Director of Public Prosecutions v Wade
[2023] VCC 921
•2 June 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
General List
Case No. CR-22-00493
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TROY WADE |
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JUDGE: | HIS HONOUR JUDGE DEMPSEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 March & 2 June 2023 | |
DATE OF SENTENCE: | 2 June 2023 | |
CASE MAY BE CITED AS: | DPP v Wade | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 921 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence.
Catchwords: Common law assault, breach of family violence intervention order, theft, breach of bail. Sentencing Indication Hearing. Offender in 30’s with long history of violence against women. Paranoid personality and accompanying diagnosis. Condition exacerbated by methamphetamine use. Lengthy period of pre-sentence detention during Pandemic. Some genuine efforts in custody to connect with rehabilitative services upon release. Very guarded prosects of reform.
Legislation Cited: Crimes Act1958, Criminal Procedure Act 2009, Bail Act1977.
Cases Cited:R v De Simoni (1981) 147 CLR 383; Pasinis v The Queen [2014] VSCA 97; R v Cotham [1998] VSCA 111; Worboyes v The Queen [2021] VSCA 169; R v Verdins [2007] VSCA 102; R v McKee and Brooks [2003] VSCA 16; Bugmy v The Queen (2013) 249 CLR 571, Hogan v Hinch (2011) 243 CLR 506.
Sentence: Total effective sentence of 2 years and 4 months. Non parole period set at 18 months. PSD declared at 501 days. Section 6AAA Sentencing Act 1991 declaration – but for plea of guilty, a sentence of 4 years with a non-parole period of 3 years would have been imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms T. Stokes | Office of Public Prosecutions |
| For the Accused | Mr H. Lewis | Docherty Legal |
HIS HONOUR:
INTRODUCTION
1Troy Wade, following a Sentence Indication Hearing listed on 30 January 2023, on the 29 February 2023 you pleaded guilty to:
(a) Common law assault – maximum penalty of 5 years imprisonment;
(b) Contravention of family violence intervention order intending to cause harm or fear for safety – maximum penalty of 5 years' imprisonment;
(c) Theft – maximum penalty of 10 years' imprisonment;
(d) Commit indictable offence on bail – maximum of 30 penalty units.
2At the sentencing indication hearing, my indication was that upon a plea of guilty to those charges and based on the material available to me, I would sentence you to no more than 2 years and 4 months, with a non-parole period of 1 year 6 months.[1]
[1]Criminal Procedure Act2009 s 208.
3I heard further submissions on the plea, being today, 2 June 2023,[2] inviting me to reduce that head sentence and non-parole period. Having considered the additional materials relied on, and having heard further argument, I am not persuaded that a different sentence ought to be imposed other than the one that I indicated. That is not to say I was not assisted by the quality of the work provided to me by your Counsel, Mr Lewis. Quite the contrary. I received a high degree of assistance from him, and indeed from Ms Stokes on behalf of the director in this matter — a fact that ought be commented on in my view.
[2]Adopting written submissions of 9 May 2023 (Exhibit 10).
4My reasons for sentence follow.
OFFENDING[3]
[3]The following is derived from the Summary of Prosecution Opening 27 January 2023 (Exhibit B).
5You were born in January 1988. At the time of the offending, you were 33 years of age and resided in Coleraine.
6The victim, Catherine Hill,[4] was 44 and she had been in a relationship with you for about five months. She lived in Bendigo.
[4]A pseudonym.
7The relationship started well, but you became paranoid and thought that whenever the victim left the room, she was sleeping with someone else. The victim would go to the toilet and you thought she was sleeping with someone. She recalls going to do washing and you believed she was performing oral sex on somebody out the window.
8On 3 September 2021, a Family Violence Intervention Order was issued by the Bendigo Magistrates' Court. Ms Hill was named as the protected person, and you were the respondent. The order contained the following conditions prohibiting you from:
(a) Committing family violence against her;
(b) Intentionally damaging property of hers;
(c) Attempting to locate, or follow her or keep her under surveillance;
(d) Publishing anything on the internet, by email or other electronic communication, any material about her;
(e) Approaching or remaining within 100 metres of her residential address;
(f) Getting another person to do anything that you were not permitted to do under the order.
9On 23 August 2021, you were granted bail by the Bendigo Magistrates’ Court in relation to another matter where Ms Hill was the complainant. You were bailed to appear on 4 October 2021.
