Director of Public Prosecutions v Ramsay

[2021] VCC 785

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-00238

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANTHONY RAMSAY

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JUDGE:	HER HONOUR JUDGE TODD
WHERE HELD:	Melbourne
DATE OF HEARING:	11 June 2021
DATE OF SENTENCE:	11 June 2021
CASE MAY BE CITED AS:	DPP v Ramsay
MEDIUM NEUTRAL CITATION:	[2021] VCC 785

REASONS FOR SENTENCE

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Subject:  CRIMINAL

Catchwords:  Plea of guilty – one charge make threat to inflict serious injury – one charge theft of a motor vehicle – lengthy delay – circumstances of COVID-19 pandemic – psychiatric illness – extensive drug and alcohol history – reduced moral culpbability

Legislation Cited:           Crimes Act 1958; Sentencing Act 1991; Crimes (Mental Impairment and Unfitness to be Tried) Act 1997

Cases Cited:                   Nelson v The Queen [2020] VSCA 219

Sentence:  Total effective sentence of 5 months imprisonment

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr J. Goetz	Office of Public Prosecutions
For the Accused	Mr R. Lawrence	Stary Norton Halphen

HER HONOUR:

1Mr Ramsay, today you have pleaded guilty to one charge of making a threat to inflict serious injury and one charge of theft of a motor vehicle.  The charges relate to events that happened on 11 and 12 April 2017.

2The charge of making a threat to inflict serious injury carries a maximum penalty of 5 years imprisonment.  The maximum penalty for the theft charge is 10 years imprisonment.

3The facts that give rise to your offending are set out in the Prosecution Opening, dated 10 June 2021.  That document became Exhibit A on the Plea and it is attached to and forms part of these reasons.  I will not repeat it here but I will refer to parts of it in summary.

4On 27 March 2017, you and Steven Comrie left Cairns in his car and drove to Victoria.  Mr Comrie was due to appear in a case against him at the Stawell Magistrates' Court on 11 April 2017.

5Before you left Cairns, you and Mr Comrie arranged for your Centrelink payments to be deposited into his account.  You shared the expenses of the trip and slept in the car at different points along the journey.

6You arrived in Victoria on 31 March 2017.  You went to Robert Pettigrew's house in Corio.  You both went on to stay at this house.  Mr Comrie had arranged to do so.  Mr Pettigrew had not expected you there.  I note that you had a family connection to Mr Pettigrew.

7Five days later, on 5 April 2017, you had been out for the day and went back to Mr Pettigrew's house.  He had decided that you were no longer welcome at his place and denied you entry.

8Later that day the Police arrested you and then released you on bail for an unrelated matter.

9Two days after that, on 7 April 2017, your Centrelink payment of $524.40 went into Mr Comrie's bank account.  He withdrew the money and made unsuccessful attempts to get this money to you.

10Four days later, on 11 April 2017, at about 4 am, Mr Comrie was asleep in the loungeroom at Mr Pettigrew's house.  You were standing over him holding a hammer in one hand and a walking stick in the other.  You raised the hammer over Mr Comrie and said, ‘You listen to what I got to say, you do what I tell you to do.  You're lucky you're not dead. Go and get the money and grab your clothes'.  This gives rise to Charge 1 on the indictment: threat to inflict serious injury.

11Mr Comrie complied.  He got his car keys and his mobile phone and went to the garage where his car was parked.  You followed him to the garage where he retrieved the money from your Centrelink payment and gave it to you.  He also gave you the keys to the car.

12You both then got into the car and went to an address in Norlane with Mr Comrie sitting in the front passenger seat.  You then drove to Stawell together so that Mr Comrie could appear in court.  At court that day Mr Comrie was sentenced to a term of immediate imprisonment.  His application for appeal bail was refused at Horsham Magistrates' Court on 12 April 2017.  While at the Horsham Police Station for his appeal bail Mr Comrie made a statement to Police reporting these events.

13You kept Mr Comrie's car, after 11 April, and continued to use it without Mr Comrie's permission to do so.  That gives rise to Charge 2 on the indictment: theft of a motor vehicle.

