Director of Public Prosecutions v Stewart

[2023] VCC 1991

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MORWELL

KOORI COURT DIVISION

CR-23-01108

DIRECTOR OF PUBLIC PROSECUTIONS

v

CLIVE STEWART

---

JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	29 August 2023
DATE OF SENTENCE:	8 September 2023
CASE MAY BE CITED AS:	DPP v Stewart
MEDIUM NEUTRAL CITATION:	[2023] VCC 1991

REASONS FOR SENTENCE

---

Subject:  CRIMINAL LAW - Sentence

Catchwords:  Koori Court jurisdiction – Attempted aggravated burglary – Make threat to kill – Criminal damage – Related summary offences – Plea of guilty – Application of Bugmy principles – Application of Brooks & McKee principles – Application of Verdins principles – Intellectual disability – Acquired brain injury

Cases Cited:DPP v Stewart [2019] VCC 681; R v Stewart [2005] VCC 57; R  v Stewart, Clive Colin [2005] VCC 1161; R v Stewart, Colin [2007] VCC 349; Bugmy v The Queen 249 CLR 571; R v Verdins 16 VR 269; R v McKee & Brooks [2003] VSCA 16

Sentence:Total effective sentence of 9 months’ imprisonment in combination with an 18-month Community Corrections Order

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B. Sharp	Office of Public Prosecutions
For the Accused	Ms T. Theocharous	Kurnai Legal

HIS HONOUR: 

1Clive Colin Stewart, you pleaded guilty before me in the Koori Court at Morwell to one charge of attempted aggravated burglary, one charge of make a threat to kill and one charge of destroying property.

2You also pleaded guilty to relevant summary offences of carrying a controlled weapon and committing indictable offences whilst on bail.

3The maximum penalties for these offences are:

(1)for attempted aggravated burglary - 20 years' imprisonment;

(2)threat to kill - 10 years' imprisonment;

(3)criminal damage - 10 years' imprisonment;

(4)carrying a controlled weapon carries a maximum of 1 year imprisonment; and

(5)commit indictable offence whilst on bail, a maximum of 3 months' imprisonment.

4You have admitted relevant prior convictions.

5The offences arise out of a single episode in February where you attended a boarding house at 11 Maryville Crescent in Morwell armed with a kitchen knife.

6You were 36 at the time, having been back living in Morwell for some short time, and you had relapsed at the time after returning to Gippsland for sorry business.

Circumstances of Offending

7The details of the offences are set out in the Amended Summary of Prosecution Opening Upon Plea which was Exhibit A on the Plea and forms part of these Reasons for Sentence.

8The offending is also captured on CCTV footage. The footage was played during your Plea hearing. The footage captures all of the most salient aspects of your criminality.

9I do not propose to summarise your offending in the same detail as is contained in the opening. The footage is of course the best document for assessing your conduct.

10You accosted your younger victim yelling 'you got me stabbed you fucking dog'. You rushed at him brandishing the knife and he retreated into a room shutting and locking the door.  Had he not done so you may have been facing far more serious charges than those before me.

11You were telling your co-accused to kick the door in. You were screaming, 'you're dead'.  You were screaming several other threats, threatening harm to the victim. Attempts were made to kick the door in and enter the room.

12You went around to the side of the building and continued to make threats. Before leaving you threw a scooter through a window causing it to shatter.

13You were interviewed regarding the matter at Morwell police station a couple of weeks later. You told police that it was all over you getting 'set-up and stabbed'.  You made full admissions.

14There was no victim impact statement filed but it was clearly an extremely terrifying, violent and potentially dangerous confrontation.

15In relation to your antecedents, I refer to and adopt the observations of Judge Allen of this Court when he sentenced you in 2019. Judge Allen said this at paragraphs 2 to 5 of his Reasons which are reported at the medium neutral citation [2019] VCC 681. He said this:

'You have also admitted a large number of prior convictions.  Those convictions go back to your childhood.  I will say more about this later, but there is absolutely no doubt on the evidence before me that you have experienced what has been described as a most tragic, deprived and disruptive childhood, marred by abandonment by your mother, intellectual disability from the age probably of about three or four, a tragic death of your twin brother, your mother, when she died you were aged 11 when she died of a heroin overdose and your much loved grandmother who died in 2007.  It was your grandmother, together with your step‑grandfather, Mr Erskine, who is here again today to support you as he always does and always has.  It was your grandmother who raised you in the most difficult circumstances.  Difficult really is an understatement.  Anyway, I will say more about that later.