10That bail was extended to 26 October 2021 with the following conditions:[5]
(a) You live at your address in Coleraine;
(b) You do not contact or communicate with Catherine Hill in any way;
(c) You are not to attend within the city of Greater Bendigo except for the purposes of attending court hearings or by prior arranged appointment with legal representatives.
[5]Depositions, p. 46 (Exhibit 2: Extract of bail dated 4 October 2021).
Circumstances of the offending proper
11On 3 October 2021 the victim travelled from Bendigo to Coleraine to visit you.
12You were getting along well for the first few days, however you then became paranoid towards her, accusing her of having sex with other men. She was accused of having ‘someone floating around’ and that she was going out and having sex with that person at every opportunity she got. This was not true.
13In the early hours of 7 October 2021, the victim became concerned over your behaviour and she called her friend, Kimberly Young,[6] who was staying nearby with her partner, Sean Ward.[7] Kimberly came over and spoke to you and the victim, then went back to Sean’s house, taking the victim with her.
[6]A pseudonym.
[7]A pseudonym.
14The victim was in the lounge room of Sean’s house and Kimberly was laying down in the bed next to the lounge room. Ms Hill heard banging and heard Kimberly say ‘Troy, what the fuck are you doing’.
15The victim then saw you climbing through the bedroom window.
16You came into the lounge room and confronted the victim yelling ‘where is he? You think I’m a fucking fool? I’m not an idiot’. The victim told you that no one there. Kimberly and Sean were in the living room which was open plan, with a dining and kitchen area at the time and visible to you.
17You then grabbed the victim by her clothes, near her neck, and continued yelling at her. You were holding up what appeared to be a crossbow arrow. This constitutes part of the common law assault.
18She held her hands up in front of her face to protect herself and the arrow punctured the skin on her finger, again part of the common law assault. You then punched the victim in the mouth.
19The charge of contravention of family violence intervention order intending to cause harm or fear for safety of a person relates to the family violence committed by the you against the victim while at the house that I have just outlined in the preceding paragraphs.
20The victim’s phone fell out of her pocket and was in her lap. You grabbed her phone and left the house. This constitutes the charge of theft.
21Before I turn to the victim’s reaction to your offending, I stress that I sentence you for only those acts I have just referred to. I do not sentence you on the basis that what you have in fact done is committed the offence of aggravated burglary.[8] That would be a clear breach of the principal stated in R v De Simoni.[9]
[8]By entering the premises as a trespasser, knowing or being reckless that people were present, with an offensive weapon, an intent to steal, assault or commit criminal damage.
[9](1981) 147 CLR 383.
22The victim then went to stay at another friend’s house due to her concern that you would return. She later retrieved her bag from Sean’s house and Sean drove her to the train station where she caught the 6.30am bus home to Bendigo.
23She received her phone back via Sean Ward after she returned to Bendigo, and after she made her report to police, however it was locked and the passwords had been changed, and you had removed the SIM card. She could not access the phone.
Investigation
24You were interviewed by police on 19 October 2021. You made the following comments, and some of them are particularly unsavoury:[10]
[10]Record of Interview dated 19 October 2021, Depositions, pp. 134–66.
(a) That Catherine Hill was your ex-girlfriend.
(b) ‘I reckon she’d be spinning this shit because I’ve been trying to get rid of her and she just – I dunno. She doesn’t like it, you know?’
(c) ‘Well ever since she banged a AVO on, I’ve been... to get her house and got caught and got locked up for a couple of days, and then I got bail from Bendigo Court. The conditions were I was allowed to speak to her, but I wasn’t allowed to have contact and that. So I’ve been speaking to her here and there, nothing special. And I’ve finally just come to the point where I’ve gone “Fuck it, I don’t want nothing to do with her” and I haven’t spoken to her for a while’.
(d) When asked about the bail conditions he says, ‘I’m allowed to speak to her over the phone’ ... ‘I’m allowed to talk to her cause the chick judge varied it so we could talk.’
(e) He’s known the victim for 5 or 6 months.
(f) I’ve been told off people ‘she’s a nut, get rid of her’. ‘Like some people said… she’s good, she’s mad as. Then this loopy side comes in and then she just fuckin’ goes off her tree.’
(g) When asked about the theft of the phone he states ‘I don’t know nothing about it, boss, you know what I mean?’
