Director of Public Prosecutions v Reiri
[2020] VCC 1724
•30 October 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01138
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WILSON REIRI |
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JUDGE: | HER HONOUR JUDGE TODD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 October 2020 | |
DATE OF SENTENCE: | 30 October 2020 | |
CASE MAY BE CITED AS: | DPP v Reiri | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1724 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Plea of guilty – one charge attempted aggravated burglary – one charge make threat to kill – one charge damaging property - related summary offence possession of controlled weapons without lawful excuse – youthful offender- moral culpability reduced due to mental health condition - circumstances of COVID19 pandemic.
Legislation Cited: s6(1) Control of Weapons Act 1990; ss 32P, 77, 197 Crimes Act 1958 ; Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; Sentencing Act 1991.
Cases Cited: R v Verdins (2007) 16 VR 269.
Sentence: Total effective sentence of 7 months imprisonment followed by an 18 month Community Corrections Order.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | J. O’Toole | Office of Public Prosecutions |
| For the Accused | A. Pyne | Victoria Legal Aid |
HER HONOUR:
Introduction
1 Mr Reiri I have to say a lot of things to the lawyers about what happened when you got in trouble and why I’m giving you the sentence that I am. Before I do that I’m going to let you know what is going to happen to you, what happens next and why.
2 I’m going to sentence you to 7 months in gaol: which is already nearly over. But getting out of gaol isn’t the end of the sentence. I am also putting you on a Community Corrections Order. And you have to do the things on that order so that you don’t have to go back to gaol. Your barrister had good arguments about why I should do this.
3 I want to say to you that what you did back in April 2020 really mustn’t happen again. The people in the house were absolutely terrified of you. But I also understand that you had bad mental illness at that time so that allows me to give you a sentence that is about helping you to get better again so that you don’t get in trouble again and go around frightening people. When you get out this case isn’t over: you have to do what the Community Corrections people and your doctors ask you to do. I’ll tell you more about your order at the end but it includes a condition that you don’t go near that house again. This next bit is for the lawyers and your barrister will be able to answer the questions that you have.
4 At around 8 AM on 9 April 2020 a young man went to the home of people he had a distant association with. He used the side gate to enter their back yard and then tried a number of ways to get in through the back door. He was agitated, abusive, threatening to kill the people inside. He used a chair, then a knife to attack the security screen door; the people inside called Police and the young man ran away. It was revealed later that the man was suffering from a mental illness and had been propelled to go to the house and do what he did as a result of a range of psychotic delusions.
Pleas of guilty and maximum penalties
5 Wilson Reiri you have pleaded guilty to one charge of attempted aggravated burglary (the maximum penalty for which is 20 years imprisonment pursuant to sections 77 and 321P of the Crimes Act 1958), one charge of making a threat to kill (the maximum penalty for which is 10 years imprisonment pursuant to section 20 of the Crimes Act 1958, one charge of criminal damage (the maximum penalty for which is 10 years imprisonment pursuant to section 197( 1) of the Crimes Act 1958) and you have also agreed for one summary charge to be uplifted and dealt with: possessing controlled weapon without excuse (the maximum penalty for which is one year imprisonment or 120 penalty units pursuant to section 6(1) of the Control of Weapons Act 1990.
Circumstances of the offending
6 The facts giving rise to your offending are set out in the Prosecution Opening which is marked as Exhibit A on the plea. That document forms part of these reasons; I will summarise your offending here.
7 Graham and Michelle Prentice live in Portland, Victoria. Some years ago you went to school with their daughter.
8 At 8 AM on 9 April 2020 Graham and Michelle Prentice were at home sleeping.
9 You arrived at their house carrying a backpack. You walked down their driveway and entered their back garden by the side gate. You knocked on the door. This woke up Michelle Prentice: she looked through her back door and saw you. You were wearing a top with the hood pulled up over your head. She had met you before and she recognised you.
