Director of Public Prosecutions v Rawson

[2020] VCC 1510

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

AT MELBOURNE

CRIMINAL DIVISION

CR-20-00260

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL RAWSON

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:	15 September 2020
DATE OF SENTENCE:	22 September 2020
CASE MAY BE CITED AS:	DPP v Rawson
MEDIUM NEUTRAL CITATION:	[2020] VCC 1510

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms H. Baxter (for plea) Mr H. Boyd-Wilson (for sentence)	Office of Public Prosecutions
For the Accused	Ms M. Walker	Melinda Walker, Criminal Law Solicitor

HER HONOUR:

1Michael Rawson, at about 6:00pm on 25 November 2019, you were found in the street in Preston, apparently disoriented and substance impaired, in possession of amphetamines, wearing a dressing gown and trying to break into cars.  You were arrested and taken to Preston police station, and charged with possession of amphetamines and other minor offences. At about 8:25pm you were released on bail and placed in a taxi by police.  150 metres down the road, outside the Preston Library,  the taxi stopped and you got out of it.

2At this time, a man and his two year old son were walking their dog around the library.  The man was on his phone and the child was playing around on a seating area.  You stood on the street, facing them.

3As the man was helping the child down from the seating area, you ran towards them and said, “I will help him down”.  The man told you not to touch his child.  As he was holding onto his son, you grabbed the child with both hands and pulled him away.  He yelled, “don’t take the child” and managed to take him back.  He turned away from you to try and protect the child.  You encircled the man’s neck with your arm and pushed him into the nearby bushes.

4There was a struggle as you kept trying to pull the child out of his father’s arms.  You pushed the man on the back of his neck and forced him to the ground.  He curled over the child to protect him.  You punched the man to the back of the head several times.  This caused him to put his hands to his head to protect against the punches and,  in doing so, he released the child.  You grabbed the child and ran away.

5The altercation had attracted the attention of a number of people who ran up to the scene.  One of the bystanders grabbed you, as you ran away.  The father got up and also caught up with you.  He grappled with you and, after a struggle, was able to wrest his child from you.

6By then a number of other people had also arrived.  Despite the efforts of some of them to restrain you, you ran away, pushing one of them out of the way as you left.

7As a result of this, you have pleaded guilty to one charge of attempted kidnapping, that is attempting to unlawfully take the child away from his father, Charge 1. Charge 2, common assault on the child, and Charge 3, recklessly causing injury to the father.  The father was left with a bloodied mouth, a cut to the inside of his upper lip and swelling underneath his left eye and to the back of his head.  You have also pleaded guilty to a related summary offence, which you have consented to have uplifted to this court and dealt with at the same time, of committing an indictable offence, namely attempted kidnapping whilst on bail.  These offences occurred within minutes of your release on bail from the Preston police station following your arrest earlier that evening.

8A number of eyewitnesses watched you run away.  You were seen trying to open car doors, before crossing the road and hiding in the garden of a block of flats.  Police had by that time been called and were directed to your hiding place.  They told you that you were under arrest.  You ran at them.  They had to force you to the ground and handcuff you.  This conduct constitutes Charge 4 of resisting an emergency worker on duty, to which you have also pleaded guilty.

9After arrest, you were taken back to Preston police station, but, after assessment, you were deemed unfit to be interviewed.  On medical advice you were then taken to the Austin Hospital for assessment shortly before midnight.

10At the hospital, you were placed on a bed.  You attempted to get up and leave and refused to sit down when asked.  After you were told that you would have to be handcuffed to the bed, you became aggressive and started screaming and thrashing.  A police officer present attempted to place handcuffs on you, but you grabbed her wrist and squeezed and twisted her arm, ignoring directions to let her go.  Hospital security had to be called and you were then restrained.  Only then did you release the officer’s wrist. It is this that constitutes Charge 5 of assaulting an emergency worker on duty, to which you have also pleaded guilty.

11The Austin Hospital notes, which were obtained by Ms Walker, your lawyer, are scant.  They record a diagnosis of mental and behavioural disturbance due to dependence on multiple drugs and psychoactive substances, and also note that you were sedated.  Although it would appear blood was taken from you, no tests were done to determine what drugs you might have taken.  You were ultimately discharged from hospital into police custody and you have been in custody ever since.

12The circumstances of the offending itself, and your presentation following arrest and remand were such that, understandably, Ms Walker had concerns about your mental state at the time of the offending.  She retained Dr Adam Deacon, an experienced forensic psychiatrist, to assess you for the purposes of determining whether a defence of mental impairment was available to you.

