Director of Public Prosecutions v Smith

[2015] VCC 220

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-02332

DIRECTOR OF PUBLIC PROSECUTIONS

v

RAYMOND SMITH

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	26 February 2015
CASE MAY BE CITED AS:	DPP v Smith
MEDIUM NEUTRAL CITATION:	[2015] VCC 220

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms K. McKay
For the Accused	Ms N. Warda

HER HONOUR: 

1Raymond Smith, you have pleaded guilty to one charge of recklessly causing serious injury.  The facts underlying are as follows.

2On 26 October 2012, you met friends on the edge of the Plenty Valley Shopping Centre in Mill Park at about 6.30 pm, having just got off the train at the nearby South Morang Station.  At about the same time, Torres Folau, who was then aged 16 (and you were 22 at the time), left the shopping centre with two friends to catch a train at the South Morang station.

3He and his friends took a route which brought them to a pedestrian crossing, which you and your friends were approaching from the opposite direction.  None of you knew each other.

4As the two groups approached at the crossing, you stared directly at Mr Folau, who said to you, "What's your problem?"  You said, "Do you wanna go, cunt?"  You then twice swung your arm at Mr Folau, connecting with his upper body, and while doing this, had a sharp object in your left hand, which was concealed under your jumper.  Your counsel informed me that this sharp object was a pair of scissors you used for cutting tobacco.

5In defence, Mr Folau threw a punch at you.  A fight then erupted between the two groups, ending up on the road, when you produced a large spanner from a plastic bag you were carrying and held it in front of you at which point Mr Folau and his friends back way.  You and your friends then ran into the shopping centre.

6As he walked to the train station, Mr Folau discovered he was bleeding from the chest and had been stabbed.  He and his friends went back to the shopping centre where an ambulance was called and Mr Folau taken to the Royal Melbourne Hospital.  He sustained two stab wounds to the front chest, haemopneumothorax, which is blood in or near the chest cavity and a cut to his left internal mammary artery.  These injuries required emergency surgery and he spent six days in hospital.

7A month later, police went to your mother's home in Ivanhoe to arrest you, the incident having been captured on CCTV footage, but you fled off out the front door.  You were not charged with this offence until 15 August 2013, after having been taken into custody over breach of parole on 30 April 2013.

8You said nothing to police in a record of interview.  The maximum penalty for recklessly causing serious injury is 15 years' imprisonment.  You have been in custody since 30 April 2013, then owing the parole board one year, four months and 11 days.  But for this matter, you would have been released on 10 September 2014.

9You have a long prior criminal history beginning in 2004, when you were put on probation by the Heidelberg Children's Court for assaults, wilfully damaging property, burglary, theft of bicycle and entering a building with intent to steal.  In August that year, you were convicted of assault with intent to rape and placed in a youth residential centre for eight months.

10In 2005, you were again placed on probation on charges of theft of motor vehicle, unlicensed driving, burglary and other dishonesty offences, which probation was breached in May 2006 and you were ordered to be detained in a youth training centre for four months.  In addition, you received an eight month detention for theft of motor vehicles, burglary, intentionally damaging property, obtaining financial advantage by deception, resisting police, possessing cannabis and other charges.

11You received a nine month period of detention in a youth training centre in August 2006 on a charge of armed robbery.  You received another period of detention of eight months in 2007 on charges of aggravated burglary, theft, driving offences, robbery and reckless conduct endangering life.

12In 2009, you were released on youth supervision order for 12 months on charges of reckless conduct endangering serious injury, driving offences and recklessly causing injury, with the condition you comply with a justice plan.  In August that year, you received a good behaviour bond from the Heidelberg Children's Court on a charge of criminal damage.

13In December 2010, the Melbourne County Court sentenced you to three years' imprisonment with a minimum term of one year and three months for two charges of arson, theft, criminal damage and other offences.

14In 2011, you received a further sentence of six months on charges of burglary, theft, receiving stolen goods and driving offences.

15Finally, in 2012, you received two months' imprisonment, which sentence was wholly suspended for driving offences and a theft of a motor vehicle.

16I now turn to your personal circumstances.  You are now 23, the eldest of three children born to your parents, who separated about three months after you were born.  They then reunited and separated on numerous occasions over the years, causing a great deal of disruption in your home.

