Director of Public Prosecutions v Van Den Bemt
[2021] VCC 2188
•10 December 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-01156
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHANE PETER VAN DEN BEMT |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5, 25 and 26 November 2021 | |
DATE OF SENTENCE: | 10 December 2021 | |
CASE MAY BE CITED AS: | DPP v Van Den Bemt | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 2188 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Charges of aggravated burglary, assault and resist emergency worker on duty, make threat to kill, possess drug of dependence, and intentionally damaging property – 50 year old offender with lengthy criminal history and Acquired Brain Injury – lengthy history of abusing drugs and alcohol – breach of many prior rehabilitative sentences – Acquired Brain Injury of moderate severity with significant memory disturbance and very poor executive functioning – cognitive impairments especially relating to new learning, memory and attention, with limited insight into his difficulties generally – long term substance dependence – possible diagnosis of antisocial personality disorder – need for community protection to be balanced against reduced moral culpability of offender due to his impaired mental functioning
Legislation Cited:
Cases Cited:The Queen v Verdins (2007) 16 VR 269; Harvey v The Queen [2021] VSCA 84; Hogarth (2012) 37 VR 658; Meyers (2014) 44 VR 486; Bowden [2016] VSCA 283; O’Brien [2019] VSCA 254; Debs and Roberts [2005] VSCA 66; Liszczak [2007] VSCA 313; Byast v The Queen [2021] VSCA 344; Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
Sentence: Total effective sentence of 5 years and 1 month’s imprisonment with a non-parole period of 2 years and 1 month.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms N Deltondo | Office of Public Prosecutions |
| For the Accused | Mr V Peters | Rainer Martini and Associates |
HER HONOUR:
1Shane Peter Van Den Bemt, You have pleaded guilty to one charge of aggravated burglary which carries a maximum penalty of 25 years’ imprisonment; two charges of assaulting an emergency worker on duty and one charge of resisting an emergency worker on duty, each of which three charges carries a maximum penalty of five years’ imprisonment; making a threat to kill, which carries a maximum penalty of 10 years’ imprisonment; one charge of possessing a drug of dependence, cannabis L, (which I am satisfied was a small quantity and not possessed for the purpose of trafficking), which carries a maximum penalty of five penalty units; and one charge of intentionally damaging property, which carries a maximum penalty of 10 years’ imprisonment.
2The circumstances of your offending are detailed in the Summary of Prosecution Opening for Plea (Exhibit “A”).
3On 17 January 2021, Mr Castles, who is the victim of the charges of aggravated burglary, threatening to kill and intentionally damaging property, left the home of a friend, which was a short distance along from his own home in the same street. While walking back to his unit, he heard you yell out to him words alleging that you had bashed his girlfriend. You had a drink in one hand and, what he described, as a miniature sledge hammer in the other. The victim walked into his house and locked the door. You yelled to him to come outside and “be a man”, and the victim stated that he was going to call the police.
4The victim was standing at his front kitchen window. He saw that in your right hand you had the hammer, which you used to smash the front window a couple of times, hitting the glass out of the frame (Charge 7, intentionally damaging property). The victim stood approximately 3 metres away in the lounge room while you yelled abuse towards him. You then climbed onto a garbage bin which was under the windowsill and put your upper body through the broken window in order to enter his unit (Charge 1, aggravated burglary). As you were climbing in the window, the victim was fearful and picked up a hockey stick and walked towards the front window. You then swung the hammer towards the victim’s head on three or four occasions, and the victim jumped out of the way. The victim used the hockey stick to strike you above your right eye, and you swung the hammer whilst yelling “I’m going to kill you” (Charge 5, make threat to kill).
5After being struck by the hockey stick, you climbed outside the window and went around the side of the victim’s unit and smashed other windows and continued to yell at the victim to come outside. You then returned to the front door of the victim’s unit and continued to yell at him whilst holding the hammer in your hand.
6Two police officers arrived at the scene, and you called your victim a “dog” for calling the police. You were near the rear of the units with the hammer in your hand and, upon seeing police, you placed the hammer down on a bin and walked towards the divisional van. You were bleeding from a cut to the right side of your forehead and were highly agitated, aggressive and uncooperative when approached by police. You resisted Senior Constable Kayla Speedy when she endeavoured to arrest you and put your hands behind your back (Charge 3, resisting an emergency worker on duty).
7Four further police officers arrived and, ultimately, despite your aggression, they managed to put you in the back of the divisional van. However, you kicked the door open and it struck Senior Constable Speedy’s arm, causing her pain (Charge 4, assaulting an emergency worker on duty).
8An ambulance attended to assess the injury on your forehead, but you declined to be treated, and repeatedly kicked the back door of the van and continued to be agitated and aggressive.
9First Constable Wang issued you with a caution through the divisional van window and then heard a spitting sound coming from you and felt her face covered with saliva (Charge 3, assaulting an emergency worker on duty).
10Police transported you to Box Hill Emergency Department and a doctor conducted a visual examination of you whilst you were in the back of the divisional van but, again, you refused to be treated. You were taken to Box Hill Police Station. A search of your property revealed a small plastic bag containing .7 grams of cannabis which was inside your wallet (Charge 6, possession of a drug of dependence).
11At the police station, it was ascertained that you suffered an Acquired Brain Injury, which required an independent third person to be present during any record of interview. You maintained a very angry and aggressive demeanour and paced in the cell, did not listen to directions, and stated that you did not want to be interviewed.
12You are presently aged 50 years, having been born in December 1970. You have an extensive criminal history which you have admitted. From 1988, you have appeared before courts for many dishonesty offences, including burglary, attempted burglary, armed robbery and attempted armed robbery, as well as drug and driving offences, and also a number of offences of assault, including intentionally causing injury, and other offences of wilfully damaging property, possessing a controlled/offensive weapon, offensive behaviour and resisting police and protective service officers. Over the years, you have been given a variety of rehabilitative dispositions, including many community-based orders or Community Correction Orders and suspended sentences of imprisonment, which you have breached, a combined custody and treatment order and immediate custodial sentences of imprisonment.
13The plea in mitigation on your behalf was conducted in a frustratingly convoluted fashion, but the Court ultimately had before it an adequate amount of material to piece together your history in order to be as informed as possible about your personal circumstances and, hence, to determine the appropriate sentence.
14You were born in Melbourne and grew up in the eastern suburbs. You had one sibling, an older brother, Troy. Your father ran a printing business to support the family. You apparently completed Form 2 at Knox Secondary School and, after leaving school, undertook a printing apprenticeship in your father’s business where you worked until your father sold the business to his partner, which would appear to have been in or about 2013 or 2014.