(h) When you were shown the metal needle you said you had never seen it before, and you had only been at your dad’s house for 5 or 6 months.
(i) You stated your relationship, that is between yourself and the victim, was ‘grouse’ before the intervention order was filed, and then you said you grew apart. ‘I don’t get it, she’s not the same person I fuckin’ met, y’know.’
(j) ‘She broke it off with me probably two and a half months ago... no wait... it would have been when I got caught up in Bendigo at her house again. Then I got bail 2 days later… And I haven’t seen her since'.
(k) ‘That’s probably what she’s flipped her gear over cause every time I don’t answer the phone, she thinks I’m sleeping with someone else’.
(l) In relation to no longer having your old phone, you told police you smashed it ‘cause I got to thinking it was bugged and that, so I’m like ‘Fuck this.. ‘at one stage some cunt was hacking my phone and switching shit off in front of me.. and I’m turning it back on and this cunt’s turning it back off’.
(m) ‘cause I’ve even started thinking that she’s in town… [in Coleraine]… it just feels like there’s something hanging around all the time… I’m just getting a feeling like someone’s fucking watching all the time…’
(n) You described people coming into the front part of his house during the night, possibly squatters. The front of your house is blocked off. You hear noises in the night and check but there is no one there. You commented, ‘So I don’t know if it’s her being a smart-arse, fucking with some new bloke or fucking’ – I don’t know’.
25Police searched your house and located a metal needle approximately 36cm in length, in the enclosed wood heater in the lounge room.[11]
[11]Depositions, Exhibit 1: Photographs of McConachie Street; Exhibits 7–10: Body Worn Camera Footage; Exhibit 12: 1 x Metal Needle; Exhibit 14: Photographs of Metal Needle.
Victim impact
26I have considered the victim impact statement of Ms Hill.[12] It is concise, articulate and heartfelt. She describes the physical and psychological aftermath of your offending. She considered herself once upon a time as a strong and resilient and confident woman. She has panic attacks now and at times feels suicidal and helpless. You have made her wary of people and their motives. That is what your violence has done to her.
[12]Exhibit D: Victim Impact Statement of Catherine Hill dated 24 February 2023.
Case history
27The matter has proceeded through the criminal justice system in the following way.
28On 7 October 2021 you offended. On 19 October 2021 you were arrested, interviewed and remanded and charges were filed. On 20 October 2021 there was a filing hearing, followed by a committal mention on 28 January. On 29 March 2022 there was a committal hearing where you were committed for trial. You pleaded not guilty to all charges.
29On 27 April 2022 there was a directions hearing, followed by a further directions hearing on 13 June 2022. On 1 August 2022 the matter was adjourned. It was adjourned to a case assessment hearing on 30 August 2022. On 19 October 2022, at a directions hearing, the matter was listed as a sentencing indication before me. On 30 January 2023 I gave a sentencing indication and on 27 February you accepted that indication.
30On 29 February the indication was formally accepted by way of an arraignment and a plea of guilty. On 16 May you were due to be sentenced. That was vacated for reasons beyond your control. You fall to be sentenced today, being 2 June 2023.
Pre-sentence detention (PSD)
31You had been remanded on 19 October 2021 and accordingly you have been in custody on this matter since that date.
32That period of strict PSD for this matter was interrupted by a 90-day sentence imposed on 8 March 2022 for yet other assaults you committed against Ms Hill.
33Pre-sentence detention up to but not including today is 501 days (or around 16 months).
34In total, you have been in custody for a period of 591 days (or a period of around 19 months), which is a matter I have considered and taken account of.
MATTERS PERSONAL TO YOU
Early life and family constellation
35You are 35 years of age, born in Millicent, South Australia in January 1988.
36You have two older brothers and two younger sisters. The family moved from South Australia to Port Melbourne when you were an infant. Your parents separated when you were around 12 and you went to live with your father in Coleraine, Victoria.
37You are said to have witnessed a significant amount of physical violence between your mother and father as a child, although I note you told Mr Cummins that you never had been.[13]
[13]Exhibit 3: Report of Jeffery Cummins dated 6 December 2023 at [11].
38You have one son who is seven years old with whom you have had not had contact with for years. That son is to your ex-partner, who was the victim in a previous family violence matter for which you were sentenced to a significant term of imprisonment on 1 November 2018.
