Director of Public Prosecutions v Sonkarlay

[2024] VCC 1712

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 24-00436

DIRECTOR OF PUBLIC PROSECUTIONS

v

TARWO SONKARLAY

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JUDGE:	HER HONOUR JUDGE MARICH
WHERE HELD:	Melbourne
DATE OF HEARING:	16 September 2024
DATE OF SENTENCE:	23 October 2024
CASE MAY BE CITED AS:	DPP v Sonkarlay
MEDIUM NEUTRAL CITATION:	[2024] VCC 1712

REASONS FOR SENTENCE

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Subject:  SENTENCE – CRIMINAL LAW

Catchwords:  Causing injury recklessly –machete- very serious example of this offence- Schizophrenic disorder –psychosis at time of offending-  Verdins factors –drug use- some moderation of moral culpability due to psychosis – need to emphasise specific deterrence in this case.

Refugee from Liberia -

Legislation Cited:     Crimes Act 1958 (Vic), Sentencing Act 1991 (Vic)

Cases Cited:            R v Verdins (2007) 16 VR 269

Sentence:Total effective sentence of two years eleven months’ imprisonment; Non-parole period of 2 years imprisonment; 6AAA declaration – four years imprisonment; 496 days of presentence detention reckoned as time already served under this sentence.       

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Kelly	Office of Public Prosecutions
For the Offender	Mr J. James	Marshall Jovanovska Ralph

HER HONOUR:

Introduction

1Tarwo Sonkarlay, you have pleaded guilty to an indictment containing one charge of conduct endangering persons, which carries a maximum penalty of five years' imprisonment; and one charge of causing injury recklessly, which carries a maximum penalty of five years' imprisonment. At the hearing of the plea in mitigation of penalty you agreed to my hearing four related summary offences, that is, one charge of contravene conduct condition of bail, and two charges of commit indictable offence whilst on bail, all three of which carry a maximum penalty of three months' imprisonment or 30 penalty units; and one charge of learner driver driving vehicle without appropriate supervising driver, which carries a maximum penalty of six months' imprisonment and 60 penalty units.  You pleaded guilty to those four offences.

2The circumstances in which you came to commit those offences are set out in the Summary of Prosecution Opening dated 26 June 2024 (Exhibit A).  The prosecution also relied on the following documents:

·Victim Impact Statement of Daniella Tokic (Exhibit B);

·six photographs depicting machete, from pages 184 to 187 of the depositions (Exhibit C);

·five redacted photographs depicting the victim’s injuries, from pages 207 to 214 of the depositions (Exhibit D);

·summaries of criminal offences, which have subsequently been dealt with in the Court (Exhibit E);

·criminal record including subsequent offences for which you were on bail at the time of committing these offences (Exhibit F);

·extended Community Corrections Report (Exhibit G);

·addendum to prosecution opening dated 16 September 2024 (Exhibit H);

·outline of prosecution submissions on sentence dated 22 July 2024 (Exhibit I).

3Since the conclusion of the plea in mitigation of penalty, I have received further prosecution submissions on sentence in relation to the application of Verdins dated 7 October 2024, which I will now receive and mark as Exhibit J.

4In addition to the matters developed in oral argument, your counsel relied on:

·defence submissions on plea dated 9 September 2024 (Exhibit 1);

·psychological report of Warren Simmons dated 20 July 2024 (Exhibit 2);

·psychiatric report of Dr Jacqueline Rakov dated 12 December 2023 (Exhibit 3);

·report of Dr Deepak Tokas of Forensicare, Metropolitan Remand Centre, dated 9 September 2024 (Exhibit 4);

·letter from your mother, Victoria Grupee, dated 4 September 2024 (Exhibit 5);

·your letter of apology to the victim (Exhibit 6); and

·letter from Chris Papadopoulos of ACSO dated 10 September 2024 (Exhibit 7).

5I have taken all exhibited documents into account, as well as the oral submissions of each counsel developed over the days of plea in mitigation of penalty, and I have read each case provided by counsel very carefully in composing my reasons for sentence, as well as the sentence that I must pass upon you for this offending.