15Unfortunately, in 2002, you were apparently assaulted with a weapon and left unconscious. It seems that this state endured for a period of some six weeks,[1] although it is uncertain as to the precise circumstances and whether you may have been placed in a medically-induced coma by way of treatment. You suffered an acquired brain injury and required rehabilitation and specific head injury care for an extended period. With the consent of your counsel, copies of reports by Dr Lindsay Vowels, neuropsychologist, following assessments on 17 November 2012 and 26 August 2014 were obtained via the assistance of the Office of Public Prosecutions and my Associate. They were tendered as Exhibit “6” and Exhibit “7” respectively. Unfortunately, the report of an earlier assessment by Dr Vowels made on 1 September 2009 was not available. Nevertheless, her report in 2014 notes that a neuropsychological report from ARBIAS in 2004 confirmed the extent of the disabilities flowing from your 2002 brain injury and the fact that you had a very poor level of recovery. Dr Vowels stated that “Mr Van Den Bemt has had several other less severe head injuries from assaults, motor vehicle accidents and a fall, some of which have warranted hospital admission because of loss of consciousness or other physical injuries. He also describes episodes of concussion like symptoms after other less serious episodes of trauma going back to 1995 with the most recent (as I understand) being in 2011. The cumulative impact of these apparently mild head injuries, on a brain already compromised would be that of a significant ABI with less recovery from each episode.”[2]
[1] Exhibit “7”, page 1
[2]Ibid.
16I here note that you were approximately 31 years of age when your 2002 head injury occurred. Prior to that, you had already repeatedly been before the courts from approximately the age of 18 years for drug offences and dishonesty offences. You gave a history to the psychologist, Mr Warren Simmons that, at primary school, you were the “hoodlum of the class” and that you left secondary school after Form 2, as you were “going to school under the influence of cannabis and your parents could no longer see any point in attending.”[3]
[3] Exhibit “1”, page 2 at paragraphs 6 and 7
17Dr Vowels in her 2014 report recorded:
· “Mr Van Den Bemt has a history of chronic alcohol and substance abuse starting at the age of 15 years for cannabis and escalating into intravenous heroin and amphetamines by the age of twenty. Although his use of all substances has been erratic with periods of abstinence when incarcerated or in a directive well supervised community program, the frequency, amounts and patterns of usage would be sufficient to contribute to further ABI.
· He has also become dependent on prescription drugs, mainly of the Benzodiazepine group prescribed for anxiety and insomnia. He has continued to abuse these medications in an erratic pattern for the past 12 years mainly by attending multiple doctors but also by illegal means. Similarly the amounts and frequency of dosage would increase his brain dysfunction.
· He is currently on a Methadone program supervised by GP and assisted to attend by his support workers from EACH.[4] Although necessary for him because of the heroin dependence, this medication would also contribute to his impaired cognitive function.”[5]
[4]Eastern Access Community Health
[5] Exhibit “7”, pages 1 to 2
18Dr Vowels had the opportunity to assess you on three occasions, namely, in 2009, 2012 and 2014. Her reports make it apparent that she had the assistance of multiple reports relating to your offending and sentencing from May 1989 to November 2008, together with a letter of instructions from your then solicitor in respect of incidents of 2013 and 2014 and an updated criminal history; various reports from staff at EACH, who had been supporting you since 2005; a Forensicare assessment by Dr Negibe Mankir dated 28 April 2008; documents from the Department of Human Services relating to the multiple and complex needs initiative project 2002-2003 and the previously mentioned 2004 report from ARBIAS. Dr Vowels’ reports comprising Exhibits “6” and “7” impress me as being thorough, insightful and reliable.
19It is apparent from Dr Vowels’ most recent report of 2014 that, at that time, she assessed your intellectual ability to be in the extremely low range and to be indicative of intellectual disability and that you had undergone a significant decline in ability from 2009 but, in 2014, were essentially unchanged from the assessment in 2012. Your probable full scale IQ was 67, being in the 0.5 percentile. She noted the most concerning issues related to your greater disability with language-based tests rather than practical tests. You have limitations in vocabulary, comprehension and capacity to express yourself reliably, with your receptive language not as good as your expressive language. She stated that your reading seemed even more reduced to the level of Grade 2 or 3, with poor spelling and misreading of words without noticing. She considered that you would not be able to decipher many documents that you are required to read, but would not indicate this and, instead, nod and smile and indicate that you had understood them. She noted that your memory and attention were well outside normal limits and you were able to only register very limited amounts of verbal information and recall only fragments in the short term and, after a delay, demonstrated indications of confusion and very poor organisation, as well as clear evidence of confabulation. She reported that you seemed unable to recognise the amount that you were unable to recall and denied the confabulation. She stated that your scores on memory tests in nearly all cases were below those achieved in 2009, which indicated that there had been a further decline in your memory since then in all aspects of recognition and recall.
20Dr Vowels assessed your new learning as very slow and very impaired, although you can still show some improvement in performance from repeated experience. She stated that, although your performance in 2014 was not as abnormal as in 2012, it was still indicative of a concerning difficulty in learning from experience, which would make achieving outcomes from rehabilitation more difficult for you and for your teachers. Although your level of making the same error over and over again despite correction was less than in 2012,[6] she noted that you, nevertheless, cannot use verbalised intention to prevent impulsive action, even though you can demonstrate that you have heard what is not allowed. This is demonstrative of the damage to the frontal regions of the brain relating to abilities for new learning from repeated experience and being able to retain the benefits of teaching. She considered the learning deficits to be the result of the unilateral head injury in addition to diffuse alcohol related brain impairment, with both issues contributing to your incapacity to learn new information and your inability to unlearn old behaviour and habits, which she suspected were contributing to your recidivist illegal behaviour. She stated that, “Teaching improves (your) mastery of a new task but does not eliminate old habits and behaviours. The benefits of teaching are now even further reduced from 2009.”[7]
[6] An executive deficit of 21 per cent compared to that of 28 per cent in 2012 (with normal being less than 10 per cent)
[7] Exhibit “7”, page 5
21Dr Vowels noted that you had impaired conceptual flexibility, that is, a disabled capacity to recognise several options in a situation and switch between them according to the demand or feedback. Thus, she considered that you are unable to move off a reinforced idea, even when other options are demonstrated or described. She considered that this explained your poor outcomes from counselling or Corrections programs, which she suspected were misinterpreted as recalcitrance or non-compliance rather than part of your cognitive disabilities. This level of disability in relation to abstract reasoning was below normal limits and had further deteriorated since 2009.
22According to Dr Vowels, your regulation of behaviour was still marred by reduced spontaneity and increased impulsivity, which she considered to be a result of your cumulative head injuries and probably your long term alcohol-related brain damage. This impacts upon your ability to get going and keep going in an unstructured situation and your inability to follow through with activities which might be expected of you, despite you verbalising that you are motivated to do so. She considered that, for the changing conditions of everyday living, you will continue to need the input of your support team even though you may insist that you know what you have to do. She thought your brain damage had made your impulsivity very disabling and, despite intensive supervision, there had been little reversal of your tendency to react equally to everything and anything despite you stating that you would not do so when you were in a neutral situation.
