Director of Public Prosecutions v Walker
[2021] VCC 1041
•28 July 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 20-00917
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SAM WALKER |
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JUDGE: | HIS HONOUR JUDGE JOHNS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 July 2021 |
DATE OF SENTENCE: | 28 July 2021 |
CASE MAY BE CITED AS: | DPP v Walker |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1041 |
REASONS FOR SENTENCE
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Subject: Criminal Law Sentence
Catchwords: Recklessly cause serious injury – Theft – Assault with boxcutter – Schizophrenia exacerbated by drug use.
Legislation Cited: Mental Health Act 2014 (Vic).
Cases Cited: R v Verdins [2007] 16 VR 269; Marks v The Queen [2019] VSCA 253.
Sentence: 18 months imprisonment and a three-year Community Corrections Order.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms D. Caruso | Director of Public Prosecutions |
For the Accused | Ms R. Avis | Gallant Law |
HIS HONOUR:
1.Sam Walker, you have pleaded guilty to one charge of recklessly causing serious injury which carries a maximum penalty of 15 years imprisonment and one charge of theft which carries a maximum penalty of 10 years imprisonment. You have also pleaded guilty to two relevant summary charges, each of committing an indictable offence whilst on bail and each having a three-month maximum penalty.
2.You have admitted a criminal record which has two previous appearances substantially for shop steals, possess cannabis, bail offences and it is a record that is of little relevance to my sentencing exercise.
Circumstances of Offending
3.The facts of the matter before me are summarised in Exhibit A which is the Summary of Prosecution Opening for Plea and which forms part of these reasons for sentence. In March last year, your victim and a friend of his were at the Werribee train station and sat down on a park bench. Not long after he sat down, he and his friend noticed you walking around asking for drugs and swearing. You and your victim were completely unknown to each other prior to your offending
4.A male named Ahmed came and sat with the group. The victim gave him a cigarette. You then took Ahmed's place and sat down on the bench. Your victim noticed that you were changing between speaking normally and speaking in gibberish and not making any sense. You stood up at one point kicking the chair and saying things like, 'Fucking dog', and, 'I'll get you', whilst staring at the chair. The victim told you to settle down as you were creating a scene. You walked off. You then approached an off-duty security guard and had a strange interaction with him asking him to come around the corner to get some guys who had a go at you. Apparently, you had taken offence to being told to settle down.
5.You were observed by the security guard to be acting erratically and he asked you if you needed help. You then returned towards the park bench and stood about 50 metres from the victim. You then walked to Watton Street and entered a gifts and smokes store; you yelled, 'Where are the fucking knives?'. Customers were scared and left. You grabbed a box cutter, took it out of the packaging and left without paying. That is the subject of Charge 2.
6.You walked back towards the area of the victim. You were playing with the box cutter. You then returned to where the victim and witnesses were. You said, 'I'm gonna fuckin stab you, dog'. You ran towards the victim. You had the blade extended as you ran. The victim stood up and tried to use his bag to keep you at bay. The victim's friends yelled out, 'Knife', and, 'Watch out'. You swung the box cutter at your victim slicing through his right bicep and this created a long and very deep gash.
7.Your victim was a 37-year-old male; you were 26 at the time of the offending. He was bleeding very heavily. Members of the public came to his aid. Police and an ambulance were called and he was taken by ambulance to hospital. Paramedics had to apply a tourniquet during the journey to avoid further catastrophic blood loss.
8.You went to a Cash Converters where you placed the box cutter on the counter inside the store, took off your jumper and placed it on the floor and then left.
9.Your victim was treated at Royal Melbourne Hospital. He had a very deep and open wound. Dr Parkin from the Victorian Institute of Forensic Medicine has provided a report which was tendered and which I have read. The opinion of Dr Parkin can be summarised as follows:
a.Your victim received a life-threatening incised wound on his upper right arm.
b.He had lost at least 1 litre of blood on arrival at the hospital.
c.He received two units of packed red blood cells to compensate for the blood loss. A tourniquet was applied by paramedics. That was necessary because the blood loss could not be stemmed by the application of direct pressure.
10.Your victim required two surgeries to repair the incision. The surgeries involved repair to the brachial artery which had been completely severed. The brachial artery is a major supply of blood to the upper limb. If the brachial artery blood loss is not repaired, it will lead to unconsciousness and then loss of life.
11.The box cutter also caused a transection of the median and ulnar nerves. These nerves are required for innovating muscles on the anterior forearm and for sensation in the skin of the hand.