14On 3 May 2017, you were spoken to by Police in Geelong.  You were still driving Mr Comrie's car then, it had not yet been listed as stolen.  Although the Prosecution Opening refers to you being on a Community Corrections Order at the time, I am now told that this was not the case.

15This offending took place on 11 and 12 April 2017, and I will take some time to set out some of its procedural history.

16On 7 May 2017, you committed an unrelated offence of arson.  I only mention it here because it affects the procedural chronology of your case.

17On 10 May 2017, you were remanded in custody on that other charge.  During that period of custody you became very unwell and had your first admission to Thomas Embling Hospital.

18On 3 December 2018, you were sentenced on the arson charge to 22 months imprisonment, combined with a 2 year Community Corrections Order.  You were released from custody on 10 March 2019.

19On 17 March 2019, you were arrested and remanded on some summary charges.  You were granted bail in relation to those charges on 4 April 2019.

20The charges in this matter were issued on 10 April 2019.

21On 4 July 2019, you were arrested and remanded on further summary charges.

22On 20 September 2019, you were remanded on this case and you have been in custody ever since.

23You were committed to stand trial in this case on 14 February 2020.  Efforts to resolve the case at that stage apparently failed.  Your trial was originally listed for 29 June 2020 but vacated due to the pandemic and the cessation of jury trials.  At that stage you were facing charges of a different nature to those that are proceeding today.

24You case was referred for emergency case management in October 2020.  The progress of your case was delayed further because it became necessary to find out whether you were too unwell to be fit to plead.  More delay followed.

25Eventually you were assessed by an expert psychiatrist on 4 March 2021 and in her report, dated 18 March 2021, which became Exhibit 1 on the plea, you were found, contrary to earlier reports, which I will deal with later in these reasons, to be fit to stand trial.  Once your lawyers were equipped with this information your case was put into the case conferencing system in this court.  The case conference was heard on 12 May 2021.  A plea offer was accepted soon after.

26I will now address the nature and gravity of the offending.

27Your threat to inflict serious injury occurred at about 4 am over the sleeping Mr Comrie.  It occurred in the context of your belief that Mr Comrie was withholding your Centrelink payment.  It involved the use of two weapons, albeit ones found in the house that belonged to Mr Pettigrew.

28Whatever transpired then you then drove Mr Comrie to court in Stawell some two and a half hours drive away so he could attend court.  The threat I find falls on the mid -low end of the spectrum of seriousness for this offence.  The theft of the car was by way of assuming the rights of the owner who you knew to be Mr Comrie.  It was opportunistic.

29You have a relevant prior criminal history.  It commences in the Geelong Children's Court in 2001.  The history then moves to the Queensland courts from 2005.  Your record there shows convictions for offences which include robbery with actual violence, unlawful use of motor vehicles and assaults.  There is a brief period where you are dealt with in Adelaide for offences that include using a motor vehicle without consent.  Your history then resumes in Victoria for offending committed after your return here in 2017.  In December 2018 you were convicted and sentenced, as I have already said, on a charge of arson.

30You commenced a Corrections order after your release from custody but were charged with this offending before you could complete it.

31I have had regard to your previous criminal history, in arriving at your sentence in this case, however, I am conscious of the need to sentence you to a penalty that is not disproportionate to the gravity of the offending.  I am also cognisant of the need not to overweight this sentence by reference to the question of the protection of the community beyond what is proportionate and I refer to the recent case of Nelson v The Queen [2020] VSCA 219.

32There was no Victim Impact Statement filed in this case.  I think I can safely assume that the experience was unpleasant for Mr Comrie and I have taken that into account.

33Mr Ramsay, you are now 33.  You were 29 at the time of this offending.  You are an Aboriginal man from the Yorta Yorta tribe, born in Bairnsdale.  You have 3 children, aged 3, 11 and 15 years.  You have mostly lived in Cairns, Queensland where your mother now lives.  You have three half siblings.

