Director of Public Prosecutions v Powell (a pseudonym)

[2020] VCC 118

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARCUS POWELL (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE DOYLE
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	19 February 2020
CASE MAY BE CITED AS:	DPP v Powell (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2020] VCC 118

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Malik	Office of Public Prosecutions
For the Accused	Mr I. Crisp

HIS HONOUR:

1Marcus Powell[1], you have pleaded guilty to one charge of making a threat to kill and one charge of intentionally causing injury.

[1] “Marcus Powell” is a pseudonym

2The maximum penalties are as follows: make threat to kill, 10 years' imprisonment; intentionally causing injury, 10 years' imprisonment.

3You have also pleaded guilty to one summary charge of resisting an emergency worker on duty, for which the maximum penalty is six months' imprisonment.

Facts

4The facts of this matter are set out in the prosecution opening on the plea, which was tendered as Exhibit 1.

5The victim in this matter is your wife, Kellie Leonard[2].  She was aged 43 at the time of the offences. The two of you were married in 2009.  The relationship had been troubled for some time, particularly over the two years leading up to this offending.  You had been prosecuted in 2016 for an assault and a threat to kill against her, which had some disturbing similarities to the facts in this matter.

[2] “Kellie Leonard” is a pseudonym

6In the six months leading up to the offending in this case you had not been living fulltime with your wife and children and had been staying with your parents when you were not at home.

7You and Ms Leonard have two children together, Jeremy[3] and Tyler[4], aged six and seven at the time of the offending.  Two days before the offending you,

[3] “Jeremy” is a pseudonym

[4] “Tyler” is a pseudonym

the victim, and both of your sons had returned from a family holiday. She says that after they got back from the family holiday, you were agitated and angry.

8On the evening before the offending you and the victim were having a conversation in the kitchen at your house.  You took a piece of paper and pen and drew a circle with lines on the outside, and you started writing down people's names, including the name of Ms Leonard and your two sons.  You also wrote the words 'God' and 'Heaven' on the piece of paper and said to Ms Leonard, 'See this, this is where we are all going to, you're messing with the wrong person'.

9On the morning of Friday, 22 March 2019, the victim got out of bed to get Jeremy and Tyler ready for school.  You got out of bed 10 minutes later and argued with her about whether the boys would go to school that day.  You then grabbed her by the ponytail and threw her to the ground towards the couch.  Both Jeremy and Tyler were near the front door and could see you assaulting her.  The victim was on the ground with her back against the couch.  You came and sat on her stomach and legs, you then punched her to the head and the face with both fists.  You said to her,

'I'm going to kill you, what you did to me.  You put a restraining order on me and you called the cops.  I'm going to do to you what I did to my ex-girlfriend and I'll leave you black and blue.  God, I did it to Tessa[5], but you're going to cop it.  You're not going to survive'.

[5] “Tessa” is a pseudonym

10You were yelling and screaming when you said these things. This is the basis for Charge 1, threat to kill.

11The victim told Jeremy to go to the neighbours and contact police saying, 'Mummy needs help, Mummy's dying'. At the same time, you said to your son, 'Jeremy, don't do it.  Daddy loves you or else Mummy's going to cop it more'.

12You continued to punch the victim to the face and the head.  She tried to block the punches by using her hands and arms to cover her face.  You were yelling at her, bringing up things from the past.  You continued to threaten her saying you would punish her, that you would bite off her eyeballs, ears and nose, that you would slash her throat, that you would get a lighter and burn down the house and that you would finish her off.

13At one point she lifted herself onto the couch.  You got on top of her and told her not to move.  She tried to stop the assault by suggesting you and she should make love.  This made you angrier.  You continued to punch and choke her with both hands around her neck.

14At around 8.44 am, Jeremy managed to call the police.  He asked them to come to the home address, telling police that his mother was on the floor and his dad was on top of her.

15Acting Sergeant Brad Hobbs, Senior Constable Sasha Marcovski, First Constable Carmel Brew and Senior Constable Natasha Brown arrived in response at 8.54 am.  They could hear yelling and screaming from inside the premises.  All police members entered and saw you and the victim on the couch.  You were on top of the victim holding her arms above her head and strangling her.