'So in light of that background, I just introduced that issue of your deprived and tragic background in the context of your prior convictions, it was no surprise that you came before the courts at an early age.  I think at the age of 14 and were then before the courts on many occasions thereafter.  I must say in the light of my assessment of your extremely troubled history, including substance abuse from the age of ten, early diagnosis of paranoid schizophrenia as still a teenaged boy and all of the other problems, it is in a sense surprising and to your credit, in a strange way, that you do not appear before the courts with many more pages of priors.  There are seven pages of priors.  For someone like you at your age, I would often see 20 or 30 pages of priors.  That says something about your prospects of your rehabilitation.

'Two other matters emerge from a careful examination of your priors.  In the past, you have been given community dispositions on several occasions and as the report from Corrections notes, the most recent community dispositions that you have received, parole in 2005, a CBO in 2007, an intensive corrections order in 2007 and most recently, a community based order many years ago now in 2010, you have completed all of those orders successfully.  That is consistent with the fact that up until a short time before you offended in relation to this matter, you had managed to remain alcohol free for five years.  It is also consistent with the fact that having committed your last prior offence on 14 August 2010, you did not come under the notice of the police adversely for another seven years, despite all of those problems in your past, despite your intellectual disability, your mental illness, your drug addiction, you stayed clear of crime for what, in anyone's book, was a significant period of time.

'That is what emerges from a balanced, proper assessment of your prior convictions.  It is not all bad news.  There are a number of rays of sunlight that ironically shine through your criminal history, which I have just summarised.'[1]

[1]DPP v Stewart [2019] VCC 681 at [2]-[5].

16Despite some differences that emerge from what is before me, I agree with and adopt Judge Allen's findings as to your antecedents and the factors formative in your development.

17Judge Allen had before him past sentences in this Court from Judge Dyett, Judge Nixon and Judge Wodak.[2]

[2]R v Stewart [2005] VCC 57; R  v Stewart, Clive Colin [2005] VCC 1161; R v Stewart, Colin [2007] VCC 349.

18I have also had access to those documents and have read them.

19Judge Allen engaged in a synopsis of relevant findings that I will not reproduce herein but I accept the analysis summarised at paragraphs 42 to 57 of Judge Allen's sentence.

Personal Circumstances

20As mentioned, you were born a twin. Your mother was 16, I was told, when you were born and I was told that within a few weeks you were rejected by her and she put you into care of her parents, her mother and her stepfather, Gladys Hood and Michael Erskine. Your mother had her own substance use issues. You never knew your father. You have a half-sister. You were bullied at school because of, in part what I was told was due to fairer skin.

21When you were three or four, you and your twin brother Luke drank your mother's epileptic medication. You were both hospitalised and placed in intensive care in a comatose state. As I understand it, you were comatose for several weeks. Your brother, Luke, unfortunately passed away as a result of that incident. This was not the first severe trauma you had been exposed to, even at such a young age, but it was a very significant one. The loss of your twin brother at this time and in such a way must have had a significant and lasting impact upon you.  It is likely you received a brain injury from the poisoning and hypoxic event.

22You returned to the care of your grandparents. It was obvious that you had suffered a brain injury as a result of what had occurred. You struggled at school, both intellectually, socially and behaviourally. You were caught chroming in primary school. You were referred to drug and alcohol services for treatment at the age of ten. You left partway through Year 8 at Deer Park Secondary College.

23It was confirmed in 2004, while you were still a teenager, that you suffer from an intellectual disability and it was confirmed the following year that you suffered from an acquired brain injury.

24Mr Erskine attended your Koori Court Sentencing Conversation and participated in it and I note that he also, as has been mentioned, participated in the hearing before Judge Allen and no doubt most of the previous hearings in this Court as well. He was there when you were released on a 3 year CCO pursuant to the sentence of Judge Allen.