17Your mother has suffered from depression for years on and off, for which she has been medicated.  She has been the primary caregiver to the three of you, the youngest of whom has Cerebral Palsy.

18You showed problematic behaviour at an early age and were seen at the Royal Children's Hospital when you were in primary school for being disruptive in class, swearing and hitting others.  From about 1999 on, you were regularly referred to the Austin Medical Centre Child and Medical Health Service, which is known as Austin Chams, over a period of years.  You were asked to leave a number of primary schools because of continued disruptive behaviour.  You also were asked to leave the Beltara Integration unit, where you were attending part-time whilst at Banksia Secondary College, where you began your secondary education.

19Your attendance there was erratic due to frequent suspensions for aggressive behaviour.  Ultimately, you were referred to the early school leavers program provided by the Salvation Army, but only attended for two weeks.  You were employed at Leo's Supermarket in Ivanhoe but this broke down because you simply did not go to work on a number of occasions.

20Encouragingly, from November 2006 to April 2008, you worked as a landscaper in a program facilitated by Mission Australia and Apprenticeship Plus, but eventually had to leave after ongoing disputes with your supervisor.  You were referred to WISE in Northcote in 2009, but disengaged because that service closed down.  Along the way, of course, you have been incarcerated both in Youth Justice Centre and gaol.  Finally, you worked for some time as a plasterer with a family friend up until your arrest in 2013.

21You have an interesting history with drugs and alcohol.  In your early-teens you regularly binged on alcohol but stopped using when you were about 15 or 16.  In that time, you also smoked cannabis daily, but said it made you feel paranoid and you have not used it since you were 16.  You chromed spray paint for about six weeks.  You have tried ecstasy and ketamine and up until 2011, you attended the Youth Substance and Advocacy Service (YSAS) for drug and alcohol counselling.  However, you seem to have recognised the negative effects drugs and alcohol have upon you and had not used drugs or alcohol for some time, being gaoled.

22You have had a concerning psychological history, which began, as I have said, with attendances at the Austin Hospital Services.  Along the way, you have been assessed by psychiatrists as suffering from Schizoaffective Disorder, a Bipolar Disorder and symptoms of Catatonia.  You continually present as being paranoid, and sometimes having psychotic reactions.

23In terms of these particular proceedings, a Forensicare report was ordered and Dr Lauren Fitzpatrick, a clinical neuropsychologist, tested you both for intellectual disability and acquired brain injury, concluding that you in fact suffer from neither.  However, in 2004, you were assessed as suitable for services with Intellectually Disability Services and I also received a report on this occasion from IDS, authored by Renee Callagher and Virginia Kavanagh.  The report being dated 12 February 2015, which maintains that you do have an intellectual disability and are eligible to receive IDS services.  I accept that assessment.

24Dr Fitzpatrick, in her report, stated that your cognitive profile was most in keeping with, "A psychotic disorder, potentially Schizoaffective Disorder."  She continued, "Indeed his primary areas of cognitive difficulty are in executive functions, which are often impaired in individuals with different types of psychotic disorders.  Mr Smith continues to describe paranoid ideation, relating to the offence in question.  He also describes ongoing, day to day paranoid ideation in prison, despite feeling stable in his structured environment."

25She said that your difficulty with reasoning, planning, cognitive flexibility and inhibitory control were likely to contribute to acting impulsively and reduce your ability to make reasoned decisions.  You have described episodes to various professionals of blacking out and adrenalin rushing, which Dr Fitzpatrick felt was more likely due to psychological factors rather than cognitive ones.  She stated, "Whilst Mr Smith's offending on the day in question appears primarily related to his paranoid ideation, his difficulties in executive functioning would likely have reduced his ability to reason and problem solve his way out of the incident while it was occurring."

26I have jumped a little ahead in the order in which I wish to place matters relevant to your life but it does seem that there is a link between your psychological problems, and I understand that this is to an extent accepted by the prosecution and your offending against Mr Folau.  I accept that that is so and to some extent, your moral culpability in this offending is reduced.

