Director of Public Prosecutions v Vida (a pseudonym)
[2021] VCC 1314
•9 September 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ASHTON VIDA (a pseudonym) |
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JUDGE: | HER HONOUR JUDGE RIDDELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 July 2021 | |
DATE OF SENTENCE: | 9 September 2021 | |
CASE MAY BE CITED AS: | DPP v Vida (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1314 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW -- Sentence
Catchwords: False Imprisonment – Intentionally Cause Injury – Indecent Assault – Long and documented history of Mental Impairment – Schizophrenia – Post Traumatic Stress Disorder – Drug use – R v Verdins – Delay – Plea of Guilty – Totality – Covid Pandemic – Prosecution concession combination sentence within range
Legislation Cited: Sentencing Act 1991
Cases Referred to: R vVerdins & Ors [2007] VSCA 102 – Brown v The Queen [2020] VSCA 212 – Veen (no 2) (1988) 164 CLR 465 – Stevens v The Queen [2021] VSCA 218 – Mill v The Queen (1988) 166 CLR 59 – DPP v Bourke [2020] VSC 130 – R v Dunn [2020] VSC 708
Sentence: 2 years 7 months in combination with 3 year Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms R. Champion | Office of Public Prosecutions |
| For the Accused | Mr W. Blake | McFarlane Criminal Lawyers |
HER HONOUR:
1Ashton Vida,[1] you have pleaded guilty to charges of false imprisonment, causing injury intentionally and indecent assault. Those offences were committed against the one male victim, Cooper Moran,[2] on 5 April 2012 in circumstances where you held him captive in a pool house at your family home. You bound him to a chair and inflicted burns and a cut to his body and beat him with a stick. You also grabbed and held weapons to his genitals. The offences occurred over a number of hours and at various stages two other men were present, one with a rifle.
[1] pseudonym used
[2] pseudonym used
Background
2You were 22 at the time of the offending. You were living at your family home in Glenroy. You are now aged 31.
3Mr Moran was 23 years of age in 2012. He met you in approximately February of that year. He knew you as 'Ash' and you were in contact with one another for approximately three months after meeting through a mutual friend on Facebook and messaging each other about your tattoos.
4In the days prior to this offending you and the victim had a dispute about the quality of drugs you had supplied him. On 5 April 2012 he drove to your house. When he arrived, you invited him to go out the back. When he reached the pool house he saw a man he did not know, holding a rifle. You then patted the victim down and took his keys and phone off him. This was the first time that you had done this and the victim knew that something was wrong.
5You made him sit on a white leather chair in front of a window and asked him if he was a police officer. The unknown man with the rifle stood and watched the victim while you questioned him. The victim saw that there was also another man in the room sitting on the floor.
6You left the room and came back with a stereo, a power or drop saw and a walking stick topped with a gold Egyptian-style head. You then used a rope to tie Mr Moran's neck and hands to the window behind him. You then separated the victim's knees and turned the saw on. Unable to leave the room, the victim was petrified that you were going to kill him (Charge 1, false imprisonment).
7You told Mr Moran that you were going to cut off his testicles unless he admitted that he worked for Victoria Police. You used the drop saw to cut through the crotch of his pants. The victim was so frightened that he said to you 'Yes, man, all right, I'm a cop'.
8You picked up a stick and beat the victim on and off over a period of hours. During the assault you played opera music through the stereo. The victim's back and legs turned black due to bruising from the beating.
9At one point Mr Moran was shaking uncontrollably and you said the adrenaline rush would stop if he bled. You then picked up a razor blade and cut a hole in the left pocket of his pants. You stuck the razor blade into the victim's leg, cutting him and causing his leg to bleed. The victim still has a scar on his left thigh as a result.
10At various stages you also placed lit cigarettes in the victim's mouth and let them burn down to the butt, causing burns to his lips. You also extinguished a cigarette on the victim's chest, which caused scarring. Those assaults, along with the cut to his leg with the razor blade and the bruising caused by beating him with a stick have been rolled into the one charge of causing injury intentionally (Charge 2).
11You kept the victim inside the pool house while you went inside the main house and made sandwiches, which you then offered to him, but he refused. You asked Mr Moran if he was circumcised and he replied that he was not. You told him that you were going to circumcise him. You pulled down his pants, grabbed his genitals and pushed a blade up against the victim's genitals. You then wrapped the victim's testicles around a metal rasp. Those two acts are rolled into the one charge of indecent assault (Charge 3).
