Director of Public Prosecutions v Prior

[2022] VCC 1878

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION  CR-21-01729

DIRECTOR OF PUBLIC PROSECUTIONS

v

PAUL PRIOR

---

JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	9 August, 27 October 2022
DATE OF SENTENCE:	3 November 2022
CASE MAY BE CITED AS:	DPP v Prior
MEDIUM NEUTRAL CITATION:	[2022] VCC 1878

REASONS FOR SENTENCE

Subject: Criminal law - sentence

Catchwords: Pleas of guilty to one charge of causing injury recklessly (emergency worker on duty), two charges of resist police, one charge each of threat to kill, threat to inflict serious injury, criminal damage, contravention of safety notice and committing indictable offence while on bail – whether accused had mental impairment at the time of offending and/or at time of sentence   

Legislation Cited: Sentencing Act 1991, ss 5(2G),10A, 10AA

Cases Cited: DPP v Darley[2022] VCC 791

Sentence:                  6 months imprisonment

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr Buckland 9 August; Mr J O’Toole 27 October & for sentence	OPP
For the Accused	Mr Nicolosi	Bowler & Co

HER HONOUR:

1Paul Prior you have pleaded guilty to a series of charges arising out of one incident beginning on 7 March 2021 and extending into the early hours of the next day.

2The charges are recklessly causing injury, resisting a police officer
(2 charges), making a threat to kill, making a threat to inflict serious injury, criminal damage and contravening a family violence safety notice intending to cause harm or fear.

3You have also pleaded guilty to one summary charge of committing an indictable offence while on bail, namely damaging property.

4During the evening of 7 March your partner was at a McDonald's drive through with her two children in the car.  An incident occurred between you and her and the police were called.  When they arrived, she told them of the altercation and said she did not know where you were.

5Police found you in the car park and after a discussion with you they said they would take you to the police station for the issuing of a family violence safety notice.

6You were initially compliant, and the police walked you to the divisional van.  Constable Benjamin Farrugia told you that you would be handcuffed before being put in the van.  You became argumentative, stating that you did not need to be handcuffed as you were not resisting. 

7The handcuffs were placed on you and you were also told that your belt and necklace would be removed as they could be a custody risk while you were in the van.  You became aggressive and said you would resist if police removed the necklace.

8Constable Phillips restrained you while Constable Farrugia removed the necklace.  Constable Farrugia then began a pat down search.  During the search you yelled at your partner and tried actively to disrupt the search.

9You yelled at her, '”I'll kill you, cunt'.  That is Charge 4, making a threat to kill.

10Police removed you into the rear of the van as your behaviour was escalating.  You began kicking Constable Farrugia and trying to flee.  Constables Farrugia and Phillips used physical force to restrain you and Constable Hoppeler came to assist.  Those are Charges 2 and 3, resisting a police officer.

11As Constable Hoppeler approached, you kicked him in the hand and lower arm causing bruising.  He used his baton to strike your legs to stop you kicking, and Constable Farrugia used OC spray to subdue you.

12While you were briefly subdued, Constable Farrugia put his arm out to push you back into the van.  You bit him on the right forearm, causing bruising and bleeding.  He later required a stitch to the wound as well as antibiotics.  That is Charge 1, causing injury recklessly.

13You were eventually secured in the van and taken to the police station where you were charged with assaulting police.  You were bailed to attend court.

14At 12.25 am on 8 March police issued and served a family violence safety notice as a result of the altercation between you and your partner the previous evening.  She and the children were listed as protected persons.  You were prohibited from contacting them and from committing family violence against them, from going to their home and from being within 5 metres of them.

15At 1.37 am that morning, straight after you had been served with the notice, you went to the house where the family lived and entered it.  That is Charge 7, contravening a family violence safety notice.

16Your partner found you in your underwear after having been sprayed with OC, getting clothes from a wardrobe.  She told you to get out, but you refused saying you needed clothes.  A friend of hers was at the house and she left and rang the police.