10 You began to yell at her; she told you to leave or she would call the police. This woke up Graham Prentice who joined his wife; they both watched while you opened the wire security door and looked through the glass door. You were abusing them. You called them ‘cunts’, ‘dog cunts’ and ‘inbreed cunts’. You banged on the back door.
11 Graham Prentice told you to go away. You picked up a wooden deck chair, opened the wire security door and attempted to break into the house by hitting the glass door with the chair about ten times. (This conduct gives rise to Charge 1: attempted aggravated burglary). The chair broke in this process. (this, with other conduct set out below, gives rise to Charge 3: criminal damage).
12 Graham and Michelle Prentice rang the Police. You were unable to break the glass door with the deckchair. You then took a knife from your backpack and wielded it, threatening to kill Graham and Michelle Prentice. You said to them “I’ll cut you, you cunts”, “come out here, I’ll fucking cut ya” and “I’ll kill ya you cunts”. (This gives rise to Charge 2: making a threat to kill.)
13 You then broke a pot plant, stabbed the security screen door with your knife, and left. (These are the other events that give rise to Charge 3: criminal damage).
Arrest and interview
14 Two Police, who were responding to the 000 call made by the Prentices, found you walking on Trangmar Street. One of the Police asked you where the knife was and you told him “in the fucking bag”. When Police asked you to give them the bag you did so, in it they found two knives: a black handled Wiltshire kitchen knife 32 cm in length and a wooden handled kitchen knife 23 cm in length. (This gives rise to Summary Offence Charge 8: possessing a controlled weapon without excuse.)
15 The Police did not arrest you then but went on to speak to Graham and Michelle Prentice at their place. After speaking with them, Police found you again in the central business district of Portland and arrested you.
16 The Police commenced a record of interview with you but soon stopped it so you could be assessed by a forensic medical officer. FMO Jeanine Rowse examined you over the phone and concluded that you were unfit to be interviewed by police. You were charged and remanded into custody.
Prior criminal history
17 You have admitted a prior criminal history. You have two recorded appearances in adult court. They are both in 2018. In the first of these, you pleaded guilty to an assault by kicking and your case was adjourned without conviction. The next case was dealt with on 4 December 2018 and you were found guilty of a number of charges including recklessly causing injury, contravening a family violence safety notice, making a threat to kill, and unlawful assault. You were sentenced to a period of imprisonment of 71 days. I will return later in these reasons to address the significance of the previous term of imprisonment for the charge of making a threat to kill.
18 You have no outstanding matters awaiting determination. Nor do you have any subsequent convictions.
Procedural History
19 Your offending took place on 9 April 2020 and you were remanded in custody the same day. A filing hearing took place on 14 April 2020. At that hearing, your lawyers raised the question of whether you were fit to plead pursuant to the criteria in the Crimes (Mental Impairment Unfitness to be Tried) Act (‘CIMIA’).
20 On 3 June 2020, a psychiatrist, Dr Anthony Cidoni assessed you in custody at Ravenhall prison. His conclusion was that you were unfit to plead at that time but that you may become fit in due course. Dr Cidoni visited you again on 2 September 2020 and prepared a second report, this time concluding that you were fit to plead pursuant to the criteria under the CIMIA Act.
21 On 19 June 2020 your case was listed for committal mention. This fell in the period when you were awaiting the subsequent fitness assessment. On 18 September 2020 a further committal mention was held. The second of these two mentions occurred after Dr Cidoni found you fit to plead; I note that on that day your case resolved to a plea of guilty and proceeded by way of straight hand up brief to the County Court.
Nature and gravity of the offending
22 I am obliged to consider the nature and gravity of your offending and to place it in some relationship to other offences committed in this category. This is an assessment of the objective gravity of the offending: what you did was terrifying, unrestrained, persistent, and threatened the home of two people who, in reality, had done nothing whatsoever to harm you. The effect on them (and I will discuss this further below) was long lasting. Your barrister conceded the offending as being very serious, and offensive to the principle that a person ought to feel safe particularly in their home.