12You then asked the victim about his new job and how much money he was earning a week. He replied that he was earning approximately $1,200 a week and you said you would let him go if he paid you $900 a week. Mr Moran, out of fear, agreed and you then untied him and walked him out to his car.
13You threatened the victim that if he went to police or told anyone that you would have people rape him.
14Nonetheless, on 6 April 2012 Mr Moran drove to the Craigieburn police station to report the matter. He was observed to be visibly upset. He made a report to police however, he was too terrified to make a formal statement as he feared for his life and that of his family. Photographs, which have now been lost, were taken of his injuries and were consistent with his description of these events.
15In 2019 police made contact with Mr Moran. He eventually made a formal statement about this matter on 1 August 2019.
Sentencing Principles
16This is serious and disturbing offending. Imprisoning another person by force, depriving them of their liberty and inflicting injury on them, as well as indecently assaulting them, are matters which deserve condign punishment. Each of these offences carries a maximum of 10 years' imprisonment.
17The sentence I impose must generally deter others from seeking to extract money from others by force and infliction of fear. It must express the court and the community's denunciation of your conduct and must punish you.
18The sentence I impose must deter you specifically. In your case that is important, as twice more in the months following this event you offended in similar ways against two other men. I will return to those matters in due course.
19You are currently assessed as being at high risk of violent re-offending. The sentence I impose must also have community protection in mind.
Objective Gravity of this Offending
20In assessing the objective gravity of your offending I note the following.
21The false imprisonment here was premeditated and planned. It occurred for the specific purpose of intimidating Mr Moran, placing him in fear and variously assaulting him. It was driven by an apparent desire to dominate him and to put him in fear when you ultimately requested he pay you money.
22It occurred in frightening circumstances where the victim was bound and physically unable to move away or defend himself, let alone escape. It occurred in the presence of two other people for at least some of the period of time. One of those persons was armed with a rifle, no doubt to further intimidate the victim.
23It lasted for a period of hours, during which various tools and weapons were produced, including a drop saw and rifle. The false imprisonment only ended when the victim agreed to pay you money.
24In my view it is a serious example of false imprisonment.
25Although taking care not to doubly punish you, I must view the other two charges in the context of the false imprisonment.
26The charge of causing injury intentionally reflects three separate and distinct actions. Although separately they may be considered lower to mid-range injury on a spectrum of injury, I must and do take them into account in their totality. The beating with the stick occurred over several hours. The injury caused was the black-and-blue bruising to the victim’s back and legs. The burning was inflicted to Mr Moran's chest and by allowing cigarettes to burn his lips when he was apparently unable to stop that occurring. The cut to his leg with a razor blade resulted in immediate bleeding but also a scar visible many years later. Taken together those injuries to various parts of his body inflicted in various ways represent injury which is beyond a mid-range example of injury covered by such a charge.
27The indecent assault charge is disturbing. The actions of placing a blade to his testicles and then wrapping them around a rasp were preceded by the threat to circumcise him. It occurred in circumstances where you had already used a drop saw to cut his pants open. It occurred in circumstances where you had removed his pants and where he was completely helpless, tied by the neck and with his hands tied behind a chair. Although reasonably brief, Mr Moran described excruciating pain during those acts to the extent that he tried to choke himself on the rope to stop conscious awareness of the pain. The acts involved humiliation of the victim.
28The indecent assault is an unusual example of such a charge and as such it is more difficult to assess the gravity. In my view it is at least mid-range of such an offence, if not mid-to-high range.
29Both the causing injury and the indecent assault offences were committed against an extremely vulnerable victim, physically restrained and with no capacity to defend himself.
30The impact on Mr Moran of your offending is likely to have been significant. In his statement to police he described his feelings of terror and thinking he was going to die. He described recurring nightmares over a period of years and an occasion where he saw you in a car sometime later and had a mental and physical reaction where he felt sick. He says the physical impact of your offending on him was nothing compared to the mental impact on both him and his family. They ultimately moved interstate to be away from you. His victim impact statement of July 2021 is limited and perhaps that in itself speaks volumes. He says he will never ever forget that day.
31There is no doubt this offending warrants a term of imprisonment.