23Your planning and organisation were assessed by Dr Vowels as being quite abnormal as you are unable to analyse a situation in a logical way and set up a suitable sequence of steps to deal with it. You need external prompting because you cannot plan and organise things for yourself. When you do not have the structure of employment you are unable on your own to resist the temptation to revert to alcohol or other inappropriate substance use, as well as getting drawn into illegal activities by others.
24Your problem solving and decision making was assessed by Dr Vowels as being quite disabled. You are unable to recognise when your current strategy is not working and that you need to find another one in order to achieve a correct outcome. You are unable to use the outcome from a previous failure to change your approach in the next attempt. You cannot resist your old habits, even though you can sound as if you know what you should do. In a verbal context you are unable to deal with abstract or hypothetical situations and cannot process language which is ambiguous or potentially misleading. She considered it appropriate that you continue to have your affairs managed by the State Trustees (which has apparently been in place since 2007 or 2009)[8] as you are vulnerable to manipulation and exploitation by others who have become aware of your very concrete thinking and inability to see the negative aspects of any proposition.
[8] Exhibit “2”, Report of Susan Carey, neuropsychologist, dated 29 June 2017, page 6.
25Although Dr Vowels noted back in 2014 that you were depressed, possibility because you had lost your employment after your father sold his printing business and also were having some issues in relation to access to your son (albeit that subsequent reports by Ms Carey, neuropsychologist, in 2017[9] and by Mr Simmons, psychologist, in 2021[10] did not mention you having a depressive state.) However she did not consider that your impaired attention and cognition were the direct result of depression, but rather of the cumulative trauma to your head over the past 15 years and the damaging impact of alcohol and various illicit substances over the past three decades.
[9]Exhibit “2”
[10] Exhibit “1”
26Dr Vowels considered that your poor insight continued to be at a disabling level and noted that your EACH support worker at that time, Mr Emery, had expressed the view that your insight into your problem behaviours was limited and you very often displayed impulsivity, repeated uncorrected errors, failure to understand instructions, confusion over the sequence of events, failure to plan for the future, kept doing things which you knew you should not, had poor concentration and an inability to make decisions, as well as a lack of awareness or lack of concern about the reactions of others to your behaviour.[11] Dr Vowels stated that, over five years of systematic neuropsychological assessment, there had been no improvement and several declines in your specific abilities. She considered that you were undergoing some form of premature ageing arising from your longstanding serious head injuries and substance related brain damage and that your relapses into substance abuse and offending behaviours had occurred despite the best efforts of your devoted support team at EACH.[12]
[11] Exhibit “7”, page 7
[12] Ibid. page 8
27In summary, Dr Vowels stated that your diagnosis was acquired brain impairment at the severe level. This includes an Amnesic Syndrome, that is a memory deficit which impacts upon your ability to plan, organise and solve problems and make appropriate decisions. It also includes a Dysexecutive Syndrome, which involves a failure to recognise viewpoints of other people. In addition, she considered you had substance dependence which was relapsing and remitting and which had not been able to be eliminated despite some excellent endeavours in the past. She also noted a previous diagnosis of Antisocial Personality Disorder, which she said was probably valid, but made very difficult to treat or manage because your concurrent executive disabilities impact upon your behaviours involved in that diagnosis (failing to recognise the needs and rights of others, continually reoffending and showing limited remorse and gaining little in terms of behavioural change from correctional programs). She stated that all these ongoing aspects derive from the severity of your frontal lobe deficits as they impact on behaviours and personality.[13]
[13] Ibid. page 8
28The report of Ms Susan Carey dated 29 June 2017,[14] differed in some aspects from Dr Vowels’ assessment, for example, she noted a full scale IQ of 74 (in the borderline range) compared with a probable IQ of 67 (described as being in the extremely low range by Dr Vowels), and, curiously, noted that you were not impulsive in your approach to tasks.[15] Nevertheless, she concluded that you had an acquired brain injury of moderate severity with significant memory disturbance and very poor executive functioning such that you could not live independently and had been reliant upon the support from EACH for more than a decade and had been placed under a financial administration order so that State Trustees managed your affairs. She noted that, at the time of writing her report, your brother, Troy, had taken on a de facto carer role by residing with you for four days per week and helping you with domestic chores.
[14]Exhibit “2”
[15](ibid) page 12
29The report from Mr Warren Simmons, psychologist, dated 26 October 2021 was tendered as Exhibit “1”.[16] He noted that you readily acknowledged difficulties with dates and times and, as a consequence, were a poor historian and, when you could not provide much detail, you directed Mr Simmons to your EACH worker for more detailed information. He noted that you had commenced smoking cannabis at about age 13 and had been introduced to heroin at age 18 and went on to develop a pattern of dependence involving injection of 1 and 2 grams at its peak (albeit that he did not clarify whether this was a daily usage). He noted that you had commenced a Methadone program at age 22, but would still use heroin, as Methadone prevents the withdrawal experience but does not block the euphoric effects of heroin. In the two months prior to being remanded in custody for this offending you had commenced on Sublocade, a depot version of buprenorphine, as you were “back on the gear”. I here interpolate that this history differs from the oral evidence given by your current CARE support worker, Ms Freedman, that you began Sublocade injections in September 2020 but decided after an injection on 9 December 2020 to cease that treatment as you were “feeling strong enough.” You told Mr Simmons that this was prompted by you wanting to make a change for the sake of your son (who is presently aged 14 years). You also told Mr Simmons that your brother, Troy, who was 18 months older than you, had been shot and killed by an undercover police officer in 2019 while Troy was engaged in an armed robbery of a liquor store and that this had had an impact upon you.
[16]Exhibit “1”
30Mr Simmons also noted that you had experimented with both amphetamines and methamphetamines, but did not particularly enjoy them. However, you did abuse benzodiazepines, particularly Xanax and Rivotril which you obtained through “doctor shopping”. Apparently your former (now deceased) partner, Angela, who is the mother of your 14 year old son, suffered from epilepsy and you were readily able to obtain the drug. In addition you reported a pattern of regular alcohol consumption over a number of years and that, some six years ago, this became a significant, almost daily, habit of consumption of a dozen stubbies. Further, in the six month period prior to your being remanded in custody, you began drinking a bottle of port a day, which continued right up until the period of your remand.[17]
[17] Exhibit “1”, page 3
31Mr Simmons had the benefit of reading of the report by Susan Carey, neuropsychologist, to which I have previously referred (Exhibit “2”). He noted your history of head injuries and acquired brain injury. Interestingly, like Ms Carey but unlike Dr Vowels, he considered that you were not impulsive, but considered your ability to make judgments, carry out plans or organise yourself in the context of rational decisions to be impaired. It seems to me as though Mr Simmons was noting Ms Carey’s opinion expressed in her report, rather than forming an independent opinion. In fact, Mr Simmons’ report did not impress me as being an in depth or very analytical one. He simply noted that most of your offending had been drug related and your ongoing battle with substance use had resulted in commencing a pattern of offending that continued through most of your adult life in order to either fund your substance use or occurred while you were substance affected.