13Dr Deacon ultimately determined, based on the police brief in relation to your conduct outside the Preston library and on the history obtained from you at the time you attempted to kidnap the child, that it is most likely that you experienced a transient drug-induced psychotic state, characterised by delusional misidentification.  The delusional misidentification was mistaking the child you grabbed for, or thinking that child was, your youngest child.

14You told Dr Deacon that you had been using amphetamines on a regular basis since 2018.  You denied experiencing any significant adverse effects from amphetamine use, such as paranoia or psychotic symptoms.  You told Dr Deacon that you thought you had likely been awake all night or for a couple of days following the use of methamphetamine and GHB.  You said you had never taken GHB before, but you had taken it the night before the offending in the hope that it would help you sleep.

15Dr Deacon noted that GHB is a central nervous system depressant that can contribute to disinhibited behaviour and amnesia.

16Although the child you tried to kidnap was a boy, you said that he looked like your youngest daughter.  On further enquiry, you explained that she looked like your youngest daughter when you had last seen her some years ago, when she would have been about the same age as the child you grabbed.  The child that you grabbed did have quite long hair and so the initial implausibility of mistaking the boy for a girl may not be as unusual as it might have first seemed.  You told Dr Deacon that you had wanted to give the child a hug, thinking that he was your daughter.

17You said that your recollection of what you did after that and until the time of your arrest was patchy.  You recounted some awareness of a struggle and of being chased.  You said you had a memory of being transported in an ambulance and meeting a nurse in a hospital.  You said that your next recollection was of being detained at Melbourne Assessment Prison and gaining an awareness there of your circumstances.  Since your remand you reported to Dr Deacon that, as time progressed, you gained insight into your misidentification of the child.

18Significantly, both on your own report and on the Justice Health records obtained by your lawyer and provided to Dr Deacon, you have not continued to experience any further problems of misidentification whilst in prison. You have denied experiencing any additional psychotic symptoms, during the period of the offending or on remand, and there is no evidence from the Justice Health records or from any other source to indicate any signs of any enduring psychotic illness. 

19That provides a brief summary of the information on which Dr Deacon relied to conclude that your false belief that the child was your daughter appears to have been the result of delusional misidentification stemming from the impact of the illicit drugs that you had taken, on your judgement and reasoning.

20Based on it also, Dr Deacon concluded that a defence of mental impairment was not open in respect of the charges.  Although he was of the opinion that you were transiently psychotic, your state was drug-induced and not a result of mental illness.

21Importantly, he noted that you have recovered well following a period of sustained abstinence from drugs.  I note that random drug tests which have been taken whilst you have been in custody confirm that abstinence, as does the fact that you have been working as a billet whilst being held at Ravenhall.  A position of billet is a trusted position not open to prisoners who return positive drug tests.

22Dr Deacon did, however, conclude that your capacity to exercise reasonable judgement and reasoning was likely significantly compromised by your drug-induced state.

23This is a somewhat detailed exposition of Dr Deacon’s assessment and findings.  It is important, in my view, to go into that detail in order to balance against the obvious objective seriousness of the offending, the objective support for a finding of a drug-induced transient psychosis that helps explain and contextualise the offending.

24Although generally, impairment by illicit drugs is not a mitigating factor, or a matter which reduces moral culpability, in this case I am satisfied that your moral culpability in respect of the attempted kidnapping and the associated assault and cause injury offences is properly to be regarded as to some extent reduced by reason of your transient psychotic state.  I say to some extent, because of course it still was a drug-induced state. However, I accept on the evidence that you were not aware of the possibility that you would be affected by a psychotic delusional misidentification of someone else’s child as your own as a result of the combination of drugs that you had taken.

25As noted, although you had used amphetamines before, you had not experienced any psychotic behaviour in the past. Nor have you any criminal history related to amphetamine use.  On your account this was the first time you had used GHB.  Whether, as you told Ms Walker and Dr Deacon, you found it on a park bench and decided to use it (an account that I must say I find highly implausible) or whether you obtained it through more orthodox sources is really not to the point, because there is no evidence to suggest that you had used it before and no evidence that you had suffered any adverse reaction to any drugs that you had taken in the past and no evidence that you had any awareness that you might suffer an adverse reaction of the sort you suffered on this day.  When I say 'adverse reaction', I mean a transient psychosis, whether or not it was accompanied by delusional misidentification.

