Director of Public Prosecutions v Slater
[2020] VCC 216
•4 March 2020
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01798
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANTHONY SLATER |
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JUDGE: | Her Honour Judge M. Sexton | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 21 February 2020 | |
DATE OF SENTENCE: | 4 March 2020 | |
CASE MAY BE CITED AS: | DPP v Slater | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 216 | |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Aggravated Carjacking – Reckless conduct endangering a person – Commit indictable offence whilst on bail
Legislation Cited:
Cases Cited: R v Martin [2007] VSCA 291, Verdins (2007) 16 VR 269; [2007] VSCA 102
Sentence: TES: 3 year imprisonment with a minimum of 18 months to be served before becoming eligible for parole. Licence cancelled and disqualified from driving for 3 years. Disposal order made.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Moore | OPP |
| For the Accused | Mr C. Pearson for plea Mr D. McGlone for sentence | Emma Turnbull Layers |
HER HONOUR:
1 Anthony Slater, I am sentencing you today for crimes you did on 19 April 2019 last year. When we were here on 21 February, a couple of weeks ago, you pleaded guilty to three charges.
2 The first is a crime called aggravated carjacking. That has a maximum sentence of 25 years in prison. That crime is to do with you stealing a taxi and forcing the taxi driver out of the car by holding a syringe up to his face. There is a law that says that I must send you to prison for at least three years for this crime unless I decide there are special reasons not to[1]. I have decided there are special reasons, and so my sentence for that crime, charge 1, does not have to be three years or more.
[1] Sections 10AD and 10A Sentencing Act
3 The second charge is a crime called reckless conduct endangering a person. That has a maximum sentence of 5 years in prison. That crime is to do with you driving up and down Dana Street and other streets around here in a very dangerous way, for about 15 minutes. The crime also includes that you nearly smashed into the passenger side of a car when you went through a red light, and you did sideswipe the caravan that the car was towing. The passenger and driver were very badly affected by the fright you gave them when they thought you were going to drive into the side of their car and maybe kill or injure them.
4 The third charge is because you were on bail for other offences when you stole the taxi and drove so dangerously. That is a charge of committing another offence while on bail. That is a crime that could be heard in the Magistrates’ Court, but last time we were here, you agreed to me dealing with it today at the same time as the others.
5 Mr Slater, I now want to say something to the lawyers. This will take a while. At the end, I will come back to you and tell you exactly what the sentence is that I am going to give you.
The offending
6 I sentence Mr Slater on the basis of the prosecution summary which was read out in court[2]. I will come back to the offending in more detail when I deal with Mr Slater’s circumstances.
[2] Exhibit A
7 I received victim impact statements from the couple who were in their car at the corner of Dana and Peel Streets in the Ballarat CBD when Mr Slater drove the stolen taxi through a red light towards the passenger side of their car before the driver stopped to avoid a collision, and Mr Slater attempted a turn, but at the speed he was travelling, the taxi sideswiped the caravan the couple were towing. In their victim impact statements, the couple came across as very resilient, but that does not mean that they have not been affected by the event, and indeed they still suffer from the trauma of thinking they were going to be hit at high speed, going over the ‘what if’ scenarios, and having nightmares, and through no fault of their own, having to do battle with the insurance company. I think they were probably in shock when they made some running repairs to the caravan and continued the long drive to Eden on the same day. One of them was in court at the plea hearing to hear Mr Slater say how sorry he was, through his counsel, and that was very important for her to hear. I recognise the significant impact this has had on their lives and I do wish them well for the future.
8 The taxi driver did not make a separate impact statement, but it is clear from his police statement about the carjacking that he thought it was scary, and got out of the taxi because he saw that Mr Slater was “really nervous and paranoid”, was worried about being followed when there was no car behind them, and began pushing the taxi driver on the shoulder to make him get out of the taxi, while holding something in his left hand. The taxi driver was at the police station when Mr Slater arrived and was arrested. The taxi driver then saw that what had been held a short distance from his face by Mr Slater was a syringe with an orange lid, and not a pen as the driver had thought while still in the taxi.