27The report from Intellectual Disability Services outlined a whole raft of services that have been offered to you over the years, which you have largely declined.  Indeed, at one stage, a negotiated package was cancelled simply because you would not engage.

28After you were released from custody on the last occasion, you were placed at Charlton House and then Perry House, which is accommodation for intellectually disabled offenders, but you kept leaving as you preferred to live at home.  This brings you to your arrest and it should be noted that when you ran away from your mother's house after police came there to arrest you, you ceased all contact with Disability Services for about four months before your ultimate incarceration.  Intellectual Disability Services have become involved with you again.

29In addition to these matter I have outlined, I should note there is a strong family history of mental illness, your father having suffered from psychosis in the past, your mother, as I have said, suffering depression.  You have an aunt with a Bipolar Affective Disorder, another aunt with severe anxiety, a paternal uncle who suffers from schizophrenia and, as I have said, you also have a history of auditory hallucinations, depressive episodes and paranoid ideation.

30In terms of your offending, you told your counsel that when you saw the victim looking at you, you became paranoid and felt a rush of adrenalin.  Your paranoia over the incident continued on afterwards, you being suspicious of the friend, who took you to the shopping centre believing they had some intentions to set you up in a way that you could not properly describe.

31You present, therefore, when you come to court Mr Smith as a young man who has been involved in the criminal justice system for a long time, who has been offered numerous supports, both through Youth Justice and Intellectual Disability Services for many years, all to no avail.  At first blush, it would seem therefore that the only way to deal with you is to give you a sentence of imprisonment that would last for quite a long time.  You have got a lot of priors for violence, for dishonesty and serious property damage.  You have a history of paranoid reaction to situations surrounding you, as was obviously the case in the matter that has brought you here before this court, where you viciously attacked a much younger person who you did not know and who had done nothing more than look at you.

32However, there is a bright side finally to this story.  It appears that the period in gaol on this occasion has been very good for you.  It is the longest time that you have spent in adult custody.  You have been housed at the specialist Marlborough Unit and Ms Callagher and Ms Ryan, in their report, have spoken to the unit coordinator, Michelle Enbomb, who described you as coping extremely well there.  You have been employed in the general prison maintenance crew for a long time, which is a very trusted position as the crews are sent all throughout the prisons in other units to carry out maintenance work.  She said you attended this work daily without anyone having to push you, that you are well respected amongst other mainstream prisoners and that they tended to look after you. Also while in Port Phillip Prison, you were referred to the White Lion Program, an organisation, which provides mentors for young people in gaol and you have been regularly visited by a volunteer, Dale Hardy, who sees you there every two to three weeks. Mr Hardy has been to court every single time this matter has come back here and I thank him very much for is attendance.

33This case has had a very protracted history.  It began on 10 April 2014, when you pleaded guilty in this court.  The matter was adjourned for a further plea, which ultimately took place on 29 July 2014 at which time a Forensicare report was sought.  The matter was further adjourned on 5 November 2014, as defence counsel was ill.  Then on 20 November 2014, the report was received from Dr Fitzpatrick and the matter was further adjourned so defence could go back to Intellectual Disability Services on the question of your disability to sound out the bridging support and treatment that could be offered between custody and placement in the community on the imposition of a combined custody community corrections order disposition.

34On 3 December 2014, the matter was adjourned for a justice plan statement and community correction order assessment and the matter was only finalised insofar as submissions were concerned in about February of this year.  Throughout this time, you have remained in custody, both in relation to outstanding and finally in relation to finalisation of this matter.

35Now, Ms Callagher, who knows you because she has dealt with you in the past, met with you on 15 January this year and she described you as appearing relaxed in engaging very well in pre-release planning.  She said that you recognised the importance of being supported in the community.  She said you told her you no longer have contact with your old friends in the community because you said they were no good, most of them using ice and you have got no desire to involve yourself with people using drugs.  Can I say, Mr Smith, that is one of your big strengths.  Lots of people who have got the sort of psychological problems you have turn to drugs in order to make them feel better.  You discovered, which a lot of young men simply cannot realise, that they actually make you feel worse.  So I do not have to worry about drugs and alcohol when I am trying to sort out what is best for you.