34You have a family history of schizophrenia.  Both your father and your brother have been diagnosed in the past.  One of your brothers died in a car accident in 2015.  You also lost a sister to unknown causes.

35You have had a difficult and unstable life from a very early age.  You were made a ward of the state when you were 5, following your parents’ separation.  You have said that you have been fostered with 20 or 30 different families.

36At 12 you moved to Queensland to live with your mother.  Two years later at 14 you made your first appearance in the Children's Court in that State.  You were expelled from school on multiple occasions and you were incarcerated in juvenile detention centres in Queensland.  You left school in Year 9.

37You have pleaded guilty.  This has happened a long time after your remand, but I consider no part of that delay to be your responsibility.  The Indictment to which you pleaded guilty is very different to the original charges.  In the circumstances, I will treat it as a very early plea and I take that into account on sentence.

38It is now well settled that the experience of prisoners in custody during the restrictions necessary to contain the COVID-19 pandemic has made prison much more difficult.  Time out of cells has been restricted.  In person visits have been virtually non-existent.  Later during 2021, it seems that you had some visits from your partner, Ms Cornelio, after the easing of restrictions this year.

39I will deal separately with the issue of delay in resolving this case, which I regard to be inordinate.

40The Prosecution was unable to assist me to understand why it took the authorities two years to charge you.  It is a concerning fact in your case.  You were remanded on other matters during this period, you were incarcerated in Victoria.  There was an invitation to participate in an interview on 20 July 2019.  You were facing other court hearings in Victoria.  You commenced your Community Corrections Order in the community and that was when you were charged, 2 years after the complaint had been made by Mr Comrie to Police.  In this way you lost any opportunity for concurrency in your sentencing.  This becomes relevant to the question of totality and I will take it into account.

41Further delay was incurred as a result of the cessation of trials in Victoria due to the pandemic.  This has had particularly disastrous consequences for you.  Moreover, further delay happened in your case because you have been very unwell.  It always takes time to get expert reports on the questions of fitness to plead, but in your case you were at first found unfit, then later found fit after a period of treatment.  This had to happen before your lawyers could properly take your instructions.

42The combination of all these matters has meant that there has been a very long delay between the date of your offending in 2017 and the date of your final sentence in this case, and I take that into account in sentencing you.

43You have had an exceptionally deprived background.  Your very early childhood lacks stability and steady parental love and affection.  You were cared for in a large number of foster homes.  Your schooling was incomplete and interrupted.  By the time you entered the criminal justice system at 14 it would seem that the adult world had almost completely failed to give you what you needed.  I accept that the consequences of this have manifested in a range of ways but includes your entry into the criminal justice system.

44I now turn to the psychiatric material.

45As I have said, the issue of fitness to stand trial arose in this case.  A number of psychiatric reports were tendered on your plea and I have taken their contents into account.  They were marked as Exhibit 1 and 2 from Dr Khan and Dr Best, respectively.

46You were treated for psychiatric illness in Queensland from 2014 to 2017.  Your diagnosis was borderline personality disorder, behavioural disturbance, antisocial personality structure and polysubstance abuse.

47You arrived in Victoria in April 2017, but by May 2017 you were being treated on multiple occasions in the emergency department at Barwon Health.

48You were remanded on 12 May 2017.

49You were admitted to Thomas Embling as a security patient from the Melbourne Assessment Prison on 5 July 2017, some 3 months after the date of this offending.

50You had stopped accepting treatment while in custody and your mental state deteriorated.  You were having auditory hallucinations and threating to self-harm.  You stopped eating and drinking and required two medical admissions of intravenous hydration as a consequence.

51You were recorded as acutely psychotic on your admission to Thomas Embling Hospital.  Your condition was severe.  You were given electroconvulsive treatment, among other therapies.  Eventually you started to eat and drink again as your physical state improved.  Your discharge diagnosis was schizoaffective disorder, manic episode with a differential diagnosis of drug induced psychosis.  You were discharged back to prison.

52After a period in the community you were remanded again in July 2019.  You were again admitted to the Thomas Embling Hospital as a security patient and remained there from 16 October 2020 until 15 January 2021.

