Director of Public Prosecutions v Ross
[2017] VCC 80
•13 February 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-01840
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PAUL JAMES ROSS |
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JUDGE: | Her Honour Judge Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 February 2017 | |
DATE OF SENTENCE: | 13 February 2017 | |
CASE MAY BE CITED AS: | DPP v Ross | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 80 | |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Causing injury intentionally
Cases Cited: Verdins [2007] VSCA 102; (2007) 16 VR 269
Sentence: 8 months imprisonment and 2 years on a Community Correction Order upon release
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms G. Overend | OPP |
| For the Accused | Mr T. McCulloch | VLA |
HER HONOUR:
1 Paul Ross, you have pleaded guilty to one charge of causing injury intentionally, which has a maximum sentence of ten years.
2
I sentence you on the basis of the prosecution opening[1], which is an agreed summary read out in court at the hearing; on vision from the CCTV footage[2], which was shown in court at the hearing; and on the basis of your answers in your interview with police. I have also had regard to the statement of
Dr Cunningham dated 9 August 2016 about medical treatment of the victim.
[1] Exhibit A
[2] Exhibit B
3 In summary, on 27 April 2016, you were at Dandenong train and bus station, about to catch a bus to work. You were late because you had to arrange for your car to be towed, which made you angry, as it had been repaired many times and still was not fixed, and being late also made you angry, as you had apparently had to take the day before off work as well. You also told police when later interviewed that, “it wasn’t the [victim’s] day”, because you were, “amped up as from [that] morning”, and although not looking for a fight, “[you] never backed down from one”, and you thought you might get in a fight, even as you left your home, because you “know how Dandenong is” and you “don’t like people staring at you”.
4 The unfortunate victim came face to face with you with this mindset. As shown on the CCTV footage, after topping up your Myki card, you approached the stairs to walk down to your bus stop. Before the top of the stairs, you paused, and the man who was to become your victim, came up the stairs and walked straight up to you and engaged with you. Viewing the CCTV footage, it was almost as if you knew each other. However, I am told that you did not. Also from viewing the footage, I am not satisfied on the balance of probabilities, that you bumped into each other, as described by your counsel on your instructions. However, I do accept that the other man initiated the contact he was taller than you and did give the appearance of standing over you. Having said that, none of that provides any excuse for what then happened.
5 There was a minute or so of words being exchanged between you, which according to you, involved the other man, a Mr Adamidis, being "yappy" to you, which you told police ‘amped’ you up. I note again that you told police you were already ‘amped up’ from the morning. On this occasion, you were able to walk away from the situation. You proceeded down the stairs to your bus stop at road level and Mr Adamidis also moved off in a different direction to you, but within seconds, he returned and took a different route from you, to approach you at the bus stop, and on the CCTV footage from upstairs, he appeared to point towards you, or at least in the direction you had gone. There is no evidence to suggest that you saw him pointing at you.
6 The CCTV footage from the road level shows you waiting at your bus stop and Mr Adamidis approaching you at a fast walking pace diagonally across the road, but straight towards you. You apparently saw him coming and when he reached you, you immediately dropped your backpack and punched him to the head. You told police that he “re-engaged you with his yapping again”, which if true, must have occurred from metres away, because you punched him as soon as he was within your striking distance.
7 Mr Adamidis fell bodily backwards, onto the shopping jeep of an elderly man just passing by, and then onto the kerb. Before he had any chance to get up, you set upon him, punching him at least 15 times to the head and body, while he attempted to put his arms up to protect his face and head. By then you were both on the roadway and the bus you had been waiting for, pulled up mere metres away from you both, and the driver began tooting his horn, in an effort to stop you punching the man below you.
8
You did not stop; although there were a few short pauses, you resumed punching Mr Adamidis in the head on a number of occasions, then grabbed his clothing and dragged him face down towards the footpath. While this may be seen as an attempt to get him off the road, not only was it unsuccessful, but you punched him again to the head at least twice. When you paused again,
Mr Adamidis, by now unconscious, rolled back onto the roadway in front of the stationary bus. You stood over him, and yelled and gesticulated at him.