36What I am saying overall, Mr Smith, is you have been in so much trouble for so many years.  You have had a lot of support.  You have a lot of support from Youth Justice, you have had a lot of support from Intellectual Disability Services and nothing seems to have worked and finally, for some reason, maybe because you are a bit older, maybe it is because of the unit you were held in in custody, to use a colloquial, you seem to have come good.  You have done a terrific job in gaol.  You have worked really hard.  You had a trusted position.  The other prisoners like you and if there was one place you would think you were going to paranoid about people it would be in gaol, and you have not.  That all gives me confidence about your future and your prospects for rehabilitation.  I find them to be good and more positive than they have probably been in the whole of your life.

37Your mother has come to court and is supportive of you and you will be living with her when you are released, and you told Ms Callagher that whilst in the past, your home life has been chaotic and difficult, it has settled significantly because your parents have finally separated and they separated as friends.  You told Ms Callagher that your father visits the house almost on a daily basis, but it is on a friendly basis.  Your mother also has a new partner.

38You are also, and this is important, open to the possibility of ongoing support from a mental health service and you asked for access to psychological counselling when you are release.  What that means is you said to Ms Callagher, "Yes, I want a psychologist when I leave.  I recognise I need mental health," and that is really important, Mr Smith, because you have got mental health problems.  The way the community looks at mental health problems is not good.  There is a lot of stigma attached to it.  It is not your fault, it is just an inherited condition but you have to learn how to manage it.  It is a bit like somebody who has inherited one arm shorter than the other or some sort of physical thing that lots of people in their family have had before.  You have got some mental health problems, but you are now doing really well with it.

39What I am worried about is you have had good structure in gaol.  You have not had a lot of opportunity to get into trouble.  There is going to be a lot more opportunity for that when you are released and that is why I am going to put you on a community corrections order because you continue to need support and I am very relieved that you have got the continued support of people like Mr Hardy from the White Lion Program.  You need to use them.

40So a justice plan is being prepared.  Ms Callagher has attended court and she is a person who has known you for a long time.  So everything seems to be well set up for you to be released.

41In sentencing you, I must take into account issues of totality.  You have been in custody since April 2013.  I take into account what as I regard as your enhanced prospects of rehabilitation for the reasons I have already outlined.  I should also note that there was an early plea of guilty to this matter.

42The offending was extremely serious and unprovoked, but it is conceded that your psychological conditions did have some part to play on the attack your lodge upon your victim, that is there is some reduced moral culpability for your offending and you are still a young man.

43The prosecution have conceded that a combination disposition of gaol and community corrections order is appropriate in your case and have said it is a matter for me how long that sentence should be.

44Given the factors I have outlined and the stabilisation that has occurred and the supports that have been brought in, it is my view that a lesser term of imprisonment attached to a community corrections order is appropriate.  I am have regard in particular to the decision of the Court of Appeal in Boulton and the Court's comments as to the variety of functions, both punitive and rehabilitative that a community corrections order performs.  It seems to have particular application in your case, where you have got a combination of serious offending and psychological disturbance in a relatively young man.

45In all the circumstances, I am going to impose a sentence of imprisonment, which will mostly be made up of the time that you have already served and then released on a community corrections order for a period of two and a half years.  Now, I need to explain to you, Ms Smith, what the conditions are of a community corrections order because you need to consent or agree to being placed on it.

46While you are on a community corrections order, you must not commit any offence punishable by imprisonment inside or outside of Victoria.  You have to report to the Office of Corrections within two days of being released on the order.  You have to tell the Community Corrections Office of any change of address or employment within 48 hours of that change.  You cannot leave Victoria without the permission of the Office of Corrections.  You must report to and receive visits from the Community Corrections Office as directed.  You must obey all lawful directions of the Community Corrections Office.

47So I am sentencing you to a period of six months' imprisonment.  I direct that 169 days have already been served by way of pre-sentence detention.  Then you will be released on the order.  Now, there is going to be some special conditions.  You are going to have to do 150 hour of unpaid community work.  There is going to be a justice plan.  Because the justice plan, it is run by IDS.  Now, ordinarily, IDS is voluntary, but because this is a justice plan, and it is part of your order, you have to do what IDS says.  So there is no, "I cannot be bothered today.  Thanks Renee, it has been great but you know, I had a big night last night and I do not want to."