17Despite being told to go several times you refused and told your partner it was her fault.  She called your mother and you insisted on speaking to her and you told your mother she was not allowed to speak to her ever again.  You then threatened to stab her with the scissors you were holding, and you shut yourself in the bathroom.  That is Charge 5, making a threat to cause serious injury.

18Your partner remained outside the door and could hear banging and crashing.  She opened the door and saw you stabbing her Xbox and desktop computer monitor with the scissors whilst yelling, 'This is what you get'. You also stabbed her laptop and cut up a shoe.  Those matters are Charge 6, criminal damage.

19You lay down on a bed with the scissors still in your hand.  Your mother arrived and she was able to remove two pairs of scissors from you. 

20Police arrived, including the Critical Incident Response Team.  You were arrested and carried from the bedroom and taken to the police station. 

21At the time of the offending during the night you were on bail from the previous evening, so you were charged with committing an indictable offence while on bail.  That is summary Charge 7.

22You appeared in the Magistrates' Court that day and were bailed again to appear at a later date.  You were not interviewed that night because of the risk you posed to police members.

Sentencing consequences

23This was a very unfortunate and serious episode involving injury to a police officer carrying out his duties, and creating fear in your partner, as well as damaging her property.  In addition to that, the two children were present at the car park and of course at home as well.

24Because of the assault on the police officer the legislation requires me to imprison you for at least six months unless any of the exceptions apply that are listed in the legislation. 

25When I heard the plea on 9 August, I was concerned that the material in Dr Cunningham's report did not adequately address a key issue: whether you had a mental impairment at the time and whether you still have a mental impairment.  Accordingly, the plea was adjourned to a later date in order to arrange for a supplementary report from Dr Cunningham.

26He supplied an addendum report dated 19 October 2022 at the request of your solicitors.  I shall refer to these reports later in these remarks as it is convenient first to consider the legislative provisions in a case such as this.

The legislation – mandatory sentencing provisions

27The maximum penalties are five years' imprisonment for Charges 1, 2, 3, 5 and 7.  Ten years for Charges 4 and 6 and three months for the summary charge.

28Charge 1 is a category 1 offence, meaning that because the victim was an emergency worker on duty, which you knew, then s5(2G) of the Sentencing Act 1991 requires me to impose a custodial sentence of at least six months. There cannot be a term of imprisonment combined with a Community Correction Order. The exception is if a special reason exists under s10AA(4) and s10A and that was the initial submission made on your behalf by Mr Nicolosi.

29The defence submission was, put briefly, that you were suffering from a mental impairment at the time of the offending.  I note here that s10A(2A) negates this as a special reason if the impaired mental functioning was caused substantially by self-induced intoxication.  A similar provision also occurs in s5(2GC) to qualify the basis for imposing a Community Correction Order.

Dr Cunningham’s report dated 4 August 2022

30Dr Cunningham set out in his first report dated 4 August the details of your background.  You are now 31 and you were the third of six children.  Your father was a violent alcoholic who left the family at your mother's insistence after a physical attack on your brother, whom your father considered to be homosexual.     As a 12-year-old you witnessed this attack.  You told Dr Cunningham that your brother suffered from schizophrenia and had attempted suicide.

31Your mother re-partnered with Ronald Zarth and you got on well with him as your stepfather.  He is a youth worker with Jesuit Social Services and although he and your mother are no longer together, he has supported you and you have been living with him recently.  You have now developed a very close relationship.

32Your relationship with your partner commenced about five years ago and together you have a two-year-old daughter and a newborn.  Her eight-year-old son from her previous relationship also lives with the family.  You all lived together until the night of the incident and although you lived separately thereafter until quite recently, you have tried to strengthen your relationship.

33After completing Year 9 at a mainstream high school you were expelled, and then went to Lynell Hall Community School where you completed Year 11.

34After leaving school you qualified as a brick and block layer and worked in that field for seven years.  Finding aspects of this work unsatisfactory, you moved to factory work and achieved qualifications in plant operation.  Your plan is to work in the construction industry although you have been unemployed since November last year owing to stress and anxiety, relating to these court proceedings.