53You had been moved between various psychiatric units in the prison system during this time.  You were exhibiting severe symptoms and were observed to be floridly psychotic.  You became non-compliant with your medication.  You were assessed during one of these periods, that being December 2020, as unfit to plead pursuant to the criteria in the Crimes (Mental Impairment) Act.

54Your treatment progressed and in March 2021 you were found to be well enough to do your court case.  When interviewed in March 2021 you seemed to show some insight about the fact that when you come off your medication you become unwell.  In Dr Khan's opinion you have developed an enduring mental illness with a diagnosis of schizoaffective disorder.  Your mental illness is responsive to treatment, but your symptoms return when the treatment stops.  In Dr Khan's opinion it is highly probable that the severe environmental adversities that you experienced as a very young child, coupled with a biological sensitivity to a serious mental illness has led to an abnormal personality development and a secondary diagnosis of antisocial personality disorder is to be considered.

55In the opinion of Dr Best there appears to be a link between your impaired mental functioning because of your psychotic illness and your offending this case.  Your psychotic illness, in her opinion, is likely to have affected your capacity to exercise appropriate judgement and make decisions and think clearly at the time of the offence.

56I add that you have an extensive drug and alcohol history.  You started using cannabis at 12, you reported using methamphetamine heavily from 2014.  This drug use has been overlayed onto your various illnesses and it combines with them to contribute significantly to your offending.

57On the basis of Dr Best's opinion in her December 2020 report, I find that your moral culpability is reduced and consequently the weight to be given to general and specific deterrence.

58I also find that imprisonment has been more onerous for you to a significant degree by reason of your mental health.  I note that your deterioration while in custody on the arson matter in May 2017 puts you as being very unwell close in time to this offending.

59I am obliged to have regard to your prospects for rehabilitation.  It seems that these will depend on your acceptance of mental health treatment and your confronting your drug use.  I note that your partner, Ms Cornelio, a nurse, attended your hearing and is there for you after your sentence.

60Your history makes me cautious about assessing your prospects as especially good, but I am not prepared to conclude that you cannot, with the right support, vastly improve your health and through doing so avoid further offending.

61I note that you retain the support of your mother who was on her way to attend court for this hearing but was prevented from doing so by the latest Melbourne lockdown.

62I have had regard to current sentences for similar offending.  There are no cases anything at all like yours but I sentence you in that landscape.

63In considering the appropriate sentence in your case I have considered the roles for general deterrence, specific deterrence, just punishment and the need to denounce your offending.  I have also had regard to the need for community protection which is restrained by the requirement that the punishment I impose be proportionate to your offending.

64In her report Dr Khan advocates for a level of judicial oversight in this sentence to ensure that you remain focused on treatment and rehabilitation.  This is an entirely sound opinion in the circumstances.  However, I have found that you have served more time on remand than you ought to have in relation to these charges.  There is no lawful warrant for further punishment in any form.  I have no lawful option other than to sentence you to a straight term of imprisonment that is already more than served.

65It is my hope that those who care for your mental health will properly equip you for your release into the community immediately and consider whether your current state of health warrants the engagement of the Mental Health Act.  I trust that those matters will be considered on your release.

66On Charge 1: threat to inflict serious injury, you are convicted and sentenced to 4 months imprisonment.

67On Charge 2, you are convicted and sentenced to 2 months imprisonment.

68I direct that 1 month of the sentence on Charge 2 is to be served cumulatively upon the sentence of Charge 1, making a total effective sentence of 5 months' imprisonment.

69On Charge 2, you are disqualified from obtaining a driver's licence for a period of 6 months.

70I declare that you have served 585 days by way of pre-sentence detention in this case.  I am aware that that period outstrips the sentence that I have just imposed.  If you are not held on other matters it is my intention that this sentence means you are released from custody immediately.

71Pursuant to s6AAA of the Sentencing Act, I declare that had you not pleaded guilty but been found guilty after trial on these charges I would have imposed a sentence of imprisonment of 9 months.

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