Director of Public Prosecutions v Rabot

[2023] VCC 1149

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-01301

DIRECTOR OF PUBLIC PROSECUTIONS

v

GERARD MICHAEL RABOT

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JUDGE:	HER HONOUR JUDGE HOGAN
WHERE HELD:	Melbourne
DATE OF HEARING:	18, 19 and 23 January, 8 February and 29 June 2023
DATE OF SENTENCE:	6 June 2023
CASE MAY BE CITED AS:	DPP v Rabot
MEDIUM NEUTRAL CITATION:	[2023] VCC 1149

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              One charge of aggravated burglary, one charge of causing injury intentionally and one charge of make threat to kill – offender is 50 years old – son-in-law of 87 year old victim – grievance based offending – offender had significant mental health history – early plea of guilt, offender has ongoing psychiatric and physical issues of some magnitude

Legislation Cited:      Sentencing Act 1991

Cases Cited:R v Verdins (2007) 16 VR 269; R v Buckley ; R v Vo (2007) 16 VR 269; Bugmy v R (2013) 249 CLR 571; Worboyes v R [2021] VSCA 169

Sentence:                  Offender convicted and sentenced to an aggregate sentence of 10 months imprisonment, in combination with a Community Correction Order for a period of 3 years

S6AAA: 4 years imprisonment with a non-parole period of 3 years imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms V Worrell	Solicitor for the Office of Public Prosecutions
For the Accused	Mr Ian Polak and Ms K Ballard	Victoria Legal Aid Doogue & George Defence Lawyers

HER HONOUR:

1Gerard Michael Rabot, you have pleaded guilty to one charge of aggravated burglary which carries a maximum penalty of 25 years’ imprisonment, one charge of causing injury intentionally which carries a maximum penalty of 10 years’ imprisonment and one charge of making a threat to kill which carries a maximum penalty of 10 years’ imprisonment.

2The circumstances of your offending are detailed in the Summary of Prosecution Opening for Plea.[1]  The background to the offending is that you and your wife, Dianne, had separated in or about November 2021 after 29 years of marriage.  On 12 February 2022, you posted the following message on Facebook:

“Well today would be 29 years but we didn’t make it.  Such is life.  But will still will wear the ring till I die.  2 kids and a fantastic life experience.  Today the next chapter will start as one closes.  Today I was hoping for a different result but it didn’t occur. One finger over sadly”

[1]Exhibit “A”

3The father of your wife, who was aged 87 years, saw your post on Facebook and responded to it as follows:

“Don’t know if this is the platform for comments like this Gerard considering the other party is not on FB to defend themselves as far as I am aware..i don’t know but I have always been aware there are two sides to any story…no further comment from me.”

4You then sent three abusive messages to your wife’s father.  He did not respond to them.  At approximately 8:30am on the following day, 13 February 2022, you went to your wife’s house and showed her the Facebook message which had been posted by her father and asked her if there was anything wrong with it, to which she replied “No”.  You then told her, “I'm going to bash your dad”, to which she replied, “No, you’re not.”  You left your wife’s house and, at approximately 10:00am, went to the home of her father. 

5Upon arrival at your father-in-law’s home you rang the doorbell and knocked loudly on the front door twice.  Your father-in-law was in bed and quickly got up to answer the door, yelling “Coming.”  He unlocked the door and you then violently forced the front door open, pushed him away from the door and grabbed him in a firm hold with your left hand around his throat as you forced him towards the living room.  This is the conduct comprising Charge 1, aggravated burglary. 

6As you were forcing your victim towards the living room, with your right hand, you were punching the left side of his face with a clenched fist.  You then released your grip, causing your victim to stumble and fall backwards hitting a computer desk and forcing his glasses to fall off.  You then fell upon him with your right knee going into his chest.  On the ground, you pressed your left forearm against your victim’s throat, while you used your right hand to firmly pin his left shoulder to the floor.  You were yelling at him whilst he was pleading with you to stop as he was struggling to speak and breathe.  This is the conduct comprising Charge 2, intentionally causing injury.

7You threatened your victim, “Don’t tell anyone about this or I will kill you.  If you tell anyone I’ll come back and finish the job.”  This is the conduct comprising Charge 3, making threat to kill.  You continued to mouth the words, “Don’t tell anyone” as you got up and left the house through the open front door. 