9 Through all this, people passed by and most did nothing but attempt to get away from the scene. Some appeared to be watching, perhaps filming on their phones, or calling the police, but most just hurried past. Just a couple of people made attempts to get help for Mr Adamidis, with little response from the transport authorities, but only one person approached you to stop the assault. I am satisfied that no-one else approached you because the fierce nature of your attack probably caused them to be concerned for their own safety if they did.
10
One brave woman showed outstanding courage. Ms Pizzorno, a woman in her 70s, approached you. Coming from a distance, she went directly up to you, within striking distance and told you to stop. You swore at her and continued to berate Mr Adamidis, still on the ground, telling him, “that’s what you get for mouthing off”…[and]…"you’re fucking knocked out”. Eventually, through
Ms Pizzorno’s intervention, you left Mr Adamidis alone. As the bus you wanted to use was the one prevented from moving by Mr Adamidis’ body, you could not leave. The only thing to your credit in this whole shocking episode is that you stayed around until police came.
11 Paramedics had trouble assisting Mr Adamidis at the scene, who was unconscious but breathing, with a Glasgow Coma Score of 3, and he was taken by ambulance, first to Dandenong and then to Monash hospitals. There he was successfully intubated more than an hour after the incident, and remained in intensive care for 3 days, when he was extubated, and discharged from that unit. He suffered a severe concussive event, with bruising, swelling and abrasions to his head[3]. Some insight to Mr Adamidis’ interaction with you can be seen from the information that he has a history of schizophrenia and was admitted to the psychiatric unit following discharge from intensive care, to optimise his medications and stabilise his mental state.
[3] Exhibit C
12 This was a serious, brutal assault, made even more serious by the following:
· Although Mr Adamidis was facing you, your first punch would have been unexpected and he had no chance to defend himself;
· Next, you over-reacted completely to anything done by Mr Adamidis;
·
Next, you knew that you were feeling angry before you came across
Mr Adamidis and that you had lost control in the past, but you, “Went into hunting mode” when he approached you a second time and although you had plenty of opportunity to avoid him as he walked towards you, you did not do so;
· Next, using your boxing skills, you punched him many times, “As hard as you could”;
· Next, you continued to punch him when he was on the ground;
· Next, you knew he became unconscious as a result of your attack and continued to punch him;
· Next, from your own words, it can be seen that it was your intention to cause him to lose consciousness;
· Next, you only stopped when someone else intervened;
· Next, your attack was in a public place in the morning in full view of those using the bus and train station, many of whom appeared frightened by what they saw; and
· Lastly, you have a prior appearance for assault involving an unprovoked attack on a person who you punched “as hard as you could”[4].
[4] See Exhibit D
13
I have no current evidence about Mr Adamidis’ physical, mental and emotional recovery from your assault and no victim impact statement was provided, but
I am satisfied on the material I do have that Mr Adamidis suffered considerably as a result of your attack in all of these ways. I take this into account in deciding the appropriate sentence.
14 As against the very serious nature of your offence, there are some matters that I must take into account in your favour.
15 The first of these is the fact that you have pleaded guilty. You are entitled to have that taken into account in your favour and I do so. Because of your plea, the community has been spared the time and cost of a trial, and Mr Adamidis, in particular, and other witnesses, have been spared the ordeal of giving evidence in your trial. I can tell you that the sentence I intend to impose is far less than would have been imposed had you been found guilty after a trial.
16 I also take into account in your favour that you were very frank and co-operative in your interview with police, although in my view, you did seem to blame the victim, and not fully accept responsibility at that time. I take into account that after that, you stated your intention to plead guilty at the earliest opportunity in the criminal process. Therefore, I accept that your plea of guilty in court indicates remorse for your actions, together with other expressions of remorse in the material I have received.[5] Your plea of guilty also shows that you now fully accept responsibility for the offence and the outcome.
