Director of Public Prosecutions v Reddy
[2024] VCC 1195
•25 July 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01504
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHERMELAN REDDY |
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JUDGE: | His Honour Judge Rozen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 July 2024 | |
DATE OF SENTENCE: | 25 July 2024 | |
CASE MAY BE CITED AS: | DPP v Reddy | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1195 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - SENTENCE
Catchwords: Plea of guilty – Aggravated Burglary – Mid-range – Common assault - Make threat to kill - Criminal history - Sentencing Principles – Verdins Principles – On bail – previous breaches of Community Correction Orders – Substance abuse – NDIS Supports – Prospects of rehabilitation – Remorse - Specific and General Deterrence - Pre-Sentence Detention.
Legislation Cited: Sentencing Act 1991 (Vic); Crimes Act 1958 (Vic)
Cases Cited:Hogarth v R (2012) 37 VR 685; DPP v Meyers (2014) 44 VR 486; Williams v R [2018] VSCA 171; R v Verdins [2007] VSCA 102; Manodh Marks v The Queen [2019] VSCA; Boulton v The Queen [2014] VSCA 342
Sentence: 2 years imprisonment to be followed immediately by a CCO of 12 months – s 6AAA Declaration – 3 years with a non-parole period of 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Natalie BURNETT | Office of Public Prosecutions |
| For the Accused | James PORTELLI | James Dowsley & Associates |
HIS HONOUR:
1Shermelan Reddy, after a sentence indication that I gave on 6 March 2024, you have pleaded guilty to the following offences:
(a) One charge of aggravated burglary, contrary s 77 of the Crimes Act 1958 (Vic) (‘Crimes Act’), which carries a maximum penalty of 25 years’ imprisonment;
(b) One charge of common assault, contrary to Common Law, which carries a maximum penalty of 5 years’ imprisonment;
(c) One charge of make threat to kill, contrary to s 20 of the Crimes Act, which carries a maximum penalty of 10 years’ imprisonment; and
(d) One charge of damaging property, contrary to s 197(1) of the Crimes Act, which carries a maximum penalty of 10 years’ imprisonment.
2You are to be sentenced on the basis of the Summary of Prosecution Opening for Plea dated 8 July 2024, which I note is an agreed document.[1]
[1] Exhibit P1.
The Offending
3In May 2023 the victim in this case, Mr Momtaze and you were living in a boarding house at 53 Carlisle Street, St Kilda which was managed by St Kilda Community Housing. You lived in unit 12 and Mr Momtaze lived downstairs in unit 4.
4On Tuesday the 9th May 2023 at approximately 5.15 am, Mr Momtaze was in his room sleeping when he heard you yelling from upstairs. You are depicted on closed circuit television footage (CCTV) going to the front door of Mr Momtaze’s unit.[2] You walked through the unlocked door, yelling and screaming at Mr Momtaze, who was lying in bed (Charge 1 – Aggravated burglary).
[2] Exhibit P2.
5You walked over to Mr Momtaze and continued to verbally abuse him, calling him a “rapist, transgender and a cunt”. You also stated to Mr Momtaze “I’m going to kill you, you rapist” and “you brought some mouse into my room, you want to rape my girlfriend" (Charge 3 – Make threat to kill).
6You proceeded to grab Mr Momtaze by his face and neck with both hands and began to choke him. Mr Momtaze felt as if his whole face was covered and that you were going to suffocate him (Charge 2 – Common assault). Mr Momtaze pushed you off before you left and returned to your own unit.
7At approximately 5.40 am Mr Momtaze received a series of abusive text messages sent by you. The messages stated the following:
(a) "I am going to fucking kill you cunt, mice man!!..." (Charge 3 – Make threat to kill)
(b) "You are fucking dead... "
(c) "Or explain, why you smell of mice cunt dog rat..."
(d) "You have no dick and definitely not a man. You are worse than a retarded infant that's been sexually abused"
(e) "Come fight me cunt and bring your wingman ..."