32Mr Simmons noted your explanation for the subject offending was that you had understood that your victim had assaulted your then partner and that you approached him in a state of intoxication. You acknowledged that your acquired brain injury would have been further impacted upon by your alcohol consumption. He considered that you would benefit from a referral for drug and alcohol counselling with a focus on increasing self-efficiency, harm minimisation and relapse prevention strategies, but noted that, as your capacity for new learning is impaired, it is not clear to what extent such treatment would be effective for you. He considered that there was little evidence of significant improvement relating to your acquired brain injury over the history of neuropsychological testing and that it was unlikely that there would be any changes in your abilities. Thus, he concluded that your overall risk for further offending was unlikely to be diminished to any significant extent by psychological intervention. He thought you would benefit from ongoing support from your EACH worker, but further offences would be likely to occur in the context of being intoxicated or making poor decisions.
33In a brief supplementary report, dated 19 November 2021,[18] Mr Simmons noted that your acquired brain injury had been documented over many years and, in the light of the evidence of significant frontal lobe impairment in the areas of planning, problem solving and the ability to make judgments and organise yourself in the context of rational decisions, he stated “It would therefore seem that Mr Van Den Bemt would have had significant issues in addressing the problems that he perceived occurred relating to his girlfriend.” The consumption of alcohol and possibly benzodiazepines at the time of the offence he considered would have further impaired your decision-making abilities. He considered that your lack of insight into your disabilities means that you struggle to avoid alcohol or drug use.
[18]Exhibit “4”
34Mr Simmons considered that it was unlikely that incarceration would prove more onerous for you as you would thrive in an environment which is structured where you did not have make many decisions. However, he thought that a substantial period of incarceration had the potential to increase your level of institutionalisation and make it more difficult upon release into the community when structures around you would be withdrawn. In particular, he noted that your brother, Troy, had played a significant role in visiting and supporting you and, since his death, there is unlikely to be any significant support available to you from family members as both your parents are elderly, in their eighties. He considered that your risk of further offending will remain unchanged if you continue to use alcohol and drugs and attempted intervention by alcohol and drug counselling is likely to have only limited success because of your acquired brain injury.
35I note that Mr Simmons’ view differs from the opinion of Ms Carey expressed back in her 2017 report as follows:
“Without a doubt, Mr Van Den Bemt will experience difficulty managing aspects of the prison environment (should he receive a custodial sentence) or meeting the conditions of a Community Corrections Order (CCO) as a result of his ABI … In particular he will struggle to learn any unfamiliar rules and routines of a prison or the conditions of a CCO. He will also have great difficulty attending to and remembering detailed information provided only once. He will struggle to follow lengthy instructions, which will place him at increased risk of violations within the prison system or the conditions of a CCO. In addition, he will be vulnerable to forgetting future intentions (eg appointments) without the assistance of external aides (eg, a diary or phone reminders). In addition, he may have difficulty determining the most appropriate way of acting in situations in which there was no explicit well learned rules (eg, if there was an emergency in the prison). While he would likely respond well to the inherent structure of a prison environment, he may experience difficulty adjusting to the unstructured nature of everyday life upon his release as a result of his executive deficits.”[19]
[19]Exhibit “2” page 13
36I note that Ms Carey’s concerns about you experiencing difficulty managing aspects of the prison environment accord with those expressed by Dr Vowels in her reports in 2012 and 2014. In particular, in her 2014 report, referring to your problems with comprehension and reasoning, she concluded that, “This vulnerability and impulsivity should be carefully considered if a custodial sentence is decided upon. He would be at risk from prison staff as well as from other inmates and, as he does ‘look so normal’, his inappropriate behaviours could be misinterpreted as deliberate, annoying or recalcitrant – especially his confabulation when required to recall information.”[20]
[20]Exhibit “7” page 9
37It is clear that, by reason of your acquired brain injury, you have been in receipt of a disability support pension for well in excess of a decade and have also had your financial affairs managed by the State Trustees. In addition, EACH has been supporting you in the community since 2005. When this matter was first listed for hearing of your plea in mitigation on 5 November 2020, a report from your current Disability Support Worker with EACH, Ms Hayley Freedman, dated 4 November 2021, was tendered as Exhibit “3”. In that report, she noted that she had worked closely with you for three years, referred to your profound difficulties with memory and impaired capacity to learn new information, selective deficits in executive functioning and confabulation in order to fill gaps in your memory, as well as being vulnerable to others who can influence you and take advantage of your generosity. She noted that you had got back to working as a qualified printer on three days per week and were able to catch a bus to and from Mordialloc in order to get to work. She stated that you had struggled to obtain more formalised employment because of your ABI, but were able to continue your printing occupation as the skills that you had learned by rote as a young apprentice working on old equipment with which you were familiar had been retained albeit that you were not able to learn and adapt to new and computerised equipment.
38Ms Freedman noted that, in 2017, you and your brother, Troy, had made complaints of historical sexual abuse to the police, which were being investigated, and that you began to drink heavily during this time. Also, your brother, Troy, showed signs of unravelling and lost his job, became physically unkempt and unstable and began offending and taking ice before being shot by police whilst attempting an armed robbery. This had occurred three months after disclosing the alleged historical sex abuse to detectives. Consequently, the police investigation was brought to an end because of your poor memory capacity. Ms Freedman stated that you had struggled to come to terms with both your brother’s death and the failure to pursue justice in the abuse case. She also noted that you were well liked by workers at EACH where you are regarded as easy going, respectful and gentle. She stated that you lived alone with your dog and that you have a close relationship with your son whom you see regularly. He has lived with his maternal grandmother following the death of his mother some years ago. She stated that you were taking steps to better yourself including “going to detox, having AOD counselling and (were) doing regular art therapy as (you are) an extraordinary artist who does intricate drawings.” She further noted that you had remained out of trouble until you commenced a relationship with a female, Jade, in November 2020, following which EACH workers noticed that you, again, appeared to be taking and under the influence of drugs and were drinking and that your cognitive capacity and memory were further disintegrating. She stated that you began not attending work and were heavily influenced by your girlfriend. This resulted in you having no contact with your son. You disclosed to her that you had begun taking ice. She stated that you reported that you had approached the victim after your girlfriend told you that she had been assaulted by him and that you did this out of misplaced loyalty to her, instead of going to the police. She expressed concern that you would lose your stable housing and appealed to this court not to impose a custodial sentence, urging that EACH would establish an intensive program of support for you with experienced and qualified workers should you be released back into the community.
