Director of Public Prosecutions v Pourre
[2018] VCC 2019
•30 November 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-15-01180
Indictment No. E13185368.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEVEN BRIAN POURRE |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 15 June 2018, 3 August 2018, 19 October 2018 and 19 November 2018 | |
DATE OF SENTENCE: | 30 November 2018 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Pourre | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2019 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – one charge of persistent contravention of a family violence intervention order – one summary charge uplifted involving contravention of a family violence intervention order
Legislation Cited: Family Violence Protection Act 2008, s123, s96, s125A; Sentencing Act 1991; Criminal Procedure Act 2009, s145
Cases Cited:Phillips v R (2012) 222 A Crim R 149; Reid (a Pseudonym) v The Queen [2014] VSCA 145; DPP v O’Neill [2015] VSCA 325; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; R v Merrett & Ors (2007) VSCA; Arthars and Plater v The Queen [2013] VSCA 258; Flora v The Queen [2013] VSCA 192
Sentence: Convicted and sentenced to two year Community Corrections Order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms N Burnett | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr B Newton | Dribbin & Brown |
HIS HONOUR:
1
Steven Brian Pourre, on 15 June 2018, you pleaded guilty to the offence that you, at Dandenong in Victoria, between 15 September 2013 and 7 October 2013, persistently contravened a Family Violence Intervention Order by engaging in conduct, on at least three occasions, that would constitute an offence under s.123 of the Family Violence Protection Act 2008, in circumstances where you knew, or ought to have known, that the conduct constituted a contravention of the Family Violence Intervention Order. The particulars of such offence are that it is alleged that you contacted
Eliza Pedder[1], a protected person, on 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 28, 29 and 30 September 2013, and on 1, 2, 3, 4, 5, 6 and 7 October 2013.
[1] A pseudonym name
2 Summary Charge 1 was transferred to this court pursuant to s.145 of the Criminal Procedure Act 2009. Such charge alleges that you, at Pakenham on 9 December 2013, being a person against whom a Family Violence Intervention Order was made pursuant to the Family Violence Protection Act 2008, and having been served with a copy of such order, and having an explanation of the order given to you in accordance with s.96 (full order) of that Act, did contravene that Act by calling the victim at her work. You also pleaded guilty to that offence on 15 June 2018.
3 The offence pleaded on the Indictment is contrary to s.125A of the Family Violence Protection Act 2008 and carries a maximum penalty of five years’ imprisonment or a fine of 600 penalty units (each penalty unit at the time of offending had the value of $144.36) or both. The offence pleaded in the summary matter is contrary to s.123 of the Family Violence Protection Act 2008 and carries a maximum penalty of two years’ imprisonment or a fine of 240 penalty units, or both.
Details of your offending
4 The prosecution has provided documentation headed “Prosecution Opening on Plea” dated 31 January 2018 and a further document headed “Prosecution Chronology”, dated 31 January 2018, both of which were tendered and marked respectively as Exhibits 1 and 2. The Prosecution Opening has been accepted by you and your counsel as an appropriate representation of the offending.
5 The important matters contained in the Prosecution Opening are:
·You are presently 38 years old, having been born on 18 January 1980. At the time of offending, you were 33 years old.
·The complainant, Eliza Pedder, was in a relationship with you for approximately six-and-a-half years from early 2007. You lived together from early 2008, and resided at a property in Dandenong, which was owned by the complainant from November 2011.
·The complainant alleged that throughout the relationship you were often violent towards her.
·As a result of an incident on 11 June 2013, the complainant left the home on 12 June 2013 and moved into a hotel for a night, and on the following day, travelled interstate. After some weeks, she returned home to Victoria.
·On 3 September 2013, the complainant arrived at her parents’ home to find you waiting for her to return home. You were loitering at the side of the house talking to the dog, but left before the complainant or her father could catch up with you.
·On 3 September 2013, the complainant made an application for an Intervention Order against you, which was served on you by way of substituted service on 6 September 2013. Such order included conditions that you must not go within 500 metres of the premises at which the complainant resides or works, and must not approach or contact the complainant by any means.
·On 8 September 2013, you forced entry in to a townhouse in St Kilda East and confronted the occupants, none of whom were known to you, demanding to know where “Eliza” was – that is, the complainant was, and also assaulted two of the occupants. About an hour later, you were involved in an incident at a nearby restaurant, where it was reported that you asked for “Eliza”.
·You were admitted to the Dandenong Hospital Psychiatric Ward on 10 September 2013, where you were arrested on 17 October 2013 and interviewed, and later charged in relation to the present offending.
·Telephone records reveal that between 15 September 2013 and 7 October 2013, while at the Dandenong Hospital, you telephoned the complainant from your mobile phone to her home and work numbers 112 times as follows:
- 15 September 2013 – two calls
- 16 September 2013 – five calls
– 17 September 2013 – ten calls
– 18 September 2013 – ten calls
– 19 September 2013 – four calls
– 20 September 2013 – four calls
– 21 September 2013 – three calls
– 22 September 2013 – four calls
– 23 September 2013 – three calls
– 24 September 2013 – two calls
– 25 September 2013 – two calls
– 26 September 2013 – one call
– 28 September 2013 – three calls
– 29 September 2013 – five calls
– 30 September 2013 – eight calls
– 1 October 2013 – nine calls
– 2 October 2013 – six calls
– 3 October 2013 – six calls
– 4 October 2013 – three calls
– 5 October 2013 – thirteen calls
– 6 October 2013 – eight calls
– 7 October 2013 – one call.
·Having called the complainant on at least three occasions in breach of the Intervention Order, you persistently breached the order (Charge 1, persistent contravention of a Family Violence Order).