8Your victim lay on the floor in pain and saw that there was blood.  He called his son and asked him not to tell anyone due to the threat that you had made.  His son then came over to his home and contacted police.

9At approximately 11:00am police and ambulance attended and your victim was taken to Frankston Hospital by ambulance.  He was found to have sustained a small left tentorial subdural hematoma and four fractured left anterior ribs and was suffering significant pain which required heavy medication.  He remained in hospital for two days, but due to complications was re-admitted on 22 February 2022 suffering from severe pain from bladder retention, as a result of which he required a catheter for six weeks. 

10At 11:14am you called your wife and told her that she had better call her father as you thought you had killed him and had broken your hand.  You drove to the house of a friend, who noticed blood on your right hand and asked you what you had done.  You told your friend that you had had a fight with your father-in-law and had done something wrong.  You stated that you had “Belted him pretty hard”.  Your friend said you needed to tell someone so they could go and check on your father-in-law.  You suggested that you and your friend should go to the Amstel Golf Club.  Your friend suggested that you should drive past your father-in-law’s house to check on him.  The two of you drove past, but did not get out of the car to check on him, and then drove to the Amstel Golf Club where you remained for approximately an hour.

11At 12:45pm police attended the address of your brother where you had been living.  Your brother telephoned you, but you refused to return home.  At 12:57pm you called your wife, stating that it must have been her that had given police your address and that “We’re done, we’re done, we’re definitely done” and then something to the effect of “You’ll find out tomorrow.”

12At 1:05pm police communications received a job relating to a male who was sitting on the outside of the guard rail of the Bungower Road overpass of the Peninsular Link.  At 1:40pm police attended and confirmed that it was you.  You were arrested and transported to Frankston Hospital suffering from a high heart rate.  The following day you were examined by a forensic medical officer at approximately 9:25am and found to be unfit for interview.  You remained in custody until granted bail on 13 July 2022.

13Unhappily, your plea hearing has had a protracted history.  It was initially before me on 18 January 2023, at which time I had difficulty obtaining any clear idea about your mental health history from your then legal representative. A report from your treating psychologist, Dr Eve Bottrill, dated 13 January 2023, which was tendered, was confusing in regard to a number of matters.[2]  I adjourned the matter overnight hoping for clarification. You then terminated the retainer of both your instructing solicitor and counsel.  You had taken steps to obtain further legal representation and the matter was mentioned before me on 23 January 2023 and on 8 February 2023 a further adjournment was sought by your new legal representatives.  Ultimately, the matter proceeded to a plea hearing on 29 June 2023 with Ms Ballard appearing as your counsel. 

[2]Exhibit “2”

14You are currently aged 51 years having been born in March 1972.  You come before the court with a limited criminal history.  On 12 January 2016 you appeared before the Adelaide Magistrates’ Court on one charge of “common assault (basic offence)”.  This apparently involved a dispute with a taxi driver during which you had thrown some coins at him.  Without conviction, you were placed on a good behaviour bond in the sum of $300 for a period of 12 months.

15You were born in Melbourne and grew up in Dandenong with your parents and older brother.  Your father was apparently an alcoholic who perpetrated physical and emotional violence upon your mother, your older brother and yourself.  The physical abuse at times warranted hospital or medical treatment and you tried to protect your mother, often at the cost of receiving more severe beatings yourself.  You ultimately left home at the age of 16 or 17 years in order to get away from your father and did not finish Year 12 at school.  When you were 19 years old you met Dianne and you married the following year.  You had been close to her mother who was the first wife of your victim.  You had remained close to her after she and your victim separated and he married for a second time.  Your mother-in-law died in December 2016 which was a significant blow to you.  The following year your father died and this apparently brought up a number of unresolved issues from your childhood which caused you great distress.

