Director of Public Prosecutions v Smith
[2018] VCC 1015
•03/07/2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION (KOORI COURT)CR-17-04103
CR-17-02005
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
BRENDON SMITH
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| JUDGE: | HIS HONOUR JUDGE GRANT |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 02/07/2018 |
| DATE OF SENTENCE: | 03/07/2018 |
| CASE MAY BE CITED AS: | DPP v Smith |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 1015 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr M Roper | Office of Public Prosecutions |
| For the Accused | Ms J Swiney | Victorian Aboriginal Legal Services |
HIS HONOUR:
1 Brendon Smith, you have pleaded guilty to one charge of theft and one charge of recklessly cause serious injury. The maximum penalties for these offences are:
· Theft – 10 years’ imprisonment;
· Recklessly cause serious injury - 15 years’ imprisonment.
2 Your offending relates to two separate incidents. First, on 20 August 2016, you stole an unlocked 1991 Daihatsu Charade motor vehicle. You were arrested for that offence three days later.
3 The second offence occurred around midnight on 5 November 2016. At that time, you were asked to leave the McDonalds restaurant in Swanston Street because you had an open container of alcohol. You challenged two security guards to a fight. When you went outside you inadvertently bumped into a woman who was a friend of the victim, James Burrows. Mr Burrows approached you and told you to leave the area. He pushed you away from his group. He picked up a bag of yours and handed it to you before pushing you away again. You went to a bag that was nearby and took out a knife. You walked back towards Mr Burrows and raised the knife, pointing it towards him. An unknown friend of yours unsuccessfully intervened. You walked towards the security guards and drew the knife across your throat in a threatening gesture. Mr Burrows moved towards you to try and disarm you. You drew the knife across Mr Burrows face in a backhand motion causing a large laceration. You then walked off. You were arrested later that evening. You have been in custody ever since.
4 The second incident is obviously the most serious. It involves the use of a weapon in a public place. It involved a sudden and reckless knife swipe that caused a serious injury to the victim. He was conveyed to St Vincent’s Hospital where he spent two days awaiting surgery. He underwent an operation to repair the laceration that extended from his right cheek bone area to just above his right lip fold. On 14 November 2016 he returned to hospital to have the stitches removed. Fortunately, he suffered no nerve damage. The scar was still visible in March 2018 and this has caused the victim some concern. With this offending, general deterrence, just punishment and denunciation are all relevant sentencing considerations.
5 You have relevant prior convictions in the Magistrates’ Court. Your first appearance in January 2005 was as a 17 year old, for offences that included robbery, theft, burglary, car theft and possess and use cannabis. You were released on a community corrections order. That order was breached and you were subsequently sentenced to youth justice detention. Since then, there have been many more court appearances, usually for offences of dishonesty, violence, drug possession and drug use. You have been placed on an adjourned undertaking, fined, released on community corrections orders or a suspended sentence and sentenced to periods of imprisonment. More recent court cases involve an appearance in April 2014, when you were sentenced to 54 days imprisonment together with a 12 month community corrections order for a large number of charges including unlawful assault and threat to inflict serious injury. Then, in October 2014, you were sentenced to 59 days imprisonment for drug offences and four charges of possess controlled weapon without excuse. In March 2015, you were sentenced to 119 days’ imprisonment for offences that included intentionally cause injury, recklessly cause injury and unlawful assault (three counts). On 13 November 2015, you were dealt with for breaching the earlier community corrections order and the original order was confirmed. Given this history, specific deterrence is a relevant sentencing consideration.
6 I now move to matters relevant to your background.
7 You come from circumstances of great disadvantage and deprivation. You were born in East Melbourne but grew up in Mildura and South Australia. Your parents separated when you were five or six years old. You recall being the victim of and witnessing, family violence. Your mother placed you in the care of your cousin and you moved regularly been Mildura and South Australia. As a child, you were treated for throat cancer. You spent much of your early life fending for yourself. You spent time on the streets from a very young age. You commenced using alcohol and cannabis as a ten year old. You told Dr Best, a consultant psychiatrist from Forensicare who assessed you in late 2017, that you had had two periods in foster care. You are poorly educated. In your early teenage years, you commenced using heroin, speed and ice. You told Dr Best that your adult life had been dominated by alcohol and drug use.