26However, what I said relates to a reduction to some extent to your moral culpability in respect of the first three charges related to the attempt to grab a child, taking him away and the assault on the father of the child connected with that.  However, Dr Deacon’s evidence does not, in my view, suggest that your conduct, in running away and resisting police when they tried to arrest you, or assaulting a police officer as she tried to restrain you in hospital some hours later, are attributable to, or a consequence of, the same delusional misidentification.  In my view,
self-induced impairment by drugs does not reduce your moral culpability in respect of those last two offences of resisting and assaulting emergency workers on duty.  It is still proper, therefore, to take into account, when assessing your moral culpability, that you made a conscious choice to abuse illicit drugs.

27I appreciate that this probably makes little difference to your victims.  It was a terrifying experience for them and remains so whether or not the father now knows that you had an impaired capacity to make reasoned judgments, whether or not he knows that that impaired capacity was by reason of mental illness or drug use.  My findings in relation to the symptoms of the transient psychotic state, and the reasons why the unknown or unanticipated consequences of your drug use on this day can be relied on to somewhat reduce your moral culpability in respect of the first three charges does not in any way diminish the terrifying experiences for the father and the child.  Nor does it diminish the importance of denunciation, deterrence both general and specific, just punishment and community protection in sentencing, although it does, to a limited extent, affect the different weight to be given to those in respect of the first three charges.

28That the offending is serious is obvious from the bare circumstances of what happened that night as already recounted by me.  Although this was spontaneous, not pre-planned offending, and it was random and unsophisticated and occasioned by that delusional belief or misidentification, what happened is every parent’s nightmare.  There was determination, force and persistence in your conduct.  You fought the father, pushed him as he was holding the child to the ground and repeatedly hit him around the head as his body was curled around his child, protecting him.  You grabbed the child and wrestled him from his father, as he desperately tried to protect him and keep him safe.  The CCTV footage which I watched after the plea hearing is harrowing.  It is understandable, as the victim impact statement of the father makes clear, that they both have, in age appropriate ways, lost their sense of safety and security.  This was their neighbourhood.  It was a safe place for them and clearly a time of family joy for a father to take his son for a walk around a lovely public area, around the library and play together with the dog. Seeing the aftermath, as the father's partner and other child arrived and they sought to comfort him, and to see the tenderness with which the father held and stroked his child after you ran away, just brings home how terrifying it must have been and why it is so important that the sentence reflect the denunciation and condemnation of your behaviour, even though it was a product of an unanticipated drug-induced psychotic delusional state.

29No matter what delusional belief affected you in relation to the child, your conduct in running away and hiding, then running at the police as they tried to reason with you and arrest you, showed that you had some appreciation of the circumstances you then find found yourself in, and you were trying to avoid them.  The same applies to your conduct in assaulting the police officer when she tried to restrain you at the hospital.  And therefore, the sentencing considerations to which I have referred still carry considerable weight, notwithstanding the need to reduce the weight to be given to your moral culpability, and therefore to denunciation and general deterrence in respect of the first three charges.

30A measure of the objective seriousness of the offending is also gained from the maximum penalties prescribed by Parliament. They are, for the offence of attempted kidnaping, 20 years' imprisonment; for common assault and recklessly cause injury, five years' imprisonment; and, for resisting and assaulting emergency workers on duty, five years' imprisonment.  The maximum penalty for commit an indictable offence on bail is three months' imprisonment.

31Subject to the findings in relation to the reduced weight to be given to your moral culpability by reason of that transient psychotic state in respect of the first three charges, and to other matters proper to take into account in mitigation, denunciation, deterrence, just punishment and protection of the community are still clearly relevant sentencing factors.

32You are, Mr Rawson, a mature adult.  You were 40 years old at the time of the offending and you are now 41.  Despite what was clearly considerable disruption and disadvantage in your childhood, you have lived a stable, law-abiding, hard-working family life between the ages of 16, when you left school, and 36.  Your childhood was indeed difficult.  You were exposed to the conduct, and the consequences of the conduct of a violent alcoholic father, who died when you were 11 and your time after that was not always happy.

33Despite your early school leaving, your work history has been impressive.  You worked for seven years as an electroplater, 13 as a chemical compounder and the last three years as a truck driver.  You were in a stable relationship for 20 years from the age of 16 and five children, now between 21 and six, were born of that relationship.