16The report from Dr Bottrill noted that you had initially been referred to her in 2017 by your general practitioner at Duff Street Medical Centre, following a significant deterioration in your mood, increased suicidality, three failed suicide attempts, heightened levels of anxiety, panic attacks and a loss of occupational functioning.  Following the date of your first consultation with Dr Bottrill on 5 September 2017, you saw her on a number of occasions over 2017 and 2018.  She considered that you suffered Post-Traumatic Stress Disorder with its origin in your developmental trauma from early childhood abuse which you had not begun to process until your abuser had died.  In addition, she considered that you suffered a Major Depressive Disorder and Panic Disorder.  In her report, she seemed to indicate that, over 2017 and 2018 the combination of psychological therapy and psychopharmacology (antidepressant medication prescribed by your general practitioner) resulted in you gaining more insight into your emotional world and you were better able to manage your emotional responses.  She discharged you from her treatment as being emotionally stable towards the end of 2018.  It is relevant to note that your general practitioner had begun prescribing the antidepressant medication Lexapro, as well as Valium, in August 2017 and you had had mental health admissions to hospital relating to your suicidal ideation and suicide attempts in August 2017 and January and October of 2018.  Apparently, your marriage to Dianne began to deteriorate in or about 2018 and, by November 2021, you had formally separated and you moved out of the family home. 

17It is clear from notes from Duff Street Medical Clinic that on 4 January 2022 you were feeling very low and suffering suicidal ideations with thoughts of getting hold of petrol and lighting the car.  On that date a general practitioner’s notes recorded that you needed urgent mental health assessment and queried whether you should not be admitted to a psychiatric ward, although curiously noted that your antidepressant medication (Escitalopram 20 milligrams) was ceased.  A note of a later consultation on 17 January 2022 with a different general practitioner at that clinic states that you had not ended up going to the Emergency Department but had called your psychologist which had helped and that you had another appointment soon.  It was recorded that you were keen to get back onto a mental health care plan and it seems that, around this time, a letter of referral to your psychologist, as well as a mental health care plan, was prepared.  A subsequent consultation on 28 January 2022 with yet another general practitioner at that clinic notes that you were feeling low, waiting to see your psychologist in a few days, living alone and feeling anxious and stressed, but denied suicidal ideation or self-harming ideation.  It was recorded that you were suffering poor sleep with early morning awakening, depressed mood, anxiety, stress at work, financial problems, recent bereavement  and irrational fears, but no suicidal thoughts or attempts.  On that date it was noted that you underwent counselling and that options, including modification of medication, which were explained to you.  However, it is not recorded whether you were or were not taking antidepressant medication.[3]  The material from your treating psychologist, Dr Bottrill, does not clarify this matter.[4]

[3]Exhibit “10”

[4]Exhibit “2” and Exhibit “17”

18The court was told that, at the time of your offending, you had been working in an organisational role in the transport industry for a firm called Sparke Logistics.  There had been a legal dispute between your employer and Toll Holdings which resulted in your employer developing financial difficulties.  As a consequence, some three days prior to the date of your offending, you and your son had each lost your employment with Sparke Logistics.  This added to your low mood following the relatively recent end of your 29 year marriage. Your Counsel stated that, after posting a message relating to the latter, you were aggrieved by what you considered to be your victim meddling in your affairs.  It seems that you held a grievance against the victim because you thought he had never been a particularly good father to your wife, Dianne, after he married for the second time and started another family.  In addition, you had been aware that some decades earlier, your victim had been before a court for some form of indecent assault relating to his stepdaughter.  For this reason, you and your wife had been at pains to ensure that your children were never left alone with your victim.  In spite of this, you had become aware that the victim had allegedly inappropriately touched your daughter on the leg some years earlier, when she was 13 or 14 years of age,   and this had contributed to your dislike of him.  It was against this backdrop of factors that your offending occurred.

19Dr Bottrill’s report dated 13 January 2023 is unsatisfactory in many respects, particularly as it lacks a coherent chronology.  However, it does confirm that, you were referred for treatment to her in 2017, because of longstanding anxiety and panic attacks, and it mentions the impact of the deaths of your mother-in-law and your abusive father, and the traumatising aspects of your childhood.  Although your counsel did not rely upon Dr Bottrill’s suggestion that you were experiencing a dissociative episode at the time of offending, it is clear that she was treating you for Post-Traumatic Stress Disorder, Major Depressive Disorder and Panic Disorder, the two latter of which she described as severe.  The other records, tendered as Exhibits “3” and “10”, confirm your history of depression and inpatient psychiatric admissions.