8 In 2006, Dr Paul Grech, psychologist, assessed you at the Malmsbury Youth Justice Centre. He took a detailed history of your background, noting that you reported feeling paranoid and experiencing auditory hallucinations. You presented with symptoms suggestive of depression.
9 In 2010, Ms Lindsay Vowels, neuropsychologist, assessed you. She noted that you had suffered a serious head injury for which you had been hospitalised at the Royal Melbourne Hospital. She made two significant findings. First, that you had an IQ in the borderline range and secondly, that you had deficits in executive functioning which were considered to be the result of an Acquired Brain Injury (ABI).
10 When you were remanded in custody on 6 November 2016, you were not seen to be presenting with any psychotic symptoms. However, within a week of your transfer to Port Phillip Prison in December 2016, there were concerns about the deterioration in your mental state. Dr Best, in her report, notes that on 19 January 2017, you were prescribed antipsychotic medication. The medication was altered in February with a note that there was, “variable compliance in the setting of prison transfers.” Dr Best expressed the opinion that your presentation in October 2017, suggested a diagnosis of schizophrenia or schizoaffective disorder. She opined that you were unfit to plead.
11 Dr Prashant Pandurangi, a consultant forensic psychiatrist, has seen you on three occasions. He conducted an initial assessment on 30 June 2017. He noted that you had developed a paranoid psychotic illness, the exact duration of which was difficult to decipher. He expressed the opinion that you were unfit to be tried and that your unfitness was due to your under-treated psychotic illness. He stated that your fitness may be restored with pharmacological treatment.
12 He next saw you on 3 November 2017. He expressed the opinion that you suffered for a schizophrenic illness or a schizoaffective disorder. He said that you were unfit to stand trial and that you required more assertive treatment with psychotropic medications to alleviate symptoms of your illness.
13 On 30 November 2017, a jury found you unfit to plead. This was based on the evidence presented by Dr Pandurangi and the report of Dr Best. Because both Doctors expressed the opinion that more assertive treatment may alleviate the symptoms of your illness, I adjourned the further hearing to 30 May 2018.
14 Dr Pandurangi saw you again on 19 April 2018. He prepared a report dated 30 April. In that report he advised that you had been transferred to the forensic mental health unit at Ravenhall on 3 November 2017 and that you remained there for approximately two months before being discharged back to the MRC. You are on antipsychotic medication. He confirmed his diagnosis that you suffer from an enduring mental illness.
15 Dr Pandurangi noted that at this last assessment, you did not present with acute symptoms of mental illness. The symptoms you had presented with at the two previous meetings had largely resolved because of the medication you were taking and the treatment you had received. He considered you were, on the balance of probabilities, fit to plead. On that basis, the matter was listed for a plea on the earliest possible date in the County Koori Court.
16 In his latest report, Dr Pandurangi stated that there is limited evidence to indicate that the recklessly cause serious injury charge was directly related to your underlying mental illness. The evidence supported the view that at the time of the offending you were under the influence of drugs or alcohol.
17 Dr Pandurangi did express the view that your mental illness would make your ongoing incarceration more stressful compared to others who do not suffer your mental illness.
18 Given these facts, I make the following points about your sentencing. First, I am satisfied you come from a background of significant disadvantage and deprivation. This operates in a general way to moderate your sentence. However, your longstanding drug abuse issues together with the associated offending also requires me to give appropriate weight to the principle of community protection.
19 Secondly, although your mental illness is not causally connected to the offending, the fact that you suffer an enduring mental illness is a matter that I do take into account in a general way in sentencing you.