Circumstances of your offending

6The victim of your offending is your then partner, Daniella Tokic, who was at the time 20 years of age, and seven weeks pregnant to you.  You met online in January 2023, and the relationship quickly intensified, and you started leaving items at her address, and then you began staying at her address.  You were then 26. On 17 March 2023, at approximately 5.20am, the two of you left her address in her car.  She drove, and you sat in the front passenger seat.  Whilst the plan had initially been that she would drive you to the train station, you asked her to drive you to your work in Brunswick, claiming that otherwise you would not go to work, and she continued driving you towards Brunswick from her address in Melton South.  As you were both travelling eastbound along Melton Highway in Plumpton, you told her that you needed to urinate, and she pulled over to the side of the road and stopped the vehicle.

7Whilst the car was stationary, you undid your seatbelt, produced a machete from a sheath strapped to your leg, and stabbed her in the left side of her chest.  This is part of the offending referrable to your charge of causing injury recklessly, and consequential Summary Charge 16, of committing an indictable offence whilst on bail.  She attempted to undo her seatbelt, she was unable to, as you were leaning over her.

8You grabbed her by the neck with your right hand, and she started attempting to fight you off, whilst begging you to stop.  You replied “I'm one of the Ops or something”.  With your left hand, you continued to stab the victim to her neck, shoulder and head.  She received lacerations to both hands, trying to stop the machete.  The continuation of your actions of stabbing is also referable to your charge of causing injury recklessly.

9She managed to push you back and put her vehicle into drive and pushed the accelerator and travelled a short distance.  During this time, you were still attacking her.  The car collided with an object, and you fell back onto your seat, and she was able to undo her seatbelt and flee the car onto Melton Highway.  This is the offending referable to your charge of conduct endangering persons, and consequential related Summary Charge 18, of commit indictable offence whilst on bail.

10A witness travelling along the Melton Highway observed Ms Tokic covered in blood and stopped for her, and she got into his car.  She then called Triple 0 using the witness's mobile phone and reported what had happened, and the witness drove her to Taylors Hill where she was treated by paramedics and was transported to the Royal Melbourne Hospital.  Police travelled with her via ambulance to the Royal Melbourne Hospital and photographed her injuries whilst she was in hospital.  As I have mentioned, I have been provided with photographs of her injuries, which are extensive.

11You drove her vehicle from the scene to a United petrol station, where you bought Band-Aids, and then drove the vehicle to Canopy Crescent in Hillside.  This is the offending referable to your related Summary Charge 20, of learner driver drive vehicle without appropriate supervising driver. 

12You then called  000, stating that you had been stabbed, and you left the car and concealed the machete in nearby bushes.  I have also been provided with photographs of the machete.

13You then returned to the United petrol station in Hillside.  Police attended that petrol station at 6.18 am but could not locate you.  Shortly afterwards they observed you in the centre median and directed you to come to them.  You walked over and police officers observed you to be covered in blood. You were arrested, and police located on you an empty machete sheath strapped to your leg with a black belt, and two metal house numbers; that is, numbers eight and zero.

14You were then transported to The Alfred Hospital via ambulance in the company of police and were treated for a wound on your left shoulder.

15On 18 March 2023, you were released from hospital and were transported to the Sunshine Police Station, where you were found unfit for interview.

16At the time of your offending you were on two undertakings of bail, each of which had conditions to reside at an address in Sydney Road, Coburg North, and to be present at that address during a curfew between 9.00 pm and 6.00 am.  Your breach of your undertaking of bail constitutes the offending referable to Summary Charge 11, of contravene conduct conditions of bail.

17Dr Jason Schreiber of the Victorian Institute of Forensic Medicine, who is an expert witness in relation to forensic medicine, described the victim's injuries as stab wounds including:

·right hand third and fifth digit volar lacerations;

·left scalp laceration above the ear;

·left hand palmar laceration over the palm of the hand on the thumb side;

·stab to the left breast;

·stab to the left collar bone.