9 This was extremely dangerous and serious offending which had the potential to involve serious injury to a number of people, and did in fact frighten people and damage some property.
Matters in mitigation
10 The first of these is the fact that Mr Slater pleaded guilty, and indicated early in the court process his intention to do so. His plea has saved the community the cost of a trial, and witnesses, especially his direct victims, have been saved from the trauma and inconvenience of giving evidence in front of a jury.
11 I treat Mr Slater’s early pleas as a sign of remorse, together with his apology given in court through his lawyer. In circumstances where he does not remember all of the events, it is a sign of remorse that he has fully accepted what is alleged to have happened, and this also shows a willingness to facilitate the course of justice.
12 Next, I take into account his personal circumstances, which really underlines the offending. Before I turn to those in more detail, I summarise that Mr Slater is a 28 year old man, soon to turn 29, with an extremely dysfunctional and disadvantaged background which began with prenatal effects of his mother’s ingestion of alcohol causing him to have Foetal Alcohol Spectrum Disorders (FASD) as a result of which he has an intellectual disability.
13 Mr Slater is the oldest child of an Aboriginal father and non-indigenous mother, who gave birth to him at age 15. It is now understood that he was born with the effects of her drinking alcohol throughout her pregnancy, although he was not formally diagnosed with an intellectual disability until the age of 12, and in those formative years received no treatment to assist him with the consequences of FASD.
14 FASD are the largest cause of non-genetic, at birth brain damage in Australia.[3] FASD are associated with a range of birth defects and the average life expectancy for a child with FASD is only 34 years of age.[4] This is a significant matter to take into account when considering the length of the sentence of imprisonment to be imposed on Mr Slater at age nearly 29. Neurodevelopmental impairments due to FASD can predispose young people to interactions with the law.[5] Brain damage from prenatal exposure to alcohol can increase involvement in criminal activity due to the following characteristics of FASD[6]:
[3] House of Representatives Standing Committee on Social Policy and Legal Affairs, Parliament of Australia, Inquiry into the Prevention , Diagnosis and Management of Fetal Alcohol Spectrum Disorders (2012) ch 1 [1.2]
[4] Australian Medical Association, Fetal Alcohol Spectrum Disorder (FASD) – 2016, 24 August 2016
[5] The Judicial Commission of New South Wales, Equality Before the Law Bench Book, 18 July 2016, Section 5: People with Disabilities [5.2.2.8]
[6] Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Inquiry into the Value of a Justice Reinvestment Approach to Criminal Justice in Australia (2013) 36 [4.42]
· Lack of impulse control;
· Trouble identifying future consequences of current behaviour;
· Difficulty planning and connecting cause and effect;
· Difficulty delaying gratification or making good judgments;
· A tendency towards explosive episodes; and
· Vulnerability to social influences such as peer pressure.
15 Other children were born of the relationship between Mr Slater’s parents. It was a relationship characterised by family violence and exposure to parental consumption of alcohol and illicit drug use. Both of these factors can lead to negative impacts on a child’s developing brain, and this is true for Mr Slater, and compounded the difficulties he already had with FASD. Although he was removed from his parents’ care at the age of two, and raised by his grandmother, he was 'noticeably delayed in achieving developmental milestones including crawling, walking, talking and self-feeding'[7].
[7] Exhibit 2 – Neuropsychological Report of Dr Loretta Evans dated 14 February 2020 [6]
16 Impacts of exposure to family violence on children’s behaviour, schooling, cognitive development and physical and mental wellbeing include:
· Impaired cognitive functioning;
· Poorer academic outcomes;
· Increased aggression;
· Lack of emotional control;
· Destructive behaviours;
· Learning difficulties;
· Depression and poor mental wellbeing;
· Low self-esteem;
· Low school attendance; and
· Bullying[8].
[8] Australian Institute of Family Studies, Children’s Exposure to Domestic and Family Violence: Key Issues and Responses (December 2015) 2
17 Further, there is evidence of a link between exposure to family violence and alcohol and drug abuse; and children whose formative years are affected are vulnerable to developing long term mental health issues[9].