·On 9 December 2013, you called the complainant’s work number and spoke to a colleague of the complainant. You stated your name was “Ben Forster” and that you were one of the complainant’s applicants. The call was put through to the complainant and you said “Hello honey, this is your soul mate”. The complainant recognised your voice and hung up. The complainant also recognised the telephone number on the caller ID to belong to you (summary charge – contravening Family Violence Intervention Order).
·You were interviewed on 17 October 2013 in the presence of an independent third person after being assessed by a forensic medical officer. When asked whether you had any comment to make in relation to the allegations, you stated that the only part that was true was about you threatening to leave the complainant (Question and Answer 146), and that when you were in hospital “recently”, the complainant had made numerous calls and visits to you (Question and Answer 150). Otherwise, you gave largely “no comment” answers in relation to the allegations put to you.
·You entered a plea of guilty before the fourth occasion that this matter had been listed for trial. Preceding this, the issue arose as to whether or not you had a mental impairment. You had been assessed by the psychiatrist, Dr Nina Zimmerman, on 1 June 2015 and 19 April 2017, on behalf of your solicitors, and by a Forensicare consultant psychiatrist, Dr Nicholas Owens, on 14 August 2015 and 25 August 2016 on behalf of the Prosecution.
·
In relation to the offence pleaded on the Indictment, Dr Zimmerman concluded that the defence of mental impairment was not available, and Dr Owens concluded the defence of mental impairment may be available. In relation to the uplifted summary matter, both Dr Zimmerman and
Dr Owens did not believe a defence of mental impairment would be available to you.
Prior criminal history
6 You have no prior convictions and have never been imprisoned. However, at approximately the age of 23, you were charged with obtaining financial advantage in respect to Centrelink benefits. The matter came before the Dandenong Magistrates’ Court on 10 December 2003, and you were sentenced to a Good Behaviour Bond for two years without conviction. Furthermore, at approximately the age of 32, you were charged with contravening a Family Violence Intervention Order and were placed on a bond, and, ultimately, that charge was dismissed.
7 You were charged with criminal damage, burglary, intentionally causing injury and recklessly causing injury in respect to the event I have described, which occurred on 8 September 2013. You stood your trial in relation to this alleged offending, and on 28 July 2014, a jury found you not guilty on the grounds of mental impairment.
8 On 13 October 2014, the Presiding Judge, His Honour Judge M Bourke, ordered a Non-Custodial Supervision Order (“NCSO”) under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 for twelve and a half years. It is to be noted that part of the order requires you to undergo drug and alcohol testing, including random supervised urine drug screens once per fortnight, and to attend appointments for such testing as directed by the authorised psychiatrist, together with psychological testing. Since making the order, Judge Bourke has reviewed such order on three occasions, including a relatively recent review of the order.
Your personal circumstances and background
9 Your counsel tendered the following documents:
·A document headed “Brief Outline of Defence Plea Submissions” dated 14 June 2018 (Exhibit “A”);
·Psychiatric report of the forensic psychiatrist, Dr N Zimmerman, who initially interviewed you on behalf of your solicitor on 1 June 2015, and reported on 8 June 2015 (Exhibit “B”);
·Further psychiatric report of Dr N Zimmerman, who again interviewed you on behalf of your solicitor on 19 April 2017, and reported on 27 April 2017 (Exhibit “C”);
·A report from Dr A Preston, psychiatric registrar, supervised by Dr G Lester, consultant psychiatrist, both being members of Forensicare. The report is dated 11 July 2018 and was written by Dr Preston as part of a recent review of the order made by Judge Bourke. Dr Preston had been supervising you since April 2018 pursuant to the terms of the order (Exhibit “D”);
·Psychiatric report from the consultant psychiatrist, Dr Atanas Yonchev, who is employed by Monash Health at the Pakenham Community Care Team and covers the period from June 2017 to June 2018, during which time you had three admissions to inpatient mental health units: 8-14 September 2017; 7-22 December 2017 and 31 January-20 March 2018. His report is dated 5 July 2018 (Exhibit “E”), and it also forms part of the recent review of the order made by Judge Bourke;
·
Report from Mr Brian Gray, a registered psychiatric nurse working as your case manager, for the Pakenham Community Care Team. Such report is dated 2 July 2018 and involves him being your case manager from when he commenced working at Pakenham Community Care Team on
2 October 2017. Such report was also obtained as part of the recent review of the order made by Judge Bourke (Exhibit “F”). When this matter last came on for the plea hearing on 19 November 2018, a further report from Mr Gray dated 14 November 2018 was made available to the court, although not formally tendered. I will add that report to the earlier report which is marked as Exhibit “F”.
10 Based on some of that material and the various submissions made by your counsel, I note the following:
·You were born in Cranbourne to Dianne and Guy Pourre. Your father was a builder and your mother is a full-time carer for children born to your younger sister. You also have an older brother who you keep in reasonable contact with.
·You reported that you had normal development and suffered no sexual or physical abuse as a child, although you consider that your father was excessive in the force and frequency of physical punishment, which included the use of a strap.
·There was no family history of mental illness.
·You informed Dr Zimmerman that you completed Year 12 and never had any disciplinary problems at school, and denied any truanting. You also informed her that you “did well academically”, although you did inform Dr Preston in June 2018 that you were an “average student”.
·You also informed Dr Preston that you had been estranged from your parents and siblings since December 2014; however, over the past twelve months, you have attempted to regain contact with the family and this has been successful to the extent that you are now spending time with them regularly.
·On leaving school, you worked in the security industry for about eight to ten years, before working in administration for a building firm. At one time you set up your own business as a carpenter, informing Dr Zimmerman that you had learned carpentry skills from your father.