(f) "Because I am going fight you 2 whether you like it or not"
(g) "If I see either one of you, I'm going to attack you, you fucking pussy... "
8At 5:47 am Mr Momtaze called triple zero and reported the incident to police. Mr Momtaze received a phone call from police and subsequently advised that he would attend St Kilda Police Station later in the morning to provide a statement to police.
9At approximately 6:00 am, you went to Mr Momtaze’s unit and knocked on the door and abused Mr Momtaze.[3] You screamed: “cunt fucking leave this house, pack up and leave or I’m going to fucking murder you”. You returned to your unit a short time later.[4]
[3] Exhibit P2.
[4] Ibid.
10At approximately 10:30 am you walked down the stairs towards Mr Momtaze’s unit. You again, abused Mr Momtaze while holding a steel bar.[5]
[5] Ibid.
11You struck the door to Mr Momtaze’s room multiple times causing damage to the locking mechanism and continued to yell at and abuse Mr Momtaze. (Charge 4 – Damaging property). After approximately one minute, you stopped and returned to your unit.
12At 10:36 am, you left your unit armed with a hammer. You struck the door to Mr Momtaze’s unit with the hammer a number of times causing further damage to the locking mechanism (Charge 4 – Damaging property).[6] At the time, Mr Momtaze was standing behind the door.
[6] Ibid.
13At approximately 12:00 pm Mr Momtaze attended St Kilda Police Station and provided a sworn statement to Senior Constable Rebecca Macciness and provided screenshots of text messages and a video recording he had made.
14Crime scene officers attended Unit 4, 53 Carlisle Street and processed the crime scene. The damage to the door was photographed.
Arrest and Investigation
15At approximately 1:30 pm on Tuesday, the 9th of May 2023, police attended 53 Carlisle Street, St Kilda and arrested you.
16At the time of being arrested, you were on Magistrates’ Court bail for pending charges of threat to inflict serious injury, intentionally damaging property and possessing methylamphetamine, with the following conditions:
(a) Own undertaking to appear at Melbourne Magistrates’ Court on 12 March 2024;
(b) To comply with a curfew between 9pm and 6am;
(c) To reside at 12/53 Carlisle St, St Kilda;
(d) To comply with intervention order made in case number N11190074 dated 19 October 2022; and
(e) To continue attending 607 St Kilda Rd, level 3, for fortnightly depot injections.
17You were transported to the St Kilda Police Station for interview, however, were deemed unfit for interview by Forensic Medical Officer Monique Mei Ling KEET.
18You were subsequently charged and remanded in custody where you remain.
19On the 17th of May 2023 at approximately 12:20 pm, police attended at Unit 12, 53 Carlisle Street, St Kilda and executed a search warrant where they located and seized the following items:
(a) 1 metal pole; and
(b) 1 hammer.
Objective Gravity
20Aggravated burglary is a serious criminal offence as is clear from the maximum penalty of 25 years’ imprisonment. Yours is an example of a confrontational aggravated burglary, as your intent at the time you entered Mr Momtaze’s unit was to assault him. The Court of Appeal has repeatedly decried such conduct and indicated that stern punishment can be expected.[7]
[7] Hogarth v R (2012) 37 VR 685; DPP v Meyers (2014) 44 VR 486.
21Although I have no victim impact statement, that Mr Momtaze called the police suggests that he was badly affected by your conduct. I have no doubt the entire ordeal would have been frightening. The degrading language you used is aggravating. Mr Momtaze was entitled to feel safe in his unit.
22In Meyers, the Court of Appeal held that the following considerations are relevant to an assessment of the gravity of a particular instance of confrontational aggravated burglary:
· the offender’s intent at the point of entry (whether to steal or commit assault or cause damage);
· the mode of entry (eg, by forcing a door or breaking a window);
· whether the offender was carrying a weapon;
· whether the offender was alone or in company;
· the time of day at which the burglary took place;
· what the offender knew or believed about who would be inside and/or about where the person(s) would be; and
· whether the offender was someone of whom the victim was particularly frightened.[8]
[8] DPP v Meyers (2014) 44 VR 486, [48] (citations omitted).