48You have to do what Renee tells you.  So understand that.  Because there is a justice plan, there does not seem the need for a psychological.

49MS MCKAY:  We were just discussing that before Your Honour came onto the bench.  I am not entirely sure, Your Honour, whether the justice plan covers that sufficiently.

50HER HONOUR:  I might ask Ms Callagher, because all the mental health condition does on the justice plan is tell someone to go off and get a referral from the GP for a mental health plan, which I do not find particularly adequate in many circumstances and it is just one more thing Mr Smith has to do.  Mr Smith has got problems organising himself.  I do not want him to have a whole lot of conditions that he has to meet that he just cannot and he comes back here on breaches.

51MS MCKAY:  I hear what Your Honour says.  I suppose as long as Your Honour is satisfied from evidence by someone from Corrections that it would be addressed through that condition.

52HER HONOUR:  He has got executive functioning problems.  That just does not mean how he reacts in stress, but he is going to have a lot to do.

53MS MCKAY:  But there does need to be the power for them to compel him to receive psychiatric or psychological treatment.

54HER HONOUR:  But that is through the justice plan.

55MS MCKAY:  Yes.

56HER HONOUR:  He has to do what they tell him on the justice plan.

57MS MCKAY:  Yes.

58HER HONOUR:  And the thing about the justice plan is they can refer him to practitioners who are in fact appropriately qualified and experienced in dealing with an intellectually disabled offender.  I have had GPs refuse people with mental health.  I just think it is too much and I am going to ask Ms Callagher.

59MS MCKAY:  And depending on the outcome of that answer, Your Honour, it might be appropriate if Your Honour is not going to impose that condition for the reason that Your Honour has said, perhaps just announce that in your sentence so that it is clear that it is a relevant factor that Your Honour believes it to be captured by.

60HER HONOUR:  I will put in a more formal language, but what I am saying now will appear in these sentencing remarks, which I am going to have furiously edit, but I do not want to set up a plan that is going to fail.

61MS MCKAY:  Yes.

62HER HONOUR:  So I will just speak to Ms Callagher.

63MS MCKAY:  Certainly, Your Honour.

64HER HONOUR:  What do you think?

65VOICE (from the body of the court):  I think that it will be covered with the justice plan.  We have already been speaking to a psychologist that specialises in working with your men with anger issues and intellectual disabilities.

66HER HONOUR:  Excellent.

67VOICE (from the body of the court):  That might be more effective than as if he has to get an assessment.

68HER HONOUR:  It's going to be far more effective.  And I mean I can just see Mr Smith getting out and saying, "What do you mean go and see my local doctor?"

69MS MCKAY:  Yes.

70HER HONOUR:  Offenders actually have to activate their own mental healthcare.

71MS MCKAY:  And I suppose, Your Honour, if ultimately an assessment is made along the track that Mr Smith requires some form of medication, that that can be utilised through the justice plan, that referral can also occur through the justice plan.

72HER HONOUR:  Of course it will be and that will be through a psychiatrist, not a psychologist as well.

73MS MCKAY:  Yes.

74HER HONOUR:  So I have an assurance from Ms Callagher that the psychiatric and psychological aspects of Mr Smith's life will be attended to under the justice plan.

75VOICE (from the body of the court):  Yes, Your Honour.

76HER HONOUR:  Thank you.

77MS MCKAY:  As Your Honour pleases.

78HER HONOUR:  So it is my view that it is not appropriate, but I thank you for making sure I articulate it adequately in my sentencing remarks, Madam Prosecutor, the justice plan encompasses appropriate practitioners, both psychological and psychiatric, who will assist Mr Smith and be part of his support program on release from gaol.

79So what that means, Mr Smith, when Ms Callagher says to you this is the psychologist we want you to see, you have to see them.  If you do not do what you are supposed to under the justice plan, that will breach this order.  If you do not do what you are told on the order, you will be brought back in front of me and I will have to resentence you.  You understand that?

80OFFENDER:  Yes.

