Director of Public Prosecutions v Ray, Christopher Mark
[2012] VCC 1719
•7 November 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT GEELONG
CRIMINAL DIVISION
Case No. CR-12-01060
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHRISTOPHER MARK RAY |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 7 November 2012 | |
DATE OF SENTENCE: | 7 November 2012 | |
CASE MAY BE CITED AS: | DPP v Ray, Christopher Mark | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1719 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – Sentencing – Criminal damage and reckless conduct endangering a person – Application Verdins principles – Wholly suspended sentence imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A. Sampson | Craig Hyland Solicitor for Public Prosecutions |
| For the Accused | Mr J. Fitzpatrick | Wightons Lawyers |
HER HONOUR:
1 Mr Ray, you have been charged with two charges on the indictment and you have pleaded guilty to one charge of criminal damage and one charge of reckless conduct endangering a person.
2 Those offences are serious and that is reflected in the maximum penalty prescribed by Parliament, namely, ten years imprisonment in respect to criminal damage and five years imprisonment in respect to reckless conduct endangering a person.
3 You also admitted, through your counsel, your prior criminal record. I note that you have had court appearances in the past some of which are quite dated and relate to minor dishonesty and drug offences and other offences for which you were dealt with many years ago. They are not relevant to my sentencing task today. However, there are some convictions that are, obviously, relevant and I refer to those that relate to a court hearing on 1 October 1998 when you were convicted in relation to driving in a dangerous manner and intentionally damaging property. Those charges arose out of a motor vehicle accident. That is of some relevance to me in my sentencing you today.
4 There is also a subsequent offence for which you were dealt with in the Magistrates' Court here in Geelong on 19 April 2012 and they relate to charges following an incident that occurred at a Torquay flower farm where you had previously been employed. You had a dispute with the owners, had been drinking and attended the farm and damaged property and stole drums of various pesticides and weed killer and a box trailer.
5 When sentenced by the court for those offences you were convicted and placed on a Community Corrections Order with a special condition that you perform 60 hours community work over a 12 month period.
6 I have received a progress report from Geelong Community Correctional Services dated 7 November 2012 which states that you are attending all appointments as directed and present well. You are compliant and engage well with the writer, Rachel Marshall, who is an officer of Community Corrections, Geelong.
7 She states that you have attended an ACSO COATS assessment for alcohol abuse or dependency and that there has been no recommendation for treatment at this time. You have never presented under the influence or given any cause for concern in this regard.
8 Community Corrections have also organised for you to be assessed for mental health issues by the intake team at Bellarine Mental Health. It was deemed not necessary for any further engagement at present and they attribute that to you having regular contact with Dr Lim, your psychiatrist.
9 You have been a patient of his for the past 14 years. He is seeing you once a month monitoring your medications for a serious psychiatric condition that you have been diagnosed with suffering from your early teenage years. That includes severe major depressive disorder, paranoid psychosis and alcohol and drug misuse.
10 In all respects you have been compliant with the requirements of your Community Corrections Order and that augers well for the future.
11 I shall not be going into the circumstances in great detail in relation to this offending. It was set out in full by the Crown prosecutor in the opening on the plea hearing and the facts have been set out in the exhibit marked “1”.
12 Briefly, you were employed by Calco Timbers as a delivery driver and on Tuesday, 15 November 2011 at around 6.30 pm you were involved in a situation whilst you were driving your semi-trailer south along Duncans Road, Werribee South. Your vehicle was overtaken by a Chevrolet driven by Jose Rodriguez. Following the manoeuvre performed by Mr Rodriguez, he drove off the road into a ramp car park and parked.
13 You continued to proceed along Duncans Road and then did a U-turn, returning to the car park and rammed his vehicle with your truck on two separate occasions. As a result of the second hit his utility was shunted into a median strip and became airborne for approximately 20 metres before coming to rest. You then drove out of the car park and drove away from the scene and returned to your depot.
14 Mr Rodriguez's vehicle sustained substantial damage valued at $134,000. It was written off and the Crown opened the case on the basis that he was not injured, however, was in fear during the incident.
15 When you were arrested by the police on 2 December 2011 a formal interview was conducted during which you made all necessary admissions to these charges.
16 A Victim Impact Statement was filed with the court from Mr Rodriguez and it is evident that he suffered greatly as a consequence of your actions. He says that he was in stress and fearful and remains so whenever he sees large vehicles on the road.
17 Mr Ray, the charges are both serious examples of this type of offending. As was stated by your counsel, Mr Fitzpatrick, this was an extremely dangerous incident. You are fortunate that Mr Rodriguez was not seriously injured. Your actions placed him in a position where he was in danger of serious injury.
18 Ordinarily I would have imposed a gaol term to be immediately served, however, there are powerful mitigating circumstances that operate in your case and I will refer to those now.
19 First, when arrested on 2 December 2011 you were fully co-operative with the police and made full and frank admissions.
20 Secondly, the plea of guilty was entered at the earliest possible time at committal mention held on 22 June 2012. There is real utility in your pleas. You have saved the State the expense and inconvenience of a trial and spared the witnesses, especially Mr Rodriguez, the further trauma of having to give evidence on your trial. You have thereby facilitated justice.