23Applying this list to the facts here, the salient features of the case are:
(a) your intent - which was to assault;
(b) the time of day being a time when Mr Momtaze was in bed; and
(c) possession by you of the weapons.
24The absence of aggravating factors often seen, such as forced entry and being in company is significant.
25I consider the objective gravity of the aggravated burglary charge to be approaching the mid-range.
26Charge 3 is a low to mid-range example of a threat to kill charge. It is aggravating that the charge rolls up two separate threats – one by text message and one in person. However, I note that they occurred close together in time. It is concerning that you attacked Mr Momtaze, thus demonstrating that the threats were not idle. It is also concerning that you brought with you two different weapons. Having said that, you were not armed when you made the in-person threat to kill.
27The assault would have been frightening but there is no evidence of Mr Momtaze suffering any injury.
28There is no evidence of the cost of repairs to the door. The damage property charge is a low level example.
Personal Circumstances
29You are now 45 years old. At the time of offending you were 44 years old. You are of South African descent and have limited family support.
30You describe your upbringing as challenging. Your parents left you at home a lot, meaning you cooked and cleaned for yourself. You recall that your father was a heavy drinker who used to have a temper. As a result, you recall domestic violence being perpetrated against you. Specifically, your father use to slap or punch you, particularly when you didn’t do well in school or didn’t finish your chores. Your mother was more placid, and your father also used to commit family violence against her and your sister. In some instances you tried to intervene to protect your mother, which would result in your being hit as well. You recall that your sister suffered more, with your father sometimes whipping her with his belt, to which you heard her cry and scream.
31At the age of 18, you left the family home as you had a disagreement with your parents over your decision to cease taking your prescribed medication. Police were called to the house as you became violent, after which you were asked to leave the house. You have not spoken with your parents or your older sister for approximately ten years.
32You currently have a partner named Rebecca and you have been seeing each other for approximately four years and living together for three years. You are still in contact with her.
33You attended school and completed your education up to year 10. You recall that you began to face some learning difficulties and couldn’t grasp the concepts, which led to your grades slipping and you leaving school in year 11.
34You enrolled in an apprenticeship as a chef and worked in this role for approximately three years. After this, you completed a Certificate IV in Computer Science at Tafe and began working as a Computer Technician for two years. You then worked at Harvey Norman in sales for a period of five years. You have not worked for an employer for the past 12 years but you have been working for yourself with local computer shops, repairing various devices.
35You have Type II Diabetes Mellitus which is checked regularly in prison. You have been told over the years that you have low levels of Vitamin D.
36You have an extensive criminal history, although have no priors for aggravated burglary. Following some of these convictions, you have been subject to Assessment and Referral Court Programs on several occasions since 2015 and your success on the program has been varied. Your longest term of imprisonment served was seven months as sentenced by the Frankston Magistrates Court on 28 April 2020. You have also been sentenced to less lengthy prison sentences, as well as other community based programs supported by the courts.
37Your history while serving sentences in the community has not been positive. Between 2002 and 2022, you have been sentenced to 11 community-based dispositions. Of these, four were successfully completed and seven were contravened.
38You told Corrections that your previous non-compliance ‘was attributed to poor mental health, substance abuse and lack of NDIS supports’.[9]
[9] Community Correction Order Assessment Outcome Report dated 15 July 2024, 1-2 ‘CCO Report’).
39You have a long history of poly-substance abuse, particularly in relation to methylamphetamine and cannabis. You state that you first started smoking cannabis when you were 14 years old. You admit that you smoke ‘pretty much all the time’ unless you are incarcerated or admitted as an inpatient. You usually smoke 1 gram per day.