Education and employment
39You attended primary school in Port Melbourne, then moved to Coleraine with your father. When you were around six years old, you were diagnosed with a learning disability.[14]
[14]Ibid at [24] and paragraphs II – IV of the Addendum to that report. It was suspected that you had dyslexia as a child, though never received treatment or support for this.
40You are illiterate, which is has placed barriers to your education, employment and other important aspects of your life.
41You attended high school in Casterton, and left when you were about 15.
42You went to work in an abattoir with your father.
43Thereafter, you have had sporadic casual employment, primarily in abattoirs, however, this has been interrupted due to issues with mental health, drug addiction and imprisonment.
Mental health
44Given the level of suspicion and paranoia manifest in your offending (and your behaviour leading up to it), expert material in the form of psychological reports were placed before me in order to contextualise these crimes.
45Mr Jeffery Cummins opines that you suffer from Paranoid Personality Disorder and most probably suffer from Paranoid Delusional Disorder.[15] He also opines that you most probably suffer from a Borderline Personality Disorder.[16]
[15]Ibid [42].
[16]Ibid [33].
46You have apparently previously been diagnosed with delusional disorder, emotionally unstable personality disorder (borderline type) and developmental speech or language disorder.[17]
[17]Exhibit 5: Report on Accused Psychiatric History – Bendigo Health dated 17 November 2022, p. 2 (‘MHARS Report’).
47The Mental Health Advice and Response Service (MHARS) report dated 17 November 2022 provides further history regarding your mental health issues.[18]
[18]Ibid.
48You spent four months or so in custody in isolation under management due to issues with your mental health.[19] I am told that you spent two months in isolation at Melbourne Remand Centre for the same issues. You have also been subject to extensive lockdowns whilst in custody due to COVID-19.
[19]Ibid [40].
49So extensive is that isolation I am told you have not received a single communication with anybody in the outside world during your entire period in custody.
50What precise role your poor mental health plays in your offending is hard to discern. As Mr Cummins says at [21] of his report,[20] when released from prison in 2021 you effectively immediately started heavily using ice, alcohol, cannabis. You took yourself off any and all medications you were prescribed.[21] You acknowledged that you offended whilst paranoid, a state of mind you well understood to be worsened by your use of alcohol, ice and cannabis.[22]
[20]Exhibit 3: Report of Jeffery Cummins dated 6 December 2023.
[21]The nature of which are unclear.
[22]Exhibit 3: Report of Jeffery Cummins dated 6 December 2023, [27].
51You have little understanding interaction between your mental health, substance abuse and offending. Mr Cummins suggests you may need depot treatment.[23] I will return to this topic later.
[23]Ibid [46].
52During this time in the community, you were unemployed and did not have access to a motor vehicle. You did not have any support services in place, as you were found ineligible for parole and so you had served the entirety of your sentence in prison.
53Your father passed away in February 2021, while you were in custody, shortly prior to your release. During this time in the community, you understandably had difficulty dealing with the death of your father, who was the only member of your family with whom you had a close relationship and considered your only close friend.
54I am told that you are currently prescribed Avanza (antidepressant), olanzapine and methadone.
Alcohol and substance abuse
55You began using cannabis before you were even a teenager. You could not have possibly comprehended the damage that this would do to you. It is symptomatic of the way you were raised.
56Unsurprisingly, you have a history of long-term drug use commencing around by your early twenties.
57At the time of this offending, and I said, you were using methamphetamine, cannabis, heroin and alcohol which has confounded my ability to give full weight to all of the principles in Verdins.
58You have been treated with methadone whilst in custody and have been steadily reducing the dosage systematically.
Criminal history
59You have a long and relevant criminal history. You are especially violent towards women. You do not consider yourself apparently bound by restrictions on you such as intervention orders or the terms of community corrections orders.
60Your history commences in 2010, but of note, in 2012 you were sentenced to 2 years and 3 months for aggravated burglary and intentionally causing injury. A non-parole period of 8 months was set. You were then dealt with for minor damage offences and threaten Police by way of short sentences in 2014.
61In 2016, you were sentenced to a 12-month CCO for assault and breach Family Violence Safety Notice. You were also sentenced in South Australia for 5 weeks on one occasion and 45 days on another for assaulting a spouse and breaching an intervention order.
62By October 2017, you had breached that 2016 CCO. You appealed the 6 months sentence you received for persistently breaching an intervention order which was then reduced to 3 months on appeal.