·When you were admitted to a psychiatric hospital for the first time in 2013, you ceased work and have been on the Disability Support Pension since that time. You informed Dr Zimmerman that you would like to return to work in administration for a building firm one day.
·You informed Dr Zimmerman of being involved in a five-year relationship, and then a seven-year relationship which ended in 2013, presumably with the complainant. Also, you did have a one-year relationship with a woman who bore your son, who is now approximately seventeen or eighteen years old, and you retained regular contact with him until you were charged with the offences in 2013.
·In particular, you told Dr Zimmerman that since about then you have been “fighting” to have regular contact re-established with your son, which has involved some Family Court hearings giving rise to some degree of stress. On 19 November 2018, when this matter was last mentioned during the course of your plea, you advised the court through your counsel that you were withdrawing your application to the Family Court, as it is in the best interests of the child not to pursue such an application.
·You also informed Dr Zimmerman when she initially interviewed you on 1 June 2015, that you began smoking cannabis and crystal methamphetamine (ice), over the period from 2012 to 2013. At that time of the interview, you could not recall why you suddenly began using drugs for the first time. Furthermore, you informed Dr Zimmerman that you had drunk alcohol after work when you were younger, but denied ever having a problem with alcohol, and said that you had not drunk alcohol for years. In particular, you told Dr Zimmerman that you had never used opiates such as heroin, had never injected speed, and had never abused benzodiazepines. It is to be noted that in her report, Dr Preston records that you had used methamphetamine, amphetamine and alcohol to improve your mood since your late twenties or early thirties. In particular, she recorded:
“He said that he tended to use for two days and it was ‘fun’ then crashed for the rest of the week. His drug use was mostly over the weekend and he said that he recognised it to be a ‘fake happy’. He asserted that he used to ‘crash’ and experience depression which at times led to suicidal thoughts requiring hospitalisation. He said although he had a group of friends that use drugs, he did not use drugs with this group and that he preferred to use on his own. At his most recent review, he denied having any cravings for, or using any illicit substances, and explains that his drive to see his son again is what keeps him away from drugs. Mr Pourre informed me that his next meeting with the Drug and Alcohol Team was next Thursday 5 July 2018 and that he has a good relationship with his worker.”
Dr Preston notes that you had reported earlier that you stopped using cannabis at age 30 because “it did not agree with me”. You had last used synthetic cannabis three years ago, and neither are your preferred drugs; reporting that you never injected drugs, only used a drug pipe.
The history of your psychiatric illness
11 You informed both Dr Zimmerman in June 2015 and Dr Preston in June 2018, that you had no psychiatric history prior to a six week admission to Dandenong Psychiatric Unit in September 2013. Again, you gave a history to both psychiatrists that for some days, or maybe weeks, prior to your admission, you commenced to hear voices talking to you after your relationship with the complainant, which ended in June 2013.
12 In particular, you gave a history to Dr Preston that prior to the offending on 8 September 2013 – which gave rise to the jury trial before his Honour Judge Bourke, you had commenced hearing quiet voices, which you were unsure of whether they were your thoughts or voices. On the day of those offences, you heard the voice of God, who told you to save your girlfriend. You broke into the house where you felt the occupants were holding your girlfriend. You then assaulted the occupants.
13 You were admitted to the Dandenong Hospital Psychiatric Unit on 10 September 2013 and you alleged that you stopped hearing voices within forty-eight hours.
14 You were an inpatient to 16 October 2013, during which time you were commenced on lithium carbonate (a mood stabiliser) 1350 milligrams daily, and Olanzapine, (an antipsychotic) 30 milligrams daily, and remained on this medication until 2016.
15 According to your Discharge Summary from Monash Health on 16 October 2013, you were diagnosed with first onset psychosis with a differential diagnosis of Schizoaffective Disorder. This has been later confirmed as Schizoaffective Disorder.
16 In particular, I refer to the report of Dr Zimmerman dated 27 April 2017, following her interview with you on 19 April 2017. In that report, she had gathered a variety of information from different sources and, in particular, I note the report from the psychiatrist, Dr Owens, who examined you on 14 September 2015 on behalf of Forensicare, to determine whether you had a mental impairment.
17 In that report, you gave a history of having auditory hallucinations occurring from February 2013 to September 2013. Also in his report, Dr Owens obtained a history that during your period of inpatient treatment to October 2013, the complainant attended you in hospital. As noted by Dr Owens, your account is confirmed by the various inpatient notes.
18 In her report dated 27 April 2017, Dr Zimmerman stated, in part:
“With respect to the stalking charges arising from events between 15 September and 7 October 2013 … [Charge 1 on the Indictment] while he was an inpatient on a psychiatric unit, it is likely that he was psychotic at the time. However, at interview on 26 September 2017, Mr Pourre told me that he had contacted his girlfriend repeatedly, knowing that there was an Intervention Order in place, and that he did so because she was responding to his communications and went on to visit him in hospital. These visits are documented in clinical notes from his inpatient stay at the time. Thus, while Mr Pourre was psychotic at this time, there is no evidence that he was unaware of the nature and quality of the acts that constituted the charges against him or was unable to reason about their wrongfulness ….
With respect to the alleged breach of the Family Violence Order,
Mr Pourre appears to have been aware of the nature and quality of his act, as he took care to take on the identity of another person in order to have his call put through. This would also suggest that he was able to reason that what he was doing was wrong.”