34The relationship came to an end in 2016.  From your perspective, its ending was unexpected and devastating, and appears to have led to an unravelling of your life.  You perceived yourself as being a good husband, and provider and a loving father.  And yet within months of separation, your contact with your children came to an end, and you were prohibited from seeing or contacting your former wife and the children under the conditions of a family violence intervention order made against you.

35You have twice been convicted since then of persistent contravention of the family violence intervention orders and twice been dealt with for breaching the community correction orders that you were placed on as a result  Those contraventions were made out by the commission of further offences (again breaching the family violence intervention orders) and also non-compliance with the conduct conditions of the community correction order. I am told that there are still further charges pending against you in relation to breaching the family violence intervention orders.

36That stands in stark contrast to the history that you had up until the unravelling of your marriage and the unravelling of your life in 2016.  Consistently with the history of hard work and stable family life that I have described, drugs and alcohol appear not to have been problems in your life, or interfered with your capacity to work or parent before the breakup of your marriage.  I was told that it was only in 2018, two years after the breakup of the marriage and the making of the first lot of court orders which prevented you from having contact with your former wife and children, that you turned to amphetamine use.

37It never ceases to amaze me that people who have successfully navigated the immaturity of their teenage and early adult years, without turning to illicit drugs, in mature adulthood, when they are old enough to know better, start using something they should be well aware is likely to lead them into trouble.  You fall into that category, and the conduct for which you come to be sentenced is a very confronting example of how badly, for users and innocent victims alike, a conscious decision to start using illicit drugs in mature adulthood can impact on so many people's lives.

38Apart from minor convictions for possession of cannabis and doing a burnout on your wedding day, you had no criminal history until your late 30s.  It is noteworthy that none of your criminal history involves personal violence.  I am told that the breaches of the intervention orders related to persistent contact, particularly texting, sending messages related to what Ms Walker herself described as conspiracy theories to your former wife.  It clearly had a very confronting effect on her.

39It is clear that your response to the breakup of your marriage and your subsequent decline into substance abuse provide the context for understanding the offending on this day.  Mental illness having been ruled out, it follows that if you can address your substance abuse, your demonstrated capacity for 20 years for hard work, together with the continued support of your mother, bode well for your prospects for rehabilitation.

40I have already noted that your psychotic state was transient, and there has been no recurrence of any psychosis since your remand in custody 10 months ago.

41Your abstinence whilst in custody is confirmed by the three random drug screens that have been conducted whilst you have been on remand and perhaps more significantly by your employment as a billet at Ravenhall, which again demonstrate your capacity to keep yourself up and to remain drug-free.

42Although you are, of course, living in a strictly controlled environment, your abstinence, and the clearheaded ability to reflect with shame and remorse on what you did on this day, when substance impaired, also count in your favour when assessing your prospects for rehabilitation.  You articulate an understanding of the relationship between your substance abuse and the offending, your sense of horror and shame that you acted as you did, and a desire to avoid acting in like manner again, which I accept is an incentive for you to remain substance-free upon release.

43You have pleaded guilty to these charges and I accept that, in the circumstances where it was necessary and appropriate for your lawyers to investigate your mental state and whether a defence of mental impairment was open to you, your plea came at the earliest opportunity. That is, after that assessment was completed and Dr Deacon expressed his considered opinion that no defence of mental impairment was available to you.  Those pleas of guilty entered immediately after being able to evaluate Dr Deacon's opinion, together with the expressions of regret that you have made to him and in the letter that you provided to the court, I take as evidence of remorse, which again counts in your favour when assessing your prospects for rehabilitation. Your demeanour throughout the course of the plea hearing indicates that the way you expressed yourself to Dr Deacon and in your letter to the court are indeed genuine heartfelt expressions of remorse.

44I accept that remand has been difficult for you and any further imprisonment will be also.  That is not only because imprisonment and loss of liberty in themselves are onerous, and because you are experiencing, as a mature man, imprisonment for the first time, but also because of the consequences on people in custody of the fears related to the pandemic.

45Since Victoria has been confronted with the threat of COVID-19, conditions have been more onerous for prisoners than they normally are.  All family visits have been suspended and all face-to-face programs have been suspended too. Although most of them are now continuing in online form, there is not quite the same reach and coverage that there was, and time out of cells is often more limited.  The fear of exposure, and of coming down with COVID-19 is real for everyone in our community.  It is more so for somebody living in a confined community like prison, where they are unable to make the choices those of us in the broader community can make about how best to protect and isolate ourselves.  I accept that, in the circumstances, and despite the successful efforts made so far by Corrections to prevent the spread of COVID-19 within the prison system, the fear of what might happen if it does find its way there, and the inability to have control over the way to protect yourself, are added burdens of imprisonment.  All of those are proper to take into account.