[9] Janet Phillips and Penny Vandenbroek, ‘Domestic, Family and Sexual Violence in Australia: An Overview of the Issues’ (Research Paper, Parliamentary Library, Parliament of Australia, 14 October 2014) 18; Royal Commission into Family Violence (Final Report, March 2016) vol. 2,111
18 The direct effects of early childhood exposure to alcohol and other drug abuse may include:
· Emotional and physical abuse;
· Maltreatment;
· Modelling of poor drinking and substance abusing behaviours; and
· Inadequate supervision[10].
[10] Australian Research Alliance for Children and Youth, The Impact of Drug and Alcohol Misuse on Children and Families (Report, December 2006) 1
19 Mr Slater was assessed by neuropsychologist Dr Loretta Evans in February 2020, and her report[11] clearly outlines that Mr Slater has had multiple factors that research shows manifest harm in children, beginning with his FASD and mild intellectual disability, and with the exposure to family violence and to drug and alcohol abuse having a compounding effect, such that he displayed as a child, and displays as an adult, many of the effects I have just outlined.
[11] Exhibit 2 – Neuropsychological Report of Dr Loretta Evans dated 14 February 2020
Circumstances leading up to the offending
20 In April 2018, Mr Slater was living in Ministry of Housing accommodation that had been vacated by a family member. Unknown people broke into the house, took his property and set fire to the house. A police incident report confirms that the house was burnt. Mr Slater began to believe that unknown criminal elements in Ballarat had burnt the house down to send him a message.
21 After the fire, he became homeless, which can be both a cause and a consequence of involvement with the criminal justice system[12]. From 16 April 2018, Mr Slater was in custody. He was released on a community correction order with a justice plan on 12 April 2019, a week before committing the offences for which I am sentencing him. There is no evidence as to whether the agencies charged with assisting him under the Justice Plan had any contact with him on his release from custody or during that following week.
[12] Public Interest Advocacy Centre, ‘Facing the Outside World: The Voices of Those Who Exit the Prison into Homelessness’ (2017); Australian Institute of Criminology, Homelessness and Housing Stress among Police Detainees: Results from DUMA Program (Trends and Issues in Crime and Criminal Justice Report No 492, February 2015); Justice Health and Forensic Mental Health Network, 2015 Network Patient Health Survey Report (May 2017) 13; Andrew Bevitt et al, Journeys Home Research Report No. 6: Complete Findings from Waves 1 to 6 (May 2015) 67; Australian Institute of Family Studies ‘Child Maltreatment, Homelessness and Youth Offending’ (4 October 2017); Mental Health Council of Australia, Home Truths: Mental Health, Housing and Homelessness (Report March 2009) 16.
22 Despite his long history of alcohol and drug abuse outlined in Dr Evans’ report[13], by 2019, Mr Slater was using methylamphetamine only, although he was using it in large quantities. During that week after his release, he became increasingly irrational and paranoid that people were out to harm him.
[13] Exhibit 2 – Neuropsychological Report of Dr Loretta Evans dated 14 February 2020 [9] – [13]
23 On 19 April 2019, the day of the offending, he decided that he needed to go to the police station to seek sanctuary. He now recalls that he was at the address from which the taxi picked him up because he had been jumping fences to ‘escape’, and the resident let him into the house and called the taxi for him. He initially was heading to see a friend in Sebastopol, but changed his mind and directed the taxi driver to the police station. The taxi driver’s description of what took place then is consistent with Mr Slater’s paranoia that he was being followed, even though there was no-one following the taxi.