63In November 2018, you received 4 years and 9 months for sexual assault, yet more persistent breaches of intervention orders, false imprisonment, recklessly causing injury and 3 counts of common assault. This was unquestionably serious offending against an intimate partner. Although a non-parole period of 3 years and 3 months was set, you served every day of your head sentence and were released into the community in the way I set out earlier.
64You were released in June 2021. By July 2021, you had commenced a relationship with Ms Hill. By August 2021, you had first offended against her. By October 2021, you had committed the present offences before me.
65It was quite properly acknowledged by your counsel that this criminal history would impact your prospects of rehabilitation and the need for specific deterrence, subject to other matters that I am about to turn to. I should from my perspective protection of the community is a matter of some concern in this process.
Supports in prison and in the community
66Given your previous isolation both in prison and in the community, I was naturally concerned about your prospects upon parole if you were granted it.
67You are currently being assisted in custody in applying for a disability support pension, which you never been in receipt of previously. You have not received assistance previously through the NDIS either.
68I was assisted by your counsel’s diligence in tracking down the following information.
(a) Email from Melanie Field-Pimm, Development Manager, VACRO dated 2 February 2023;[24] and
(b) Email chain between Gareth Commins, Gemma Hills, Aimee Ch’ng and Carrol Palmington dated 19 October 2022 - 16 February 2023.[25]
[24]Exhibit 7.
[25]Exhibit 8.
69This correspondence confirms that you have been voluntarily engaging in the ReLink program whilst in custody. You have been asking for help to deal with cognitive and mental health issues for some time and you were referred to the Prison Disability Support Initiative (PDSI) to that end. You are on a waitlist for that program and will remain on a waitlist until today, when you are sentenced.
70You have also been referred to the Mental Health Care Support Service who are able to assist with referrals to the NDIS for mental health reasons. They have advised that at present there is not currently enough information to support applying for NDIS funding In terms of support services available to you you’re your release, you may very well have the support of ReConnect, Family Visits Program and Second Chance Jobs and the like, although it is not clear that any of these supports will actually be available to you.
71A subpoena was sought from Justice Health regarding your health records,[26] which confirmed that the paranoid aspect of any disorder that you have commenced in around 2014. It confirmed that what one already suspected, that this issue of paranoia was a longstanding one.
[26]Exhibit 11.
72I repeat I am impressed and encouraged by your pro-active approach to your own reform. I sincerely hope that the Adult Parole Board can make the promise of those connections I have mentioned a moment ago real for you upon a supervised release.
MATTERS OF SENTENCING PRINCIPLE
Assault, contravene family violence intervention order, theft, breach of bail
73Your offending properly answers the description of intimate partner violence. You have a persistent history of this behaviour. I do not ignore what appeared to be a brief ‘harmonious’ period during the currency of the FVIO where the victim apparently willingly saw you and spent time with you. That cannot excuse or really even contextualise what you did to her.
74Driven by some form of jealousy (with unquestionable aspects of paranoia), you breached a Family Violence Intervention Order, with the express purpose of causing your former partner harm or fear. You did not only have that intent, you actually did harm her at the time and you caused her to be afraid. She still is. You took her phone as an afterthought, more or less seemingly to inconvenience her. That you were on bail at the time for other matters relating to her only makes this offending worse.
75Violence against women resonates deeply in our community for good reason. It is an epidemic and it is intolerable. Moreover, your victim should have enjoyed the protection of an intervention order which you ignored.
76As the Court of Appeal said in Pasinis v The Queen:[27]
General deterrence is of fundamental importance in cases of domestic violence. The victims of such violence are often so enveloped by fear that they are incapable of either escaping the violence or reporting it to the authorities. The key to protection lies in deterring the violent conduct by sending an unequivocal message to would-be perpetrators of domestic violence that if they offend, they will be sentenced to a lengthy period of imprisonment so that they are no longer in a position to inflict harm.
[27][2014] VSCA 97 at [57].
77As for interventions orders themselves, going back as far as 1998, Brooking JA stated that:
Intervention orders must be strictly adhered to, and it is very much in the interests of the community that those against whom such orders are made are under no misapprehension that the courts will punish severely those who breach such orders. The applicant's actions suggest that he believed he could breach the intervention order with impunity. Only by appropriately severe penalties can the courts make clear to the applicant and the broader community that such conduct will not be tolerated.[28]
[28]R v Cotham [1998] VSCA 111 at [14].