Personal Background
32A comprehensive and detailed outline of your personal history is contained in the 2021 report of Psychologist Dr. Mathew Barth.
33You are 31 years old and are the second youngest in your sibship of nine. Your parents' relationship was marred by conflict and verbal abuse. Your parents separated when you were nine years old and your father moved to New South Wales. You describe him as emotionally cold and detached. Your relationship with him has been characterised by disconnection in your adult years and you have had no contact with him since your remand.
34You have had a difficult relationship with one of your older brothers, who you still resent for his bullying behaviour and put-downs. However you are close to your mother, sister and have reasonable relationships with your other siblings.
35As a young child between ages seven and nine you were sexually abused by a family friend. That person would isolate you at gatherings and sexually offended against you numerous times. Those offences included penetrative offences. You were threatened with violence if you disclosed the abuse. Out of shame and fear you kept that abuse secret until your adult years, when you gave limited details to one of your sisters.
36You also described to Dr Barth an episode in Lebanon where you were seven and on vacation with your parents. You described being kidnapped by two of your uncles. You recall being held hostage before being returned to your parents. You experienced some emotional distress.
37You experienced behavioural issues during your schooling which interfered with your capacity to engage. You became increasingly aggressive towards other students and to teachers. You had a social worker assigned to you during your primary school years and recall appointments with mental health professionals. You attended Moreland High School but were ultimately expelled after an assault on a teacher. You ultimately attended a specialist school for young males with severe behavioural issues. You undertook some education in juvenile detention.
38You have a limited work history, having worked at Hungry Jack's and in industrial galvanizing. You have not maintained any gainful employment for a long period and are in receipt of the disability support pension due to your mental health conditions.
Mental Health
39You have a complex mental health profile, as detailed in the comprehensive report of Dr. Barth. Dr. Barth has reviewed a range of historical medical records and reports.
40He says your childhood sexual abuse left you confused and ashamed and these feelings were exacerbated when you became aware of your homosexual orientation. This was reinforced by your father and family's strong views against homosexuality, largely based on their Muslim faith. Males in your family frequently made derogatory comments about homosexuality and as such you kept your sexual orientation hidden for some years.
41You have had three main relationships; however, these have variously been marred by increasing drug use and paranoia. You commenced using cannabis from approximately age 13. By 14 you were also using ecstasy and MDMA. By your late teens you had tried methylamphetamines, including ice. Your ice use in particular increased during your early 20s. You became increasingly reliant on it to alleviate depression and anxiety. You became a daily user entrenched within the drugs subculture and associating with negative peers. You trafficked ice. Your ice use continued until the time of your current remand, though you report abstinence during the time in custody.
42According to Dr Barth you have had extensive involvement with mental health services. Recent assessment by psychiatric nurse Ms Hannah Child[3] reveals that you had contact with mental health services through the Royal Children's Hospital where you were diagnosed with Oppositional Defiant Disorder in 2001 aged about 11.
[3] Forensicare Mental Health Advice and Response Service, Assessment Report (as part of Suitability Assessment for Community Correction Order) dated 8 September 2021
43You were involved with Orygen Youth Health at age 17 in 2006, diagnosed as suffering from a depressive episode and antisocial personality traits. You declined further intervention through the Youth Access Team, opting to be managed by your GP and a private psychiatrist.
44You had contact with Orygen again in September/October 2010. You were reported to be experiencing intense auditory and tactile hallucinations and observed to be suffering acute symptoms of PTSD related to your sexual abuse. Antisocial, borderline and narcissistic traits were prominent features of your presentation. You described engaging in violent behaviour against others.
45Subsequently you were managed by Youth Access Team for two months, and antipsychotic medication was prescribed with some good response. You were referred to the Early Psychosis Prevention and Intervention Centre but were unreliable attending appointments. You eventually ceased attending and ceased medication.
46In March 2011 you had contact with Orygen again. You had continued symptoms of PTSD as well as paranoid delusions, bizarre ideas of reference and ongoing tactile hallucinations. You were ultimately diagnosed with Schizophrenia, mphetamine-induced Psychotic Disorder, PTSD and Antisocial Personality Disorder. You were again prescribed antipsychotic medication with improvement. You commenced psychological treatment focussing on trauma-based cognitive behavioural therapy. However, you did not persist.