23 I find that, objectively, these examples fall within a relatively serious category of this offending. Such an assessment requires me, somewhat artificially, to set aside the other forces operating on you at the time, but I will return to those later in this sentence when I consider your culpability and degree of responsibility.
Personal circumstances
24 You were 20 years old at the time of the offending and turned 21 on 9 August 2020. You grew up in Haywood and Portland with your mother and father. Your father worked as a shearer and for most of your life your mother worked in the home to raise the children; she now works as a wool handler.
25 You have six brothers and sisters, some of whom have a different mother to you. Three of your siblings still live in New Zealand from where your parents originally came. You are the second youngest in your family with a brother in his early 20s still living at home. Your other siblings live in both Australia and New Zealand with the exception of René, your sister, who passed away from cancer soon after you left high school. Your sister Patricia lives close to your mother and works in the same occupation.
26 You went to school in Haywood and Portland; you were an average student but had no major behavioural issues. You left school in year nine when you were about 15. Since then you’ve mostly stayed at home; you have never worked. You have never had any significant intimate relationship. You have some friends you spend time with. You are currently on a disability support pension.
Health
27 You suffer from Type II diabetes. You also suffer from a joint condition called osteochondritis.
Mental health
28 Since childhood you apparently saw and heard things that weren’t really there. From at least 2015, when you were 15 years old you have been treated for mental illness. You were admitted to the Banksia Unit at the Royal Children’s Hospital during 2014 and 2015. The diagnosis was a first episode psychosis. From this time, you have been prescribed with antipsychotic medication.
29 You had a further admission to the Banksia Unit in February to March 2016: a relapse. Your thoughts were disordered; you were hearing things that weren’t real. At this time you were diagnosed with schizophrenia.
30 You had further admissions for psychiatric treatment in January 2018, July 2018 and August 2018. Your treatment, and your compliance with it, has fluctuated over this time. It appears that at least at one stage you met the criteria for treatment under the Mental Health Act.
31 It is clear that over the five years prior to your committing these offences you were in and out of inpatient psychiatric treatment facilities, were prescribed medication for psychotic symptoms, and were sometimes non-compliant with your medication.
32 When you were arrested on 9 April 2020 your state caused to the police to have you assessed by a forensic medical officer who assessed you over the phone. You were found unfit to be interviewed. You were taken into custody. You were still in custody when, over two months later, Dr Anthony Cidoni a psychiatrist, assessed you. He was asked to report on whether you were fit to be tried pursuant to the criteria in the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. Dr Cidoni found that you were then acutely psychotic with delusions, hallucinations, agitation and thought disorder. He concluded that you were at that stage ‘unfit to be tried’.
33 You were then in the Aire unit in Ravenhall Prison receiving acute psychiatric treatment. Dr Cidoni returned on 2 September 2020 and noted that you had significantly improved from the previous assessment three months earlier. In his report dated 2 September 2020, Exhibit 3 on the plea, Dr Cidoni reviewed your treatment in the psychiatric units in gaol over this three months. It is sufficient to say that you had been rather unwell in this period but had recovered sufficiently for Dr Cidoni to conclude that you were fit to be tried.
34 I will return to the legal significance of your mental health problems later in these reasons.
Neurological assessment
35 In 2017 you were assessed by a neuropsychologist. That assessment revealed that you have significant limitations in thinking, speech and memory. All this is summarised by saying you have a ‘mild intellectual disability’.
Drug and alcohol use
36 You have also been assessed as suffering from a polysubstance use disorder. You have used cannabis, alcohol and methamphetamine. It is difficult to untangle your drug use from your mental illness, though it is notable that you were receiving inpatient psychiatric care from the age of 15 and that your symptoms persisted well into your period on remand, when you were likely abstinent from such substances and Dr Cidoni performed his first assessment. From the available evidence, it would appear that your use of illicit substances has compounded, rather than caused, your current predicament.