18Dr Schreiber also noted an approximate three centimetre incision to the left eyebrow, and an approximate two centimetre incision to the left scalp above the ear; a one centimetre incision and approximately four centimetre area of abrasive redness both on the outer aspect of the left neck; a circular puncture wound to the front of the neck on the right side of the voice box; and a four centimetre area of abrasion to the lateral aspect of the right neck. He also observed an approximate four-centimetre full thickness incision to your victim's left breast, and an approximate 0.5 centimetre incision to the right breast; an approximate one centimetre area of incisive skin disruption to the left shoulder near her collarbone; an approximate 0.5 centimetre linear incision to the front of the upper right arm; and an approximate one centimetre incision to the back at the mid-spine, and two approximate one centimetre incisions to the right hand.

19Your victim was treated by the cleaning of her stab wounds and repair in operating theatre, pain relief medication and antibiotics, and she was discharged one week following your offences on 24 March 2023, with follow up counselling and Telehealth review in the Plastics and Reconstructive Outpatient Clinic thereafter.  The injuries that I have described are the element of injury referable to your charge of causing injury recklessly.

Effect on the victim

20I have summarised the extensive injuries that you have caused to your then partner by attacking her in the way that I have described.  Further, Ms Tokic has provided me with a Victim Impact Statement which tells me with vivid clarity how deeply your offending has affected her, which is entirely understandable.  She told me about the betrayal of trust, which has heightened her emotional trauma, as well as intensifying the fear and anguish that affects her ability to feel closeness or trust in others.

21In her words:

“The emotional scars run deep, leaving me with an overwhelming sense of fear and grief.

The aftermath of this horrific incident has cast a shadow over my ability to trust and feel safe.  I find myself grappling with intense anxiety, especially when attempting to engage in routine activities or face the outside world.  The violation of my personal space has left an indelible mark on my mental wellbeing, making it a daily struggle to overcome the fear that now pervades my life ... in the aftermath of the incident, I find myself overwhelmed with fear, making it difficult to engage in everyday activities.  The simple act of going out has become a daunting prospect, and trust in others has been shattered.”

22Ms Tokic also told me that your offending has significantly affected her personal life and financial stability.

Plea of guilty and timing; remorse

23You were arrested and charged on the date of your offending, on 17 March 2023.  The matter proceeded in the committal stream of the Magistrates' Court, with your committal mention adjourned in the ensuing months, so as to allow your legal team to obtain medical material and a psychiatric report. Resolution discussions commenced in December 2023, and your matter resolved at the committal mention on 1 February 2024, and you indicated your intention to plead guilty to the proceeding charges.  I accept and take into account that you entered your pleas of guilty at the first available opportunity, and as a result you have saved the witnesses the time, and often the anxiety, of needing to come to court to give evidence and be questioned about their accounts, and you have also saved the court and the community the time and expense of a trial. I also consider that your pleas of guilty are reflective of remorse, though as I will discuss, your ability to understand and appreciate the factors which contributed to your offending on the day are compromised, in part, as a result of your psychiatric health.  I accept and take into account in significant mitigation of penalty your pleas of guilty, their timing, the utilitarian benefit of the pleas, and your remorse.

Personal circumstances

24You were 26 years of age at the time of your offending, and you are now 28.  You were born in Liberia and were raised by a person whom you believed to be your mother, but who was in fact a maternal aunt.  Your parents separated before you were born.  You had an older sister now aged 30, who grew up in another village nearby.  You also have two paternal half-brothers now aged 24 and 19 who share the same father, whom you have never met, and you have a maternal half-sister.

25You have limited memory of your childhood, but you reported to Warren Simmons, psychologist, that you consider it to have been a good childhood.  However, you were often ill, and suffered malaria and various colds, which left you somewhat fragile as a child.  Following the outbreak of conflict in Liberia your life was unstable and you were moved around.

26Your birth mother arrived in Australia in 2005, and you arrived in 2008.  I have been told that you spent time in a refugee camp in Guinea for between two and three years, which must have been very difficult.

27Upon your arrival in Australia you were enrolled in your first period of formal education and were placed in Year 6 at St Albans North Primary School.  You struggled at school as English was your second language, and you only had limited understanding of English upon your arrival.  As a result, your literacy level is poor.

