Director of Public Prosecutions v Taylor

[2018] VCC 203

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02125

DIRECTOR OF PUBLIC PROSECUTIONS

v

LESLIE TAYLOR

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	1 March 2018
CASE MAY BE CITED AS:	DPP v Taylor
MEDIUM NEUTRAL CITATION:	[2018] VCC 203

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms T. Bolton	Office of Public Prosecutions
For the Accused	Ms J. Munster	Victoria Legal Aid

Pages 1 - 10

 

 

HIS HONOUR: 

1Mr Taylor, you are now 57 years old.  In your whole life, you have never been in any trouble with the law before the events of 8 December 2016.  You have for many years suffered from the debilitating illness of schizophrenia. 

2The illness first became evidence in your early 20s.  You have been unable to work and are in receipt of benefits since the age of 24.  You have suffered from auditory hallucinations for decades.  There are other visual aspects of your hallucinations and your poor mental health.  There have been time when your mental health has deteriorated to the point of admission to hospital. 

3In 2005, when hospitalisation was required for a number of weeks, you were formally diagnosed.  You were treated with antipsychotic medication, principally olanzapine, and thereafter monitored by your general practitioner.  You settled and remained living with your elderly mother, caring for her especially after the death of your father in 2006. 

4During this time, you drank too much alcohol and your physical health was problematic, especially with respect to your blood sugars.  You are now a better controlled but nonetheless a type II diabetic.  Overall, you are managed with medication in relation to your schizophrenia and were living quietly.

5For some reason, you read and accepted articles on the internet that told you that it was reasonable to stop taking antipsychotic medication after ten years.  I pause to say that those ill-informed cranks and perhaps crackpots who peddle their particular theories about mental illness and the like with the benefit of wide undeserved coverage through the internet do not for a moment pause to consider the consequences such as what flowed in this case.  But you stopped your olanzapine.  This precipitated the significant decline in your mental health. 

6However, as you did not note any changes within the first two months, you believed your decision was justified and kept with it.  But shortly thereafter, you began having what you described as weird dreams and believed the dreams were in fact visitations of real people.  You commenced to interpret your everyday experiences in bizarre ways.  Thus you were in no position to have insight into the cessation of your olanzapine as your mental health had deteriorated and stood in the way of you realising what was happening and its case.

7But as an example, you told the consulting psychiatrist, Dr Pungarangi, that in September of 2016 you stopped drinking because you had a dream in which you saw "George Bush celebrating my demise, thought he was a reptile."  You went on to say that the weeks leading to 8 December 2016, you began hearing voices which were intense.  You believed your sexual karma was coming back as the voices you would hear would often repeatedly replay sexual encounters.  You believed the spirits were trying to reabsorb your energy and you began praying for help.  You eventually smelled a beautiful essence.

8You said that the cessation in the voices' momentarily relief as the quality of the voices changed and now it was the devil who was torturing you.  You said the devil eventually took control of your mind through repetition.  You were unable to fight him as the devil was more "intelligent and powerful".  You believed the devil hated you and came from another dimension. 

9You went on to say that on the day of the alleged incidents, you were taken over by the devil and instructed to take your mother's car to go to Brisbane.  You described yourself as a robot, a zombie being controlled by voices.  You stole a chisel from somewhere and for some reason drove to Gippsland.  You said that you were instructed all the way by the voices as if there was someone sitting in the passenger's seat.

10What then happened when you got to Traralgon at about 9.15 in the evening was that you saw a child at the driver's door of her mother's car.  Her mother was in the driver's seat. You then rushed to where they were, grabbing up the child's arm.  You caused a scratch to her.  The mother screamed out as did the child.  There was not really a long but a struggle nonetheless and you let go of the child and ran back to your car.  Just bear with me for a moment.  Just bear with me.  There is a document that has gone astray.  No, I found it.  Thank you.  The child was of course screaming and crying when you ran away. 

11A short time later, you had moved from the car park in Traralgon to a suburban street.  You went to the front door of someone unknown to you.  You knocked on the door and when the victim answered the door, you said, "I heard you've got a car for sale."  The victim replied, "No, I haven't."  Then without warning, you launched forward, grabbing the man by the neck and scratching his neck, causing it to bleed.  You were just slightly inside his door.  He took a step back and managed to push you and caused you to stumble backwards and fall off the porch.  You then went quickly back to your car and drove erratically away from the scene.

12You then drove on till you got to the bottle shop at Rosedale.  At that time, you went inside and said to the person working there, "Hello."  At that point, you just grabbed the shop attendant by the neck and pushed something sharp into his neck.  He wriggled out of your hold and you then walked towards your car and drove quickly away.  You were arrested in Sale and taken to La Trobe Regional Hospital due to your psychotic state.  You were then made an involuntary patient under the Mental Health Act.  You also had very significant blood sugar problems that were addressed.  You were released after some weeks and are currently treated by your general practitioner and by Dr Robinson, a psychiatrist. 