Impact on victims
37 Michelle and Graham Prentice both wrote Victim Impact Statements for the hearing. I have taken the relevant parts into account. Michelle Prentice writes that during your offending she was shaking with fear and couldn’t function well enough to call for help. She writes that she worked hard to make her home and, until recently, regarded it as her haven, full of her family’s life and memories and she now feels vulnerable there because of what you did. Graham Prentice writes that he still feels worried for his safety and when he comes home he checks that each room is clear. He feels frightened when someone knocks on the door; he feels that his wife is disappointed in him for not doing more to protect her at the time.
38 They should never have been made to feel this way by you. Your lawyers have acknowledged in their submissions that the incident was terrifying for the victims and that it has had a lasting effect on them. Through your counsel you acknowledge that they were entitled to feel safe in their own home.
Plea of guilty
39 The Prosecution concede that you pleaded guilty at the earliest opportunity. As soon as your lawyers had expert opinion that you were fit to plead you chose to plead guilty. This is a very important matter to be taken into account in your favour. By taking that step, you spared Graham and Michelle Prentice the ordeal of having to give evidence in court. Your plea, it is hoped, may also assist them to put their experiences behind them, and to receive vindication and support from their family and friends.
40 I note that Dr Cidoni’s opinion is that you may have had a mental impairment defence available to you given your mental illness. You have chosen not to pursue such defence. This has reduced the burden on the court system.
41 In all the circumstances I accept that your plea is attended by considerable utilitarian value, indicates your willingness to facilitate the cause of justice, and that an aspect of remorse resides in it.
Sentencing principles to be applied
42 In sentencing you I must consider the relevant principles to be applied. In particular, I must consider the roles for general and specific deterrence, and just punishment.
43 Your barrister tendered two reports prepared by Dr Cidoni dated 14 June and 2 September 2020. I have already noted that in the first of these Dr Cidoni concluded that you were unfit to plead. His second report concluded that you were fit to plead but may have been able to pursue a defence of mental impairment to the charges.
44 You chose not pursue this course, however the contents of those reports contain the evidentiary basis for your barrister’s submission that your circumstances engage the principles (1 to 5) of the case of R v Verdins.[1]
[1] R v Verdins (2007) 16 VR 269.
45 Dr Cidoni, in his second report, concluded that you, at the time of the offending, knew the nature of your actions but it was likely that you were not able to reason with a moderate degree of sense and composure about whether what you did was wrong. Although you did not pursue a defence on that basis, the matters underpinning that conclusion are significant in reducing your sentence. At the time of the offending, you genuinely believed things about your victims that were not real. You told Dr Cidoni you had heard the victim’s voice in New Zealand several years prior. And that you had been friends with the victim’s daughter in year eight and that she had ‘put a rush through your body’, gave you sexually transmitted diseases and ‘ruined your plans’. On the plea, your counsel told me that the victims in this case were the parents of a girl who was in a relationship with your friend in high school. You report feeling that she had ridiculed you on some occasion long ago. Whatever the substance of that, it formed the raw material for the delusions with which you suffered on the day of your offending.
46 Dr Cidoni concludes that your attendance and conduct at the victims’ property was driven by your psychotic state. He notes that you give a clear description of psychotic symptoms that were directly connected to the victim, including bizarre and persecutory delusions, delusions of reference and auditory hallucinations. He concludes that your psychosis impaired your judgement and behaviour; your psychosis was also evident during the assessment of the forensic medical officer and is recorded at the point of your entering custody.
47 I find that, as a result of your psychotic symptoms you had a reduced ability to exercise appropriate judgement, make calm and rational choices and appreciate the wrongfulness of your conduct. I find that your psychotic symptoms fundamentally contributed to the commission of your offending. You acted this way because of your delusions. The legal effect of this is that your moral culpability is significantly reduced and, as a consequence, the role for punishment and denunciation is also reduced.
48 I also find that your mental illness has a bearing on the kind of sentence that I impose on you today. Further, I find that on the basis of a clear and well-founded expert opinion the role for general deterrence in your case is substantially reduced; as the result of the severity of your symptoms and the way they impaired your capacity at the time of the offending you are simply not an appropriate vehicle to carry a deterrent message to others in the community. The role for specific deterrence is significantly moderated for the same reasons.