20I have had the benefit of a report of a psychiatric assessment of you by Dr Katherine Tan, consultant psychiatrist with Forensicare, dated 12 May 2023.[5]  She states that you reported having been diagnosed with Borderline Personality Disorder and also with Post-traumatic Stress Disorder.  She notes that there is an overlapping symptomatology between these two disorders and that both conditions may be exacerbated during periods of interpersonal conflict.  She stated that your offending occurred during a period of intense anger and difficulty controlling your anger.  However, she does not consider that the offending occurred as a result of either of the disorders.  She states that both these disorders “can lead to irritability, difficulties with emotional dysregulation and impulsivity.  However, neither (your) Borderline Personality Disorder nor PTSD, alone or in combination, necessitate the violence or offending that (you) had committed.”  She notes that the Court had been told that you had ceased taking your antidepressant medication some days prior to the offending, but states that “it would be uncommon for someone to experience an acute relapse of symptoms within days of stopping antidepressant medication.”[6]

[5]Exhibit “C”

[6]Exhibit “C”, page 12-13 and, in particular, paragraphs [128]-[129]

21I also had the benefit of a report of a psychiatric assessment by Dr Nicholas Owens, forensic psychiatrist, dated 12 July 2022, tendered on your behalf,[7] as well as a addendum report, dated 13 April 2023[8] and a further addendum report, dated 14 April 2023.[9]  In his initial report, Dr Owens states that you suffer from chronic depression and anxiety symptoms which have been present since the aftermath of the death of your father and mother-in-law.  He considers that you were predisposed to depressive illness because of what appeared to be a family history of mental health problems in your father, according to your description of your own father’s suicide attempts and heavy alcohol use and childhood abuse.  He was aware that you had, in the past, been diagnosed with having Borderline Personality traits but, on balance, he could not diagnose Borderline Personality disorder and states that your difficulties regulating emotion and negotiating conflict are more likely to have arisen in the context of depression, which had only partly responded to treatment.  He states that you told him you had been taking your antidepressant medication at a lower dose at the time of offending, although he notes that an MHARS report of 14 February 2022,[10] had stated that you had been off your medication for three days.  He considered that, while it was possible you were experiencing some mild withdrawal effects which may have worsened your anxiety and potentially added to your irritability, it was unlikely to have been anything more than a minor contributor to your state of mind at that time.  In his opinion, the main determinant of your offending behaviour “was poorly-controlled anger triggered by what [you] felt was a disrespectful and inappropriate comment by the victim, in the context of ongoing adjustment to separation from [your] wife.”[11]

[7]Exhibit 1

[8]Exhibit 11

[9]Exhibit 12

[10]Exhibit 8

[11](Ibid), page 11, paragraph [88]

22Dr Owens saw you again on 29 March 2023, after been provided with further materials which are detailed in his addendum report.[12]  As a consequence, particularly of you elaborating upon your childhood history and symptoms, in his addendum report, he concludes that, rather than a possible diagnosis of Borderline Personality Disorder, your presentation represents disturbances of self-organisation as part of complex Post-Traumatic Stress Disorder (“PTSD”).  He notes that this was a diagnosis which is not in DSM-5, but is in ICD-11.  He states that complex PTSD is a diagnosis “in which, additional to the criterion traumatic event (or more frequently a series of events over a protracted period), intrusion symptoms, avoidance symptoms and hyperarousal/hyperactivity symptoms, there are also disturbances of self-organization.  These include effective dysregulation, negative self-concept and relationship disturbances.  Complex PTSD is a diagnostic entity that better captures established post-traumatic reactions in people who have been subjected to continuous, long-lasting or multiple different kinds of trauma, and in whom loss of psychological and social resources are as significant as psychobiological markers of conditioned stress response.”[13]

He agrees with Dr Bottrill that the trigger for symptoms of PTSD or complex PTSD to emerge is “often directly related to the original trauma, in [your] case being the death of [your] father”.  While he thinks it was possible that your conduct may have been while you were in a state of disassociation, he considers it “more likely that [your] actions resulted from anger.  [Your] actions immediately prior to the offending were quite deliberate and included attending at [your] ex-wife’s home and informing her that [you were] going to physically assault her father”. He notes that your attitude or disposition towards the victim was already a negative one.  He also notes that your mental health had been deteriorating in the weeks leading up to the offending and in records of  your general practitioner and Dr Bottrill indicate that clearly, your mood and anxiety were worse.  He states that, although it is not clear whether you were taking your antidepressant medication, you had had limited sleep in the days beforehand, and, after the offending, engaged in suicidal behaviour and were deemed unfit for interview.  Further, you had experienced stressful life events in the months leading up to the offending, including separation from your ex-wife and retrenchment from work.  (I here interpolate that I do not accept that you had only recently been told about an alleged indecent assault on your daughter by your victim.  Indeed, your counsel conceded that you were aware of this allegation many years beforehand, when she was 13 or 14 years of age.)  Dr Owens concludes as follows:

“I think it is likely that [your] depressive symptoms (coexisting with PTSD symptoms) were worse at the time that the offending occurred, and that they acted to make [you] more irritable and more prone to emotional dysregulation in the face of perceived provocation. In this manner, I think that [your] mental disorder reduced [your] capacity to exercise appropriate judgment and to make calm or rational choices.”[14]

[12]Exhibit 11, pages 1-2, paragraph [4]

[13](Ibid), pages 10-11, paragraph [76]

[14](Ibid) page 11, paragraph [81]

23Your counsel contended that the Court should accept Dr Owens’ assessment and finds that Limbs 1 and 3 of the principles in R v Verdins[15] were enlivened.  The prosecution submitted that Dr Tan’s conclusion makes it much less clear that there is a causal link between your mental impairment and the offending behaviour and, in any event, there should still be weight given to general deterrence, as there was no evidence to suggest that you were unable to understand the wrongfulness of your conduct.

[15](2007) 16 VR 269

24Having considered all of the evidence before me, I find there is no doubt that you had a documented history of depression and anxiety, dating back to in or about 2017, for which you had been medicated.  While I am unable to resolve the issue of whether you were or were not taking anti-depressant medication at the time of offending, the notes taken by general practitioners at Duff Street Medical Clinic in January 2022 demonstrate that you were presenting with concerning mental health issues.  It is not at all clear to me what your treating psychologist did in response to the referral from that clinic, other than having some telephone conversations with you. 

25I accept that you were very distressed about the end of your twenty-nine-year marriage and that it was an additional blow of some significance that you and your son had lost your employment in the days leading up to your offending.  I am satisfied, on the balance of probabilities, that both of these factors contributed to enhanced symptoms of depression and anxiety leading you to become, disproportionately angry in relation to what appears to be a fairly reasonable Facebook post of your victim and that this did play a role in diminishing your capacity to exercise appropriate judgement and make calm or rational choices.  However, it is my view that the reduction in moral culpability on this basis should be only moderate.  It is plain from the material before me that you already had a grievance against your victim through viewing him as a poor father to your wife, someone whom you thought had acted inappropriately towards your daughter some years earlier (in the context of knowing that he had been before a court many decades earlier for offending against a child) and that you regarded your victim as someone who “seemed to antagonise [your] family”.[16] 

[16]History given to Dr Owens, Exhibit 11, page 5, paragraph [32]

26The extent of your moral culpability must also be weighed in the light of the agreed facts that you had already exhibited animosity towards your victim the previous day with your abusive messages (to which your victim did not respond) and that, only an hour and a half before you went to your victim’s house, you had specifically articulated to your wife that you intended to bash her father and she told you not to do this.  It is also part of the agreed facts that you arrived at his front door in a heightened state and rang the doorbell and knocked loudly on the front door twice, and, immediately upon your victim unlocking the door, you violently forced your way in and began to assault him.  I do not accept the history you have given in various tendered documents that you only intended to talk to him, but were provoked by the expression on his face, which reminded you of your own abusive father.  I regard this as a self-serving untruth invented by you after the event.  You went there in a stage of anger and misguided self-righteousness to assault your elderly victim in his own home and were very aware of how wrong it was because you told him not to tell anyone.  You were also very aware of how forcefully you had assaulted him, because you left him on the floor bleeding and, not long afterwards, called your wife, telling her that you thought you may have killed him and also told your friend that you had “belted him pretty hard”.