24 As noted by Dr Evans[14], Mr Slater was seen by forensic psychiatrist Dr Pandurangi in custody on 28 June 2019, but walked out of the interview, which was conducted by videolink. On the basis of other reports and Corrections documentation, Dr Pandurangi formed the opinion that Mr Slater’s behaviour [on 19 April] represented “a mental and behavioural disorder due to the use of amphetamines, rather than an enduring mental illness such as schizophrenia”, and that Mr Slater’s actions “were completely driven by underlying psychosis” that impaired his judgment and “obscured his ability to understand the wrongfulness of his actions”.[15]
[14] Ibid [15ii]
[15] Ibid
25 Drug-induced psychosis can be treated as lessening an offender’s culpability if he had no awareness that the ingestion of a particular drug might trigger a psychotic reaction. In such a case, the resultant impairment of mental capacity might be regarded as involuntary, notwithstanding that the taking of the drug was a voluntary act. The critical factor in determining the significance of drug-induced psychosis for sentencing purposes is the degree of foreknowledge on the part of the offender. The questions are what were the probable consequences of ingestion of the drug, and did the offender foresee those consequences?[16]
[16]R v Martin [2007] VSCA 291 [20] – [30]
26 At paragraph 17 of Dr Evans’ report[17], she notes that Mr Slater said,
“I know I shouldn’t have done it – but I don’t know why I did it. They’re trying to say it was the drugs”
[17] Exhibit 2 – Neuropsychological Report of Dr Loretta Evans dated 14 February 2020
27 She further notes that Mr Slater did not accept this explanation, stating
“because every other time I get out, I use drugs straightaway and it’s never happened[18]. I think it’s because the house burnt down and everything.”
[18] Emphasis added
28 Mr Slater had been using amphetamines since the age of 16-17. On the basis of the statements I just referred to, I find that Mr Slater had no foreknowledge that his use of amphetamines leading up to the events of 19 April might trigger a psychotic reaction. As a result, his impairment of mental functioning because of his acute paranoia and delusional thoughts at the time of the offending as a result of methamphetamine intoxication was involuntary. When overlaid with his cognitive deficits, maladaptive behaviours, and compromised capacity to make reasoned and informed decisions arising from his underlying neurodevelopmental disorder, his impairment on the day does lessen his moral culpability.
Rehabilitation
29 Mr Slater has had court orders with a focus on his rehabilitation in recent years. However, his problems are lifelong, and as he had no treatment in his childhood, and limited treatment after he was registered as a client of Disability Services in the Department of Health and Human Services in 2003, interrupted by his periods in custody thereafter, nothing has been achieved to improve his situation or to protect the community.
30 Because of his deficits, he is highly likely to offend again. Dr Evans at paragraphs 43, 44 and 46 of her report[19] sets out Mr Slater’s prospects of rehabilitation, treatment options, and future management. In summary, she recommends intense and prolonged intervention, neuropsychiatric assessment for consideration of the need for medication, and that a management plan be put in place involving stable housing, long term case management, preferably female clinicians, linkage with NDIS and referral to an organisation called NOFASD Australia.
[19] Exhibit 2 – Neuropsychological Report of Dr Loretta Evans dated 14 February 2020
31 Mr Slater is at high risk of re-offending and the community needs to be protected from him. However, his impairment from his neurodevelopmental disorder is no fault of his, nor are the deficits caused by his traumatic childhood. The community will need to protect itself by providing the recommended supports and treatment for this unfortunate man. He will be receiving a head sentence and minimum term today. Supervision and support if he is granted parole is a first step. I recommend in the strongest possible terms that the Corrections authorities read carefully and implement the strategies in Dr Evans’ report. One exception is her opinion as to his time in custody, which I address below.
Sentencing principles
32 As I announced at the beginning of these remarks, when sentencing an offender for aggravated carjacking, a court must impose a minimum term of three years’ imprisonment[20] on that offence unless satisfied that a special reason exists[21]. The prosecution concede that special reasons exist in Mr Slater’s case.
[20] Section 10AD Sentencing Act
[21] Section 10A Sentencing Act
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On the basis of the material in the report of Dr Evans[22], and for the reasons I have already expressed, I am satisfied on the balance of probabilities that
Mr Slater had impaired mental functioning at the time of the commission of the offence of aggravated carjacking that is causally linked to the commission of that offence and substantially reduces his culpability[23].