47Your last recorded contact with Orygen was in April 2012. You were observed to have relapsed into psychotic symptoms due to non-compliance with medication. Of course, that is around the time of this offending.
48As you progressed through your 20s you had contact with several other mental health services precipitated by worsening psychotic symptoms alongside drug addiction. Your treatment was through your GP and psychiatrist Dr Irina Kolesnikova. Dr Kolesnikova first saw you in 2014. She endorsed the diagnosis of Schizophrenia and prescribed medication. Your ongoing drug use again adversely impacted compliance. Ms Child confirms you had contact with Forensicare's Community Mental Health Service in 2014, where similar diagnoses were confirmed.
49Dr Barth notes that the documentation from your GP and Dr Kolesnikova does not describe specific psychotic symptomatology to the extent described by you during interview. In 2015 Dr Kolesnikova states your mental health had improved and there were no ongoing delusions or hallucinations.
50You confirm symptoms have fluctuated over the years and there have been periods with only mild symptoms. You did present in May 2018 at Northern Health emergency department, reporting visual hallucinations of a dark figure trying to rape you. There is also confirmation of involvement with Forensicare's Community Mental Health Service during the same period.[4]
[4] Report of Hannah Child
51More recently you have consulted Thumbs Up Community service for general counselling and to assist you obtain NDIS funding. Their records make no mention of any delusions or hallucinations, nor of your drug abuse.
52You have continued to consult with Thumbs Up during your remand and I have received a letter from them. They are now your provider via a recently approved NDIS package. They outline the psychological support they are providing you in custody as well as plans for your release, including drug and alcohol counselling, psychological counselling of one hour per week, assistance with community engagement and skill development, assistance with daily household tasks and overall coordination. Your support coordinator describes you as engaged and determined to work on your mental health and change your life.
Defence Submissions
53Your counsel Mr Blake relied on the opinion of Dr Barth to submit that your mental health history enlivens the principles enunciated by the Court of Appeal in R v Verdins[5]. Specifically he relied on limbs 3 and 4 and to a lesser extent limbs 1 and 2. He conceded that your significant drug addiction at the time of your offending was such that any moderation of sentence on account of those considerations could only be modest.
[5] R vVerdins & Ors [2007] VSCA 102
54Mr Blake also submitted that limbs 5 and 6 of Verdins are enlivened given the greater burden of the custodial environment and risk of deterioration of your mental impairment.
Prosecution Submissions
55Ms Champion on behalf of the prosecution initially contested the applicability of Verdins, other than limb 5. While conceding your diagnosis with a serious mental illness, she challenged the connection between that and your offending. She submitted that rigorous evaluation of the evidence contained in Dr Barth's report did not reveal sufficient causal link.
56In subsequent written submissions Ms Champion conceded the applicability of limbs 3 and 4 and, after discussion today, the prosecution also accept that limbs 1 and 2 are enlivened and appropriate for me to take into account.
57In relation to limb 5 Ms Champion conceded modest reduction is warranted. In relation to limb 6 she disputed that the report of Dr Barth meets the high test of demonstrating that your mental health would be significantly adversely affected in the custodial environment.
58Ms Champion submitted that any Verdins considerations are difficult to disentangle from your drug use and that your behaviour was goal directed to your own financial gain, demonstrating rational decision making.
Verdins analysis
59Dr Barth confirms your long-standing history of psychosis and diagnosis of Schizophrenia. He also diagnoses you with PTSD, Antisocial Personality Disorder and Stimulant Use Disorder, which was at a severe level but is now in remission in the custodial environment.
60Dr Barth states your mental-health issues likely have their origins in your reported childhood trauma and a history of intrafamilial conflict. He details the progression from your early traumatic life experiences to development of significant social and behavioural problems resulting in a conduct disorder.[6] He says those events have 'significantly impacted his interpersonal and behaviour adjustment' and that you 'developed intense distrust and hostility toward others from a young age'. He states that, 'It is well recognised that adverse childhood events, such as sexual … abuse are associated with an increased risk of developing a serious mental illness, in particular psychotic disorders and trauma-related disorders'. He notes that in your case the majority of hallucinations have manifested in forms of sexual violence and paranoid delusions of being harmed by others and persecuted by police.