35You began using alcohol and cannabis at the age of 14 and methylamphetamine from age 18 until 25.  You ceased that by going cold turkey in order to improve your life.  You ceased drinking alcohol on 7 March 2021, the night of the offending, but you still use cannabis intermittently.

36You told Dr Cunningham that you used alcohol to mask your feelings and emotions.  Tests performed by Dr Cunningham produced results indicating “elevations” on Avoidant, Melancholic, Schizotypal and Borderline Personality patterns indicating a fractured and unstable personality profile.

37There were clinical indications of Generalised Anxiety Disorder, Somatic Symptoms, Persistent Depression, drug use, Post-traumatic Stress, Schizophrenic Spectrum and Major Depression.

38(Short adjournment.)

39HER HONOUR:  My apologies for that interruption.  If it occurs again, you will understand, I am sure, but I hope not.

40Dr Cunningham said that all these clinical results reflect a general impairment in emotional regulation and sense of self.  He opined that these impairments can be explained by your responses on the Autism Spectrum criteria, in other words, the possibility that Autism Spectrum Disorder contributed to your scores in the tests[1].  However, in his addendum report Dr Cunningham stated that there was insufficient evidence for a formal diagnosis of Autism Spectrum Disorder.

[1] Report of Dr Aaron Cunningham dated 4/8/22 para 3.0

41In his summary, Dr Cunningham said that the results of your mental state assessment indicated trauma from childhood and significant impairment in emotional regulation. 

42He said your alcohol abuse that night resulted in significant disinhibition of your underlying trauma, and it was the main precipitator of your offending behaviour.  But he added that unresolved trauma and suppressed emotions were the main contributions to the offending being violent in nature.  He said that outbursts of anger are commonly cited symptoms of trauma[2].

[2] Ibid par 6.0

43The history you gave Dr Cunningham as further background to the test results included your struggle over many years with depression and anxiety, with a suicide attempt as a teenager.

44You have become angry and ashamed over your awareness of your bisexuality and have self-harmed as a result as a response to feeling sexually attracted to men.  Recently you completed 15 sessions of counselling under a mental health plan and also a men's behaviour change program for LGBTQ people.  You said that as a result you felt less angry.

45You told Dr Cunningham that at the time of the offence you had seen a man at the pub whom you found sexually attractive, but because you were with work colleagues you could not self-harm to deal with your shame as you otherwise might have.  Instead, you drank heavily in order to numb your thoughts and feelings. 

46You did not recall being angry at the McDonald's drive-through that night, but you were told later that you had been “babbling” about your father.  You also did not recall fighting the police.

47You told Dr Cunningham that you walked home in your underwear as your clothes were drenched with OC spray and you became increasingly angry at that point.  You had not realised you could not return home and you recalled smashing the Xbox and going to bed.

48You said you were now disgusted with your behaviour and wanted to take responsibility for it without blaming alcohol.  You said you were truly sorry for your partner and the children and said that you had turned out to be like your father.

Impaired mental functioning at time of sentence

49Section 10A(ii)(c) requires the offender to establish that he has impaired mental functioning that would result in him being subject to substantially and materially greater burdens or risks than a person not so affected.  Dr Cunningham's opinion about this was limited in his report to your emotional vulnerability and bisexuality, resulting in you being more vulnerable in a prison environment falling short of impaired mental functioning, as required by the section.

Conclusion

50In his second report as I said earlier, Dr Cunningham stated that there was insufficient evidence for a formal diagnosis of Autism Spectrum Disorder.  He confirmed the other opinions he had formed and explained in his first report. 

51Therefore, as alcohol was the chief cause of your disinhibited behaviour leading to the offending, and in the absence of a formal diagnosis of mental impairment, there is no impaired mental functioning that would establish a special reason and enable a mandatory prison sentence to be avoided.  This was conceded by Mr Nicolosi on your behalf at the further plea hearing on 27 October.