19 Returning to the report of Dr Preston, wherein she deals, in particular, with your psychiatric progress over the last twelve months, she highlights:
(a)From June 2017, you remained on a Community Treatment Order (“CTO”) and was stable in remission;
(b)On 7 September 2017, you contacted your then case manager, reporting suicidal thoughts, and you were voluntarily admitted to Casey Hospital under the care of Dr Tang. During this admission, you reported the emergence of a new style of auditory hallucination and you commenced the drug, Quetiapine (an antipsychotic), 100 milligrams twice daily. You were discharged on 14 September 2017 after reporting a cessation of voices;
(c)On 19 September 2017, you were reviewed by Dr Grant Lester, a consultant psychiatrist employed by the Community Forensic Mental Health Service, at which time you reported being abstinent from alcohol for a month and your drug testing was all negative. There was no evidence of any aspect of mental illness;
(d)Brian Gray took over your case management in October 2017 and at your first meeting with him on 10 October 2017, you were pleasant and cooperative, but expressed some irritation and anxiety towards your living conditions. There was no evidence of any psychosis;
(e)On 25 October 2017, Dr Yonchev, who had become your treating psychiatrist, altered your medication regime at an outpatient appointment due to side effects; Olanzapine (an antipsychotic) was introduced at 10 milligrams a night, but was increased to 20 milligrams a night; lithium (a mood stabiliser), was decreased from 1500 milligrams a night to 1000 milligrams a night;
(f)In November 2017, you missed a depot appointment by one week and you attended and stated that your sister had taken your mobile phone and you had not received any communication from the team. You were reminded of the importance of your attendances;
(g)In December 2017, you failed to attend a scheduled review with Dr Lester and, ultimately, you were admitted to Monash IPU, where you reported to be very disturbed, but not suicidal. At the time, you denied having any thoughts of harming others and a UDS was carried out on 6 September, which was negative.
(h)There was discussion between you and your treating team that your current shared accommodation may not be suitable, as it contained several drug users. You were discharged from hospital on 22 December 2017, with follow up by the CAT (Crisis Assessment and Treatment) Team. A CAT worker reported on 28 December 2017, that you “continue to be traumatised by the voices. Constantly battling with derogatory voices telling [you] to kill yourself”. At that stage, you were given a choice between trialling Clozapine or ECT and you chose Clozapine;
(i)On 10 January 2018, you telephoned the NCSO team to delay the scheduled review due to a worsening of voices. The review was rescheduled five days later, to which you did not attend. When contacted, you said you felt overwhelmed by the voices and did not want to take public transport, and reported that the voices were telling you to kill yourself and others;
(j)You attended to have your baseline bloods taken for Clozapine, and woke up and attended a scheduled appointment with your treating psychiatrist on 16 January 2018. On 31 January 2018, after missing a third appointment at the NCSO team with Dr Lester, your Community Treatment Order was varied to an Inpatient Treatment Order and you were admitted to Dandenong Hospital from 31 January 2018, until 20 March 2018. During this admission, you were trialled with Clozapine which, unfortunately, caused an acute adverse reaction in the form of myocarditis. Following review, Clozapine was stopped and Olanzapine was increased by a further 10 milligrams in the morning;
(k)On 28 March 2018, you reported to Dr Lester at the CFMHS of not having used methylamphetamine for at least six months and not drinking alcohol for one month. You reported improvement in relation to your family and you were working towards your next court session on 27 April 2018 regarding visitation rights to your son. On 7 May 2018, you advised the NCSO team by telephone that you would be unable to attend the planned review due to your sister being assaulted and admitted to hospital. This was subsequently rescheduled to 29 June 2018;
(l)Dr Preston met with you on 29 June 2018, at which time you noted you continued to live in shared accommodation, but would be keen to move into your own place when possible. At that time, you informed Dr Preston that you had mended the relationship with your family and started taking your thirteen-year-old nephew to watch football;
(m)At that time, you had taken your depot injection the day before review and you denied any new problems with the medication and reported a complete remission of all auditory hallucinations since commencement of aripiprazole. You also informed Dr Preston that you had not had any contact with police recently and denied having any altercations or episodes of aggression.
20 In her report, Dr Preston stated, in part:
“The use of structured clinical judgement in the assessment of risk of future violence is currently considered to be best practice. Structured clinical judgement identifies variables known empirically to be associated with risk of future violent offending and uses this information to inform clinical opinion. Historical risk factors are static and create the foundation of the risk assessment. Clinical risk factors are dynamic and represent the patient’s current presentation, at the time of risk assessment. Lastly, factors associated with future risk, which are also dynamic, are concerned with the patient’s likely adjustment to future circumstances and environment.”
In relation to historical risk factors, Mr Pourre has a diagnosis of a major mental illness, namely Schizoaffective Disorder, accompanied by a history of sporadic non-compliance with mental health services. His major mental illness is confounded by a strong history of alcohol, methamphetamine and cannabis abuse … His main support system are his parents with whom he has had a conflictual relationship, albeit improved recently. There are some anti-social personality traits evident, with an earlier offence of obtain financial advantage and a tendency to be sparing with the truth. However, he does not currently have a diagnosis of personality disorder.
In relation to clinical risk factors, Mr Pourre is currently in a remission from his Schizo-affective Disorder and has recently reported a marked improvement in his auditory hallucinations since commencement of Aripiprazole in May 2018. This remission may not be as complete as his reports and is certainly in its (sic) early stages, having only come about in May 2018. Over the past three months, however, he seems to have an improved insight into his illness and the importance of compliance with medications. He appears to be highly motivated to comply with the conditions of the order in an effort to regain access to his son.
In relation to future risk factors, I would have some concerns about the upcoming court case in regards to his son. If it does not go as planned, this will be an extremely de-stabilising factor for him. Mr Pourre has voiced a desire to move into independent accommodation, which brings with it its own responsibilities and risks. Although he has voiced a determination to stay away from illicit drugs, abstinence will be essential to his prognosis of future risk.
Overall, I would place Mr Pourre’s risk of future violence at low-moderate.”