27Mr Rabot, you have taken responsibility for this serious offending by pleading guilty to it.  I accept that you are genuinely ashamed of what you have done, indeed, you told Dr Owens, when you first saw him, that your offending was wrong and caused by you losing your temper, and that you deeply regretted it “not least because it reminded [you] of your father’s behaviour”.  It is serious, not only because it was grievance-based, you having described a longstanding dislike of your victim,[17] but also because it was so very cowardly.  You are a big build and over three decades younger than your victim.  You were well aware of his age (87 years) and the fact that he lived alone, as his wife had died only a few months earlier.  No-one has the right to invade the home of another person in such a bullying fashion.  Courts must uphold the fundamental entitlement of every person to feel safe in his own home.  That is why aggravated burglary is regarded as such a serious offence, carrying a maximum penalty of 25 years’ imprisonment. 

[17]Exhibit 1, pages 8-9, paragraph [71]

28There is a degree of inconsistency and victim-blaming in the history you gave to the psychiatrists.  For example, you reported to Dr Tan that you had an estranged relationship with your father-in-law, who had “never been part of [your] family” and wanted to confront him regarding past behaviour, which you considered inappropriate, and about his Facebook post, but could not provide an account of why you behaved as you did.[18]  Yet, when you first saw Dr Owens, you complained that your victim had only visited your family once in the last five years and, despite being invited, he had not turned up at your family home at Christmas for five years in a row, which you thought was poor form.[19]  Whatever the truth of the matter about your relationship with your victim is, there can be little doubt that you did not like him, and, in your miserable frame of mind, you made a decision that you would bash up this man of quite advanced years.  You savagely attacked him and left him lying on the floor of his home, bloodied, with four broken ribs, as well as some bleeding beneath the membrane covering part of his brain.  It is plain that he was terrified by your threat to kill him if he told anyone as, when he telephoned his son, he asked his son not to tell anyone because of that threat.  In his Victim Impact Statement, dated 30 December 2022,[20] he refers to the shock and the fear he has suffered and how concerned he is about security in his home, such that he had CCTV and a new security door installed.  Apart from the physical pain and injuries, with complications requiring the insertion of a catheter, he is still requiring regular psychological counselling in the aftermath of your attack.  These are all foreseeable and understandable consequences of your offending behaviour.  A victim is entitled to feel protected by the law and vindicated for this serious violation of his rights. 

[18]Exhibit “C”, page 9, paragraphs [79]-[81]

[19]Exhibit 1, page 7, paragraphs [53]-[54]

[20]Exhibit “B”

29The Court has acknowledged your vulnerable psychological state leading up to this offending, coming, as it did, on a history of depression and anxiety which, in the past, had resulted in suicidal ideation and attempts at suicide.  The prosecution appropriately concedes the impact of your own traumatic background, which was elaborated upon, particularly in Dr Owens’ addendum report.[21]  The law recognises that being exposed to violence and trauma, in the crucial stages of childhood and adolescence when your brain is still developing, is known to give rise to mental health issues which can be serious and long term.[22]  There is added poignancy when the abuse has been perpetrated by your own father.  In your case, Dr Bottrill, Dr Owens, and Dr Tan, have agreed that these factors can give rise to PTSD, as well as depression.[23]  As part of your personal circumstances, I accept, and take into account, that these factors led to the manifestation of depression, anxiety and panic attacks following the death of your father, and that you have suffered very distressing suicidal ideation and suicide attempts necessitating psychiatric inpatient admissions. 

[21]Exhibit 11

[22]Bugmy v R (2013) 249 CLR 571

[23]Ibid.

30You seem to respond to significant stressors by becoming overwhelmed and focused upon the only solution being to end your life.  This was your reaction to the enormity of what you had done to your victim.  Police found you on the outer rail of an overpass not long after you had committed the offences.  The further addendum report of Dr Owens, dated 14 April 2023,[24] notes that, after being remanded in custody, you were struggling with depressed mood and suicidal thoughts and had to be moved to a safe cell on 3 March 2022.  After a couple of days, you were transferred from the safe cell, but, on 18 May 2022, you informed a nurse practitioner that you had taken an overdose of sixty-eight tablets in your cell the previous Friday, with the intention of killing yourself, but had not told anyone.  You were then switched to hourly observations, daily supervision of your medication and referred for medical and psychiatric review.  On 19 May 2022, a psychiatric registrar reviewed you as being at chronic high risk of suicide and you were commenced on a small dose of Olanzapine, in addition to the antidepressant Escitalopram.  On 29 May 2022, you tested positive to COVID and were placed in isolation and, two days later, you inflicted superficial cuts to your left wrist using razor blades and were again moved to a safe cell.  In addition, while in custody you had difficulties with gout affecting your feet, symptoms of dizziness and chest pain, and an episode of coughing blood, as well as requiring a CPAP device as you have an established history of severe obstructive sleep apnoea.  Your first time in custody on remand was clearly an onerous period for you.