40You started using methylamphetamine around 15-20 years ago. Your usage escalated 10 years ago when you were using a few grams per day, you admit to using methylamphetamine up until the day prior to the offending. You admit to previously using cocaine, MDMA, and LSD in varying quantities over the years however none in the time leading up to the offending.
41Dr Nicholas Hughes, a consultant psychiatrist who examined you twice in 2023 at the request of your lawyers, states that your drug use had a significant impact on your decompensation of your mental health, which resulted in you being in a ‘significant state of paranoid psychosis’ at the time of the offending. I accept that your paranoid and delusional state, which was triggered by your drug use, is inextricably connected to your underlying condition of schizophrenia which I will now discuss.
Mental Health
42You have a long history of mental illness dating back to an episode of psychosis when you were 18. You have had at least ten inpatient admissions for relapses of schizophrenia, a number of which have required involuntary treatment. You have been the subject of a number of community treatment orders.
43Prior to this offending, you had been receiving long-acting injectable antipsychotic medication.[10]
[10] The history is based on the report of Dr Hughes dated 15 February 2024 (Exhibit D1) (‘Hughes’).
44As noted earlier in these reasons, you were assessed as unfit for interview on the day of your arrest. The prosecutor was unable to assist the court about the reasons for this but it is safe to assume, based on subsequent events, that it was at least partly due to your mental state.
45Two days later, on 11 May 2023, you were assessed by mental health staff when you were received in custody. While you were observed by the psychiatric nurse to be dishevelled and with underlying irritability present, no overt psychotic symptoms were observed. You were confirmed to be up-to-date with your medication.[11]
[11] Ibid, [43].
46Dr Harris, senior staff specialist in psychiatry at the prison, saw you on 16 May 2023 and considered that your symptoms were ‘consistent with schizophrenia in remission due to compliance with medication’.[12]
[12] Ibid, [45].
47Dr Hughes endorses this opinion.[13] He concludes that, at the time of your offending, you ‘had a therapeutic dose of antipsychotic in [your] system and [were] heavily using both cannabis and methamphetamine at the time’.[14]
[13] Ibid, [51], [54].
[14] Ibid, [55].
48Turning to the impact of your mental health condition on your offending, Dr Hughes opines that your actions towards Mr Momtaze ‘were likely in part driven by a psychotic misinterpretation of the mouse in [your] house’. He notes that ‘when individuals are in this mental state, they can frequently display increased aggression and impulsivity which is not otherwise demonstrated when they are without psychotic symptomology’.[15]
[15] Ibid, [57]; see also at [56].
49The application of Verdins limb 1 to your case raises complex questions. The evidence of Dr Hughes is that, although your psychiatric condition was well treated with medication, it ‘deteriorates significantly with heavy cannabis and meth use…’.[16] Dr Hughes concludes that, at the time of your offending, you ‘had a therapeutic dose of antipsychotic in [your] system and [were] heavily using both cannabis and methamphetamine at the time’.[17]
[16] Ibid, [54].
[17] Ibid, [55].
50I conclude that your paranoid state at the time of your offending was due to a combination of your psychosis and your drug use, with the former likely to have been brought on, at least to some extent, by the latter.
51As the Court of Appeal has explained, ‘… generally speaking, an offender’s culpability is unlikely to be reduced by a state of mind resulting from the use of illicit drugs if that person has a history of drug use leading to hallucinations and bizarre behaviour’.[18] Especially when, as is the case here, the offender is aware of the impact on her or his mental health by the ingestion of illicit drugs. An offender will not be able to rely on the relapse of a medical condition to diminish her or his moral culpability insofar as it is caused by the ingestion of illicit drugs.[19]
[18] R v Verdins [2007] VSCA 102; Manodh Marks v The Queen [2019] VSCA, [60].
[19] Williams v R [2018] VSCA 171, [41].