21 As was stated by Coldrey, AJA with whom Vincent JA and Smith AJA agreed in the R v Ly & Ors {2004] VSCA 45 at para [22]:
"It is an important policy consideration in the administration of justice that defendants not only receive appropriate credit for their pleas of guilty but that they appear to receive credit for such pleas."
22 Therefore the discount for your plea of guilty must not appear to be illusory but be reflected in the actual sentence to be imposed and your sentence will be discounted accordingly.
23 Thirdly, I accept that the plea of guilty is evidence of real remorse and an acceptance of responsibility by you for your actions. Importantly, your treating psychiatrist, Dr Lim, notes in his report when he examined you on 21 December 2011 that you were "Self critical and upset about this incident" for which you have regrets and remorse.
24 Fourthly, your personal circumstances and in particular your long-standing serious psychiatric condition diagnosed as severe major depressive disorder, paranoid psychosis and alcohol episodic misuse was referred to in great detail in Dr Lim's report.
25 It is evident from reading his report dated 13 September 2012 there is a long history of psychiatric treatment commencing in October 1998 when you were first referred to him aged 24.
26 Thereafter he has regularly seen you from time to time. There is a history of suicide attempts. He has tried to manage your condition variously with anti-psychotics and anti-depressants. He has organised drug and alcohol counselling over the years and he has seen you on many occasions over the intervening period.
27 There was a gap between December 2009 and December 2011 during which time your situation did deteriorate.
28 He sets out your family history. I note that your father is said to be a violent and abusive man with serious alcohol problems. You were the youngest of six children and your childhood was characterised as being a disturbed and unhappy one with evidence of parental violence. You have two sisters and three brothers, one of whom is deceased, and your counsel referred to the circumstances of his tragic death this morning and I will not repeat that.
29 You grew up in Narre Warren on a farm and worked on farms after completing Year 11 and thereafter you have an excellent work history working on farms, driving tractors and trucks.
30 Dr Lim states that over the years that he has been treating you he has been adjusting your medications and on occasions there have been adverse reactions to the drugs. In particular, he noted the difficulties that you had following the prescription of Ativan, an anxiolytic drug.
31 When you returned to see him on 21 December 2011 after the two year gap he was informed of the incident that occurred on 15 November 2011. You told him you had not been feeling well for a few days and had not been feeling yourself. You were paranoid, people were talking about you in a negative way, you were feeling depressed and anxious and that you had taken two tablets of Ativan, that you had bought some alcohol, bourbon, and had a couple of cans of bourbon prior to the incident.
32 Regarding the incident he says this. "He was in a dysphoric state of mind with depression, paranoid ideation and anxiety. He said that he had had a pretty bad day and pretty bad anxiety in his statement", meaning your police statement. "He had taken two Ativan 2.5 milligram tablets and drank alcohol which in the past had led to him doing irrational things for which he would have no recollection and in his statement to the Police he says “It makes you go a bit loopy and you forget a lot. The episode was triggered by an angry response to perceived dangerous driving by the man in the ute together with anger at being shown the finger.”
33 He had read all the material in the depositions and noted that you had been feeling unwell for a few months. You had stopped taking your anti-psychotic, Solian, at the beginning of 2011 because you were feeling unwell. You had changed your job from driving tractors to driving trucks in March 2011 and you felt overworked and stress. You became depressed and said that your employer was unsupportive and critical and that you were working long hours.
34 He says that you began to develop paranoid ideas about your co-workers, suicidal thoughts and you were hearing voices. He said you had not been drinking alcohol or using drugs. You had also reported symptoms of lethargy, loss of interest in your garden and your dogs, loss of enjoyment, poor concentration, loss of motivation, you were anxious about your future work, looking after your wife and daughter and your financial situation.
35 On mental state examination he says you were "Anxious, sad, pre-occupied and staring into space. You had some thought disturbances, self critical and upset about the incident for which you have regrets and remorse. You were talking about looking for another job.” He said you had, paranoid ideation. You’d denied any suicidal or homicidal ideation and your insight was diminished.
36 He notes in his report that you had responded to the anti-psychotic, Solian, 100 milligrams, in the past so you were recommenced on that while continuing with the anti-depressant, Zoloft.
37 When reviewed on 12 January 2012 there had been an incident whereby you were upset by your mother-in-law and you disclosed to him the incident that occurred on the farm in Torquay that I have earlier referred to. He referred you to the CAT team at Barwon Health where you were assessed and given some support and referrals.
38 When next reviewed on 25 January 2012 you disclosed you had been charged in relation to the Torquay incident but your mood had improved and you were calmer and sleeping better. Your anti-psychotic, Solian, was increased to 300 milligrams daily and Zoloft was 250 milligrams.
39 When reviewed on 19 March 2012 you told him about an admission to hospital following a car accident. Your medication, Zoloft, was increased and Solian was maintained together with another drug, Lorazepam.