[24]Exhibit 12

31You were granted bail on 13 July 2022.  However, even while back in the community, you suffered further suicidal ideation and took another overdose of two weeks medication, and attempted asphyxiation using a plastic bag and helium whilst at a hotel.  This occurred on 25 April 2023, notwithstanding that you had been quite regularly seeing your psychologist, as well as being prescribed antidepressants by your general practitioner.  The Alfred Health discharge summary[25] suggests that you were experiencing a condition explained by an adjustment disorder, noting biological symptoms of depression prior to your admission and significant exposure to memories during recent psychiatric evaluation (presumably when you saw Dr Tan and Dr Owens), which you identified as traumatic.  In addition, your upcoming court hearing, with advice that you were likely to return to gaol, was seen as a clear precipitating factor to the suicidal response you were expressing.  Your suicide risk was seen to be likely a response to psychosocial stress and less likely a reaction to a mood disorder.  You remained an inpatient until 15 May 2023 and were discharged with Loraz 0.5mg medication to assist your sleep for one week, as well as mood-stabilising medication, Escitalopram, 20 milligrams in the morning and Mirtazapine, 15 milligrams at night.

[25]        Exhibit 14

32It is not disputed by the prosecution that a period of imprisonment will be more onerous for you because of your mental health conditions than for someone who does not suffer those conditions and I take that into account in sentencing you.  I accept there is a risk that, while in custody, your mental health well may worsen, although it seems that this vulnerability exists while you are in the community as well.

33I have previously referred to some of your physical problems which made your period on remand more onerous, and they are ongoing.  You suffer from cervical degeneration, obstructive sleep apnoea, hypertension, elevated cholesterol, gout and obesity, as well as symptoms of exertional breathlessness, palpitations and tightness in the chest.  The latter symptoms were the subject of a review by a cardiologist in January this year and were thought to be referable to your lack of fitness owing to obesity, however, you were prescribed a 12.5-milligram dose of a medication, Atenolol.  In addition, you take Twynsta, 80/10 milligrams to regulate your blood pressure.[26]  The Court acknowledges that these various physical problems add to the discomfort and the burdensome impact of imprisonment for you compared to other prisoners who do not have such problems.

[26]        Exhibit 7, Letter from Dr Deepu Balakrishnan, cardiologist, dated 17 January 2023.

34The objective gravity of your offence in violating the sanctity of the home of an elderly man who lives alone, intentionally causing him injury and adding to the fear he suffered by threatening to kill him, is such that the Court must denounce your conduct and place emphasis upon general deterrence so that others who may be minded to give vent to their grievances in such a dreadful, antisocial and violent fashion, will know that they will be justly punished.  However, your criminal history is minor, and I accept that this offending is out of character for you. 

35You have an excellent work history, as attested to in two references from your current employer, Mr Paul McDowell.[27]  Mr McDowell came along to your plea hearing held on 29 June 2023 and is apparently prepared to continue to support you and offer you employment upon your release from custody.  In addition, tendered as exhibit 5, were two references which mention that you have been engaged for many years in community-minded volunteer work with a local cricket club, particularly coaching junior teams.  One of the references is from a man whom you coached as a 13 year old some fifteen years ago.  The other is from a man who has known you for twenty-five years, and both of them speak of you in very positive terms for your generosity and community mindedness and general good character.[28]   In addition, there is a reference from your wife, Dianne.[29]  She, too, along with both of your children, and a number of other family members and friends, were in court to support you.  She confirms the long-term nature of your relationship which has apparently recently been rekindled, albeit that you were still residing with your brother at the time of the most recent plea hearing.  She describes your family orientation and your community involvement, and the struggle you have had with your mental health since the death of your father and her mother.  Plainly, you still enjoy the support of your wife and a significant number of family and friends and this, along with you pro-social community activities and sound work history bode well for rehabilitation.