21 I also refer to the report from Dr Atanas Yonchev, consultant psychiatrist at the Pakenham Community Care Team. He noted that his report covers the period from June 2017 to June 2018, and he also noted how you have had three admissions to inpatient mental health units: 18-14 September 2017; 17-22 December 2017 and 31 January 2017 to 20 March 2018.
22 Dr Yonchev confirmed that he assessed you on 4 May 2018, at which time he described you as presenting as casually dressed, calm, appropriate, spoke in a soft voice, normal rate and prosody, in a good mood with reactive and congruent affect, normal thought streams, denied delusions, suicidal and homicidal thoughts, without formal thought disorder, shared hearing derogatory voices, well orientated in time, place and person and your cognitive functions seemed on a premorbid level with good insight and good rapport. Dr Yonchev noted that the residual symptoms prompted him to introduce aripiprazole in the treatment, to which you have responded well. He also noted that you are currently involved with SECADA (Substance Abuse Service at Monash Health) and that you are receiving support from Partners in Recovery an (NGO service supporting patients with mental health problems) and that you are exercising regularly at a local gymnasium.
23 Ultimately, Dr Yonchev stated:
“Mr Pourre’s significant history of drug abuse and resultant psychotic episodes establishes moderate risk of deterioration and possibly reoffending.
His abstinence from drugs and regular pursuing of treatment when unwell are protective factors against future significant deterioration".
24 I also refer to the two reports from Mr Brian Gray, a registered psychiatric nurse, who has been your case manager since 2 October 2017. In his last report, Mr Gray stated:
“Since I have worked with Mr Pourre as his case manager, he has had two separate admissions to hospital. First admission was on the 7/12/17 – 22/12/17. Second admission 31/1/18 – 20/3/18. The reason for admissions was due to auditory hallucinations of a derogatory nature, telling him to kill himself and that he was worthless, which Mr Pourre found to be distressing for him.
After discharge, Mr Pourre was seen by Dr Yonchev, Consultant Psychiatrist on 4 May 2018. He was prescribed Aripiprazole to assist with other medication in managing symptoms that were distressing him. Since commencing Aripiprazole in combination with other medication, Mr Pourre experienced marked improvement with his mental health. Symptoms of auditory hallucinations subsided, providing him with much respite. He now presents as less stressed, bright and animated.
Improvement has allowed Mr Pourre to move forward with his everyday living. He now spends quality time with his nephew and has re-engaged an old friend that he has isolated himself from. He also spends time with both his parents, who are very supportive towards him.
Mr Pourre attends Pakenham Health Centre every two weeks to see case manager and for administering his medication. Mr Pourre never fails to turn up for his appointments and will communicate with the clinic if he is running late. Currently Mr Pourre’s mental health is being well managed with no evidence of deterioration or distress.”
Mitigating circumstances relied on by your counsel
25 Your counsel submitted that the following matters are relevant to mitigation of your sentence:
(a)That you entered into a plea of guilty in relation to Charge 1 on the Indictment near to “the earliest practicable opportunity”, given the ongoing circumstances surrounding your mental impairment. Such a plea of guilty has the obvious advantage that the complainant will not be required to give evidence in any proceeding, and the utilitarian value of such plea in that the community has been spared the time and expense of a trial. In the circumstances, your counsel submits that such a plea of guilty should be afforded a “significant sentencing discount”. Reference was made to Phillips v The Queen (2012) 222 A Crim R 149, 158–9 [36], per Redlich JA and Curtain AJA. Such decision was referred to and approved in Reid (a pseudonym) v The Queen [2014] VSCA 145 per Priest JA at [110]–[114] (with whom Maxwell P and Whelan JA agreed without comment). Furthermore, your counsel submitted that such a plea of guilty can be viewed as an expression of your remorse in relation to the offending;
(b)That you have no prior convictions and your previous involvement with the criminal justice system has resulted in you being placed on bonds which have been discharged. Furthermore, there has been seemingly no further criminal activity over the last four or five years;
(c)That the offending pleaded in Charge 1 on the indictment occurred over the period from 15 September 2013 to 7 October 2013 and the offending pleaded in the uplifted summary charge occurred on 9 December 2013.
It was submitted that you had been in a psychotic state from early 2013, was using illicit substances and was untreated by healthcare professionals during this early period. It is clear that you were admitted to the Dandenong Hospital Psychiatric Ward from 10 September 2013 with a psychiatric disorder and mood disturbance, including auditory hallucinations which was ultimately diagnosed to be a Schizoaffective Disorder. In particular, this “involuntary hospital admission” occurred five days prior to the commencement to the offending detailed in Charge 1. You remained in hospital in a psychotic state until your discharge on
16 October 2013, being under active treatment involving medication.
It was during this period, which Dr Zimmerman accepts, that you were psychotic at the time of making the various telephone calls to the complainant, in circumstances where the records of the hospital confirm that the complainant was responding to your telephone communications and also visiting you as an involuntary psychiatric patient.
In relation to the uplifted summary charge involving offending on
9 December 2013, the available material would suggest you have no recollection of the offending, although you did state to Dr Zimmerman, when seen on the second occasion, that it was “a dumb thing to do”. (See paragraph 19 of the second report from Dr Zimmerman).
(d)Reference was made to R v Verdins; R v Buckley; R v Vo (op cit), and it was submitted that each of the various principles enunciated in that case have application. In this respect, I refer to paragraph [32] of that decision, wherein the Court of Appeal (consisting of Maxwell P, Buchanan and Vincent JJA), stated:
“Impaired mental functioning, whether temporary or permanent (“the condition”), is relevant to sentencing in at least the following six ways:
1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration, depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.”