28You attended St Albans Secondary College until Year 8, then your family including your birth mother and stepfather moved to Pakenham in the context of the police being summoned due to conflict between your mother and stepfather.  You then attended Pakenham Secondary College until the end of Year 10, then you commenced a Certificate II in Carpentry at TAFE, then commenced an apprenticeship in carpentry, which you discontinued after one year to commence work as a labourer.  I understand that you have had few significant periods of unemployment since leaving school, which is to your credit. 

29You have a child from a previous relationship.

30At the time of committing these offences you had six prior court appearances, with your first appearance being before the Children's Court in December 2014 for offences including recklessly cause injury for which you were placed on a Good Behaviour Bond.  In November 2017 you received a total effective sentence of 117 days' imprisonment on charges including intentionally cause injury and unlawful assault, weapons offences, two charges of fail to answer bail, and drug offences. You were sentenced to a further period in custody in May 2019, for property offences.  Convictions followed in August 2019 for contravening a conduct condition of bail, which resulted in a fine, and in October 2020 for offences including commit indictable offence whilst on bail, on which you were again fined.  In April 2021, you were again sentenced to a period in custody for offences including unlawful assault, property offences, driving offences, and two charges of failing to answer bail.

31As I have mentioned, you were on bail at the time of committing these offences, as reflected in three of your related Summary Offences.  I have been provided with summaries of the facts referable to those offences and, regrettably, one of those offences was recklessly cause injury, and another was commit indictable offence whilst on bail. The offending referable to the causing injury offence occurred in August 2022, approximately seven months prior to this offence, and I have been told that you used a metal house number bearing the number eight as a knuckle duster to punch the victim to the head multiple times, causing him soreness and lacerations to his face. As you have not been sentenced for this offence at the time of the offending before me, I do not take this particular offence into account in evaluating your character, however, I note that you continued to possess those house numbers, knowing that they could be used as a weapon.  Your undertakings of bail unfortunately served as no deterrent for you, and the offences that you committed upon Ms Tokic before me involve a serious escalation of offending.

32I have the benefit of a number of expert reports, to help me understand your history, particularly in the areas of your mental health and your history of drug and alcohol consumption.  I have been told that you started using cannabis at about the age of 16 and continued to use cannabis until you were remanded on these matters, consuming up to three grams per day. At the age of 17 or 18 you started smoking methamphetamines, but as you told Warren Simmons, psychologist, you did not particularly enjoy it, as you started to experience auditory hallucinations and felt that people were after you.  Nonetheless, you continued to use the drug about once per month.  You have also used LSD in the past.

33You have an established mental health history, both before and after your remand on these matters.  There was a history of at least four admissions into psychiatry services prior to March 2023, including multiple compulsory orders for treatment between 2017 and 2021, including a treatment order from 21 October 2021 until 17 March 2022. You have been diagnosed in the past with paranoid schizophrenia, schizophrenia, and mental and behavioural disturbances due to poly-substance use.  As symptoms of your condition, you started to hear voices approximately a decade ago, that is, at about the age of 18, which Mr Simmons notes is a typical age for the onset of schizophrenia.  You have previously been prescribed Olanzapine at 10 milligrams and Paliperidone at 6 milligrams but have a history of noncompliance with your medications.

34Mr Simmons notes that you became a practising Muslim during Ramadan and ceased your medication whilst on remand for these matters, which led to admission to the Acute Assessment Unit at the Melbourne Assessment Prison, and then the Erskine Psychiatric Unit at Ravenhall Correctional Centre, as a result of the return of auditory hallucinations from your cessation of medication.

35Mr Simmons considers that you have overall psychotic phenomena that have developed and arise from your schizophrenic condition, and you were psychotic at the time of your offending, with your schizophrenic disorder contributing to a deterioration in your mental health. 

36Certainly, Mr Simmons observes that given your history of violent and aggressive behaviour, the community is at risk from your behaviour; however, while on medication, you appear to be more stable.