13Dr Robinson wrote as follows.  That you attend his appointments punctually and follow directions regarding your medications, fearing - that is with insight - fearing a relapse.  Early in your treatment phase, you did cease one of your two antipsychotic medications believing one was sufficient.  But following discussions, you resumed the former.  He goes on, "Mr Taylor was then stable enough to be discharged to his local medical officer in July 2017 that he was referred to by a forensic psychiatrist in January this year due to revelations of a relapse of some paranoid ideation and derogatory voices" which he notes are unlike the command voices which led to the assaults.

14As a result of that, you accept an increase dose of lurasidone.  Meanwhile, you are continuing olanzapine, 10 mg and an antidepressant as well.  Dr Robinson goes on, "He will continue with case management for the next few months but if he remained stable, he may once again be discharged to his local medical officer providing he remains on medication as he plans to do.  I consider the risk of relapse to be low."

15You have returned to look after your mother.  Your brother wrote a letter in support in which he says the following, "Before Les' offending episode in 2017, he lived at home quietly.  Schizophrenia was managed by medication and meditation.  He lived at home with our mother.  He went off his medication and the psychotic episode occurred.  After being released from hospital with pre-diabetes under control, different medication, he then returned home and started a better health regime that is being maintained.  His diet changed and he's lost significant weight and started to exercise." 

16He concludes, "The offences that occurred in 2017 were out of character in his life up to that point and his life since that point.  To the extent that he remembers all the incidents, he is ashamed that they occurred.  When I visited him in the psych hospital in Morwell after he was committed to care, he did not want to see me as he was too embarrassed and ashamed by what had happened." 

17You now have social work support.  That mental health community support worker in the local area, Mr Parkin, writes as follows, "Having commenced my role with Leslie as of December 2017, I have found him to be an earnest resilient gentleman.  One who is devoted both to his family and friends.  Having worked closely with Leslie, it becomes evidence that he is faced with a number of significant challenges - those associated with his role as full-time carer for his elderly mother, social isolation as well as the task of managing persistent psychiatric illness. 

18"Despite these many challenges, Leslie is very much intent on recognising past behaviour and using this as a catalyst for change as illustrated by greater adherence to prescribed medication and the willingness to attend regular fortnightly appointments as per our program.  Importantly, whilst my role with Leslie will remain ongoing, it is pleasing to note that he has recently commenced a weekly walking group as per the Each Day to Day living program."

19Dr Pungarangi, whose report I have referred to, concluded that you had a mental impairment defence.  So too did the Forensicare psychiatrist, that being Dr Joynt, the psychiatric registrar and the consultant psychologist, Dr Brennan.  Notwithstanding this, you have pleaded guilty to two charges of recklessly causing injury and one of assault with a weapon.  The assault with the weapon being the matter that arose out of the incident at the Rosedale bottle shop.

20The defence counsel who represented you, Ms Munster, contended that the plea of guilty was appropriate in these circumstances and the prosecution accepted the plea.  In all the circumstances, I am content that the practical outcome that flows from the plea of guilty and the legal requirements all meet - that is all legal requirements are met, so too are community expectations.  Thus, prominent in the sentencing task is your impaired mental health.  In coming to a just and appropriate sentence, I have significantly moderated the weight to be given to the sentencing purpose of denunciation.  This is due to your moral culpability being in my view so much lower than would be the case had you not been so unwell at the time.  

21I will also moderate very significantly the weight to be attached to general deterrence and specific deterrence.  It is appropriate to consider this is a proper example of deterrence being virtually eliminated as a sentencing purpose.  This contrasts to the many cases that come before us where the proposition is ill-considered. 

22The sentence to be imposed must be a different one because of your mental health.  In all likelihood, absent your impaired mental health, a community corrections order would have been imposed in all probability in the Magistrates' Court.  But in my view, the community corrections order I am about to impose is of a different kind because of your impaired mental functioning.  It will merely require compliance with your mental health regime.  I know by reason of your shame that you understand now how frightening your conduct was.  The victims were no doubt deeply scared especially the child.  Thus, I have not overlooked the seriousness of the offences.  But in the scheme of things, the physical injuries were minor and as noted, the mental anguish would have been more prominent.

23A question arose as to the requirement of recording a conviction.  The prosecution submitted it was required mainly due or almost solely due to what was said to be the gravity of the offences.  The defence contended that your character and circumstances up to and since and your return to proper medical treatment and your insight into the need for that is such that I could in recognition of all matters exercise a merciful discretion not to impose a lifelong penalty of a conviction. 

24I am persuaded for the reasons articulated by Ms Munster that this is one of those rare cases where a conviction is not required.  The seriousness of the offences is but one consideration and in my view, these are not very serious matters and the circumstances of the offending - that is how they arose and ended - and the circumstances of you the offender are exceptional and the call for a merciful outcome is appropriate.

25The community corrections order which I will shortly announce is punishment enough.  The circumstances call for a reasonably lengthy community corrections order but limited in its conditions. 

26Mr Taylor, you can remain seated.  What I propose to do is impose an aggregate sentence for the three offences being two charges of recklessly causing injury and one of assault with a weapon being a summary offence.  That one aggregate sentence is imposed.  It is a community corrections order that will go for two years.  I impose that community corrections order without recording a conviction.  