In particular, in support of principles 5 and 6, your counsel referred to paragraph [55] of the second report of Dr Zimmerman, where she states:
“… I note that any prison term that Mr Pourre may receive is likely to weigh more heavily on Mr Pourre than on a person not suffering from a major psychotic illness. The stresses associated with incarceration are potential causes of relapses in psychotic illnesses. What is important for Mr Pourre’s mental well-being and also to minimise the risk of future offending, is that he remains linked in with his Area Mental Health Service, under the supervision of Forensicare as mandated by his NCSO.”
(e)The fact of “delay”, so it was submitted, is an extremely significant matter in this case, bearing in mind that it is approximately five years since the commencement of the offending associated with Charge 1 on the indictment. Reference was made to The Queen v Merrett, Piggott and Ferrari [2007] VSCA 1, applied subsequently in Arthars and
Plater v The Queen [2013] VSCA 258 and Flora v The Queen [2013] VSCA 192.In particular, counsel referred to paragraph [97] of Flora (op cit), supporting the proposition that the significance of delay as a sentencing factor cannot depend on whether or not there is a satisfactory explanation for the delay. The relevance of delay lies rather in the effect which the lapse of time, however caused, has on an accused. Delay constitutes “a powerful mitigating factor” and, in particular, focuses attention on issues of rehabilitation and fairness. I also refer to paragraph [25] of Arthars (op cit), whereat the Court of Appeal (consisting of Redlich JA, Coghlan JA and T Forrest AJA) stated:
“The justification for taking delay into account as a mitigating factor rests upon the twin considerations of rehabilitation and fairness. Chernov JA in R v Cockerell, in a statement subsequently affirmed in R v Tiburcy, expresses these principles thus:
First, and perhaps foremost, where there has been a relatively lengthy process of rehabilitation since the offending, being a process in which the community has a vested interest, the sentence should not jeopardise the continued development of this process, but should be tailored to ensure as much as possible, that the offender has the opportunity to complete the process of rehabilitation. Secondly, from the point of view of fairness to the offender, the sentence should reflect the fact that the matter has been hanging over his or her head for some time, thereby keeping the offender in a state of suspense as to what will happen to him or her.”
Bearing in mind that you are under a non-custodial supervision order imposed for twelve-and-a-half years, and seemingly over recent times have been compliant with your medication and the terms of that order, gives some indication as to your rehabilitation prospects.
(f)You have family support now, and indeed, the one factor that there was concern about you prosecuting a family law matter in relation to your son, which may well have caused stress and deterioration in your condition, has now been obviated by you making the decision that it is in the interests of your son not to prosecute such an application.
26 Ultimately, your counsel submitted that an appropriate sentence in respect of both Charge 1 on the indictment and the uplifted charge, would be a community corrections order which is focused on treatment without the need for any immediate imprisonment.
The Response of the prosecution
27 Counsel for the prosecution submitted:
(a)That although a number of principles set out in Verdins (op cit) are enlivened, general and specific deterrence still have some role to play, given the evidence based on Dr Zimmerman’s opinion that although you were psychotic at the time of the offending, you had an appreciation of what you were doing.
(b)The concept involved with delay is relevant, and indeed, gives some indication of how you have involved yourself with treatment and your commitment to treatment over the years.
(c)Although the prosecution accepting that a community corrections order would be in the range, the following should also be considered:
(i) that there should be some unpaid work hours ordered, although these can be offset by mental health attendances pursuant to the Sentencing Act;
(ii) that there should be an order that part of the community corrections order that there be compliance with the NCSO ordered by Judge Bourke.
Community Correction Order Assessment Outcome Report
28 The court arranged for you to be assessed to determine your suitability for a community corrections order and this was undertaken on 19 October 2018. In the report of the same date, the author, Ms Saskia Heydon, the assessing Community Corrections officer, assessed you as suitable for a community corrections order.
29 Employing the Level of Service Risk Assessment Tool, you were assessed as being of “medium risk” of reoffending.
30 Beyond the core conditions, it was recommended that there would be conditions for community work, treatment and rehabilitation in relation to mental health, treatment and rehabilitation in relation to programs reducing reoffending, supervision and judicial monitoring.
31 Ms Heydon noted that you were currently on a disability support pension and an issue arose as to whether you would be able to complete any unpaid community work and ultimately, a medical clearance will have to be obtained to provide you with suitable placement if such an order is made.
Conclusion
32 The offence of persistently contravening a family violence intervention order (which means on at least three occasions), is a serious offence as is made clear by the maximum penalty of five years’ imprisonment or a substantial fine or both. It must be borne steadily in mind that such orders are there to give some protection to those who have been the subject of family violence and to promote no contact between the victim of such violence and the perpetrator. A breach of an offence which involves persistently contravening such order is serious, as it involves persistence on the part of the perpetrator and the ongoing fears and concerns of the victim.
33 The uplifted summary charge relating to the incident on 9 December 2013, I also consider it to be reasonably serious, albeit that it only involved one breach. However, the breach was no doubt particularly frightening to the victim, as you saw fit to ring her at her place of work and, through deception, were placed through to her in circumstances where she would have never expected such a call.
34 However, in relation to the offending pertaining to Charge 1, that is the persistent contravention of a Family Violence Intervention Order, it must be seen in the context of two important matters:
(a) That the telephone calls you made over the period from 15 September 2013 to 7 October 2013, was during a period when you were admitted to a psychiatric ward and diagnosed with a psychotic illness. I accept the evidence of Dr Zimmerman that you were in a psychotic state during the period of that offending.