40 He confirms your diagnosis as being severe major depressive disorder, paranoid psychosis and alcohol episodic misuse. The episodic anger outbursts with out of control destructive behaviours which were disinhibited irrational and impulsive with diminished judgment when stressed, and after having consumed alcohol for symptomatic relief of depression, paranoid delusional beliefs and auditory hallucinations.
41 He notes that you are now taking a new anti-psychotic medication, Neulactil, and your thinking is clearer and you are not angry.
42 I consider that your long-standing pre-existing serious psychiatric condition is such that there was a link between your condition and your offending.
43 I accept Dr Lim's expressed opinion that the psychotic illness suffered by you impacted on your mental state at the time of the offending for which you are now remorseful. Therefore the principles of Verdins, that is R v Verdins (2007) VSCA 102, applies such that I accept that your moral culpability was reduced and there is also a need to moderate both general and specific deterrence in the circumstances of this case.
44 Further, your condition is such that you remain in precarious mental health. Mr Ray, I accept that a prison term would have a gravely adverse affect on your mental health, such that there is a serious risk of imprisonment having a significant adverse affect on your mental health.
45 Currently you are being managed appropriately by an expert psychiatrist who has had many years contact with you and it is desirable, having regard to your prospects of rehabilitation, that you continue to maintain your therapeutic relationship with your psychiatrist in the community.
46 Further, I am satisfied that you are engaging appropriately with Community Corrections, and you are currently compliant with all their requests.
47 You are further compliant with your medication that has been prescribed and you are not drinking alcohol.
48 In all those circumstances, I consider it is in the interests of the community to maintain that situation so as to enhance the best opportunity for you for your rehabilitation, and also to prevent any further recurrence of your criminal behaviour.
49 Finally, you are living with your wife of four years and have the responsibility for the day to day care of your two year old daughter. You are seeking a Disability Support Pension because of your psychiatric illness. Your wife remains supportive of you but wants you to take responsibility for your own actions.
50 Mr Fitzpatrick, on your behalf, sought a non-custodial disposition.
51 Ms Sampson, on behalf of the Crown, put to the court that the only disposition that is appropriate is an immediate custodial sentence with a range of two and a half to three and a half years head sentence and a non-parole period of one and a half to two and a half years.
52 In sentencing you, Mr Ray, I must impose just punishment. Overall I consider that the imposition of a gaol term is warranted, however, having regard to all the circumstances and the powerful mitigating factors to which I have earlier referred, I will impose a gaol term but that is to be wholly suspended.
53 Mr Ray, a suspended sentence of imprisonment is not an unconditional release or a mere exercise in leniency on behalf of the court. Rather, the order has been made in the community's interest, that is, it is designed to prevent you from re-offending. It will enable you to remain in the community to continue your treatment and management from both Dr Lim and Community Corrections Victoria.
54 Ultimately, it provides the best sanction for your on-going rehabilitation and support in the community. It also provides for the need to specifically deter you and others and reflects the attitude of the court that this behaviour is not to be tolerated in the future.
55 It is imperative that during the next three years, Mr Ray, that you continue to see Dr Lim and that you comply with all requests that he makes for you to take your medication. Do you understand that?
56 You must not commit any offences that are punishable by imprisonment. I have explained to you how a wholly suspended sentence works and you have consented to that.
57 I will ask that you now stand. I will formally impose the sentence.
58 Charge 1, you will be convicted and sentenced to 12 months imprisonment.
59 Charge 2, you will be convicted and sentenced to two years imprisonment.
60 I order that six months of the sentence imposed on Charge 1 is cumulative upon the sentence imposed on Charge 2 making a total effective sentence of two and a half years imprisonment and that is wholly suspended for a period of three years operative from today's date.
61 I have to make a declaration pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty, I would have imposed a sentence of three and a half years and to serve two years.
62 I will make the orders for restitution, that is, that you pay to Jose Rodriguez compensation in the sum of $1,050 and that is made pursuant to s.86 of the Sentencing Act 1991 and that you pay to Shannons Insurances Limited compensation in the sum of $65,950 pursuant to s.86 of the Sentencing Act 1991. I have signed those orders and they can be provided to the parties. Those orders were not opposed.
63 Finally, pursuant to s.28 of the Road Safety Act 1986 any licences that you hold are cancelled and you are disqualified from holding a licence for two years effective from today's date.
64 I believe that covers everything.
65 MR FITZPATRICK: Yes, Your Honour.
66 HER HONOUR: I just ask, Mr Fitzpatrick, if you would please spend some time with Mr Ray going through with him the effect of the court's orders.
67 MR FITZPATRICK: Yes, Your Honour.
68 HER HONOUR: Just emphasise to him about the breach process and finally about the disqualification such that he is no longer able to drive.
69 MR FITZPATRICK: Yes, Your Honour, I certainly shall.
70 HER HONOUR: The consequences that flow in the event that he is found driving whilst disqualified. It is very serious in the circumstances of his case.
71 MR FITZPATRICK: Yes, Your Honour.
72 HER HONOUR: All right, thank you for your assistance. We can now adjourn the court.
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