Director of Public Prosecutions v Turner

[2022] VCC 674

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-01846

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMES TURNER

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	21 January 2022 and 12 May 2022
DATE OF SENTENCE:	18 May 2022
CASE MAY BE CITED AS:	DPP v Turner
MEDIUM NEUTRAL CITATION:	[2022] VCC 674

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:  Pleas of guilty – Threat to kill – Damaging property – Common assault – Low intellect – Intellectual disability – Drug abuse

Legislation Cited: S 197 Crimes Act – S 6AAA, S 80(3) Sentencing Act S 123(2) Family Violence Act

Cases Cited:Bugmy (2013) 249 CLR 571 -- Worboyes [2021] VSCA 169 – Boulton v R [2014] VSCA 342

Sentence:  Combined order – 17 days imprisonment –

Two year community correction order – Justice plan

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Sargent (For Plea)	Ms Hayley Gould
Ms J. Hotchkin
(For Plea and Sentence)
For the Accused	Mr J. Lavery	Ann Valos Criminal Law
(For Plea)
Mr G. Davis
(For Plea and Sentence)

HIS HONOUR: 

1In this matter Mr Turner is now aged 38.  He was born in February 1983.  These offences were committed when he was 37.  The offences were committed against the victim, who was 29 at the time.  He had a six-month on-and-off relationship with the victim, and had been separated for a period of three months.

2In the plea Mr Lavery initially represented Mr Turner and Mr Davis has for the last two occasions.  In regard to the Crown representation Ms Sargent appeared, and on the last two occasions Ms Hotchkin.  The plea was entered on 21 January 2022 and was subsequently adjourned to 12 May 2022 for further plea.  The circumstances as set out in Exhibit A in the prosecution opening were accepted by Mr Lavery as the circumstances and facts upon which I am to sentence his client.

3The first count is a breach of s20 of the Crimes Act, the maximum penalty for which is 10 years and/or 1200 penalty units.  This involved a threat to kill against the victim.  It occurred on 6 June 2020 at approximately 1.30 am.  The threat was made after Mr Turner entered the victim's home.  The background seems to me to be, given that he was complaining about threats made to his family, associated with matters which took place the day before when he had met the victim's father.  Those circumstances are part of Summary Charge 6.

4At any rate the threats were numerous. They were essentially to kill the victim and/or burn down the house. In the process he committed the second charge, which was criminal damage. He damaged a door. The evidence as to that is set out in the photographs tendered. Such crime is a crime against s197 of the Crimes Act, the maximum penalty prescribed is one of 10 years gaol and/or 1200 penalty units.  He in fact entered the house twice:  initially when it was unlocked and then damaged the door thereafter.

5The third charge concerns a count of assault.  He pushed the victim to the ground.  She was injured when she fell to the ground, she received a cut to her right wrist from glass that was already on the ground.  As I said, such circumstances took place at 1.30 am. At 3.30 am that morning he was arrested. 

6The summary charge to which counsel pleaded guilty on his behalf is Charge 6 of the summary matters and it concerns a breach of the then intervention order. It is a breach of s123(2) of the Family Violence Act.  The maximum penalty is one of two years and/or 240 penalty units.  That family violence order had been served upon him on 22 February 2020.  This, as I understand certainly in regard to prior matters was the first breach of that order.  It occurred when he met the victim's father close to the victim's home, that is at a milk bar approximately 50 metres from the victim's home in Kings Park.

7PSD served to date is 17 days.  As the prosecutor pointed out, this matter occurred while he was still on an adjourned bond. 

8Coming to his priors, given his age they are certainly not the worst priors that have been before this Court.  He got the adjourned bond referred to in 2020 for an offence under the family violence provisions.  In 2019 he had an assault for which no conviction was recorded.  In 2017 he had a theft charge, again no conviction.  In regard to 2012 he had a theft charge, of an amount under $600 for which he was fined, and in 2010 he had an attempted armed robbery for which he got a community correction order for two years. 