16Ms Leonard says in her police statement that you assaulted her from about 8.35 am until the police arrived, a time period of between 20 minutes and half an hour.  She also says that she felt as though she was about to lose consciousness.  She was weak and she could not yell anymore.

17First Constable Brew told you to get off the victim, but you did not respond.  You lay on your stomach, on the floor, resisting attempts by police to arrest you by interlocking your arms under your stomach.  You were sprayed with capsicum spray, but it had little effect on you.  Eventually, you were handcuffed and placed into the rear of the police divisional van.  This conduct is the basis of the summary offence of resist emergency services worker.

18Ms Leonard was taken to the Royal Melbourne Hospital as a result of the injuries she sustained during the assault.  Her face was visibly swollen, she had black and purple bruises around her eyes, dark purple bruising to both cheeks and nose, redness around her wrists, a minor cut to her elbow, as well as bruising and an abrasion to her neck.  A number of photographs were tendered which graphically illustrate the injuries she received.

19You were taken to a hospital where you were held under the Mental Health Act. You were subsequently taken to an Adult Psychiatric Unit where you were held as an involuntary patient until 1 April 2019, when you were discharged.  Your psychiatric condition is an important mitigating feature in this matter.

20On 1 April 2019, you were arrested and taken to a local police station.  You were assessed as being unfit for interview.

Guilty Plea

21You pleaded guilty at the second committal case conference in this matter, which was effectively the earliest opportunity.  Your plea has spared the witnesses, in particular your wife and children, the trauma of having to give evidence about this matter. The utilitarian value of your plea of guilty is high.  I accept your plea is also indicative of remorse, although this concept is necessarily complicated by your psychiatric condition.

Prior Conviction

22Mr Powell, your previous appearance in court is highly relevant to my sentencing task.  In 2016 you received a 15-month community correction order for similar, but less serious offending against your wife.  This offending took place in 2015.  I am told your psychiatric issues contributed to this offending.

23However, I note that the community correction order did not include a condition relating to mental health treatment.  It is unclear why such a condition was not imposed.  This previous episode is relevant to the sentencing principles of specific deterrence, community protection and to my assessment of your prospects of rehabilitation.

Psychiatric Evidence & Verdins Principles

24Your psychiatric condition at the time of the offending was the central matter relied upon by Mr Crisp in mitigation of your offending.  There are various pieces of evidence about your mental state, to which Mr Crisp referred.

25Firstly, Ms Leonard, in her police statement, gave a description of your behaviour leading up to and at the time of these offences, consistent with a diminished mental state.  She also spoke of other occasions where you have had psychiatric episodes and become highly aggressive towards her, resulting in therapeutic intervention.

26Mr Crisp referred to the discharge summary of Northwest Mental Health as a relevant assessment and diagnosis of your mental health at the time of the offending.  Your condition was described in the following way:

'At the time of review in ED [Emergency Department] patient was aggressive, agitated, incoherent and acutely psychotic, expressing themes of angels and demons, and deemed to be of high risk of harm to others'.

27This report says that you had to be mechanically restrained and placed in seclusion for two days.  You were assessed as suitable to leave seclusion on 25 March 2019 to return to the general ward, given improvements in your mental state.

28The report says this:

'Mr Powell has a background of BPAD [bipolar affective disorder]/ SAD since 2011.  Has not been taking any medications.  He is known to Northern Health.  Impression, his manic episode with psychotic features in context are Bipolar Affective Disorder and psychosocial stressors'.

29Mr Crisp said on your plea you were not taking your medication for a period of 12 months prior to the offending.

30Mr Crisp tendered a report from Dr Danny Sullivan dated 2 July 2019.  Dealing with your mental state at the time of the offending Dr Sullivan said that:

'The psychiatric episode at the time of offending is likely to have commenced in the weeks prior to the offences and the episode is consistent with a bipolar affective disorder, manic episode with psychotic features'.

31He went onto say that this condition is in substantial remission with appropriate medical treatment.  He notes that bipolar affective disorder is a relapsing and remitting condition.  He notes that you have managed years between episodes of mental ill health, although the most recent episode was only two years prior to the offending in this case.