81HER HONOUR:  It is a bit like probation.  You know when you had probation and it did not work?  Now, Community Corrections were not very happy about having you back again, but they said in the end it was up to me and it is my view that a community corrections order is appropriate and is a good way of giving you the support structure you require.  Do you understand?  It is not like the old days with people Ms Callagher and IDS where it was up to you whether you went or not, you have to go.  Do you think you will?

82OFFENDER:  Yeah.

83HER HONOUR:  This could be it for you Mr Smith.  This could be the end.  I am always hopeful.  This could be the end of all this offending and it can also be the end of feeling so uncomfortable in your head and feeling scared and feeling like everyone is out to get you.  Clearly they are not.  What do you want to do when you finally get out?

84OFFENDER:  Sort things out.

85HER HONOUR:  Yes.  Are you feeling all right about getting out?

86OFFENDER:  Yeah.

87HER HONOUR:  All right, so I think there is a good structure in place. Remember, you can be breached either for offending again or for not doing what you are supposed to be doing.  I am not ordering supervision either.  I am going to order judicial monitoring. The trouble with supervision is that it is just one more appointment that Mr Smith has to attend, which he might not and I think judicial monitoring will do the trick and I think the justice plan will do the trick.  Do you agree with that course Ms Callagher?

88VOICE (from the body of the court):  Yes, Your Honour.

89HER HONOUR:  Do you think I am right in what I am saying about just not setting up too many people that he has to see?

90VOICE (from the body of the court):  Yeah I find that that is difficult especially for people that have issues in organising themselves and he has got community work and then he will have psychological intervention as well.

91HER HONOUR:  Yes.  So look I think that is enough and the thing is that you are going to be the main person that is going to be organising that for him.  So that streamlines it again, but I am going to - thank you.  That has been really helpful.  Thank you for coming to court so many times to, Ms Callagher.  I am going to order judicial monitoring every six months.  Every six months you are going to come back in front of me and I am going to see how you are going, Mr Smith.  Everyone is going to give me reports, so I hope I always get good reports.

92Very well, that is all.  We will prepare the paperwork and get you to sign it.

93MS MCKAY:  Your Honour, I believe Your Honour is required to set a date for the first judicial monitoring appointment.

94HER HONOUR:  I am.

95MS MCKAY:  And I am also required to ask if Your Honour requires an appearance from the Crown at those judicial monitoring.

96HER HONOUR:  No, that is fine.

97MS MCKAY:  No.  The only other thing, Your Honour, is I was wrong about s.6AAA.  Because Your Honour has ordered a term of imprisonment, Your Honour must.

98HER HONOUR:  I had a horrible feeling that might be the case.

99MS MCKAY:  Yes.

100HER HONOUR:  Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of three years and order that you serve a minimum term of two years.

101MS MCKAY:  As Your Honour pleases.

102HER HONOUR:  So we will get the paperwork out.  Now I am really hoping that when I see you on the first judicial monitoring when you come back, it is all looking good Mr Smith.  It is also an opportunity for you to tell me about whether you think things need to be changed around and what you are having problems with and things like that.

103MS WARDA:  Your Honour, may I be permitted to approach Mr Smith in the dock when he is about to sign the paperwork so I can go through them briefly with him before he signs it?

104HER HONOUR:  Sure.

105MS MCKAY:  Your Honour, I am not sure about the answer to this, but I am just wondering whether the first judicial monitoring appointment that Your Honour makes is one that has to be noted in the orders themselves so that he is ordered to appear on that date.

106HER HONOUR:  It is in the order.

107MS MCKAY:  Thank you, Your Honour.

108MS WARDA:  Thank you, Your Honour.

109HER HONOUR:  Yes, thank you.  I think that is everything.

110MS MCKAY:  Sorry, Your Honour, what was the date for the first judicial monitoring?

111HER HONOUR:  It is 28 September 2015.

112MS WARDA:  As Your Honour pleases.

113MS MCKAY:  Thank you, Your Honour.

114HER HONOUR:  Again, I thank counsel very much indeed for their exceptional assistance in this matter.

115MS MCKAY:  As Your Honour pleases.

116HER HONOUR:  You both have been terrific.  Good luck Mr Smith and I will see you in September and let us hope everything goes really well.  Do not forget to thank you counsel, she has done a great job.  Thank you.

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