9When he was 18 in this Court he received imprisonment for two charges of armed robbery and an attempted armed robbery, the sentence being for four years and three months with a minimum two years.  He has earlier matters for criminal damage for which he got a sentence of YTC in the Magistrates' Court in June 2003.  They are certainly not the worst offences that have come before this Court, albeit the priors in 2020 for family violence breaches, however, when one understands that Mr Turner is labouring under an intellectual disability for which he is registered and his age it certainly is not a major prior sheet. 

10Clearly what the Courts have done, considering his position and intellect, is to take steps to try and assist him.  Unfortunately as we know from the recent community correction report, he does not always take steps to assist himself.  I do not know the full details, but there are apparently subsequent CCOs imposed.  They were referred to in what I have labelled Exhibit J, the community correction report.  He has been having difficulties in complying with those.  However, as I said, clearly given his intellectual disability the Courts have been at pains to try to keep him out of actual gaol.

11There was no victim impact statement; however, it was fully accepted by Mr Lavery that the experience of the victim must have been very frightening.  Insofar as the prosecution submissions, Exhibit B, it was put to the Court and is totally accepted that the Court must take into account that this offending occurred at night.  A woman was in her own home, where she is entitled to feel safe.  Not only was it a breach of an order protecting her, but there were repeated threats.

12The prosecutor noted in that submission the intellectual disability mixed with ongoing drug use, which made the matter very complex.  He noted the breach of the intervention order, being the summary charge, and submitted to the Court that specific deterrence and community protection are very important considerations, in addition to rehabilitation.  The prosecution submitted in the circumstances that a combined order was appropriate.

13Upon the plea Mr Lavery put to the Court the complexities of the matter.  The matter was adjourned to get a forensic psychiatric report at my direction. Also tendered as Exhibit 1 was the psychiatric report of Dr Fenn in 2010.  That report was dated 24 May 2010, and I refer in particular, albeit not page numbered, to the prognosis made at that time. 

14It was noted that the prognosis was guarded, his propensity to use substances, particularly cannabis, deleteriously impacted upon his mental state.  The positive prognostic factors include the support Mr Turner is continuing to receive from his mother and his stepfather, which continues today with his mother being present in Court.

15In 'Summary and opinion' the psychiatrist noted that child protective services removed Mr Turner from parental care in infancy and noted what was determined then of a mild intellectual disability and diagnosis of attention deficit and hyperactivity.  The diagnosis being not clear, it remained difficult to distinguish the signs and symptoms of possible psychotic illness and those may relate to his withdrawal from psychoactive substances, particularly cannabis, and the confounding impact of a residual development disorder.

16Also tendered as Exhibit 2 was the psychiatric report of Mr Deacon.  That report was dated 26 May 2010 and on the last page thereof was his opinion and recommendation, again with difficulties as to diagnosis, but a clear indication of the need for ongoing psychiatric treatment.  Attached to that report was a report dated 24 May 2010 from the North West Mental Health Service.  I note in regard to p4 of that report a reference to a deterioration in 2008 to the point of an attempted suicide in prison and admission to Thomas Embling.

17At paragraph 6 under 'Prognosis' on the last page of that report, the following was said by way of summary:

'Child protective services removed Mr Turner from parental care in infancy.  He has presented with agitation, irritability and paranoid thinking over the last eight years.  He has remained on treatment with antipsychotic and mood stabilisation.  Diagnosis is not clear [and talks about the confounding impact of mental issues]'.

18As I have indicated, I called for a Forensicare psychiatric report, which became Exhibit G.  This was the report of Dr Triglia.  The report is dated 26 April 2022.  In p6 of such report I go to the 'Opinion and recommendations'.  Clearly he was on a disability support pension for mild intellectual disability.  He suffered significant childhood adversity.  He has had a complex mental history, he has had methamphetamine withdrawal, at paragraph 54 the doctor said this:

'He has had a history of involvement in the criminal justice system for acquisitive, sexual and violent offences.  The offences for which he is currently charged occurred in the context of intoxication with methylamphetamine and cannabis and did not appear to be directly attributable to his mental illness.  His long-standing emotional regulation difficulties and poor frustration tolerance is likely to have contributed.

'[Paragraph 55:]  Given the complexity of his presentation, he requires ongoing psychiatric care. 

'[Paragraph 56:]  I understand that he is currently part of a community corrections order, although I acknowledge the difficulties of his attendance thus far'.