37Regrettably, Mr Simmons does not in my view fully engage with the prospect of your use of drugs as stimulating your psychosis in the lead up to your offending.  He notes:

“It is difficult to determine whether Mr Sonkarlay's substance use has at times been a form of self-medication, particularly as he has not always been compliant with his medication.  In addition, the use of methamphetamines enables him to enter a spirit world and therefore his use of the drug may be related to his delusional beliefs which are of a religious nature.”

38Dr Jacqueline Rakov prepared a report in December 2023 in the course of your lawyer's evaluation of whether you were fit to plead.  Dr Rakov notes that you reported to her that your hallucinations were focused on your then pregnant girlfriend, fostering a sense of paranoia about her actions towards you prior to the incident resulting in [your] arrest.  You told her that you had insight into the presence of your schizophrenia, in that you knew the voices were not real, and you were able to convey the problematic roles of cannabis and methamphetamine, but you did not identify to her the need to abstain in order to preserve your mental health.

39In your consultations with Dr Rakov, you disclosed that you smoked a joint early in the day prior to your offending, and began to experience hallucinations, and that you had been holding a knife all night as you were scared of the victim.  The hallucinations told you that the victim was going to 'sacrifice the baby' and 'drink the blood', and that is when you attacked her with the knife. 

40Dr Rakov confirmed Mr Simmons' view that you meet the criteria for a diagnosis of substance use disorder, as well as schizophrenia.

41Dr Deepak Tokas, staff specialist at the Metropolitan Remand Centre has written to the National Disability Insurance Agency to confirm that your impairment is likely to be permanent.  The letter was drafted in support of your application for NDIS funding.

42In relation to the question whether and how your impairment affects the sentencing exercise, I have been somewhat assisted by submissions by each counsel, and I have read carefully all cases provided.  In my view, the evidence discloses that, first, you have a significant mental illness, which is your chronic schizophrenia. Secondly, you have some insight about your mental illness but are prone to periods of non-compliance with prescribed medication, and you apparently lack insight into the impact of illicit drug abuse on your overall wellbeing and/or criminal actions.  This leads to an inability to appropriately regulate your behaviour, such as on the morning in question, where your usage of cannabis stirred your psychosis, prompting you to act in this very serious, criminal manner.

43On the morning of your offending, as a result of your drug use and its effect on your mental health, your ability to inhibit impulsive or irrational responses, think clearly, make calm choices, or modify your behaviour, was clearly impeded.  But your psychotic illness has emerged in the context of your drug use on that day, which while you should be aware does impair your ability to think rationally, in fact you do not appear to have that awareness.  Your condition is certainly organic, as it has recurred whilst you abstained from medication whilst on remand.

44Here, I find there to be a connection between your psychiatric disorder at the time of offending and the commission of these acts.  However, the application of the Verdins limbs 1 to 4 in mitigation are limited by your consumption of illicit drugs.  It may be that the deterioration in your mental state impaired your ability to choose whether or not to consume drugs. Unfortunately, I have not been provided with material that assists in my evaluation of your intellectual functioning as opposed to your mental health, which might shed light on your capacity to make careful and wise decisions.  Your limited schooling might support an inference that your capacity to make those careful and wise decisions is affected by your intellectual functioning, and once you experience the onset of psychosis it becomes very difficult for you to control your behaviour.

45In the circumstances of this case, where the prosecutor has opposed the application of Verdins factors 1 to 4[1], I will indicate that I view your moral culpability for your offending against this background; that is, that at the time of your offending you sincerely, wrongly believed that your actions were justified, and that had you been properly compliant with your medication, this would not have occurred.  This may in theory mitigate sentence slightly, but it requires me to emphasise forcefully on the other hand the need for general deterrence and send to you a message that it is your own decision not to comply with your medication and to consume drugs that causes you to behave in such an appalling and terrifying way.  I share the views expressed by the experts that you are a high risk of reoffending as a result of difficulties that you encounter with your capacity to make healthy decisions.

[1]R v Verdins (2007) 16 VR 269, 271.