32As to the causal nexus between your psychiatric condition and the offending
Dr Sullivan said:

'The effect of a manic episode was to disinhibit him.  That is to unleash aggressive behaviours which are uncharacteristic for Mr Powell.  It impaired his capacity to think clearly and make calm and rational choices.  It reduced his capacity to exercise sound judgement.  If he was able to appreciate the wrongfulness of his conduct it was only in a basic fashion'.

33In relation to the management of your illness, so as to prevent further offending, he said:

'Mr Powell requires ongoing mental health input.  He needs to continue medication.  This has apparently not occurred previously and likely relates to the limited powers to compel medication under the Mental Health Act 2014, and the severely limited resources of public mental health services to provide continuing care when patients recover. In my opinion, he is best maintained on both long acting injectable and oral medication and under the ongoing care of public mental health service. This would most effectively prevent further episodes of aggression associated with bipolar affective disorder'.

34I accept Dr Sullivan’s view that your prospects of rehabilitation hinge on the ongoing management of your mental health in the way he has suggested.

35Dr Sullivan further offered the view that treatment through a mental health service is warranted as a condition of parole.

36Dr Sullivan said that incarceration will weigh more heavily upon you due to your mental illness because you are on heavy medication and if you desist from the medication you are likely to become embroiled in altercations with other prisoners and then become an escalated risk of harm to yourself and others.

37Mr Crisp submitted that the principles enunciated in Verdins[6] are applicable in your case.  The prosecutor, Mr Malik, agreed that the Verdins principles applied to this case, but argued that I should have regard to your decision to cease taking medication in assessing the extent to which the sentence is moderated by reason of the application of those principles.

[6]R v Verdins (2007) 16 VR 269

38I accept that your moral culpability is significantly reduced by reason of your mental state and that at the time of the offending you were only able to appreciate the wrongfulness of your conduct in a basic fashion.  Accordingly, denunciation is less relevant in this matter.

39I have considerably moderated general deterrence as a sentencing objective in your case and I have taken into account the increased burden of incarceration on you because of your psychiatric condition.

40However, I am told that you have previously offended against your wife in a similar but less serious fashion when off your medication.  I have taken this matter into account in the application of the Verdins principles, particularly the extent to which specific deterrence is moderated. However, I note Dr Sullivan's view concerning the impact of the limited resources of public mental health services to provide continuing care when patients are in recovery and that you require ongoing care from a public mental health service. It does not seem that such care was in place to reinforce to you the necessity to take your medication.  It is difficult, given the paucity of evidence about your level of insight into your illness and its effects, to draw any firm conclusions about this issue.

Victim Impact

41I turn now to victim impact. Ms Leonard provided a victim impact statement, as did your sons, Tyler and Jeremy.  Ms Leonard describes her life since the incident as dominated by fear.  She describes feeling a loss of safety, familiarity and stability in her life, and emotional and psychological despair.

42She says her trust in people, particularly people of the opposite sex, has been permanently compromised.  She has grave concerns about her safety, describing your unpredictability as causing a life of fear and looking over her shoulder.

43She says your eldest son, Jeremy, is deeply traumatised by what he witnessed, that he now suffers poor concentration and has shown signs of regression in his development.  He has been diagnosed with post-traumatic stress disorder from witnessing the assault.

44Ms Leonard says Tyler has also been diagnosed with post-traumatic stress disorder from witnessing the assault. She fears for the anger and confusion she sees building up in him.

45In your son Jeremy's victim impact statement he describes being scared and frightened at the possibility of you being let out of prison and coming back to kill his mum.  Tyler says he thought he was not going to have his mum anymore.

46The impact of your criminal conduct on the victims in this case has been substantial.  This is not surprising, given the very serious nature of the offending.  It is not difficult to understand that your behaviour would have terrified your wife and your two sons and caused each of them ongoing psychological problems.

Objective Gravity of the offences

47Mr Powell, your offending was extremely serious.  The attack against your wife was prolonged and brutal and the threat to kill her, which preceded the assault, all the more sinister for what happened immediately after.  These were serious examples of the offences of threat to kill and intentionally causing injury.  Both of which carry maximum penalties of 10 years' imprisonment.