Mitigating factors

52As I explained earlier, Dr Cunningham diagnosed a fractured and unstable personality profile as well as clinical indications of a large number of mental health disorders.  I accept that these disorders will make prison more difficult for you than for those who do not suffer in the same way, and I take that into account in sentencing you.

53It is sad that your vulnerability led you to use alcohol to mask your feelings, as you were not in an environment where you could resort to self-harm to deal with them.

54Soon afterwards you engaged with counselling and were able to stop drinking.  A report from CISP described you as genuinely motivated, expressing remorse and having developed insight into factors that may have contributed to the offending.  Your engagement in the program was considered to be above average.

55Your criminal history is limited to two instances of offending that are unfortunately similar to this offending, that is assault on police in 2011 and 2016, both resulting in non-conviction dispositions.  In fact, one appears to have been a diversion hearing requiring you to write a letter of apology to the police.

56There are some protective factors in your favour, that is the support of your parents and your partner who was in court for the final hearing, and the fact that you are helping to bring up your own two small children and a third child from an earlier relationship of your partner's.

57You have demonstrated in the past an ability to find work and remain employed.  Your prospects for rehabilitation are reasonably positive.

58You will be serving your sentence at a time when the COVID-19 pandemic is continuing and prisoners are still subject to possible restrictions, although perhaps less than previously.  Outbreaks of infection have occurred in prisons and so this will still be a cause of anxiety for prisoners.  That is a matter to be taken into account, according to authority in this regard.

59Your plea of guilty means you are entitled to a discount on your sentence for having avoided a trial and importantly for having spared the victims from having to give evidence and be cross-examined.

60At a time when the courts are still dealing with a large backlog of cases due to the pandemic, a plea has additional value to the criminal justice system.  In your case, I also accept it as an indication of remorse.

61The sentences I will impose reflect the important need for general deterrence.  Police are entitled to carry out their often very onerous duties free from violence inflicted by persons drunk or otherwise. 

62Violence against a partner is to be abhorred, not only for the offence and hurt caused but also because of the risks inherent in expressions and threats of intended violence, whether actually perpetrated or not.

63I understand you regret your behaviour and have some insight into what triggered it, which may help you to prevent it from happening again.

Sentence

64I sentence you as follows.  Would you stand now please.

65For Charge 1, causing injury recklessly, six months' imprisonment. This charge, as I said before, is a category 1 offence as the victim was an emergency worker on duty and so the sentence of six months is mandatory.

66For each of Charges 2, 3 and 5, two months' imprisonment.

67For each of Charges 4 and 7, three months.

68For Charge 6, one month.

69For the summary Charge No.7, one month.

70Each of the sentences for Charges 2 to 7 inclusive, and the sentence for the summary charge, are to be served concurrently.  This results in a total effective sentence of six months.

71Under 6AAA if you had pleaded not guilty, I would have sentenced you to 10 months' imprisonment.

72MR O'TOOLE:  As the court pleases.

73HER HONOUR:  Are there any other matters that I have neglected?

74MR O'TOOLE:  No, no, Your Honour.

75HER HONOUR:  Mr Nicolosi?

76MR NICOLOSI:  No, Your Honour.  I am just wondering whether Your Honour, there needs to be some, just some custody management issues.

77HER HONOUR:  Yes, there are.  Thank you for raising that, Mr Nicolosi.

78MR NICOLOSI:  Thank you, Your Honour.

79HER HONOUR:  What I intended to include on the gaol order were possibly the following: risk of self-harm, and just to be on the safe side, suicide risk seeing that has occurred in the past, vulnerability for those reasons, and that it is his first time in custody, is it not?

80MR NICOLOSI:  It is, that's right, yes.

81HER HONOUR:  Another direction that perhaps goes along with those others would be protection from other prisoners, just in case that is warranted.

82MR NICOLOSI:  Thank you, Your Honour.

83HER HONOUR:  Anything else?

84MR NICOLOSI:  No, Your Honour.

85HER HONOUR:  All right.

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