25You successfully completed that CCO and this is a very significant matter in your case. My understanding is that you resided with Mr Erskine for the duration of that CCO and you have a good rapport with Corrections workers at Sunshine.

26It was upon returning to Morwell for a funeral that you re-engaged with negative influences and fell back into the drug lifestyle and associated offending.

27Further personal details were before me in the form of Ms Theocharous' Outline of Submissions which was Exhibit 1 on the Plea and also the psychological report of Sandra Cokorilo.

28I will not reproduce the same detail as to personal matters herein, I will simply note some of the following, most of which I have already covered. Additionally, I have not mentioned your children and as Ms Theocharous notes and as you discussed during the sentencing conversation, you have had one significant relationship and six children, one of whom you referred to as adopted, aged between five and 12, those children and Ms Theocharous tells me the mother of your children tragically passed away in 2022. The children are currently in foster care.

Other Factors in Mitigation

Participation in Koori Court

29You participated fully in the sentencing conversation with Kurnai Elder Uncle Lloyd Hood.  You are related to Uncle Lloyd and he discussed your lineage with you.

30When you were arraigned you described your occupation as Aboriginal Artist and you discussed this pursuit during the conversation.  You spoke about getting back into your art during your time in custody.

31You also stated you were on the buprenorphine medication in custody.

32You spoke lovingly, in your way, of the support you have from Mick Erskine who you refer to as Dad.

33You acknowledged your offending and its impacts. You explained how you returned to the Latrobe Valley for sorry business, you did not have your medications with you and you spiralled out of control very quickly. Mr Erskine confirmed this trajectory. I accept these circumstances.

34You told Uncle Lloyd of your children.  Uncle Lloyd urged you to become a real father and take charge of your family.

35There was discussion during the conversation as to your successful completion of community corrections orders and parole in the past. Mr Erskine contributed in a positive way as to your engagement with Corrections whilst living with him.

Intellectual Functioning and Mental Health

36There are number of reports before me including the report I have mentioned of psychologist Sandra Cokorilo. This report confirms most of the matters referred to in sentencing reasons of this Court from 2019 that I have referred to and earlier sentences. Ms Cokorilo noted you suffer:

·Anxiety;

·Major Depressive Disorder;

·PTSD;

·Cannabis and stimulant use disorder;

·You have been diagnosed with ADHD and schizophrenia when in youth detention at the age of 15;

37She assessed your cognitive functioning, verbal comprehension and working memory as being in the extremely low range;

38She noted you have been assessed from childhood as having an intellectual disability and you were placed on a Justice Plan when aged 18;

39Ms Cokorilo also made reference to your report of heavy drinking, drinking three to four bottles of port per day, drinking daily unless in custody you told her and that you stated that you drink alcohol to avoid hearing voices and seeing the victims of your own and friends' crimes. You told Ms Cokorilo that you had been using inhalants such as petrol and glue at age 11, you would use them through the day until you would pass out, continuing this pattern until age 21 when you warned by a doctor about the potential health risks. You discussed your past offending with Ms Cokorilo and explained how it was acquisitive in nature.

40Ms Cokorilo, from paragraph 88 under the heading Recommendations, noted that an individual such as you who presents with a psychotic illness is more prone to be triggered by the volatile nature of the prison environment and she recommended that pharmacotherapy and psychiatric referral will be of assistance to you in relation to your long‑term prognosis. She also recommended participation in violent offender programs and that you would benefit from a disposition which promotes access to an engagement with relevant resources. 

41I had you assessed for a Justice Plan and I have received that and also had you assessed for a community corrections order. That assessment is favourable and the Justice Plan and Disability Overview Report confirm your limitations and your needs.

42The CCO assessment confirms your suitability for a CCO although you are assessed as high risk of re-offending.

43That assessment also confirms your successful completion of orders in the past.