46I consider that the predictable structure and repetitive routine of a term of imprisonment is likely to be supportive of your day to day functioning.  Structure and routine are essential, particularly given your reduced insight into the obligation to take medication, and avoid illicit drugs (perhaps, in consequence of those very conditions). In my view, your health has a bearing on the kind of sentence that I must impose, and the conditions under which it should be served.  Imprisonment will weigh more heavily upon you when your psychotic state is active than it would on a person who is not psychotic.  As I have said, in respect of the sentencing principles of punishment and denunciation and general deterrence, I am unable to mitigate sentence in application of Verdins given the decisions that you have made to avoid strict compliance with medication and consume drugs, which stir up your psychosis. Whilst I consider your prospects for rehabilitation to be poor, I attach significant emphasis to this purpose of sentencing as well.  I am gravely concerned about the need for community protection in this case, particularly given the seriousness of your offending, and your prior history.  I have been told the victim is protected by a 10 year intervention order.

47When you are eventually released from custody, I understand that your mother is in principle prepared for you to stay with her, and you are also a participant of the ReStart Program which is a voluntary referral-based service that provides participants with support in the community.  They will assist you with assertive outreach for three months after you are released from this sentence and also you intend to apply for labouring positions.

48In considering available dispositions, appropriate to the circumstances of your case, I obtained an extended presentence assessment from Community Correctional Services, and your assessors provided me with an outcome report.  They administered relevant empirical testing and assessed you as having a high risk of general reoffending, which in my view is a fair assessment.  They note the challenges that you will face during your transition back into the community, including your lack of social support, your history of noncompliance with your antipsychotic medication, and the pressure to find work and housing without the support of medical assistance.

Sentencing principles, submissions

49Mr Sonkarlay, your offending against Ms Tokic was very serious and concerning.  She was your young, domestic partner, newly pregnant with your child.  She was so physically vulnerable at the time you attacked her with your machete with foresight of the probability of injury.  She was confined in a small space with you in her car.  You injured her extensively in this terrifying ordeal and have left her traumatised. You have a history of violent behaviour.  You were on two undertakings of bail at the time of your offending which, as I find to have aggravated your conduct, has led me to impose a concurrent sentence for the related summary offences.  I cannot sentence you for any offence more serious than the offence charged of recklessly cause injury, but I do consider this a serious example of that offence.

50Your counsel submitted that I ought apply the parsimony principle of sentencing, first considering sentences involving, even in part, a community-based element, though a sentence involving a head sentence and non- parole period was accepted as being within the range available to me.  The latter sentence was the one urged upon me by the prosecution. A head sentence is the only one available to me in the sound exercise of my sentencing discretion.  I have been mindful of the totality principle of sentencing, having regard to the short period of time in which the offending occurred, and have ordered a lower level of cumulation of sentences accordingly.

51On the charge of conduct endangering persons, you are convicted and sentenced to 18 months' imprisonment, four months of which I order be served cumulatively on the base.  On the charge of causing injury recklessly, you are convicted and sentenced to two years and six months' imprisonment.  This is the base. 

52On the three related summary offences of contravene conduct conditions of bail, and two charges of commit indictable offence whilst on bail, you are convicted and sentenced to an aggregate of two months' imprisonment to be served concurrently - here, gentlemen, without inviting submissions I have chosen to impose an aggregate, given their linkage in the subject matter and linkage in time over a fairly short period.  The two months' imprisonment is to be served concurrently. And on the charge of learner driver driving vehicle without appropriate supervising driver, you are convicted and sentenced to three months' imprisonment, one month cumulative.  This is a total effect of sentence of two years and eleven months' imprisonment, and I order that you serve two years before parole eligibility.

53Were it not for your pleas of guilty in this case, had you proceeded to trial before a jury but been found guilty, I would have imposed a head sentence of four years' imprisonment. 

54Disposal order made. 

55496 days of presentence detention reckoned as time already served under this sentence.  Any other applications to make or orders sought?

56MR KELLY:  No, not from the prosecution, Your Honour.  And might I just at this point say I'm so sorry for the trouble I've caused the court and other people as well.

57HER HONOUR:  Yes, thank you.. 

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