78These broad statements of principle are to be reflected in the sentence I impose on you.
79I am mindful that the offences to which you have pleaded could be dealt with summarily — carrying with them maximum penalties of 5 years, 10 years and 3 months. I have had regard to those maximum penalties when sentencing you.
80There is an obvious overlap between the aspects of the breach intervention to cause harm and the actual causing of harm in the form of the common law assault. To the extent that they have common aspects there will be concurrency, but there must be in my view a measure of cumulation. I have cumulated a modest amount of the sentence on the gratuitous theft charge as well. I have considered your offending to be aggravated by the fact you were on bail at the time you committed it, but I have concluded that a short, standalone sentence of imprisonment that is wholly concurrent with the other sentences, ought to be imposed for the commit offence on bail charge.
Plea of guilty
81Your plea is of a significant utilitarian value and should be considered as such.
82Whilst a committal was conducted, it was in relation to the limited matters which were in dispute. I have already alluded to the fact that there were a number and severity of the charges you were initially facing. Resolution of this matter avoids the complainant having to give evidence in relation to this matter again.
83It was put on the plea on your behalf that you accepted responsibility for your own criminality in the interview, and while to some extent that might be true, you were not always frank and at times could not help but speak of your victim in a most disparaging way, attributing some of your own motivations for your behaviour to her.
84In any event, there is especially high utilitarian benefit to the pleas entered, given the disruption to the Courts caused by COVID-19. Your counsel rightly relies upon the decision of Worboyes v the Queen[29] in furtherance of the significant utility in resolving these matters. Your plea attracts a significant and perceptible amelioration of sentence.
[29][2021] VSCA 169.
COVID-19 and hardship
85The impact of the COVID-19 pandemic mitigates your sentence. You have spent a significant portion of the pandemic in custody, and have suffered lockdowns, delays, and uncertainties due to serving your time in custody this way. Access to services and visitations were severely restricted during the time in lockdown. I have mentioned your isolation earlier, but it is worth noting that even during a diminution of services in prison, you have done your best to improve your lot both inside and potentially outside the confines of prison. It gives me a sense of optimism about you that I would not have had in 2021 for instance.
Verdins
86I accept that you suffer from the Paranoid Personality Disorder or Paranoid Delusion Disorder. I expect this erodes your ability to perceive events properly, and to reason. I can understand, given your lack of insight, why you may think you might not need medication.[30]
[30]Exhibit 9: Report of Jeffrey Cummins dated 27 June 2018, noting you don’t think you have any mental health issues, a theme repeated in the 2022 report of Cummins (Exhibit 3) at [30] with respect to medication.
87It is less clear is why you continue to consume illicit substances that you must know contribute to your paranoia — and in your case, it seems, violence. In an insightful submission, I was invited by Mr Lewis to treat this as a legacy of the way in which you were parented (or rather not parented) in circumstances where you were using drugs at an age where you could not have had any idea of the long term damage they would do to you.[31] I consider this an appropriate way to deal with this issue.
[31]See R v McKee and Brooks [2003] VSCA 16 (’McKee & Brooks’); Bugmy v The Queen (2013) 249 CLR 571 (‘Bugmy’).
88It was submitted that the first limb of Verdins[32] is enlivened in this matter. This argument is founded upon paragraph 46 of Mr Cummins’ report, which reads:
In my opinion it is very probable there was a nexus between his mental health problems, his drug use and his offending behaviour.[33]
[32]R v Verdins [2007] VSCA 102; 16 VR 240, [32] (‘Verdins’).
[33]Exhibit 3: Report of Jeffery Cummins dated 6 December 2023, [46].
89That above finding is said to establish the causal connection between the psychiatric illness and the commission of the offence, thus serving to reduce your moral culpability for the offending.
90I have made my observations already as to how difficult this argument is to accept. In my view, your moral capability can be lessened to a most modest degree to accommodate for what appears to be an underlying personality disorder, combined with aspects of sentencing authority to be found in Bugmy, McKee & Brooks.
91Regarding the third and fourth principles of Verdins, it was submitted that general deterrence should be moderated, given you suffer from a recognised psychiatric disorders.[34] For the same reason, specific deterrence should be sensibly moderated.
[34]Verdins [2007] VSCA 102 at [14]–[18].
92In my view, there is inevitably some nexus between your mental health, drug use and offending. You have been diagnosed with a myriad of psychiatric disorders in the past — most of which relate to the notion of clinically significant paranoia.