Bugmy -Verdins – McKee and Brooks

44A number of matters were relied on in mitigation including your plea of guilty of course but Ms Theocharous also referred me to principles arising from cases of Bugmy v The Queen (“Bugmy”), R v Verdins and R v McKee & Brooks (“McKee & Brooks") which is also important in your case.[3]

[3]Bugmy v The Queen (“Bugmy”) 249 CLR 571; R v Verdins 16 VR 269; R v McKee & Brooks (“McKee & Brooks”) [2003] VSCA 16

45There is an overlap between the principles arising from those three different areas of case law in your particular case. There is not always an overlap but in your particular case there is an overlap. I accept that profound childhood disadvantage, neglect and exposure to trauma has been a formative factor in your life. It is connected to your drug use and dysfunction from a young age and so in that way it is the start of the overlap between Bugmy and McKee and Brooks factors and there is also those matters are exacerbated when one has a brain injury of cognitive limitations and exacerbated further if there is mental impairment factors. So that is why I say there is some overlap between the factors of personal mitigation available to you. 

46These matters, particularly the Bugmy matters were well documented as I have noted, by Judge Allen and summarised with reference to past judgments. I am not going to go back over that again but I will quote from Judge Dyett's sentence the same passage that Judge Allen quoted:

'The exhibits tendered by Mr Williams [your counsel] are voluminous, and in summary paint a picture of a tragic background.  Your mother died in 1997 of a heroin overdose, and you never knew your father.  You have been looked after by your grandmother and stepfather, who have been present in court today.  At age three you consumed a number of your mother's anti-epilepsy tablets and have been to some extent intellectually disabled since that time, according to the report of Mr Ian Stewart.'[4]

[4]R v Stewart [2005] VCC 57, at [8].

47Judge Nixon stated:

'The exhibits which were before Judge Dyett are now before me and I agree that they do paint a picture of a very tragic background indeed.  You present with a very dysfunctional and deprived childhood'.[5]

[5]       R V Stewart, Clive Colin [2005] VCC 1161, at [7].

Judge Nixon went on to summarise those personal factors that I have touched on also.

48Judge Wodak stated 'You were born on 30 July 1986 at Bairnsdale'.[6] He went through the same tragic recitation of your early childhood. He then referred to Dr Ian Stewart, clinical neuropsychologist, who noted that 'in 2003, you were found to have a heart irregularity, thought to be the legacy of chronic inhalant use'.[7] As a result of testing, Dr Stewart considered that you perform well on practical tasks, that you could plan effectively and your concentration was good. However, he considered that you showed marked impairment in language skills and had a limited capacity for logical thought, impaired memory, making it difficult for you to process information. Dr Stewart said he had 'no doubt' that you have an acquired brain injury which affected your language functioning. He thought that this was the result of the overdose of epileptic medication when you were aged about three. He considered that this had greatly affected your personality and emotional security.

[6]R v Stewart, Colin [2007] VCC 349, at [13].

[7]Ibid, at [20]

49There was a report before Judge Allen from a GP, Dr Rankin, who had known you since childhood, who said:

'He has had a tragic life.  He's had an intellectual disability worsened by an acquired brain injury as a result of glue sniffing and poly drug abuse.  He developed drug induced psychosis, diagnosed by Forensicare during one of his incarcerations and we have treated him with Seroquel since 2013.'[8]

[8]DPP v Stewart [2019] VCC 681.

50There was a psychiatric assessment before either Judge Wodak or Judge Allen from Dr Kate Roberts which again summarised the factors from early childhood including the ingestion of the epileptic medication and its effects and the chroming effects, reaching the same conclusion. 

51There was also a neuropsychological report referred to previously from Dr Loretta Evans which again confirmed the same history and effects. She stated at one point 'Given Mr Stewart’s history of likely significant hypoxic event at age four, together with the onset of alcohol and illicit substance abuse during critical periods of brain maturation, it is highly likely that cortical development was compromised and Mr Stewart does have an acquired brain injury'.[9]

[9]Ibid, at [54].

52Judge Allen ordered a pre-sentence report from Forensicare and that was provided by Dr Preston who summarised you as at that stage 'a 32-year-old Aboriginal male with a history of psychotic symptoms, intellectual disability and acquired brain injury compounded by chronic polysubstance abuse'.[10]

[10]Ibid, at [57].

53All of these matters referred to are consequences of profound childhood disadvantage and/or acquired brain injury, intellectual disability, psychotic illness, depression and ADHD.

54These matters have led to criminogenic factors and the factors relevant to the offending before me. They have led to early drug use, to limited education, poor literacy, poor employment prospects, housing difficulties, gravitating towards negative peer influence, as well as shaping your responses in moments of conflict and stress.