19And finally at paragraph 57 a recommendation that a justice plan would be important for his intellectual disability, on the last page at paragraph 58 the following was said:

'In general terms a period in custody would be more difficult for Mr Turner as a consequence of his intellectual disability and personality disorder.  His history suggests that psychotic symptoms or a suicide attempt are possible, particularly if he discontinues his medication'.

20Mr Turner, you have got to take responsibility for yourself.  You have got to maintain your medication and you have got to get off drugs, because it does not work for you.  Do you understand?  You have got a mother who is supporting you and you have got to be supported.  The Courts have tried their best to keep you out of gaol, but if you keep behaving like this you have got to go to gaol.  Do you understand?

21OFFENDER:  Yes, I do.

22HIS HONOUR:  Take a seat.

23Tendered insofar those recommendations by Dr Triglia are Exhibit E, the disability overview; Exhibit D, the declaration made under s80(3) of the Sentencing Act; and indeed the recommended justice plan, Exhibit F.

24On 12 May Mr Davis made submissions insofar as what the Court should do in this very complex problem.  He referred to Bugmy (2013) VR 249 CLR 571, 592-3, [39], and no doubt those matters as to his childhood must be taken into account by the Court; however, I do not accept that those matters by way of his difficult childhood have had a direct impact or connection to the criminality and I rely in particular on Dr Triglia's report at 54 where he says:

'He has had a history of involvement in the criminal justice system.  The offences of which he's currently charged occurred in the context of intoxication, methamphetamine and cannabis, do not appear to be directly attributable to mental illness.  He has long-standing emotional regulation difficulties and poor frustration tolerance'.

25As I say, it seems to me there must be a direct link between the contact made the day before with the victim’s father and him arriving at the victim's home. 

26It is noted from Exhibit G that he has a particularly low IQ.  It is noted that, from paragraph 28, he has had seven admissions to the Sunshine Acute Psychiatric Unit between 2010 and 2020 and further admissions to the Northern Hospital and Werribee Mercy. 

27Mr Davis relied on the plea as a matter of mitigation, I accept that; the particular circumstances that relate to the health circumstances, that we are in, lead to an amelioration of sentence brought about by the principles set out in Worboyes [2021] VSCA 169, 39; and he stressed the need for a sentence which effects rehabilitation. Mr Davis' submission was to seek a community correction order, but with no gaol. As I say following that submission, a community correction report was sought, which has been tendered today, which was negative. I take account of those matters.

28I also take account of Exhibit K, which is the prosecutor's further submission, based on that negative report from community correction, that the earlier submission made is no longer maintained. 

29Sentencing people such as Mr Turner is always a very difficult consideration.  A Court must, when you are dealing with persons of low intellect and with intellectual disability, in circumstances clearly exaggerated by ongoing drug abuse, take as humane approach as is possible.  I accept totally the comments made in the CCO report and the amended submission of the prosecution.  However, it seems to me our society must take steps to deal with persons of mild intellectual disability and low IQ in as humane a way as possible.  As I have already said, the priors, given those circumstances, are not particularly great given his age, albeit particular priors in regard to the summary matters and the armed robberies.

30Albeit the view expressed in the community correction report and the prosecutor's more recent submission, I FIND that despite that report, the submission made in the original prosecution submission is the appropriate sentence in this matter.  That is, that there should be a combined sentence.  The CCO must clearly be therapeutic, there are grave dangers with Mr Turner being placed in gaol, see Boulton v R [2014] VSCA 342.

31It seems to me, given his intellectual disability and low intellect, upon the principles espoused in the Court of Appeal, despite the need for general deterrence and protection of the community, such considerations must be moderated in order to deal humanely with persons in our community suffering from these afflictions.

32The real issue in giving a combined order was to determine whether in all the circumstances any additional gaol should be imposed.  I FIND such would be inappropriate, taking into account the totality of the matters before me.  I intend, subject to having Mr Davis express his client's consent to me, to impose a combined period of imprisonment and a community correction order.  The period of imprisonment to be imposed will be 17 days.  A declaration will be made that such period has been served by way of pre‑sentence detention and recorded in the records of the Court.