[6] Dr Mathew Barth Psychological Assessment Report dated 13 July 2021 in particular at paragraphs 42 – 50; See also New South Wales Public Defenders “The Bugmy Bar Book” and in particular ‘Childhood Sexual Abuse’
61Dr Barth states that your behaviours culminated in the violation of rights of others and failing to abide by societal norms. He says your unresolved trauma and distress has been discharged in a very direct and dramatic manner. He says your offending history indicates motivation by a need for dominance and control with themes of sexual violence to compensate for feelings arising from your own abuse. Those feelings and behaviour have intensified in the setting of drug addiction and 'turbulent' lifestyle
62Despite recent improvements in custody, Dr Barth states that you have suffered schizophrenia since your adolescence and that, 'It appears that his symptoms were particularly intense at the time of his offending, and his mental disorder impacted his ability to exercise appropriate judgment and contributed to his irrational decision making and disinhibited behaviour which culminated in his violent behaviour toward the [victim]'.
Conclusion - Verdins
63In my view Verdins is enlivened in your case. That is you have a well-documented history of serious psychiatric and psychological diagnoses which have their origins in your early life experiences and which have significantly impacted your behavioural patterns over a course of years. Despite the overlay of drug use and of your antisocial personality traits, those factors do not eliminate the underlying significant mental health conditions rooted in your early life experience. Those matters have a nexus to your offending behaviour as described by Dr Barth.
64Arguably your Antisocial Personality Disorder is also a result of those early experiences and, despite the comments of the Court of Appeal in Brown v The Queen[7], it may in part enliven Verdins in your case. In any event I am satisfied Verdins is enlivened on account of your Schizophrenia and Post-Traumatic Stress Disorder.
[7] Brown v The Queen [2020] VSCA 212
65In my view it does enliven limbs 1 to 4. That is your diagnoses of schizophrenia and PTSD and the way those conditions impacted your behaviour at the time of your offending reduces your moral culpability. That is so even though Dr Barth notes that at the time he assessed you your moral reasoning was intact. In relation to limb 2, given that reduction in your moral culpability, it is open to me to impose a sentence which may be of a different kind imposed than that imposed on a person without those mental health conditions. Further, your mental impairment in my view means you are not an entirely suitable vehicle for the full application of general deterrence and, although you are capable of understanding the wrongfulness of your behaviour, it is appropriate to moderate specific deterrence. It is not eliminated but there should in my view be some moderation of general and specific deterrence considerations in your case.
66It was conceded by Mr Blake that moderation will be modest. That concession was based on the interplay of drug use on your mental health. It was an appropriate concession. You told the Corrections Victoria assessor that at the time of your offending your mental health was ‘at its worst’ and you were using methamphetamines daily. Your psychotic symptoms have a correlation to your ice use. The period of enforced abstinence on remand and enforced compliance with antipsychotic medication has seen you stabilise to a degree.
67However, although the impact of your drug use reduces the amount of moderation I will make to considerations of moral culpability and deterrence, it does not eliminate the fact that underlying your drug use are mental impairments whose origins lie in your early life experiences. I find that meets the test in Verdins, specifically that those matters invoke the application of limbs 1, 2, 3 and 4 as I have outlined.
68I take into account Dr Barth's opinion that the severity of your offending behaviour 'goes beyond any explanation which may be attributed to his diagnosis of Schizophrenia and PTSD'. As I understand that comment in the context of the report, he is referring there to the interplay of your illicit drug use and also that you continue to exhibit entrenched antisocial traits. He continues, 'Mr Vida's maladaptive personality traits are intensely problematic and clearly meet DSM-5 diagnostic criteria for an antisocial personality disorder'.
69In determining the amount of moderation and the appropriate sentence I take those considerations into account. That is in keeping with the comments of the High Court in Veen (Nos.1 and 2),[8] and referred to by the Court of Appeal very recently in Stevens v The Queen[9] to the effect that features of mental impairment which point towards moderation of sentence may point equally towards the need for protection of the community. That is a prominent consideration in sentencing you. It is inevitable that some of the benefit from applying the principles of Verdins will be offset by the need to impose a sentence which achieves community protection.
[8] Veen (No2) (1988) 164 CLR 465
[9] Stevens v The Queen [2021] VSCA 218
Offending History
70Your criminal record is concerning. In March 2006 in the Children's Court you were placed on 12 months' probation for two charges of indecent assault, one charge of indecent act in the presence of a child under 16, theft and several charges of assaulting and resisting police. That order was varied six months later to include a counselling condition. Your probation was eventually breached by offences of robbery where you received six months' youth detention. For the breach of probation you received four months' youth detention.