49 The Crown, on the basis of the reports of Dr Cidoni ,accepted that it was open to this court to make these findings.
50 You have spent almost all of the 204 days in custody in acute psychiatric units. Your condition has improved over this time as a result, it would appear, of the treatment you received there.
51 You were arrested on 9 April 2020. You were transferred to Melbourne, having spent the previous five days in police cells, for a filing hearing in Melbourne on 14 April 2020. You did not apply for bail and from 15 April to 29 April 2020 you were kept in quarantine to manage your entry into the prison system. Your condition significantly deteriorated around 6 May 2020 and from then on you were, over the last six months transferred between various psychiatric treatment units in the prison system. You have, during this period, been plagued by ongoing psychotic phenomena and have been observed as irritable, screaming at others and distressed. I accept that your period of imprisonment has been more onerous than for a prisoner who is not so afflicted.
Youth
52 Although you are not a young offender within the meaning of the Sentencing Act you are, at 21 years old, still youthful. And because you are, I regard your rehabilitation as a particularly important sentencing consideration. The community has a long term stake in your recovery and your stopping committing crimes.
Community Protection
53 I am also obliged to consider the protection of the community in sentencing you. It is clear that when you are unwell and not having enough treatment you can behave in ways that are threatening in the community. I regard the best form of community protection from you is that you receive appropriate treatment and support for mental illness.
Prospects of rehabilitation
54 It is difficult to assess your prospects of rehabilitation. It would appear that your recovery and stopping offending are deeply linked to your insight into your mental illness, your willingness to accept treatment for that illness, as well as your decision and ability to cease using illicit drugs as a balm for your difficulties.
55 It is clear on the basis of your improvement during your time in custody you can emerge from the crises in your mental health and, as a consequence, avoid circumstances like the ones we are dealing with in court today.
56 There are some grounds to conclude that you can, over time and with the right treatment develop insight in to when and how you become unwell ,and listen to the professionals who advise you. It appears that you have accepted that treatment during your time in custody; this is a positive sign that you may continue to do so in future.
57 Further, you retain the support of your mother and family. Although you have been unable to receive personal visits from your family on account of the pandemic, you have relatively good relationships with them and you have spoken to your mother ‘all the time’ while you have been in custody and to your father and to the brothers and sisters that you have here in Australia. You remain welcome in the family home in Haywood.
Totality
58 I have considered the principle of totality when sentencing you. Summary Offence 8 (possessing controlled weapons) and the charge of criminal damage (breaking the deckchair) I regard as being closely if not perfectly aligned in time, place and purpose with the aggravated burglary. The aggravated burglary was put on the basis that you possessed a weapon at the time and that a person was present inside the house. It seems clear that you used the deckchair as the method by which you attempted to gain entry.
59 On 4 December 2018 you were found guilty by the Portland Magistrates’ Court of a number of charges but most relevantly of two charges of making a threat to kill. It was only your second appearance in adult court; your first appearance was for a charge of assault by kicking which was adjourned without conviction. However in December 2018 you were sentenced to an aggregate term of imprisonment of 71 days.
60 The Prosecutor drew this event to my attention, submitting that you fall to be sentenced as a ‘serious violent offender’ pursuant to Part 2A of the Sentencing Act in relation to the charge of making a threat to kill. Pursuant to s 6D of the Act if this court considers that a ‘sentence of imprisonment’ is justified in sentencing a serious offender for a relevant offence, I must regard the protection of the community as the principal purpose of sentencing. These obligations also draw my attention to orders for concurrency or cumulation of your sentence.
61 I note that the Prosecutor did not urge me to impose a disproportionate sentence.
62 In having regard to the protection of the community I will refer to a submission that was made on your behalf at his plea: that you ought to be referred to the Forensicare Problem Behaviour Program. This program is a specialist program directed at people who might have complex psychiatric or behavioural issues. At that time, the pathway to referral to that program was unclear. After the initial plea, the court obtained further information from Forensicare and recalled the parties and heard further submissions about this process.