39When the matter was subsequently listed again for plea hearing on 25 and 26 November 2021, I heard sworn evidence from Ms Freedman. She stated that she had been working with people with disabilities since she did a six month course at Chisholm TAFE approximately 10 years ago and had subsequently done some online courses in mental health. She described herself as having a “dual Diploma in Disability Employment Services”, the date of which she unable to precisely recall and stated “I got a lot of it done through recognition of my prior learning in my job in employment services assisting people with barriers to employment.” She stated that she had been employed with EACH since 2014 and in 2016 became a member of the Intensive Support Team for people who had individual support plans funded through the Department of Health and Human Services before those plans were phased out and, since 2017, she has continued to work with people with disabilities who have a package under the National Disability Insurance Scheme. I here note that a National Disability Support Plan with a start date of 22 November 2021 and an end date of 21 February 2023 was tendered as Exhibit “5”.
40On the dates of the adjourned plea hearing 25 and 26 November 2021, Ms Freedman, in her sworn evidence, stated that she had taken over as your support worker at EACH in December 2018. Since then, she had supported you on two days per week: for 6 ½ hours on a Monday and 2 ½ hours on a Friday. On Mondays she would drive you to Olinda where you undertook two hours of art therapy, whilst she sat in the car to do other work or arrange other appointments for you. If there was enough time left, she would take you to do some food shopping before dropping you back home. On Fridays she generally took you to the shops and also to the pharmacy during the time that you were on Methadone. Obviously, there were interruptions to physical contact for substantial periods of lockdown during 2020 and, again, in 2021.
41Ms Freedman stated that, in or about July 2020, you had begun having access visits with your now 14 year old son. This began with you having your son on one night per week and progressed to both Friday and Saturday nights on a weekend. On Fridays, she spent the 2 ½ hours with you, ensuring that your house was clean and that you had proper food to give to your son and maybe helping plan activities for you to do with your son. Often, it would involve skateboarding as your son is an avid skateboarder. She stated that, when lockdown was lifted in October 2020, it became possible to plan taking him to movies.
42She confirmed that, in October or November 2020 you began a relationship with the young woman called Jade, to whom she had referred in her report (Exhibit “3”). Ms Freedman stated that Jade had a lot of issues of her own, including drinking, and Ms Freedman considered that Jade exerted a manipulative influence over you. Ms Freedman said she had expressed her concerns to you about Jade, but you felt lonely and liked coming home to a partner. She observed that you had been going quite well before Jade entered your life and then started to go downhill. She noted that in mid-2019 prior to a court appearance (presumably the one at Ringwood Magistrates’ Court on 4 December 2019), you had decided that you wanted some assistance with drug and alcohol rehabilitation, so she had helped you and you were admitted to a ward at Box Hill Hospital to detoxify for one week and then went to Wellington House for rehabilitation for a further three weeks. Apparently, you were already known at Box Hill Hospital, as Ms Freedman had been taking you to Outpatients there in order to be treated for significant cirrhosis of your liver.
43She stated that you used to be on a Methadone program and, along with your general practitioner, she supported you to reduce your dose so that you could go on a buprenorphine program and, ultimately, a Sublocade program, which involves a one-monthly injection which assists in blocking the opiate pathway to the brain and releases a small amount of opiate into the system. She believed that you had started this in or about September of 2020, but ceased it in or about the first week of December as you decided that you felt strong enough not to need any more injections. Ms Freedman then went on annual leave for three weeks over December and early January and did not return to work until 10 January 2021. She stated that, over the Christmas period, there is limited staff availability at EACH and, probably, you would have just had a Saturday worker check on you. She stated that, upon her return to work, she had a telephone call with you and then she visited you. She had a face-to-face conversation with you, and Jade was present. She already had the impression from several conversations prior to this that Jade’s manipulative behaviour tended to “elevate (sic) your situation” and she had that same impression when the discussion was taking place about Jade having allegedly been assaulted by your victim. She stated that you were clearly annoyed and angry about what Jade had told you, but she did not believe that you would take the law into your own hands. Yet she agreed, in response to questions asked by myself and by Ms Deltondo in cross-examination, that you had limited insight into your problem behaviours.
44When the views of a former EACH support worker, Mr Emery, as mentioned in Dr Vowels’ 2014 report were put to Ms Freedman, she agreed with those views concerning limited insight and the fact that you very often displayed impulsivity, perseveration, failed to understand instructions and suffered confusion over the sequence of events, failed to plan for the future, continually repeated yourself and kept doing things that you knew you should not, had poor concentration and could not make decisions, as well as being unaware or unconcerned about the reactions of others to your behaviour.[21] Ms Freedman also agreed when I put to her portions of Dr Vowels’ 2014 report concerning your deficits in new learning from repeated experience and being unable to retain the benefits of teaching. In essence, she agreed that her experience was such as to accord with Dr Vowel’s view that teaching may improve your mastery of new tasks, but does not eliminate old habits and behaviours.[22] She stated that she could repeat things to you, over and over again, but you would have no recollection of them and, sometimes, would not even recall the conversation. In essence, she agreed that there was a problem because you cannot learn new information and repeating it does not help you. She stated that you lack insight in relation to on-the-spot decisions.
[21] Exhibit “7”, page 7
[22] Exhibit “7”, page 5.
45It became apparent from Ms Freedman’s evidence that, although she had spoken to you about your abuse of drugs and alcohol and their adverse effects upon your health, she had never had specific conversations about the link of that behaviour with your criminal behaviour. She said she had only spoken about the offending for which I must sentence you for a couple of minutes on the phone whilst you had been in custody and it was not a “large” conversation and, as she was not looking at you, she could not gauge your reaction to it. She stated that most of the conversations that she has had with you whilst you have been in custody have been about matters on the outside, like films or what was happening with your house or your dog. She agreed that EACH had been supporting you since 2005 or 2006 and that the staff of this organisation had given every support they could to help you live independently and to help you give up drugs and alcohol, but it is up to you to do it. Whilst there had been brief periods where you had been free of alcohol and drugs, you have regularly relapsed. She saw alcohol as your main vice.
46Ms Freedman impressed as a compassionate advocate for you. However, she had never read either of Dr Vowels’ reports (Exhibits “6” and “7”) and was unsure whether CARE might have had a hard copy somewhere because, when asked, she had been unable to find them on the electronic filing system. She stated that she believed that she had probably read the 2017 report of Ms Susan Carey at around the time she first took over your care. Although Ms Freedman expressed awareness of your memory deficits and inability to learn new information and learn from mistakes, I was puzzled as to why she thought that you would not act on Jade’s urgings for you to do something about the alleged assault of her by the victim, given that she could see that you were clearly annoyed and angry about it and Jade had made it clear that she did not want to go to the police. I do not know how Ms Freedman could have been confident that you would remember that she had told you that it was Jade’s issue and Jade needed to report it to the police and that you had told Ms Freedman that you would not get involved. It seems to me that, although the various support workers that you have had at EACH have endeavoured to help you to live independently and are now linked with your National Disability Insurance Scheme coordinator, Ms Eva Pool, in order to put a plan in place after recommendations from an occupational therapist, they are powerless to do more than remind you of things and, in the 15 or 16 years in which they have supported you, they have not managed to prevent your relapse into substance abuse and criminal offending.