46I accept Ms Walker’s submissions that this offending is properly to be regarded as part of a single episode, and that in order to conform with the principle of totality, substantial concurrency is required to ensure that the total effective sentence reflect the overall offending.

47Ms Walker submitted that the appropriate disposition, having regard to these matters was a term of imprisonment followed by a lengthy community correction order, with strict conditions in relation to drug assessment and treatment, supervision and monitoring.  The monitoring, she submitted, could include the imposition of a curfew for the first six months following release, combined with electronic monitoring to monitor the curfew, and judicial monitoring.

48Whilst drug rehabilitation is clearly a very important matter to encourage in order to protect the community and enhance your good prospects for rehabilitation, and they are good if you can continue to control and deal with your substance abuse, I do not consider, as I discussed with Ms Walker in the course of the plea, that a curfew and electronic monitoring are reasonable and proportionate to your offending and the risk of reoffending.

49But also, as I discussed with her in the course of the plea, I do not consider that the maximum term of imprisonment open to me if I were to also order your release upon a community correction order is anywhere near sufficient to mark the seriousness of the principal offence of attempted kidnapping, and to give proper weight to denunciation, general deterrence and just punishment, even with the qualifications that I have expressed.

50I do, however, consider that a significant gap between the head sentence and non-parole period is appropriate.  I consider that to be so having regard to the absence of criminal convictions of any significance until your late 30s, the significance of the correlation of your substance abuse to the offending, the relatively short history of substance abuse in the lead-up to the offending and together with the other matters I have taken into account in determining that your prospects for rehabilitation, if you can manage yourself, to be good.

51Given the connection between your marriage breakup and the commencement of your offending behaviour I urge the corrections authorities to ensure that you have made available to you such counselling and mental health assessment and treatment as can be provided to assist you to deal with the consequences of the break-up of your marriage, and the absence of contact with your children.  That clearly is a significant factor in terms of your mental health, your risk of substance abuse and your risk of further offending.  I also urge the corrections authorities to ensure that you have available to you all possible opportunities to engage in appropriate drug rehabilitation programs, both whilst in custody, in preparation for release on parole if the authorities see fit to release you on parole, and whilst on parole.  It is clearly in your interest and the community's interest that you are provided with appropriate treatment and supports, in particular to prepare for release and the inevitable temptations to relapse after release.

52Consistently with what I have said about the importance of totality and the single episode of offending, and the acceptance of Ms Walker's submissions in respect of that, the sentences in respect of Charges 2 and 3 will be served wholly concurrently with the sentence on Charge 1.

53I am imposing partial cumulation in respect of Charges 4 and 5, the charges of resist and assault police.  Total cumulation is clearly not warranted but partial cumulation is, in my view, for the reasons that I have already expressed. I do not consider cumulation is warranted for the summary charge, having regard to the state you were in when released, and the difference in the nature of the offences for which you were bailed.

54Michael Rawson, on all charges to which you have pleaded guilty you are convicted.

55On Charge 1, you are sentenced to be imprisoned for a period of four years.

56On Charge 2, to be imprisoned for a period of one year.

57On Charge 3, to be imprisoned for a period of one year.

58On Charge 4, to be imprisoned for a period of six months and I direct that three months of that be served cumulatively upon Charge 1, which is the base sentence. 

59On Charge 5, you are also sentenced to be imprisoned for a period of six months and, again, three months of that I direct be served cumulatively on the base sentence, Charge 1, and on the partial cumulation order of Charge 4.

60And on the related summary offence of committing an indictable offence on bail, you are sentenced to be imprisoned for a period of one month.

61That makes a total effective sentence of four years and six months and I fix a period of two years and three months as the time that you must serve before being eligible for parole.

62I declare that you have spent 302 days in pre-sentence detention and I direct that that be counted and reckoned as part of the sentence already served and I make the disposal order sought.

63I declare pursuant to s 6AAA of the Sentencing Act that, but for your pleas of guilty, I would have sentenced you to a total effective sentence of six years and six months and fixed a period of four years and four months as the time you would have had to serve before being eligible for parole.

64Are there any further orders that are required to be made?  Are the sentences pronounced correctly in form and is the arithmetic correct?

65MS WALKER:  No, your Honour.

66MR BOYD-WILSON:  No further orders are sought, your Honour.

67HER HONOUR:  All right.  Thank you.

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