[22] Exhibit 2 – Neuropsychological Report of Dr Loretta Evans dated 14 February 2020
[23] Section 10(2)(c)(i) Sentencing Act
34 Impaired mental functioning for this purpose includes an intellectual disability[24], which Mr Slater has. I note that it is not necessary for that impaired mental functioning to be the sole or even the main cause of the relevant offending. Given my finding that the drug-induced psychosis was involuntary and therefore not self-induced intoxication, and that was the dominant causal factor, that psychosis may also meet the test for special reasons, but it is not necessary for me to decide that.
[24] Section 10A Sentencing Act
35 I am satisfied that a special reason exists because of his FASD and associated impaired mental functioning, so I am not bound to impose the minimum term of three years’ imprisonment on charge 1, and the usual sentencing principles apply to that charge as to the others.
36 Because of the influences I earlier outlined in Mr Slater's developmental years, including prenatal, Mr Slater has a mild intellectual disability secondary to FASD; has developed his own history of alcohol and drug abuse from the age of 12; has been in the justice system as a juvenile and continuously as an adult; has poor impulse control and a hidden learning disability; has difficulty with consequential thinking; and has been bullied in custody.
37 I take all of these impacts on his intellectual functioning into account as making him a less suitable vehicle for deterrence, both general and specific, as reducing his moral culpability to a significant degree, and as impacting on how he will serve time in prison[25]. I note that Mr Slater enjoys working as a cleaner in prison when he is able to, and it is important that he has a purpose and structure which is missing from his life in the community. However, because of his deficits, his time in custody will always be harder for him than for others.[26] Dr Evans at paragraph 45 reaches a different conclusion although she recognises that he is vulnerable to exploitation. I have outlined the reasons why I differ with her and I also rely on my long experience in the law for the impacts of being in custody on vulnerable people.
[25]Verdins (2007) 16 VR 269; [2007] VSCA 102
[26] Cf. Exhibit 2 – Neuropsychological Report of Dr Loretta Evans dated 14 February 2020 [45]
38 For all the reasons I have outlined, a much lower sentence will be imposed than would be imposed on a person without Mr Slater’s deficits.
39 Coming back to you, Mr Slater. What you did on 19 April last year was very, very dangerous. They are serious offences and I have no choice but to give you a prison sentence. But because you have lots of issues and problems that other people do not have, I am going to give you a lower prison sentence. I will come to the formal orders in a moment, but the bottom line will be that you will receive a sentence of a total of 3 years, with a minimum of 18 months. The time that you have already served will be taken off those sentences.
40 Stand up please, Mr Slater. Mr Slater, you are convicted and sentenced as follows:
41 On charge 1 of aggravated carjacking – 2 years 6 months’ imprisonment;
42 On charge 2 of reckless conduct endangering a person – 12 months’ imprisonment;
43 On the summary charge of committing an indictable offence while on bail – 7 days’ imprisonment.
44 I have had regard to s.16(3C) Sentencing Act but for all the reasons I have already given, I propose to direct otherwise than total cumulation.
45 The sentence on charge 1 is the base sentence. I direct that six months of the sentence on charge 2 be cumulative on the sentence imposed on charge 1 and the sentence on charge 3 is to be wholly concurrent. That makes a total effective sentence of 3 years’ imprisonment.
46 I direct that you serve a minimum of 18 months before becoming eligible for parole.
47 I declare that you have served 319 days in custody not including today and these will be deducted administratively from your sentence.
48 Any licence that you hold to drive a car is cancelled and you are disqualified from obtaining a licence for three years. I find that the offences were committed under the influence of drugs and that finding is to be noted on the record.
49 Mr Slater, if you had not pleaded guilty, but had been found guilty after a trial, taking into account all the things I have said about you, the sentence I would have imposed then would have been a sentence of 5 years with a minimum of 3 years. That is not your sentence today, your sentence today is 3 years with a minimum of 18 months. I have made the disposal order and that will be provided to the prosecution. Are there any other orders?
50 COUNSEL: No.
51 HER HONOUR: Any questions?
52 COUNSEL: No, Your Honour.
53 HER HONOUR: Will you be going to see Mr Slater?
54 MR McGLONE: I will be.
55 HER HONOUR: Mr Slater, you can be removed now and your lawyer who is here today, Mr McGlone, will come and see you in the cells. Thank you.
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