20 Finally, there must also be some moderation of sentence to reflect that fact that imprisonment is more onerous for you than it would be for someone without your illness.
21 There are other matters in mitigation.
22 You have pleaded guilty. The plea is an acceptance of responsibility. The plea has also saved the victim from the stress of giving evidence and saved the community the costs involved in a criminal trial. You will be given credit for all these matters.
23 You consented to the charges being heard in the Koori Court. In doing so you agreed to participate in a process that involves appearing before elders from the Aboriginal community. The process is described as a “sentencing conversation.” The Court of Appeal has recognised that the "sentencing conversation" in the Koori Court is designed to further the reformation of an Aboriginal offender.[1] Participation in the process is not easy. Indeed, it is challenging and your active participation is a factor that provides some mitigation of punishment.
[1] See The Queen v Steelie Morgan [2010] VSCA 14 at page 11.
24
Your counsel tendered a report from Forensicare that indicates you are currently enrolled in their community integration program. This is a voluntary assertive outreach program that assists clients with a serious mental illness and complex needs in their integration from prison into the community. The program facilitates linkages to Area Mental Health Services and other relevant community based mental health services. It operates over a 12-week period. You were referred to the program on 14 May 2018. You were assessed on
24 May 2018. Your mental state was noted as being stable and you understood that this was because you were complying with your regime of medication. The clinician has noted in her report that you impressed her as being focused on maintaining the stability of your mental health and that you had you expressed a keen desire to engage with available community supports upon your release from prison. However, the report writer also acknowledged that obtaining appropriate accommodation was a major issue. You are currently unable to access the support services available in this area because you are on remand. I was told by your counsel and I accept what she has told me, that once you have been sentenced, it would take approximately six to eight weeks for a plan to be prepared that would enable your smooth transition into the community.
25 I am guarded about your prospects of rehabilitation. You criminal history, your history of substance abuse and your ongoing needs in regard to mental health support, explain why I am not optimistic. However, if upon your release, you continue with your medication and work with those who can support you, your prospects would be enhanced.
26 Your counsel submitted that an appropriate order in this case would be a jail term in combination with a community corrections order. I disagree. Notwithstanding the matters in mitigation, the seriousness of the offending together with your past history of non-compliance with community corrections orders, speaks against such an order.
27 Mr Smith, you will be sentenced as follows. On Charge 1, sentenced to six months’ imprisonment. On charge 2, sentenced to two years and eight months' imprisonment. I order one month of the sentence on Charge 1 be served cumulatively upon the sentence on Charge 2. This makes a total effective sentence of two years and nine months imprisonment. I fix a minimum term of 22 months before you will be eligible for release on parole. I declare 604 days pre-sentence detention.
28 On Charge 1, I order that all licences be cancelled and that you be disqualified from driving for a period of six months.
29 Had you pleaded not guilty and been found guilty after a trial, I would have sentenced you to a total effective sentence of four years with a minimum term of three years.
30
Now you can just be seated there for the moment. Is there anything
Ms Conwell or Ms Swiney?
31 MS SWINEY: No, Your Honour.
32 MS CONWELL: I just wanted to let Your Honour know that I had spoken to the author of the Forensicare report yesterday afternoon and this morning. They are very keen to find the result of today.
33 HIS HONOUR: Yes.
34 MS CONWELL: And so they are keeping an eye on it and I will inform them of the outcome, Your Honour. So - - -
35 HIS HONOUR: Well I do not mind confessing that the way this order has been structured is to try and accommodate the six to eight weeks that they spoke about. My understanding is that Mr Smith has served about 20 months. So he would be eligible for release at the 22 month mark. It will be dependent, I know, upon the work being done by Forensicare and the parole board.
36 MS CONWELL: Yes, Your Honour.
37 HIS HONOUR: Yes. But you will communicate to them what has occurred?
38 MS CONWELL: I will, Your Honour, yes.
39 HIS HONOUR: Yes, thank you.
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