[5] See report of Mr Lopez and reference of Ms M. Espinosa, part of Exhibit 2
17 Next, I take into account in your favour the very considerable efforts you have made since the offending, to rehabilitate yourself. After 29 days in custody, the first time you have been in gaol, you were released on bail into the Court Integrated Services Program (CISP) in the Magistrates’ Court. The reports provided to me[6] show that as part of this program, you attended and completed a one-on-one anger management program with the Salvation Army; a group anger management program with Relationships Australia; and under a Mental Health Care Plan through your general practitioner, attended one on one counselling with psychologist Mr Lopez and a psychiatrist for assessment. You also attended appointments with the CISP case manager.
[6] CISP Progress and Final reports, part of Exhibit 2
18 From reports for some of these attendances with the case manager, it is apparent that you at first had difficulty talking about the offending and your anger, but that over time, you engaged more and obtained considerable benefit from the sessions overall.
19 You continued to see Mr Lopez for psychological counselling after the CISP conditions ceased. In his reports, dated 29 August 2016 and 30 January 2017[7], Mr Lopez states that you have seen him on 11 occasions. He notes that you reported to him symptoms of depression and anxiety. According to the report by your general practitioner[8], these symptoms were first diagnosed as depressive anxiety disorder and anger management in February 2014. There is no information as to who made these diagnoses, but I do note that the timeframe shows that they were made seven months after your first charge of assault (occurring in June 2013) and in the same month as your court appearance for that charge (6 February 2014) for which you received an adjournment without conviction. That is your only previous court appearance.
[7] Ibid
[8] Letter dated 23 August 2016, part of Exhibit 2
20
Mr Lopez held the view that the symptoms reported by you to him were consistent with the previous diagnoses, and were extremely severe. He formed the opinion that symptoms of this severity had led you to, “irrational behaviour and inability to make instant reasonable judgments”, such that, “thinking clearly and making calm, reasoned and appropriate decisions became difficult to execute when challenged with life stressors.” In evidence given in the Magistrates’ Court on 20 October 2016, Mr Lopez said that your anger was
a symptom of the depression.
21 Your counsel relied on this opinion to submit that I should apply the principles of law in a case called Verdins.[9] He submitted that the opinion shows that the symptoms were operative at the time of the offending, were causally connected to the offending and that as a result, the existence of the psychological condition may moderate the extent to which the sentence I impose must reflect the need for general and specific deterrence; that is, generally my sentence should have as purposes, the need to deter other men from committing assaults and the need to deter you from doing so.
[9] [2007] VSCA 102; (2007) 16 VR 269
22 The prosecutor submitted that the principles in Verdins have no application in your case, because Mr Lopez did not have access to some material in making his assessment, such as the CCTV footage and the police interview, and because there was a question as to whether the diagnoses made after June 2016 were relevant to, or if so, to what extent, the offending in April 2016.
23 While I accept that you have had longstanding symptoms of depression and anxiety, I am not satisfied that those symptoms affected your mental functioning at the time of the offending or leading up to it, or did so to a relevant extent. Even accepting that your depression and anxiety contributed to your problems about becoming angry and controlling that anger, the nature, extent and effect of those conditions were, in my view, not such as to impair your mental functioning to an extent so as to reduce the need in this case for my sentence to deter others from serious assaults and to deter you from re-offending in this way. You exercised appropriate judgement on the first approach by the victim and you made the choice to attack him on the second approach out of anger, perhaps not in a calm way, but not in an irrational nor disinhibited way and not being unaware of the wrongfulness of your conduct.
24 As a result, your moral culpability is not reduced and general and specific deterrence still have important roles to play in the sentence to be imposed on you. Specific deterrence is still especially important because of your previous court appearance for assault.[10]
[10] Exhibit D
25 However, I do accept from the report of Mr Lopez, that because of your symptoms, any term of imprisonment imposed on you today would be harder for you than for someone without those symptoms.