48Your conduct was domestic violence which took place in front of your two sons, both under the age of 10.  The assault involved numerous punches to the face of your wife, and you strangled her to the point where she felt as though she was about to pass out and her life was in danger.  This was a terrifying experience for both your wife and children.  No doubt it will stay with them for the rest of their lives.  The assault only ended when police arrived and found you with your hands around your wife's throat.  But for your psychiatric state your offending would require a very substantial sentence to give effect to the sentencing principles of general and specific deterrence, community protection and denunciation.

Personal Circumstances

49You are now aged 46.  Your parents are of Italian background and lived in Italy before the migrated to Australia.  You were born in Melbourne and grew up in Melbourne’s north-west.

50You went to two different high schools, leaving after Year 10.  You started an electrical apprenticeship.  You eventually lost this job due to difficulties with depression.

51Your main area of work has been in pizza restaurants, a job you learnt when you were still a teenager.  With the financial assistance of your parents you ran your own pizza restaurants.  A couple of these businesses failed, and you had to close them down.

52You had a couple of significant relationships before you partnered with
Ms Leonard and you have a 17-year-old son from one of those earlier relationships.

53Your father died in mid-2019 from pancreatic cancer.  You continue to have a close relationship with your mother and sister.  You have family support.

Sentencing Submissions

54Mr Crisp submitted that a period of extended supervision was appropriate in your case.  He submitted this could either be achieved by the imposition of a community correction order, as part of a combination sentence, or through a period of parole.  He submitted there should be a substantial gap between the head sentence and the non-parole period in this case.

Sentencing Principles

55I turn to sentencing principles. The purposes for which a court may impose sentence are just punishment; deterrence, both specific and general; rehabilitation and denunciation of your actions and the protection of the community.  In sentencing you I must have regard to a range of factors, such as the seriousness of your offending, your culpability for it and your personal circumstances.

56Mr Powell, because of the findings I have made in relation to your psychiatric condition at the time of the offending and its contribution to the offences, I have moderated the application of general deterrence and I have taken into account that your moral culpability is significantly reduced by reason of your psychiatric condition.

57I must also have regard to considerations of specific deterrence and community protection, both of which have application in this case.

58I must also seek to ensure as far as possible that you, as an offender, are rehabilitated and reintegrated into society.

59In my view, the objectives of community protection and rehabilitation are accommodated by an extended period of parole where you receive close supervision and treatment for your psychiatric condition.  In coming to this view, I have had regard to the report of Dr Sullivan and his opinions regarding the best form of treatment for your mental health.

60I therefore accept the submission of Mr Crisp that there should be a substantial gap between the head sentence and the non-parole period.

Sentence

61Mr Powell, as best as I can I have balanced the competing sentencing considerations applicable to this serious offending.

62Would you please stand.

63On the charge of making a threat to kill, you are sentenced to a period of imprisonment of 12 months.

64On the charge of intentionally causing injury, you are sentenced to a period of imprisonment of two years and four months.

65On the summary offence of resist emergency services worker, you are sentenced to one months' imprisonment.

66I order that six months of the sentence on Charge 1 is cumulative on the sentence for Charge 2.  The total effective sentence is therefore 34 months.

67In this matter I fix a minimum non-parole period of 17 months.

68Pursuant to s.18 (4) of the Sentencing Act, I declare that you have served 324 days of the sentence I have passed on you and I direct that this be entered into the records of the court.

69Pursuant to s.6AAA of the Sentencing Act the total effective sentence that would have been imposed but for the plea of guilty is four years, with a non-parole period of two years and 10 months.

70Now is the maths right?

71MR MALIK:  Yes.

72HIS HONOUR:  Yes, 34 months. There's a minimum non-parole period of seventeen months.  And is the pre-sentence detention correct?  Mr Malik?

73MR MALIK:  Yes, that sounds right, Your Honour, thank you.

74HIS HONOUR:  All right and are there any other orders that I was supposed to make in this matter?

75MR MALIK:  No further orders, thank you, Your Honour.

76HIS HONOUR:  All right.  Mr Powell can be removed, thank you.

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