55Your offending before me is typical of your background and personal circumstances.

56The offending before me occurs in the violence and chaos of a drug milieu, you being under the influence of substances and your cognitive processing skills and emotional regulation deficits coming to the fore, your emotions spilling over into threats and violence.

57In this way your background and cognitive challenges and mental impairments are connected to the offending in an explanatory sense.

58Your moral culpability is reduced accordingly – through no fault of yours your psychological functioning and personality structure, your capacity to engage productively with the world and process stimulus and your environment in a regulated way have been impaired.

59General deterrence is a very important consideration in offences of this type however it is moderated to some degree in your case due to the combined effect of specific Bugmy mitigation and the effect of cognitive limitation and mental impairment.  So too is the principle of denunciation.

60I take into account your plea of guilty and its significant effect, your admissions. your participation in the Sentencing Conversation. I accept that you are remorseful.

61I am guarded as to your prospects of rehabilitation although I have some confidence that living with Mr Erskine at Deer Park provides you with a solid base to once again complete a community corrections order.

62Drawing all of the relevant matters together, not overlooking the serious aspects of the offending and its impacts I have concluded that an aggregate sentence in your case is appropriate given all charges before me arose out of a single episode of relatively short duration with an underlying motive common to all the charges.

Sentence

63On Indictment No.P10519497 and the two relevant summary offences you are sentenced, Mr Stewart, to 9 months' imprisonment combined with an 18 month community corrections order.

64The special conditions of the community corrections order are:

(1)  that you be subject to supervision;

(2)  that you abide by a Justice Plan;

(3)  that you attend for drug assessment and treatment including testing;

(4)  that you attend for alcohol assessment and treatment including testing;

(5)  that you attend for mental health assessment and treatment;

65I will impose a judicial monitoring condition – I will see you at 9.30 am on 20 December to see how you are settling into the Order at that time.

66I declare that you have served, is it 185 days of - - - 

67MR SHARP:  That is correct, Your Honour, yes.

68HIS HONOUR:  - - - 185 days of pre-sentence detention so it is a little bit over six months. No it is more than that isn't it, it's - - - 

69MR SHARP:  It's a little bit more than six months, yes.

70HIS HONOUR:  No it is about that, it is about, yes.

71MR SHARP:  Yes.

72HIS HONOUR:  185 days of pre-sentence detention.

73Pursuant to s6AAA, had it not been for your pleas of guilty you would have been sentenced to two and a half years' imprisonment with an 18 month non‑parole period.

74Now do you consent to the community corrections order, Mr Stewart? You agree to enter a community corrections order when you are to be released in custody? You can nod your head. Okay, thank you.

75All right now I do not know whether there is administrative days or emergency management days or anything of that nature which will affect things but, so it might be sooner but effectively within three months you will be released onto a community corrections order so you can plan for that, start to plan for that now. You will be able to work out the date or the authorities will be able to work out the date of your release on the community corrections order and then you will be going to live with Mick Erskine who, with Dad as you call him and you will have to report to Corrections within a couple of days.

76All right now are there any other orders I need to make?

77MR SHARP:  Nothing further, Your Honour, no.

78HIS HONOUR:  No, all right. Any of that - - - 

79MS THEOCHAROUS:  Your Honour, may I ask - - - 

80HIS HONOUR:  Sorry, was that right?

81MS THEOCHAROUS:  My apologies, Your Honour, for interrupting, I just had one point of clarification. Was offending behaviour programs on the order or is that covered under the Justice Plan?

82HIS HONOUR:  Oh sorry, yes, I did mean to put that on there, yes, I didn't state it for some reason, I must have left it off my, but it wasn't, I was intending to have that as a condition. Yes, attending offender behaviour programs as directed will be on the order as well, Mr Stewart. You have got a bit of time to plan and talk about things with Mick Erskine.

83Ms Theocharous, is there anything that's unclear, anything else I need to address?

84MS THEOCHAROUS:  Nothing from me.

85HIS HONOUR:  All right, thank you. All right, thank you everyone for your assistance in the matter and Mr Stewart I'll see you on 20 December.

- - -