52Finally, Dr Hughes, who works as a prison psychiatrist, also concludes that your schizophrenia ‘would have a significant impact on [your] experience of the custodial environment’. He states that you will be especially vulnerable to exploitation and being ‘stood over’.[20]
[20] Hughes (n 10) [58].
53Your schizophrenia is currently managed under the National Disability Insurance Scheme (NDIS). You have been supported through a Disability Support Pension for the last 12 years. Throughout this period, you experienced significant stints of homelessness.
Moral Culpability
54For the reasons explained earlier, I have accepted that Verdins limb 1 is enlivened to a limited extent in your case. It is clear, based on the evidence of Dr Hughes, that your conduct towards Mr Momtaze was driven by a combination of your mental ill-health and your ingestion of illicit drugs.
55In those circumstances, this reduces, but only to a limited extent, your moral culpability, as distinct from your legal responsibility. This will ‘affect the punishment that is just and appropriate in all the circumstances’ and ‘denunciation is less likely to be a relevant sentencing objective’.[21]
[21] Verdins [32.1].
56The application of the Verdins principles is also relevant to deterrence as a sentencing purpose, which I discuss further below.
Rehabilitation Prospects
57Your lengthy criminal history, poor performance in respect of community-based sentences, struggles with addiction, sporadic work history and lack of family supports paint a picture of real uncertainty in my mind about whether you can turn your life around. You are no longer a young man.
58Against that there is some cause for hope. The support you are receiving from the Light of Hope Foundation and the NDIS are positives. According to Ms Naginski of the Foundation, you are determined to turn your life around. Importantly, Ms Naginski is planning to secure suitable supported accommodation and better living conditions for you. This is vital in my view.
59Your prospects of rehabilitation depend heavily on breaking free of drugs and sustained treatment of your longstanding mental health conditions. If those two things can be achieved, I consider your prospects to be reasonable at best.
60You are 45 years old – too old to be living the life that has brought you before the courts again and again. The supports are important but ultimately, only you can decide the life that you lead after your release from custody.
61This court will do what it can to promote your rehabilitation as it is required to do under the law.[22]
[22] Sentencing Act 1991 (Vic) s 5(1)(c) (‘Sentencing Act’).
Other Matters in Mitigation
62Your plea of guilty, although not at an early stage and coming only after you received a sentence indication, is of significant utilitarian value. It means that Mr Momtaze does not have to relive the experience at a trial. Court and prosecution resources are saved.
63By pleading guilty you accept responsibility for your conduct and I am satisfied that you express a degree of remorse. You told Corrections that Mr Momtaze did not deserve to be attacked and you want to apologise.
64According to a letter to the court from your NDIS service provider, Ms Naginski, you have expressed ‘sincere remorse for your actions’.[23]
[23] Exhibit D2.
Submissions
Defence
65Your counsel submitted that all relevant sentencing purposes can be met in your case by a sentence of time served and a CCO.
Prosecution
66The prosecution submitted at the sentence indication hearing, which they maintained at the hearing of your plea and again today, that only a head sentence and a non parole period is appropriate, having regard to the objective gravity of your offending and your antecedents particularly your history of poor performance in relation to community-based sentences.
Consideration
67The principal sentencing considerations in your case are deterrence, both specific and general, punishment, community protection and rehabilitation. These last two principles are related – promoting your rehabilitation lessens your risk of re-offending and therefore protects the community.
68Your moral culpability for your offending is reduced to the extent discussed earlier in accordance with the case of Verdins. I have also taken into account that the role of your mental ill-health in your offending reduces, albeit to a limited extent, the need for the sentence to achieve general and specific deterrence under limbs 3 and 4 of Verdins. Finally, limb 5 of Verdins is relevant in accordance with the evidence of Dr Hughes discussed earlier. The combined effect is to reduce the length of time that you will be in custody.
69I had you assessed for suitability for a CCO. Despite the assessment by Corrections that you are a high risk of re-offending and your poor record, you were assessed as suitable.[24]
[24] Corrections Report (n9).