71In the Magistrates' Court in 2009 you were fined for possession of ecstasy and received a six-month CCO for deceptions. That order was breached and in July 2011 you were fined, along with a fine for unlawful assault. That is the extent of your prior criminal history as at the time of this offending.
72Notably, in November 2012 you were sentenced in the Magistrates' Court in relation to two sets of offences which have strong and disturbing similarities to the offending before me. They occurred in the months following this offending. They occurred in two episodes and related to two different male victims. The first set of offences occurred in May 2012 and involved offences of false imprisonment, extortion with a threat to inflict serious injury, intentionally cause injury and theft. The second set of offences occurred in June 2012 and involved stalking, false imprisonment, assault and theft. The male victim of that offending was 17 years old.
73You were also dealt with for impersonating a police officer. On arrest you were found in possession of various illicit drugs and weapons. The police summary notes your diagnosis of Schizophrenia and ‘Bipolar disorder’ and that you were unfit to be interviewed on account of those conditions and your drug use.
74You were sentenced to three years’ imprisonment with a 15-month non-parole period. You apparently undertook offender behaviour programs in custody and you successfully completed parole.
75Throughout the intervening years you have not reoffended in the same fashion. However, you have been dealt with a number of times for drugs and or weapons possession charges. Your LEAP history refers in numerous places to mental health conditions or treatment.
Prospects of Rehabilitation and Specific Deterrence
76On the current matters you were bailed in the Supreme Court on 20 June 2020 with the intention that you would be under supervision and treatment through the CISP program.
77On 8 July 2020 you reoffended by way of assault in company where you and your current partner attended at the victim's premises with a view to extracting money for some perceived slight. You were behaving aggressively, intimidating the victim and making threatening comments.
78On 28 August 2020 you pleaded guilty to that offending and were sentenced to time served of 49 days' imprisonment.
79That reoffending is concerning in a number of respects. First, because you were not deterred by the fact you were facing these serious charges. Second, because you were to be bailed to the CISP program to engage in treatment. Third, because your reoffending involved an offence of violence, motivated by financial gain. Fourth, because you reoffended soon after approximately 10 months in custody. Fifth, because you were in company with your partner during the offending. He is someone you nominate as a support to you. Those matters speak to the need for specific deterrence. They do not bode well for your prospects of rehabilitation.
80Dr Barth assesses you as high risk of violent reoffending. I accept that opinion.
81Dr Barth assesses you as high risk of relapsing into drug use. You have minimal insight into the association between drug use and your psychotic symptoms. You have at times minimised same and you lack any realistic plan to remain abstinence. You have a history of impulsive decision-making, poor behavioural control and a history entrenched in drug use.
82In order to reduce your high risk of reoffending you are in need of treatment for violence and for sexual violence.
83Similarly what Dr Barth describes as your lack of insight into the correlation between your drug use and psychotic symptoms, your propensity for violent behaviours, your antisocial behaviours and your elevated risk of relapse, which represents a critical criminogenic factor, demonstrate a need for stringent and intensive treatment.
84On the positive you have ongoing support from your family. Significantly you now also have the benefit of an NDIS package where you can be provided with a range of treatment and supports as well as prosocial community engagement.
85I have been provided with documentation as to the courses you have undertaken in custody. You undertook a range of courses directed at occupational skills in 2012 and 2013. In the past you have also managed to successfully complete a term of parole. During the current period of remand you have undertaken a language and literacy and numeracy course as well as a course in hygiene practices for food safety. You have also been subject to random urine screens on remand, each of which has been negative for illicit drugs. Those are encouraging signs.
86Overall however in my view your prospects of rehabilitation are guarded. They are largely dependent on you receiving psychiatric treatment, being compliant with medication, and remaining free of illicit substance abuse.
Plea of Guilty
87The victim was cross examined at a committal hearing. The matter then moved to the trial stream of this court and came before me for Emergency Case Management in the context of the COVID pandemic. It resolved very soon after.
88You receive the benefit of your plea of guilty. Your plea of guilty has a utilitarian benefit in that it saves the community the cost and time of a criminal jury trial. Importantly in this case your plea saves the victim from giving evidence in front of a jury about a traumatic and humiliating event.