26 I take into account in your favour that, according to Mr Lopez, you attempted counselling about 4 years ago to learn to manage your anger, but did not connect with the counsellor and did not continue. I have no material to suggest you made another attempt to manage your anger after the assault in June 2013. Mr Lopez thought that, in general, since you have been involved in counselling with him and completed the anger management programs, your mood has improved and you have been managing your anger better. He thought that continuing your counselling will make it highly likely that the symptoms of depression and anxiety will not be a problem in future and that you have already made some positive changes to your life. I accept that any term of imprisonment imposed on you today would impact on the continuation of counselling.
27 In addition to your personal circumstances that I have already referred to, I also take into account other aspects of your background as follows:
28 In summary, you are now aged 34 years. You grew up with an older brother and a twin sister. Your parents separated in difficult circumstances when you were aged 12 years and in his evidence at the Magistrates’ Court, Mr Lopez said that he thought that your depression stemmed from this significant event. You still resent the fact that your siblings talk to your father, seeing it as a lack of respect for your mother.
29 You completed your VCE and entered the workforce as a labourer and have been continually employed ever since on a full time casual basis, including as a machine operator. Your current employment is as a forklift driver. You are well regarded as an employee[11] and were able to find a job after losing your employment when in custody after this offence.
[11] See two references, part of Exhibit 2
30 You suffer from Crohn’s disease, diagnosed when you were 12 years, and severe eczema. You were hospitalised in 2015 due to a “loss of follow up” of the conditions. I accept that both of these conditions would be exacerbated by stress and although there was no direct evidence about the Crohn’s disease being aggravated and untreated while you were in custody leading you to lose weight, I nevertheless accept that these conditions may make serving a term of imprisonment more onerous for you.
31
You have been in an intimate relationship for 6 years and Mr Lopez referred in his report to the difficulties in you and your partner fulfilling your wish to become parents. He said that you described that relationship as great, feeling supported and loved, however in your counsel’s written submissions[12], I was informed that this relationship had ended recently. There is no material before me, including in the police interview, to show that any challenges in the relationship were experienced in the period leading up to the offence, so
I cannot take that into account as a mitigating factor. However, I do take the recent loss of the relationship and support from your former partner into account generally as affecting your personal circumstances.
[12] Exhibit 1
32 I received a very supportive reference from someone describing herself as your friend of six years.[13] She visited you on remand and I believe was in court for the hearing. She speaks of your remorse and concern for the victim and the work you have done on your rehabilitation.
[13] Reference of Ms M. Espinosa, part of Exhibit 2
33 On balance, I am satisfied that the chances of your rehabilitation are very good and that you have made excellent progress so far in your attempts to ensure that there is no re-occurrence of the assaults that have now brought you before the court on two occasions.
34
However, as well as those matters personal to you to which I have referred,
I must also take into account such matters as deterrence, which is of considerable importance in a case such as this. By that I mean both general deterrence, seeking to prevent others from committing this sort of crime and specific deterrence, seeking to prevent you from re-offending.
35 I must also consider the question of the protection of the community from you and bear in mind the likelihood of you re-offending, which I find is not yet a low risk, but your steps towards rehabilitation are taking you in that direction.
36 The prosecutor submitted that the only appropriate sentence is a term of imprisonment alone, despite the concession that your prospects for rehabilitation are good to very good.
37
Your counsel submitted that, while a term of imprisonment is within range, it is not the only appropriate sentence and that because of your efforts at rehabilitation, I should not return you to custody, but release you on
a community correction order with conditions. If I considered that a term of imprisonment must be imposed, he submitted that it should be for the time that you have already served, so that you are still released immediately on
a community correction order.
38
You were assessed for a community correction order and found suitable.
I note that the report writer considered you to be a low risk of a general
re-offending, unlike my more conservative assessment.