70As noted, in the interview you expressed remorse and accepted responsibility for your offending showing some insight into the effects on Mr Momtaze. You understand your mental health diagnosis and wish to remain compliant with your medication on release from custody and advised Corrections that your medication regime will be administered by the St Kilda Road clinic.
71You reported to Corrections that you have ‘stable accommodation to return to upon your release in Malvern as provided by [your] NDIS team’.[25]
[25] Ibid, 2.
72You have been in custody since 9 May 2023, a period of 443 days not including today. It is agreed that 31 days of that period are referable to another matter. Therefore you have served 411 days in prison referable to this offending, which is a little over 14 months.
73Taking all relevant considerations into account, and not without some hesitation, I have decided that a combination sentence of 2 years in custody to be followed by a 12 month CCO appropriately meets the sentencing considerations in your case.
74A combination sentence is appropriate to your circumstances as it is the disposition which combines the punitive aspects of the sentence as well as promoting your rehabilitation in the manner explained by the Court of Appeal in Boulton.[26]
[26] Boulton v The Queen [2014] VSCA 342.
75I have acceded to the recommendation by Corrections to include a judicial monitoring condition in the Order given your ‘extensive history of non-compliance with further orders’.[27]
[27] Corrections Report (n9), 2.
CCO
76I am unable to impose a CCO unless I explain the purpose and effect of the Order; the consequences if you breach the order without a reasonable excuse and the manner in which it can be varied.[28]
[28] Sentencing Act, s 95.
77The purpose is to both punish you and promote your rehabilitation. The effect is to require you to comply with the conditions imposed by the court which I will shortly explain.
78If you breach any condition of the order you can be brought back to court and sentenced for up to 3 months in jail for breaching the order and you may be re-sentenced on the original offending.
79If you are having difficulty complying with the order you may apply to this court to vary a condition.
80The order will contain the following standard conditions:
§you must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment;
§you must comply with any obligation or requirement prescribed by the regulations;
§you must report to, and receive visits from the Secretary during the period of the order;
§you must report to the community corrections centre at Moorabbin CCS within 2 clear working days after the order comes into force which will be the day of your release from custody;
§you must notify the Secretary of any change of address or employment within 2 clear working days after the change;
§you must not leave Victoria except with the permission, either generally or in relation to a particular case, of the Secretary; and
§you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.
81In addition, the special conditions will be:
(a) You must perform 100 hours of unpaid community work;
(b) You must participate in treatment and rehabilitation programs as directed for mental health, drugs and alcohol and programs to reduce offending.
(c) 40 hours to count against the UCW hours
(d) You will be under supervision
(e) I will judicially monitor you with the first monitoring session which you must attend being on Friday, 10 September 2025 at 9.15am.
Orders
82On charge 1, aggravated burglary, you are convicted and sentenced to 2 years’ imprisonment and a 12 month CCO.
83On charge 2, common assault, you are convicted and sentenced to 6 months’ imprisonment;
84On charge 3, make threat to kill, you are convicted and sentenced to 12 months’ imprisonment; and
85On charge 4, damaging property, you are convicted and sentenced to 3 months’ imprisonment.
86The sentence on charge 1 is the base sentence. Two months of the sentence on charge 2 and 4 months of the sentence on charge 3 are to be served cumulatively on the base sentence and on each other. The charge 4 sentence is to be served concurrently with the base sentence.
87The total effective sentence is therefore 2 years’ imprisonment to be followed immediately by a CCO of 12 months duration. The conditions of the CCO are as specified.
88I declare pursuant to S 18 of the SA that the 412 days you have served on remand in relation to this offending be reckoned as time served in respect of the sentence I impose today and the records of the court shall reflect this.
89I make the disposal order sought by the prosecution limited to the pole and the hammer noting that it is not opposed.
90Pursuant to s 6AAA of the SA, I indicate that, but for your pleas of guilty, I would have sentenced you to 3 years in custody with a non-parole period of 2 years.
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