47Mr Peters urged, on your behalf, that the evidence before the Court establishes that you have an acquired brain injury which affects your judgment and functioning. He submitted that the offending for which I must sentence you had occurred in the context of your former partner, Jade, who had come into your life “with her own baggage”, having manipulated and pushed you into doing what she wanted, namely, to seek revenge upon the victim whom she alleged had assaulted her. He urged that the Court should make a disposition by way of a combination sentence of imprisonment and a Community Correction Order with a condition that you obey all lawful directions of the support worker at EACH.
48Ms Deltondo submitted that, while there is evidence that you have impaired mental functioning which reduces your moral culpability and the extent to which denunciation is a relevant sentencing objective, along with the moderation of general deterrence and specific deterrence, in accordance with Principles 1, 3 and 4 in The Queen v Verdins,[23] the Court should be guided by the most recent psychological opinion of Mr Simmons which does not support the application of Principle 5, namely that a sentence of imprisonment would weigh more heavily upon you than a person in normal health, or Principle 6, namely, that there is a serious risk that imprisonment would have a significant adverse effect on your mental health.
[23](2007) 16 VR 269
49It is trite to say that your personal circumstances are complex. You clearly do have evidence of an acquired brain injury from a serious assault in 2002 which has apparently been made worse by a number of subsequent head injuries and also long term abuse of alcohol and illicit drugs and prescription medication. There is no doubt that you have particularly significant deficits in relation to memory and an inability to learn new things and behaviour, layered upon low level literacy (Grade 2 or 3 level), limitations in receptive language (I here interpolate that I do not accept Mr Simmons’ view that you seem to have no difficulty with receptive language; I prefer to accept the expert neuropsychological opinions before the Court in relation to this factor) and an inability to plan in any sequential way, which results in impulsivity,[24] along with an apparent lack of appreciation of your behaviour on others. I am satisfied that these factors do attract the application of Principles 1, 3 and 4 in Verdins case.
[24] I prefer the opinion of Dr Vowels, who assessed you carefully and comprehensively over several years as to your impulsivity, over that of Ms Carey and Mr Simmons
50I have already referred to the shortcomings I perceive in Mr Simmons’ report and I do not accept his view that imprisonment would not be more burdensome for you than a person in normal mental health. Dr Lindsay Vowels had the opportunity to assess you in 2009 (albeit that the Court does not have this report), 2012 and 2014. In both of the latter reports she spells out clearly her concern that you “would be at risk from prison staff as well as from other inmates as (you) do look so normal.”[25] In practical terms you have a limited ability to absorb and remember instructions unless they are of the most simple type and, disobeying instructions could well be misinterpreted as a deliberate flouting of prison rules, particularly given your confabulation when asked to recall information. Further, you are vulnerable to being stood over or influenced by others and impulsive and this is a real potential risk, particularly from other inmates. You have a concrete way of thinking and an inability to consider alternative options when a strategy employed by you fails.
[25] Exhibit “6”, page 6 and Exhibit “7”, page 9
51Ms Carey, in her 2017 report, was also of the opinion that you would experience difficulty managing aspects of the prison environment because of these factors. Although she thought that you would likely respond well to the structured nature of the prison environment, she noted that you may later have difficulty adjusting to the unstructured nature of everyday life once you are released from prison. That was a factor also mentioned by Mr Simmons, which I accept, namely that a substantial period of incarceration has the potential to increase your level of institutionalisation and make it more difficult for you upon release into the community when the structures of the prison environment are withdrawn.[26]
[26] Exhibit “4”, page 1
52On the one hand, I find that the applicability of the principles in Verdins to which I have referred should mitigate your sentence in terms of moral culpability, lesser emphasis upon denunciation, general and specific deterrence and an acknowledgment that imprisonment is likely to weigh more heavily upon you than a person without your difficulties. On the other hand, the fact that you have such a significant impairment of memory and capacity to learn new information and, hence, a very limited ability to benefit from programs designed to address your risks of reoffending, particularly drug and alcohol rehabilitation programs, means that you continue to be at high risk of reoffending. Hence, there is an ongoing significant need to protect the community from you. The fact that you have breached so many rehabilitative dispositions over the years appears to be evidence of your inability to abide by rules and to learn from your behaviour in the past and, for this reason, unhappily, I consider that your prospects of rehabilitation are poor.
53The seriousness of your offending, particularly on the charge of aggravated burglary, is reflected by the maximum penalties which Parliament has assigned to those offences. It is imperative that a person in our community be able to feel safe within his own home. You have violated the security of your victim in an alarming way and only backed off when he approached you to defend himself. Thereafter you continued your rampage by smashing other windows at the side of the victim’s home and made the task of the police officers who attended the scene even more difficult than their already difficult job by resisting arrest and assaulting them. It is clear that you were in a very heightened frame of mind and, apparently, were affected by alcohol and possibly benzodiazepines when you committed this offending, according to what you told Mr Simmons.[27] Indeed, you disclosed to him that, in the leadup to this offence, you had been consuming alcohol to excess, a bottle of port each day.[28] You also told Ms Freedman that you had begun taking ice in the leadup to this offending.[29]
[27]Exhibit “1”, paragraph 21, page 5
[28]Exhibit “1”, paragraph 25, page 5
[29] Exhibit “3”, page 2
54Although there is no victim impact statement from Mr Castles, in his statement to police made on 17 January 2021, he stated that, when you broke the window, he was scared that you were going to use the hammer and hurt him. He picked up a hockey stick and walked back to the front window and that is when he saw you were half inside his loungeroom with the hammer in your right hand swinging it and aiming for his head about three or four times, so that he had to jump out of the way. He stated that he was frightened for his life and he thought that you might even kill him and that he was scared of you.[30]
[30]Depositions page 25 to 26
55The prosecutor, Ms Deltondo, correctly pointed out in her submissions that, some years ago, Parliament had increased the maximum penalty for aggravated burglary to reflect the seriousness with which the community regarded that offence because the safety and liberty of individuals is threatened in their own home. In addition, she submitted that it was clear that you were seeking revenge for an alleged assault upon your girlfriend and the courts have made it plain that such vigilante behaviour must be denounced.[31] This submission is correct.