63 On 20 October 2020 you were assessed as suitable for a community corrections order.
64 A further plea was conducted on 22 October 2020, at that hearing the parties were also invited to make submissions on the question raised in the Community Corrections Assessment Report in relation to the provision of a ‘Justice Plan’ plan on account of the intellectual disability. Your counsel did not press the idea.
65 After the further plea the lawyers for Mr Reiri advised that they did not seek to obtain any further reports.
Regard to current sentencing practices
66 I am obliged to consider current sentencing practices for this type of offending and I have done so. No particular case is helpful in sentencing you; your case has very significant factors relating to your mental health that make the sentencing calculus unique.
Covid-19
67 I take into account the current circumstances surrounding the COVID 19 pandemic. From information provided by Corrections Victoria, it is clear that personal visits to prison have been suspended, there has been a reduction of services and programs, and some prisoners are experiencing increased lockdown periods. Those circumstances cause additional stress for prisoners and their families and also affect the programs and supports in prison designed to assist in rehabilitation and transition into the community.
Disposition
68 On Charge 1: attempted aggravated burglary, you are convicted and sentenced to 6 months’ imprisonment. On Charge 2: making a threat to kill, you are convicted and sentenced to 2 months imprisonment. On Charge 3: intentionally damaging property, you are convicted and sentenced to one month imprisonment . On the Related Summary Offence of possessing a controlled weapon without excuse, you are convicted and sentenced to one month imprisonment.
69 The sentences on Charges 3 and the Related Summary Offence, that is possessing a controlled weapon, are to be served concurrently with the sentence on Charge 1. One month of the sentence on Charge 2: making a threat to kill, is to be served cumulatively on the sentence of Charge 1, making a total effective sentence of imprisonment on all charges of seven months. In addition to the sentence on Charge 1 on that charge I also impose a Community Corrections Order of 18 months’ duration.
PSD
70 Pursuant to s 18 of the Sentencing Act 1991, you have spent 204 days in custody since your arrest on 9 April 2020 and I declare that time as already served under this sentence.
6 AAA reduction
71 Pursuant to s 6AAA of the Sentencing Act 1991, I am obliged to state the sentence I would have imposed had you been found guilty at trial. This is a particularly artificial exercise in your case. Doing my best I indicate that had you not pleaded guilty, I would have sentenced you to a period of imprisonment of 24 months with a NPP of 15 m.
Ancillary orders
72 Pursuant to section 6F of the Sentencing Act 1991 I record that Mr Reiri is sentenced as a serious offender in relation to charge 2 making a threat to kill.
73 I make the forfeiture order for the knives as sought.
CCO Conditions
74 You will first be subject to the ‘standard conditions’ of a CCO. That means, importantly, that you must not commit any other offences that are punishable by imprisonment during the 18 month period. If you do, you will be brought back to Court before me and resentenced for these offences; absent very powerful reasons, you should expect that would involve your imprisonment.
75 You must report to the Warnambool CCS at 769 Raglan Parade Warrnambool within two days of your release. You may do that reporting by telephone.
76 You are required to advise your supervisor in the Corrections office of any change of address where you are living or working, and you must do so within two clear working days.
77 It is a term of all Community Corrections Orders that you must submit to visits as directed and you must obey all of the instructions and directions of a Community Corrections order. You are not able to leave the State of Victoria without their prior permission.
Special conditions:
78 You must report for supervision with your case manager as directed.
79 You must submit to assessment and treatment for alcohol and drug dependence.
80 I refer your case to Forensicare for assessment for entry to their Problem Behaviour Program. If accepted into that program you must obey all the lawful instructions of staff at that program.
81 You must submit to mental health assessment and treatment.
82 You must not go within 200 m of the house at 57 Trangmar Street, Portland.
83 I also require you to participate in Judicial monitoring. That means you have to come back to court, by video is fine, in two months on 16 December at 10am to tell me how it is going.
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