As has been pointed out by your counsel, hitherto the admission to the Dandenong Hospital Psychiatric Ward on 10 September 2013, there had been no diagnosis of you suffering a psychotic condition and, of course, no treatment in relation to that condition. Although not precisely clear, it would appear that you were suffering psychotic symptoms for some time prior to that admission – perhaps as early as February 2013. Of course, it is to be noted that Dr Zimmerman was not prepared to find that you had a mental impairment during the course of that admission or indeed, in relation to the event on 9 December 2013;
(b) That during your admission over that period, clinical notes confirm that you were visited in hospital by the complainant on a number of occasions. Such attendances do not relieve you of your legal obligations, but does give some context in which the offending occurred.
35 I also accept that you have no particular memory of the incident on 9 December 2013 and again, it is probably more likely than not, that you had some ongoing psychotic symptoms at that stage.
36
The court has been greatly assisted by information which has been obtained pertaining to your noncustodial supervision order made by Judge Bourke on
13 October 2014. Such order followed a trial wherein you were charged with criminal damage, burglary, intentionally causing injury and recklessly causing injury in respect to the event which I have described occurring on 8 September 2013. That is some two days prior to your admission to hospital. You were found not guilty of that offending on the basis of grounds of mental impairment.
37 The order made by Judge Bourke was for twelve-and-a-half years and has required you to undergo drug and alcohol testing, random supervised urine drug screens and attend to appointments for testing as directed by your authorised psychiatrist. In particular, that order has been reviewed on several occasions and, in particular, relatively recently, which gave this court the advantage of reading, in particular, the reports of Dr Preston dated 11 July 2018, the report of the now treating psychiatrist, Dr Atanas Yonchev, and indeed, the reports from a Mr Brian Gray, a registered psychiatric nurse, who has been your case manager since 2 October 2017.
38 Although there has been periods where your engagement with the NCSO team has been poor, it would appear in recent times, particularly with the change of medication, you have been more motivated to stay away from drugs and more engaged and committed to the order made by Judge Bourke.
39 In particular, Dr Preston notes that over the past three months, you seem to have had an improved insight into your illness and the importance of compliance with medications. Furthermore, she notes you are highly motivated to comply with the conditions of the order in an effort to regain access to your son.
40 I should add it was a concern that stressful matters may prompt a recurrence of your psychotic illness and indeed, from the beginning of the plea, I was informed that there was an upcoming family law matter involving access to your son. As I have already recorded, your counsel recently made plain on your behalf that you are no longer pursuing that course in the interests of your son and indeed, although no doubt difficult for you, it does remove one significant stress factor in the future.
41 In mitigation, I do accept that your plea of guilty to the substantive offence was made at a realistic early time, given the concerns about your mental impairment prior to your plea. Furthermore, I accept that such plea had the utilitarian effect of saving the court the time and cost of a trial, as is made clear by Phillips v R (op cit) at paragraph [36] and obviated the need for the complainant to give evidence.
42 It is always a question for the Sentencing Judge whether remorse or a willingness to facilitate the course of justice and acceptance of responsibility are to be inferred from a plea of guilty. (See again, Phillips v R (op cit) at paragraph [96]. I consider that, ultimately, the evidence against you in this matter was very strong, but do accept that your early plea of guilty is some evidence of remorse.
43 Furthermore, some of your comments, such as those made to Dr Preston, suggest that you have some degree of insight into your offending and indeed, the impact of your offending on the complainant. In this respect, I also refer to the recent comments of the Community Corrections officer, Ms Saskia Heydon, who has recorded that you identified your actions as “wrongful” and expressed concern about the impact it may have had on the complainant.
44 I also accept that you have no prior convictions for any type of offending or seemingly have not come under notice for any further criminal activity since the subject offending.
45 I also accept that given the nature of your mental condition, each of the principles enunciated in R v Verdins (op cit) are enlivened and, in particular, I refer to and accept the evidence of Dr Zimmerman, (in relation to the fifth and sixth limbs of Verdins), that your underlying mental condition will make prison more onerous and indeed, prison may exacerbate such mental condition, given the stressful circumstances which you would be exposed to.
46 However, more particularly, I do accept again, taking into account your mental condition at the time of the offending, it does have a bearing on the kind of sentence that should be imposed. In this respect, I consider that denunciation only plays a very small role in the sentencing matrix and furthermore, general and specific deterrence should be moderated, although not complexly eliminated, when considering an appropriate sentence.
47 I accept your counsel’s submissions in relation to the issue of “delay” and indeed, this has allowed the court to assess your efforts at rehabilitation and your adherence to treatment. As I have pointed out, your adherence to the order made by Judge Bourke has not always been good, but of recent times, and in particular, with the change of medication, there has been an improvement as noted by Dr Preston, your treating psychiatrist, Dr A Yonchev, and indeed, your case manager, Mr Brian Gray (as from 2 October 2017).
48 Of course, your treaters made clear that it is important that you avoid illicit drug ingestion given that there seems to be a relationship between your use of illicit drugs and deterioration in your mental condition.
49 Overall, bearing in mind your commitment to the treatment, I would consider your prospects of rehabilitation to be in the order of bordering on “reasonable”, on the basis that you continue your treatment and avoid the use of illicit drugs.
50 I intend to convict you of both offences, and in relation to the sentence I accept the submissions of both your counsel and counsel for the prosecution that in all the circumstances, an appropriate sentence would be the ordering of a community corrections order with a variety of special conditions. In particular, I am minded to order some community work to reflect just punishment in the circumstances where I have found that general and specific deterrence, although substantially moderated, are not eliminated when considering an appropriate sentence.
51 I am also going to order a condition pursuant to s.48CA of the Sentencing Act 1991, that all the hours satisfactorily undertaken for treatment and rehabilitation are to be counted as hours of unpaid community work, for the purposes of the unpaid community work condition.