[31]Harvey v The Queen [2021] VSCA 84
56In sentencing for such an offence, courts must make it plain that, if an individual citizen takes the law into his own hands, this will not be tolerated and a sentencing judge is entitled to give great weight to general deterrence, that is send a message to the community generally that those who seek to justify their behaviour by some misguided notion that they were carrying out justice will know that that is a serious mistake. In addition, this was clearly a confrontational aggravated burglary and the Victorian Court of Appeal on multiple occasions has discussed the need for higher sentences for a premeditated invasion of a person’s home when the person is present and, particularly, if it involves the offender carrying a weapon and intending to injure the victim in revenge whilst acting in anger often fuelled by alcohol or drugs.[32]
[32]Hogarth (2012) 37 VR 658; Meyers (2014) 44 VR 486; Bowden [2016] VSCA 283; O’Brien [2019] VSCA 254
57The objective seriousness of this aggravated burglary is indicated by the fact that it was premeditated as evidenced by you pursuing the victim to his home whilst you had a hammer in your hand and then smashing the front kitchen window in order to gain entry, whilst being well aware that your victim was right there inside and, then, entering with the intention of causing injury to him. Although the aggravated burglary was short lived, as I have said, it was clearly a very frightening experience for your victim and this needs to be acknowledged by the courts so that victims will feel vindicated. I have no independent information about your perceived grievance for which you pursued your victim, but, nothing can justify anyone taking the law into his own hands as you did. We have a police force to enforce the law.
58You also showed great disrespect for the police officers who were only trying to do their job and it is important to send a message, generally, in such cases to let members of the community know that that sort of conduct will not be tolerated and will be appropriately punished. In this case, the prosecution has indicated that both police officers who were assaulted by you sought medical treatment due to having been exposed to Hepatitis C which you are known to have contracted. Police officers have the duty to protect members of the community and it is a duty which often exposes them to danger. Generally speaking, when police officers are physically attacked in the course of doing their duty, a custodial sentence will be imposed because of the need to deter others from such attacks and it is important that just punishment be imposed to support police officers upon whom the community depend to protect lives and property.[33] I note that you have four prior convictions for resisting a police officer or person assisting a police officer and one prior conviction for resisting a protective services officer. The most recent of those charges was in 2017. In fairness the prior charges were quite some years ago in 2005, 2004 and 1994.
[33]Debs and Roberts [2005] VSCA 66; Liszczak [2007] VSCA 313
59I have found this to be a difficult sentencing exercise as your acquired brain injury has been compounded by your persistent substance abuse and there appears to be no doubt that you were affected by substances in your very heightened state of agitation at the time of offending. In that regard, the description of your offending as detailed in the prosecution opening, Exhibit “A”, contrasts with that of your EACH support worker, Ms Freedman, Exhibit “3”: “Shane is well liked by workers at EACH and I have never seen him display anger or adverse behaviour, have never had cause to be afraid of him, nor not trusted by my belongings around him. Likewise, Shane as a person is easy going, respectful and gentle, and does not like to see anyone or any creature treated badly.” It is a fair inference that the contrast between Ms Freedman’s description and your heightened state at the time of offending must, in part, be attributable to you being adversely affected by substance abuse. However, I am mindful of the following factors:
(a) The evidence about your concrete and lack of consequential thinking and vulnerability to being adversely influenced by others all due to your acquired brain injury.
(b) You were in a state of grief following the death of your brother, Troy, who had become a major supporter, spending four days out of every week living with you to help you live independently, until his death in 2019.[34]
(c) The dysfunctional and manipulative influence of your former partner, Jade, as described by Ms Freedman, in circumstances where the neuropsychological evidence before the Court supports your vulnerability to such manipulation because of your acquired brain injury.
(d) You had unwisely ceased your Sublocade program, having had your last depot injection on or about 9 December 2020 because you told Ms Freedman that you “felt strong enough”, which is indicative of your lack of insight into your substance abuse problems.
(e) There appears to have been a reduced level of support during the restrictions imposed by the Covid pandemic. In regard to the latter, although Ms Freedman gave evidence that she had regularly spent 6 ½ hours on a Monday taking you to art class in Olinda, I note that the functional autonomy assessment report dated 21 July 2020 which was prepared by an occupational therapist, Man Fung Lui, (Exhibit “8”), stated that, “Shane had to cease his art therapy due to not having enough funding within his NDIS plan to support ongoing access to this.”[35]
(f) I also infer from Exhibit “8” that, during the many months of lockdown in Victoria in 2020, you would have been unable to work in your printing job. Exhibit “8” stated, “Prior to COVID‑19, Shane worked two to three days a week depending on job availability. His working days were Tuesday, Wednesday and Thursday, and for 3 – 4 hours.”[36] It is apparent from the reports of Dr Vowels that having employment was an important factor in filling your day. I infer that for substantial periods of lockdown, Ms Freedman would have been confined to only telephone or video contact with you and that your art classes would most likely have been suspended. For a person with your vulnerabilities and limited supports, I can appreciate that this may well have been destabilising. I note that in her 2012 report, Dr Vowels suggested that the value of your employment may well be greater to you than it was to your employer.[37] Also, in her 2014 report she noted that since the loss of your printing job, you now had five more days a week to manage in your own time and that her impression had been that, being occupied in your employment and having the companionship of workmates, had probably been of greatest benefit in enabling you to stay out of trouble for some of the longest periods in the past.[38]
(g) In the leadup to the offending, you were without your main supportive presence, Ms Freedman, who went on annual leave for 3 weeks until 10 January 2021, during which your substance abuse increased under the influence of your then partner, Jade, who also had substance abuse issues.
[34]Exhibit “1” pages 2 to 3, paragraph 2
[35]Exhibit “8” page 3
[36](ibid) page 8 - I had not had the opportunity to read this report prior to the conclusion of Ms Freedman’s evidence, which seemed to erroneously suggest that you were working much longer hours on a continuous basis. It was less than clear from Ms Freedman’s evidence as to when you regained employment after having lost your printing position when your father’s business was sold in or about 2014.
[37]Exhibit “6” page 2
[38]Exhibit “7” page 2
60In all of the circumstances I have determined that I should give significant weight to Principles 1, 3 and 4 in Verdins for, although your substance abuse clearly played a role in your offending and it is clear that drug or alcohol dependence is not necessarily a mitigating factor, it seems that your impairment arising from your acquired brain injury is such that it is not as simple as saying that you voluntarily desisted from treatment for your substance abuse problems and voluntarily decided to continue to abuse substances even though you had been told many times that you should abstain because of your acquired brain injury. This is because your insight into your deficits is so poor and your maladaptive strategies of abusing substances is so well entrenched that you simply lack the wherewithal personally to control your feelings and behaviour particularly when significant supports are withdrawn and you become “wound up”, as you were over Jade’s allegations. In this regard, I note the recent comments of the Court of Appeal in Byast v The Queen:
As to the appellant’s mental state, the Verdins principles rest on the notion that an impairment of mental functioning may so distort a person’s decision-making, or affect their ability to exercise appropriate self-control, that the resulting criminal conduct is — to that extent — to be regarded as involuntary. Where that is established, the sentencing court may view the offender’s moral culpability and the need for specific (and general) deterrence as reduced.