93There is a realistic view to take in this matter which is that the paranoia and whatever behavioural issues you display are partially attributable to your use of drugs, namely, Cannabis, Methamphetamine and Heroin. I acknowledge that you have had severe paranoid thoughts, but I cannot conclude with any real certainty whether they were the result of the paranoid personality disorder, or drugs or both.
94I am prepared to moderate the principles of general and specific deterrence very slightly as it hard to ignore the fact that you, presenting the way you do with a mental illness, are not truly representative of the community and in the end I accept the illness most likely shapes your view of the world and your interaction with it. That includes your drug use.
95Jeffrey Cummins regards the fifth and sixth principles of Verdins and their relevance to this matter — see report of Mr Cummins of 30 January 2023.[35] I accept that this is so.
[35]Exhibit 4.
Prospects for reform
96Your prospects are clouded and guarded at best. Mr Cummins notes that you present as a high to moderate risk of re-offending. In his view it is imperative you be directed to a Violence Intensive Program. He also stresses the potential benefits of having you on a community treatment order if possible, given your lack of true insight into your poor mental health and other behavioural issues. You obviously need to remain sober.
Totality
97I am mindful of the significance in this case of the application of the principle which requires me, when sentencing you for multiple offences, to ensure the total term I impose is a just and appropriate measure of the total criminality involved. There must be appropriate relativity between the totality of all the criminality and the totality of the effective sentence I impose. This is true when I consider the interaction between the charges on the indictment. I have determined an appropriate length of imprisonment for each charge, taking the applicable sentencing considerations into account and designated the highest term as the base sentence, and then I have determined the extent to which there should be any cumulation regarding each count, and finally stood back and considered in light of totality what an appropriate sentence ought to be.
Parsimony and parole
98In fixing an appropriate head sentence and allowing for a parole eligibility component, I have had regard to the principle of parsimony — that is, the requirement not to impose a sentence which is more severe than that which is necessary to achieve the purposes for which the sentence is imposed.
99The purpose of parole is to provide for mitigation of punishment in favour of rehabilitation, through conditional release when appropriate. A non-parole period is the minimum time that I determine justice requires you must serve, having regard to all of the circumstances.
100I have attempted, Mr Wade, to give you a meaningful parole period. Accordingly, the non-parole period — that is, the period of imprisonment to be served before which you become eligible for parole — will appropriately take into account the mitigatory factors in this case, and to facilitate your eventual reintegration into the community. As I said, I have some cautious optimism that this may be achievable given the efforts of those assisting you in the prison system thus far.
101As observed by French CJ in Hogan v Hinch,[36] ‘Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest.’
[36]Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 at [32].
SENTENCE
102Your Counsel conceded (as he must) a term of imprisonment (with a non-parole period) is the only sentence available to me, tempered of course by the matters I have just mentioned.
103I sentence you as follows:
104On Charge 1, assault, 20 months' imprisonment. That is the base sentence. Charge 2, breach family violence intervention order, 18 months' imprisonment. Charge 3, theft, four months' imprisonment. Related summary offence, commit offence on bail, two months' imprisonment.
105Seven months on Charge 1 and one month on Charge 3 will be served cumulatively upon the 20-month sentence which is the base. That brings about a total effective sentence of two years and four months, that is to say 28 months' imprisonment. I set a non-parole period of one year and six months, that is18 months' imprisonment.
106I declare 501 days as having already been served in satisfaction of this sentence. That declaration will be noted in the records of the Court pursuant to s 18.
107Mr Wade, pursuant to s 6AAA of the Sentencing Act 1991, but for your plea of guilty, I would have sentenced you to a term of imprisonment of 4 years with a non‑parole period of 3 years.
108I grant the Disposal Order for the metal needle, Exhibit 12, as sought by the Director. Are there any further matters?
109MS STOKES: No, Your Honour.
110MR LEWIS: No, Your Honour.
111HIS HONOUR: Mr Lewis, do you need a few moments, because we can leave the link open for you to discuss the result with your client?
112MR LEWIS: I would appreciate that, Your Honour.
113HIS HONOUR: I will ask my associates to facilitate that. Thanks for your assistance, both counsel, and thanks for making yourself available on a busy Friday afternoon, but subject to leaving the link open for Mr Wade and Mr Lewis, adjourn the court.
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