[27]Exhibit 6 and Exhibit 16

[28]References of Laurence Hall and James Haley, Exhibit 5.

[29]Exhibit 15

36Ultimately, your rehabilitation prospects depend upon you keeping yourself psychologically well by being compliant with mental health treatment.  However, there is a risk that your anger may get the better of you.  I consider that both of these matters need careful monitoring in the light of your history.  Thus, notwithstanding the gravity of the offending, I consider that a combination sentence by way of a term of imprisonment and Community Correction Order is the appropriate and just sentence in your case.  While the term of imprisonment is part of the imposition of just punishment, I consider that, given your chronic mental health issues, a community correction order with supervision and treatment conditions once you are released, may be of assistance in your rehabilitation, particularly in linking you with a treating psychiatrist, as you have been on a waiting list for psychiatric treatment for quite some time now.  I note that you have been assessed as suitable for a Community Corrections Order and that a review conducted by a Mental Health nurse as part of that assessment[30] recommends the following steps should be a part of a Community Corrections Order:

1. Ongoing GP review of mental and physical health status and the medication regimen. GP located at Duff Street Medical Centre Cranbourne West. 

2. Ongoing participation in trauma informed psychological counselling with Dr Eve Bottrill.

3. GP referral to a Private Psychiatrist under Medicare for diagnostic clarification and any treatment recommendations.

[30]        Exhibit D, Community Correction Order Assessment dated 30 June 2023 and Mental Health Advice and Response Service Report dated 5 July 2023.

37In arriving at the sentence which I tend to impose, I acknowledge that, by reason of your early and relatively remorseful plea, you are entitled to a meaningful discount on the sentence which would otherwise have been imposed.  Also, your pleas of guilty prior to the conduct of any contested committal in July last year should be recognised as having some additional utilitarian value, in that they were entered when it was difficult to run criminal trials in the State of Victoria because of the ongoing impact of the COVID pandemic.  By not running a trial you have facilitated the justice system by permitting another trial or trials to be accommodated from the still congested lists.[31]

[31]Worboyes v R [2021] VSCA 169

38On Charge 1, aggravated burglary, Charge 2, intentionally causing injury, and Charge 3, making a threat to kill, you are convicted and sentenced to an aggregate sentence of 10 months’ imprisonment, together with a community correction order for a period of three years. 

39The core terms of the community correction order are as follows: 

“(a) you must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment;

(ab) you must comply with any obligation or requirement prescribed by the regulations;

(b) you must report to, and receive visits from the Secretary during the period of the order;

(c)you must report to the community corrections centre specified in the order within 2 clear working days after the order coming into force;

(d) you must notify the Secretary or delegate of any change of address or employment within 2 clear working days after the change;

(e)  you must not leave Victoria except with the permission, either generally or in relation to a particular case,

(f) you must comply with any direction given by the Secretary or direction that is necessary to ensure that you comply with the order.

40In addition, I attach the following conditions to the Community Correction Order:

(a)   that you be subject to supervision;

(b)   that you undergo assessment and treatment for your mental health; and

(c)   that you undergo any other programs to reduce your risk of re-offending, including an anger management program.

41Mr Rabot, you must understand that I cannot make a Community Correction Order unless you consent to it.  Do you consent to a Community Correction Order with the terms and conditions which I have just specified, on the understanding that it will commence as soon as you are released from custody?

42OFFENDER:      Yes, your Honour:

43HER HONOUR:  Mr Rabot, you must understand that, if you contravene the Community Correction Order, either by not adhering to its terms and conditions or by committing another offence which is punishable by imprisonment during the period of the Order, then that, in itself, is a criminal offence which carries a maximum penalty of 3 months’ imprisonment.  Also, should you breach the Order, then you will be brought back before the Court and that carries with it the risk that the Order may be cancelled and you may be re-sentenced to another period of time in prison.  Do you understand that?

44OFFENDER:  Yes.

45I declare a period of pre-sentence detention of 157 days to be time reckoned as already served under the sentence imposed this day.

46Pursuant to s6AAA of the Sentencing Act 1991, I state that, had it not been for your pleas of guilty, the total effective sentence imposed would have been 4 years imprisonment, with a non-parole period of 3 years.

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