33The community correction order, which will therefore commence immediately, will be for a period of two years.  It will involve all of the therapeutic conditions, as many as I can put in, as have been recommended including the addition of a justice plan. 

34Do you need to get actual consent or have you got that?

35MR DAVIS:  May I approach the dock, Your Honour?

36HIS HONOUR:  Yes.  You might point out to your client that he would not want to come back to me, because he knows what will happen.  You do bring your bag then.  Mr Davis, you might say that if he is not going to comply with these orders he may as well tells us now, I will send him to gaol.

37OFFENDER:  I'm going to comply. I'm going to comply.

38HIS HONOUR:  Sorry?

39OFFENDER:  I'm going to comply.

40HIS HONOUR:  Right.  Well, you better because if you don't when you come back here you know what's happening.  You do bring your bag, all right?

41OFFENDER:  Okay.

42HIS HONOUR:  You've got to help yourself.

43OFFENDER:  Yes.

44HIS HONOUR:  Listen to your mother and listen to the doctors and don't miss your medication.  The Courts can only do so much to help you.  You've got to help yourself.  Yes, Madam Associate, we can do normal situation, can't we?  The order can be signed here.

45ASSOCIATE:  Yes, I'll print that off now.

46HIS HONOUR:  Do either counsel want to say anything?

47COUNSEL:  No, Your Honour.

48HIS HONOUR:  Thank you.  Thank you both for your assistance.  Is it Mrs Turner?  I'm not sure?

49MS TURNER:  Ms Turner, Your Honour.  That's okay.

50HIS HONOUR:  Ms Turner. 

51MS TURNER:  Yes, Your Honour.

52HIS HONOUR:  Yes.  You've heard what I've had to say.  No doubt you'll stress it.

53MS TURNER:  Yes, I will, Your Honour.  Yes.

54HIS HONOUR:  Tell him we can only help him so much.  If he commits another offence like that then there will be no option for him.  He doesn't like gaol.  He had gaol when he was a younger man, it was no good for him.  All right?

55MS TURNER:  Yes, Your Honour.

56HIS HONOUR:  Thank you.  If it wasn't clear, the combined order of gaol and community correction order of two years and the justice plan, which will also be for two years, is an aggregate sentence for all offences including the summary matter. 

57Is there anyone here from CCO?

58TIPSTAFF:  On Webex, Your Honour.

59HIS HONOUR:  On Webex? 

60TIPSTAFF:  Yes.

61HIS HONOUR:  Who is it? 

62TIPSTAFF:  Ms Ah Kuoi.

63HIS HONOUR:  Ms Lui?

64TIPSTAFF:  Ah Kuoi.  It's A-h ‑ ‑ ‑

65HIS HONOUR:  Wait on.  Where's my - here.  Yes, sorry, Ms A ‑ ‑ ‑

66TIPSTAFF:  A-h K-o-u-i.  I think it's pronounced Ah Kuoi. 

67HIS HONOUR:  Ms Ah Kuoi, can you hear me? 

68MS AH KUOI:  Can you hear me?

69HIS HONOUR:  Yes, thank you, Ms Ah Kuoi.  What I want to indicate to you is that this Court does not disregard your report.  I've taken those matters very much into account.  I realise the burden is on people like you in the community, but to assist people like Mr Turner we've just got to fight and fight, and have failures unfortunately.  Let's hope we don't have any more failure, but the Court appreciates very much your work and the report. 

70It's not that I didn't take it into account, I have found that this sentence requires a more humane outcome for Mr Turner than placing him back in gaol.  I realise that puts a responsibility on your office, but that's a responsibility no doubt your office, and the people who run it, have the broad shoulders and ability to be able to maintain the rage.  It's difficult and we understand fully.  Thank you.  And if you could convey those thoughts to your superiors.  Thank you. 

71Yes, I'll stand down.  We've got a trial running.  Thank you both for your assistance.  Mr Davis, your client will obviously be able to be released today.  If you have a chance to talk to him, you emphasise what I have said.

72MR DAVIS:  I certainly will, Your Honour.  May I apologise for being late.

73HIS HONOUR:  No, not a problem.

74Pursuant to s 6AAA, all I can say to comply is that had Mr Turner not pleaded guilty I would not have given him a combined order.

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