52 Essentially, the conditions are designed to assist you in your control and treatment of your underlying mental condition and addressing related issues of illicit drug use and alcohol.
53 As I have already recorded, counsel for the prosecution submitted that there should be an order requiring you to comply with the order made by Judge Bourke which, in the event that there was non-compliance, would give rise to a breach of the community corrections order. Although there is some attraction to such a course, I consider that s.47 of the Sentencing Act 1991 is prescriptive as to the nature and type of conditions that can be ordered pursuant to a community corrections order. I doubt that I can make a condition as suggested by the prosecution.
54 I should also point out that pursuant to s.40 of the Sentencing Act 1991, I consider that the offending constituting Charge 1 on the indictment and the offending constituted by the uplifted summary charge, are offences of the same or similar character, and accordingly the court can make one community corrections order in respect to both those offences.
55 Please be upstanding Mr Pourre.
(a)In relation to Charge 1 on the indictment and the uplifted summary charge, you are convicted of each offence and sentenced to a community corrections order for a period of two years. You must, within two days of this date, attend the Cranbourne CCS at 176 Sladen Street, Cranbourne. In addition to the mandatory conditions, there will be the further following conditions;
(i)Pursuant to s.48E of the Sentencing Act 1991, you are to be supervised, monitored and managed as directed by The Secretary for the Department of Justice and Regulation for the length of the community corrections order;
(ii)Pursuant to s.48C of the Sentencing Act 1991, you are to perform unpaid community work of 120 hours during the currency of such order;
(iii)Pursuant to s.48D(3)(e) of the Sentencing Act 1991, you are to undergo assessment and treatment (including testing), for any mental health conditions;
(iv)Pursuant to s.48D(3)(a) of the Sentencing Act 1991, you are to undergo assessment and treatment (including testing) for drug abuse or dependency;
(v)Pursuant to s.48D(3)(b) of the Sentencing Act 1991, you are to undergo assessment and treatment (including testing) for alcohol abuse or dependency;
(vi)Pursuant to s.48D(3)(f) of the Sentencing Act 1991, you are to undergo any program that addresses factors relating to your offending behaviour;
(vii)Pursuant to s.48CA of the Sentencing Act 1991, the court determines that all of the hours satisfactorily undertaken for treatment and rehabilitation are to be counted as hours of unpaid community work, for the purposes of the unpaid community work condition;
(viii)Pursuant to s.48K of the Sentencing Act 1991, I order that you be judicially monitored and the first judicial monitoring will be on
25 February 2019 at 10.00am;
56 (b) I declare that save for your plea of guilty in relation to the indictable offence, I would have ordered a sentence of eighteen months’ imprisonment.
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57 Mr Pourre, it is a lot for you to take in and no doubt it will be explained to you in more detail what this all means. It means you are not going to gaol, that is the first thing. It means you are being placed on what is called a community corrections order and that is a sentence like any other sentence of the court. There are two parts to if I suppose, one is that you are required to do some community work and that will depend on several things, what your health is like and that will have to be investigated. But more importantly, there are lots of conditions which are made to really assist you.
58 Make sure you control your drug habit, alcohol and particularly your mental health. The reason I have made this order is that you have made, in my view at least, some real progress over the last four or five months and indeed, your treatment seems to be working and there seems to be very much a commitment on your part, the follow up treatment, you keep on going.
59 It is important that you understand, just like any sentence, the conditions which I have made, you must comply with. Just like you are complying now with the other order. You must comply with them because if you do not comply with them, it is almost certain that you will be brought back here for a breach of that order and that means I can do a variety of things at that time, one of which I can say "Well you have had a chance, I am going to send you to gaol now", because what I have to be concerned about also is that if you deteriorated again and did any more violent acts, that is a danger to the community. So I have to be concerned about that, because part of my job is to protect the community.
60 So it is really very much up to you now. You are doing all the right things seemingly right now. You have to keep on doing that and I know you have probably been told this a thousand times, but you must keep away from drugs and alcohol, or excessive alcohol. Drugs in particular seem to have a correlation when you use them, you deteriorate mentally and you end up in hospital. So I am sure you do not want to end up in hospital and I am sure you are sick of going to hospital. But you keep on the straight and narrow and things will probably get better I hope for you.
61 Now through your counsel, you have informed me that you are not pursuing an application for custody of your son or access to your son. If I may say, that is a wise decision probably at this stage. I think you at this stage should concentrate on yourself and get yourself really working well. You have got commitment to your family now, that seems to be working well. So you have got a bit of support around you. So it is really up to you, it really is very important because I might add, the other thing you have to bear in mind, although I have got nothing to do with it directly, the order made by Judge Bourke, if you breach that, that has got real consequences for you. So there is a lot swinging for you. You have to really make a big effort.
62 So, as I say, it will be explained in more detail what the orders involve. But one thing I should say, I have ordered - I have got the power to do - what is called judicial monitoring. Now what that means is that I am going to see you every few months for a while and the first time is that date in February. I think it was 25 February. What happens then, Corrections, who will be supervising you during this order, will send them a report and they will tell me how you are complying with the orders I have made. So it is very much in your interest again to comply with those orders, because if you are not, you might get a slight chance, but it will not be much of a chance, you will be brought back before me for a breach and I will take a very dull view about that, because you are being in one sense given a chance. A chance based on positive things which are happening. But if I see any signs that you are not going along with this order, I think my mood would change very quickly. Do you understand?
63 OFFENDER: Yes, Your Honour.
64 HIS HONOUR: Yes. Anything arising out of all of this counsel?
65 MR NEWTON: No, Your Honour.
66 MS BURNETT: No, Your Honour.
67 HIS HONOUR: Yes very well, I will adjourn temporarily. I will be just at the back.
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