89I also take into account the particular value of a plea of guilty in the current COVID-19 pandemic, where all trials in this court have been suspended, where we are currently in an extended lockdown and where there is now significant backlog.
90You expressed some limited remorse to Dr Barth during your assessment. More recently you have been described by a Corrections Victoria assessment officer as displaying considerable remorse and accountability for your actions, stating that you were a victim of trauma and have put Mr Moran through the same trauma. I take that into account.
Remand during COVID-19 pandemic
91You have been remanded during the COVID-19 pandemic. As with the broader community, prisons are places of heightened anxiety in that setting. A number of courses and activities have been affected to some extent. In person visits have been suspended at various times. Prisons, like the community, have been more difficult places during the COVID-19 pandemic; however, prisoners of course are unable to make autonomous choices about exposing themselves to risk. I take those matters into account.
92I take those matters into account in the context also of your significant mental health issues.
93I also take into account the fact that you were seriously assaulted in custody in December 2020, resulting in you being hospitalised and requiring surgery to your face. After time in hospital you were moved to a management unit for your own safety. You are in 23-hour lockdown. Your levels of paranoia and distress have increased markedly since that time. Dr Barth states your current symptoms resulting from that experience 'remain consistent with' a diagnosis of PTSD. I take into account Dr Barth's comments that you have been suicidal in custody.
94In my view limb 5 of Verdins is applicable. That is, imprisonment has been and will be more burdensome on you than on a person not suffering from your mental impairment. In particular your Schizophrenia, which results in paranoia and anxiety, is heightened in that setting.
95In my view limb 6 is also enlivened, as your acute anxiety and distress and symptoms of PTSD have continued to intensify in the custodial setting. Dr Barth states that when considering your chronic mental health issues and remedial coping skills it is likely that the custodial setting will continue to prove challenging for you in the long term. He says, 'While almost all prisoners experience a degree of emotional turmoil following their final sentence, in Mr Vida's case this would be likely to be rendered more intense by virtue of his long-standing mental health problems'. In my view there is a real risk your mental health will deteriorate.
Delay
96Delay is a relevant consideration here. Delay is ordinarily a mitigating factor for two reasons: first, because an offender has serious criminal charges hanging over him or her for an extended period of time; second, where an offender can show rehabilitation in the intervening period.
97It is now well understood that victims of sexual offending will often delay making a complaint, as you yourself did. In your case, the delay here is complicated by the fact that you threatened your victim with rape if he went to the police. His fear stopped him formalising his complaint the next day. In that context I can only give that delay very limited account.
98Similarly, you have not had the charges hanging over you for an unusually long period of time, and so the first consideration I have outlined is of limited application.
99I do take into account the fact that you have not reoffended in a similar way since 2012, though your recent offending on bail is of concern.
Totality
100I also take into account the fact that this matter may otherwise have been dealt with alongside those similar matters dealt with in November 2012. In that regard both parties agree I should give consideration to issues of totality.[10]
[10] Mill v The Queen (1988) 166 CLR 59
Submissions on Sentence
101Your counsel accepted that you must serve a term of imprisonment in relation to this offending. There was no dispute that a degree of cumulation is warranted as between the different offences.
102Ms Champion on behalf of the prosecution submitted that in the circumstances of your plea of guilty, the delay, considerations of totality and the amount of pre-sentence detention you have served, a term of imprisonment in combination with a community correction order would be within range.
Current Sentencing Practices
103I have had regard to current sentencing practices. There are always less and more serious examples of offending. In the case of each of the three offences before me the circumstances and nature of offending can vary widely. Ultimately I am required to impose a just sentence and that is what I have endeavoured to do.
104Although my initial view of this offending was that it warranted a term of imprisonment with a non-parole period, ultimately I have accepted the prosecution submission that a combination of imprisonment and a community correction order is within range and in my view it is the appropriate sentence here. The community correction order will commence on completion of your term of imprisonment.[11]
[11] R v Dunn [2020] VSC 708
105I have reached that position for reasons different to those submitted by Ms Champion. In particular I reach that conclusion on close analysis of your mental impairment and the application of limbs 1 to 4 of Verdins. In addition your plea of guilty in the face of the delay and where the prosecution did not have the benefit of photographs from the original complaint, the totality consideration, your lack of similar offending since 2012 and your need for intense treatment in the interests of community protection lead me to a combination sentence.