27The one condition that I require is that you undergo treatment and assessment for your mental health problems.  I fully expect that the community corrections people will be apprised of your mental health program and dovetail in with it, that they will have a supervisory role although I am not requiring you to be under supervision.  They will be a supervisory role to ensure that you comply with what they ask of you in respect of your mental health. 

28Ms Bolton, can you just consider this question?  Am I required under s.6AAA to be make such a declaration if it is a community corrections order?  Take that on notice.  Have a look at the Act.

29MS BOLTON:  Will do.  Just in relation to the 464 order ‑ ‑ ‑ 

30HIS HONOUR:  Yes, I am about to move to that.

31MS BOLTON:  Thank you.  Thank you, Your Honour. 

32HIS HONOUR:  An application was made that you provide, Mr Taylor, a forensic sample - that being a scraping from your mouth that contains biological material.  From that, your DNA would be extracted and placed on a database.  I thought anxiously about that because in some sense, the deterioration in your psychiatric health caused you to commit offences, although brazen, were on unknown victims and you being unknown to them, your identification might have been a bit harder. 

33However, that is just one consideration.  The other is all the circumstances, that is your past and your future and the fact that for you with your fragile mental health, the taking of a forensic sample may loom large.  But in the end, it seems to me that the application for a 464ZF is simply to add to the database.  In my view, a requirement that you provide a forensic sample is not required in this case.  I am not persuaded by the seriousness or otherwise of the offence and I am not persuaded it is in the interest of justice and I decline to make the order.

34COUNSEL:  As Your Honour pleases.

35HIS HONOUR:  Thank you. 

36MS BOLTON:  I am just going to look up the ‑ ‑ ‑ 

37HIS HONOUR:  Yes, I will look it up.  I certainly know, Ms Bolton, because I railed against it for years, that 6AAA did not require a judge to speak about what would have happened if I imposed a community corrections order.  But if I imposed a fine, I had to

38MS BOLTON:  Had to.  Yes.

39HIS HONOUR:  So I did not quite understand it because when you spoke to someone who got a 6AAA, the point to make - that got a CCO, the point to make to them and to others was, "You would have gone to gaol." 

40MS BOLTON:  Yes.

41HIS HONOUR:  So it seemed to be self-defeating, however, I think they changed it and I just - because when considering prospects about 6AAA, I did not really know where to go because of the difficulties of this mental impairment.

42MS BOLTON:  Yes.

43HIS HONOUR:  Because I just do not think he would ever be found guilty of these offences.  He would have been found not guilty a ‑ ‑ ‑

44MS BOLTON:  Not guilty, yes.

45HIS HONOUR:  ‑ ‑ ‑ and he would have been placed on a non-custodial supervision order or discharged.  So if I - the sentence imposed on the offender is or includes an order made under Division 2 Part III, well, that is gaol.  A fine.  So 6AAA was amended and to say - 6AAA(i)(b) - (i)(1) and (i)(b) - that I am to make the order if an order - that the offender has served a term of imprisonment or a community corrections order for a period of two years or more.

46MS BOLTON:  Two years, so ‑ ‑ ‑ 

47HIS HONOUR:  So in compliance with the Act, I indicate that had you pleaded not guilty to this offence, in all likelihood, you would have been found not guilty by reason of mental impairment and you would have received a penalty under the Crimes (Mental Impairment and Unfitness to be Tried) Act. It is impossible to go any further than that in this case.  Is there anything else required?

48That would have required supervision for life, more than likely.

49MS MUNSTER:  That is right.

50HIS HONOUR:  Thank you.  Mr Taylor, just stand up for the moment so I know that - so the charge - the community corrections order will go for two years.  It will start on 1 March and go to 29 February - there is one - 2020.  So everyone that is on a community corrections order has these conditions and I will read them out. 

51Do not commit another offence.  You must not commit another offence for which you could be imprisoned during the time the order is in force.  Well, almost every offence you could think of is punishable by imprisonment even if you would not receive it so do not commit any offences.  Just do as you have done prior to 8 December and subsequent.  Do not commit offences.

52You must comply with any obligation or requirement under the regulations.  You must report to and receive visits from the Office of Corrections.  You must report to the Community Corrections Centre within two clear working days of the order starting.  So either Friday or Monday, you have got to get down to the Community Corrections Centre of - you will get their address in a minute.  You must let them know within two clear working days if you change your address or job.  You cannot leave Victoria without getting permission to do so and you must obey all lawful instructions and directions from them. 

53So that applies to everyone.  And you must undergo - this is the special condition that applies to you - undergo any mental health assessments and treatment as directed by the regional manager. 

54Now, the address of the Community Corrections - that is at Lilydale.  Lilydale Community Corrections Centre, 1-18 Clarke Street, Lilydale.  All right? 

55If you sign that, it will bring the matter to an end as far as this court is concerned.  You have signed that, Mr Taylor.  I will sign it.  You will get copies.  Thank you, Ms Munster, for your assistance in this matter.  Mr Taylor can come out of the dock when I am moving off the Bench.  And Ms Bolton, thank you for attending at short notice, no doubt and to your instructor for resolving this matter so that we did not have to overload the lists in La Trobe Valley.

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