The position is different, however, if the person has received effective treatment for the relevant condition but chooses to desist from that treatment and/or to take illicit substances, resulting in the reactivation of the condition. In those circumstances, the resulting criminal conduct may be regarded as the result of the person’s voluntary choices, and not as the involuntary consequence of the condition.[39]
[39] Byast v The Queen [2021] VSCA 344 at [5]-[6]
It is the first paragraph, but not the second, which applies to you.
61In sentencing you I take into account your pleas of guilty. As noted by the prosecution, they were not made at the earliest possible opportunity and the victim was put through cross-examination at committal, but there is also evidence to suggest that you had very little recollection of your offending behaviour other than that you were aggrieved by the alleged assault against your girlfriend and had consumed alcohol and possibly some benzodiazepines when you went to confront the victim.[40] I accept that your pleas of guilty are indicative of some remorse insofar as you are able to think through the impact of your behaviour on others, which is clearly limited. I take into account the utilitarian value of your pleas of guilty in facilitating the course of justice, particularly during the time of the COVID‑19 pandemic restrictions which have made it very difficult and largely impossible to conduct criminal trials in the State of Victoria.
[40]Exhibit “1” page 5, paragraph 21
62I also take into account Principle 5 of Verdins in that, because of your cognitive impairment, imprisonment is likely to be more onerous for you than others in normal mental health. Further, the pandemic restrictions imposed in prisons have added an extra layer of burden to your time of imprisonment on remand, which I take into account, noting that, at present, some restrictions are ongoing. Restrictions generally have included reduced out of cell time in order to facilitate social distancing, a reduction in the availability of a variety of recreational and rehabilitative programs and a lack of contact visits for prisoners, who are confined to telephone or video calls with family and friends.
63I am conscious of the expressed concern of Ms Freedman and your counsel concerning the potential loss of your public housing which is an important factor in your stability. I have not been given any precise indicators as to when and in what circumstances that housing might be withdrawn from you. If it is withdrawn, that is a very serious consequence for a vulnerable, socially isolated person like you, because it would render you homeless when you are released from prison. I note that, in your isolated state, two important factors in your life, namely, access to your 14 year old son and, also, the presence of your dog which lived with you, are significant deprivations given your serious lack of support in the community.
64Having regard to all of your relevant circumstances in mitigation, I have not altered my view expressed during the plea hearing that a combination sentence is not an appropriate disposition in this case. Apart from the seriousness of your offending, it is abundantly clear from your repeated breaches in the past, that you simply lack the capacity to meaningfully engage with a Community Correction Order. I have referred to your poor prospects of rehabilitation due to your inability to remember things and learn new material, both of which adversely impact upon the likely success of any treatment program, particularly for your problematic substance abuse. One can only hope that your time in custody will be one of abstinence from illicit substances, which unfortunately still seem to be made available within our prison by unscrupulous persons. If you can remain free of illicit substances during your time in custody it is possible that you will be in a better state to be released into the community in due course. I consider the only appropriate sentence in all of the circumstances to be one with a head sentence with a non‑parole period, but I am very mindful of the concerns expressed about you becoming habituated to the structured life in prison which may diminish your already diminished capacity to live in an independent way once you are released into the community. Of course, I must operate on the basis that any head sentence imposed by me may have to be served in its entirety by you but, in the event that you are released upon parole, it will be necessary for you to have every conceivable supervisory support available to you to assist you to remain free of illicit substances and old criminal associations and to engage in positive and meaningful activities like your work and your art (of which Ms Freedman spoke very positively). It is plain that the decision as to whether or not you are granted parole is a matter for the Adult Parole Board, not for me.
65In arriving at the sentence which I intend to impose, I am conscious that the two charges of assault and resisting an emergency worker on duty and the charge of making a threat to kill and intentionally damaging property all occurred in a timeframe which was either inextricably bound up with of the charge of aggravated burglary or very soon after it, whilst you were in the same heightened, agitated state. For that reason, the extent of cumulation is not as great as might otherwise have been ordered. At first blush the overall sentence may appear to be unduly lenient for such serious offending, in which protection of the community is an important consideration. However, the High Court has made it clear that where a mental impairment makes an offender a danger to the community but, also, reduces his moral culpability, “consideration of the danger to society cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality.”[41] In your case, it is important to give effect to the Verdins principles, as well as a meaningful and tangible discount for your pleas of guilty, particularly with their enhanced utilitarian benefit associated with them having been made during the time of the pandemic. Further, in setting what might be considered an unduly low non‑parole period, I am mindful of your vulnerability in terms of being dependent upon public housing and the risk that a lengthy period in custody may well adversely impact upon what little independent living skills you presently retain and could ultimately destroy what limited prospects of rehabilitation are open to you.
[41] Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at [13]
66On Charge 1, aggravated burglary, you are convicted and sentenced to be imprisoned for a period of 4 years.
67On Charge 2, assaulting an emergency worker on duty, you are convicted and sentenced to be imprisoned for 6 months.
68On Charge 3, resisting an emergency worker on duty, you are convicted and sentenced to be imprisoned for a period of 3 months.
69On Charge 4, assaulting an emergency worker on duty, you are convicted and sentenced to be imprisoned for a period of 6 months.
70On Charge 5, making a threat to kill, you are convicted and sentenced to be imprisoned for a period of 9 months.
71On Charge 6, possession of a drug of dependence, cannabis L, in a quantity which I am satisfied was a small quantity and not possessed for the purpose of trafficking, you are convicted and discharged.
72On Charge 7, intentionally damaging property, you are convicted and sentenced to be imprisoned for a period of 9 months.
73The base sentence is that of 4 years imposed on Charge 1. I direct that 2 months of the sentence imposed on Charge 2, 1 month of the sentence imposed on Charge 3, 2 months of the sentence imposed on Charge 4, 4 months of the sentence imposed on Charge 5, and 4 months of the sentence imposed on Charge 7, be served cumulatively upon the base sentence and upon each other.
74The total effective sentence is thus 5 years and 1 month’s imprisonment.
75I direct that you serve a period of 2 years and 1 month before becoming eligible for parole.
76I declare a period of pre‑sentence detention of 327 days to be time reckoned as already served under the sentence imposed this day.
77Pursuant to s6AAA of the Sentencing Act, I state that had it not been for your pleas of guilty, the total effective sentence imposed would have 7 ½ years with a non‑parole period of 4 ½ years.
78Upon you being convicted of Charge 6, a Schedule 1 offence, namely possessing a drug of dependence, pursuant to s78(1) of the Confiscation Act 1997, I order the forfeiture to the State of the property referred to in the Schedule and further direct that it be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings where it may be tested and/or analysed and then destroyed. The property referred to in the Schedule is one small plastic bag of cannabis L weighing approximately 0.7 grams.
79Upon your being convicted of Charge 7, intentionally damaging property, I order that you pay to the Department of Human Services (Housing) compensation in the sum of $780.23.
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