106To that end I had you assessed for a community correction order. You have been assessed as suitable.
107I just pause for one moment, thanks.
108Mr Vida, the sentence that I impose is as follows.
Sentence
109On Charge 1, false imprisonment, you are convicted and sentenced to two years' imprisonment. That is the base sentence.
110On Charge 2, intentionally cause injury, you are convicted and sentenced to 18 months' imprisonment. I direct that three months of that sentence is to be served cumulatively on the base sentence.
111On Charge 3, indecent assault, you are convicted and sentenced to 20 months' imprisonment. I direct that four months of this sentence is to be served cumulatively on the base sentence.
112That is a total effective sentence of two years and seven months' imprisonment.
Community Correction Order
113Further, on all three charges you are convicted and sentenced to a three-year community correction order. That order will commence upon your release from custody. The conditions of that order, in addition to the mandatory conditions, are as follows:
(a) you are to be under supervision;
(b) you are to undergo testing and treatment for illicit drug use, including in-patient residential rehabilitation if directed;
(c) you are to undergo assessment and treatment for your mental health;
(d) you are to undergo offender behaviour programs including sexual offender programs and high-intensity violence intervention programs;
(e) you are to return before me for judicial monitoring on Friday, 22 July of next year, 2022.
114Mr Vida, you must consent to that order before I can impose it. Do you consent to undertake the community correction order on your release from custody?\
115OFFENDER: Yes, I do, Your Honour.
116HER HONOUR: Do you understand that any breach, whether by reoffending or by not complying with the conditions, will bring you back to me for resentencing on these current charges?
117OFFENDER: Yes, I do, Your Honour.
Corrections Victoria
118HER HONOUR: I would hope that Corrections Victoria will make contact with you prior to your release from custody and that a range of services will already be in place to provide you with intense supervision and support immediately. Given your release date will be known, assessments in advance of that date should be considered by Corrections Victoria to take into account any waiting lists for programs.
119I endorse the recommendations made by Dr Barth that you require offence-specific treatment, psychiatric treatment including monitoring of your medication, trauma-focussed treatment and substance abuse treatment. It is my hope that your NDIS provider can work alongside Corrections Victoria so that you are engaged with that treatment upon your release.
120Ultimately your successful rehabilitation and in particular your abstinence from illicit drug use will be up to you.
Pre-sentence Detention
121I declare that you have served 679 days pre-sentence detention and that that period should be reckoned as having been served under this sentence.
Section 6AAA declaration
122Finally, but for your plea of guilty on these charges, so if you had not pleaded guilty, the sentence I would have imposed would have been a total effective sentence of eight years' imprisonment with a non-parole period of six years' imprisonment.
123Are there any issues to raise, counsel?
124MS CHAMPION: Just one matter, Your Honour, in relation to a question that Your Honour asked in the course of sentencing.
125HER HONOUR: Thanks.
126MS CHAMPION: In relation to the beating with the stick on and off over a period of hours, I can confirm that it was the victim's back and legs that turned black due to bruising.
127HER HONOUR: Thanks very much. And I notice I've used the word 'shotgun' and 'rifle' interchangeably. Can someone confirm which it was, please.
128MS CHAMPION: Your Honour, at paragraph 33 of the victim's statement he refers to, 'The guy with the rifle was just standing there, looking at me'.
129HER HONOUR: Thanks very much. Apart from those matters is there anything else from either counsel?
130MS CHAMPION: Nothing from the prosecution's end, Your Honour.
131HER HONOUR: Thanks very much. Mr Blake?
132MR BLAKE: Nothing from defence.
133HER HONOUR: All right, thanks very much. Thanks, counsel, for your assistance. These matters are always challenging. Although we're used to dealing with that interplay of mental health issues and drug use, it doesn't make it any easier. All right, thanks very much. We'll now stand down temporarily, thanks.
134MS CHAMPION: As Your Honour pleases.
135HER HONOUR: Thank you.
136MR BLAKE: Your Honour pleases.
137HER HONOUR: My staff might give you a moment, Mr Blake, with Mr Vida if you want to have a discussion before you lose the link,
138MR BLAKE: Thank you, Your Honour.
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