39 I have given careful thought to the appropriate sentence. Despite your efforts at rehabilitation, this is your second offence of a similar nature and this assault is simply too serious and demands denunciation and just punishment. I have decided that there is no alternative to imposing a term of imprisonment and that will involve more time than you have already spent in custody, a period of eight months. I do propose to release you on a community correction order for two years after serving that period of time in prison.
40 To make it clear, the community correction order will start after you have served eight months in gaol, one month of which you have already served.
41 The community correction order will have the conditions that are attached to every order which are: That you must report to and receive visits from Corrections Victoria; must notify Corrections Victoria of any change of address or employment; must not leave Victoria without the permission of Corrections Victoria; and must comply with any direction given by Corrections Victoria to ensure compliance.
42 If you agree, I will also order that you comply with other conditions: You must undertake assessment and treatment to improve your mental health; and you must come back to see me in court so that I can see how you are getting on. This last condition is called judicial monitoring. As to the mental health condition, it may be that Corrections Victoria re-connects you with Mr Lopez through your general practitioner, as you already have a good working relationship with him.
43 If you could stand up please, Mr Ross.
44 Do you agree to being released on a community correction order with those conditions attached?
45 OFFENDER: Yes I do.
46 HER HONOUR: If you are ill or there are other exceptional circumstances, this order may be suspended for a period of time. If your circumstances change, you may apply to this court for a variation or cancellation of the order. In either case, you must notify the Community Corrections office and I recommend you also get legal advice.
47 If you do not complete a condition of the order, you will be brought back before me to be re-sentenced on the original charge and also be dealt with for the breach of the condition. What will happen then will depend on a number of circumstances, but you should be aware that my options are limited and one of those limited options is further time in gaol. Do you understand what will happen if you do not complete this order, including by re-offending?
48 OFFENDER: Yes, Your Honour.
49 You will now be asked by my Associate to sign a document to show that you agree to abide by the conditions of the community correction order.
50 Mr McCulloch, will you go and assist Mr Ross if he requires it.
51 MR McCULLOCH: Yes, Your Honour.
52 HER HONOUR: So I have signed that order also.
53 The formal order of the court is:
54 On the charge of intentionally causing injury, you are convicted and sentenced to eight months’ imprisonment, after which you will be released on a community corrections order for two years, with the conditions I just outlined.
55 By law, the community correction order will commence on your release from prison. Corrections Victoria are directed to notify me of the actual commencement date, as that is dependent on when the Corrections authorities release you from custody.
56 The date for you to return to court for me to check on your progress will be about three months after that. I will set the time and date as 9.30 am on 18 December 2017. At this stage, I do not require any other person to attend on 18 December 2017, other than you, but of course, you may be legally represented if you choose and the prosecution may attend if they wish. I will inform Community Corrections if they need to attend.
57 I declare that the time you have already spent in custody is 29 days, not including today. That is to be deducted administratively from the sentence.
58 I advise you that the sentence I would have imposed if you had not pleaded guilty, is two years', six months’ imprisonment, with a minimum of 18 months.
59 For completeness, I advise that the gaol order will contain information about the prescribed medication that you are currently taking.
60 Just take a seat for the moment, Mr Ross.
61 Mr McCulloch, do you have any up-to-date information whether there is any difference from the letter provided by Dr Kyaw in August last year?
62 MR McCULLOCH: I am instructed that Mr Ross has discontinued the medication, Pristiq, but the other medications should remain the same. Could I briefly approach Mr Ross and confirm that?
63 HER HONOUR: Yes, certainly, thank you.
64 MR McCULLOCH: There is no other changes, Your Honour.
65 HER HONOUR: All right, so just confirming, that is the Azathioprine, if that is pronounced correctly, Prednisolone, Diaprosone ointment and Salofak EC?
66 MR McCULLOCH: Yes, Your Honour.
67 HER HONOUR: Thank you. Yes, no other orders required?
68 MS OVEREND: No, Your Honour.
69 HER HONOUR: All right, thank you. Mr Ross may be removed.
70 Yes, I thank counsel for their assistance and I will stand down now until 10.30.
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