two years and six months.
26I will order that the sentences on both indictments are to be concurrent, one with the other, making a total effective sentence on both indictments of two years and six months. I fix a non-parole period of one year and eight months.
27Are there any other matters, counsel?
28MS DUCKETT: Pre-sentence detention, Your Honour.
29HIS HONOUR: The pre-sentence detention is 419 days. Are we agreed on that?
30MS DUCKETT: We are agreed, Your Honour.
31MR LIVY: Yes, Your Honour.
32HIS HONOUR: Yes, thank you. I declare that period of 419 days' pre-sentence detention as time to be reckoned as served on the sentence that I have imposed upon you and to be deducted administratively from the time that you will actually have to serve.
33But for your pleas of guilty, I would have sentenced you to a total effective sentence on both indictments of three years and four months' imprisonment with a non-parole period of two years and two months.
34MS DUCKETT: If the court pleases.
35HIS HONOUR: Thank you very much.
36MR LIVY: If Your Honour pleases.
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