12.Due to the application of the tourniquet to stop the blood, there was a risk of tissue death. A fasciotomy of the lower hand was performed to reduce the effects of compartment syndrome due to the tourniquet application. It was expected that it would take many months to recover with a risk of not returning to pre-injury function. Further risk is that due to loss of sensation, there would be a greater risk of burns.
13.In follow up reports on 20 May 2020, your victim reported that his hand felt very numb to Royal Melbourne Hospital medics. In October 2020, he burned his hand and experienced an abnormal sensation. In November 2020, he reported that his fingers have become stiff. The hospital notes indicated he might need tendon transfer in the future.
14.This serious injury qualifies as a serious injury on the basis that it was both life threatening and substantial and protracted.
15.A victim impact statement was tendered. In brief, your victim stated that his future seems dark. He hopes that he gets use of his hand back but he is almost convinced he will not. Twelve months after the assault, he has minimal use. There has been no improvement in function despite at least three to four hours spent on daily self-administered physiotherapy. He said he feels hopeless and helpless. He is being assisted by a public health hand specialist at the Royal Melbourne Hospital. His employment has been sporadic due to the COVID disruptions.
16.He is contemplating a robotic limb as an option in the future if funds are made available to him. He feels hopeless about talking about the injury, frustrated, depressed and angry. He has lost sleep and suffers insomnia. He is not the same person as he was prior to your attack. He feels the loss of movement of his right hand very deeply and fears for his future understandably. I take those impacts into account.
17.I also take into account the fact that you committed this very serious offence whilst on bail.
18.It is apparent from the summaries of the offending, the injuries and the victim impact statement that your offending is extremely serious. The injuries to your victim fall into a very serious category.
19.It is of considerable concern from a sentencing perspective that you have limited insight into your psychiatric infirmities and the need for rigid treatment.
20.You have a limited capacity, it would seem, to address your polysubstance abuse without curial intervention. The various reports before me indicate you have little remorse for your offending, which I accept arises in part due to your psychological makeup. These concerns have been central to the discussion on your plea. They are central to considerations of your prospects of rehabilitation, the protection of the community, your moral culpability and factors of general deterrence and specific deterrence.
Personal Circumstances
21.Turning to some matters personal to you. As I have stated, you were 26 at the time of the offence. You are now almost 28. You are one of four children. You do not have any children of your own. Your parents separated when you were about five years of age and you remain with your mother. Your father was an alcoholic who you did not have contact with after separation until you were around 13 years of age. Your mother re-partnered around this time.
22.You attended Eltham Park Secondary School to Year 10. You left in the context of behavioural issues. You have a limited employment history due to your longstanding mental health and, what I consider to be, associated drug issues. You have been on a disability support pension since you were 18 years of age when you were first diagnosed with a schizoaffective disorder. You have engaged in some work, tiling with your brother, but essentially have not had meaningful employment.
23.You have been in custody since being apprehended in relation to this matter. Whilst in custody, your eldest brother died as a result of suicide in March 2021 and that is something that has had a significant impact upon you. The materials indicate that you have also had a cousin who died in that manner.
24.Your counsel, on your behalf, in helpful written submissions and oral submissions, placed emphasis quite rightly on the psychiatric material which was before me in the form of three reports, two relied upon by your counsel. They are the reports of Dr Zimmerman; dated 4 July 2020, and a 16 July 2020 supplementary report. There was also a report of Dr McInerney which was before me which was essentially prepared in relation to mental impairment defence matters but was nonetheless helpful in addressing relevant matters before me.
25.Ms Avis on your behalf summarised Dr Zimmerman's conclusions which were that you met the criteria for past dependence on cannabis and methylamphetamine and are currently in remission in the context of incarceration. You suffer from schizophrenia aggravated by poor community compliance with medication and substance misuse.
26.You were psychotic at the time of the alleged offending due to a return of your schizophrenia in the context of non-adherence to treatment and heavy ice abuse. Your schizophrenia contributed to your offending. You suffer lifelong relapsing and remitting illness of schizophrenia.
27.At the time of the offending, you were unmedicated and you were unfit for interview and psychotic on admission to prison. You were acutely psychotic at the time of the offending. You were using drugs at the time of the offending and you have a history of drugs precipitating and aggravating your psychotic episodes.
28.The use of drugs will have contributed to your disinhibition and inability to think through the consequences of your actions. Symptoms of your illness will also have had a direct impact on your mental functioning at the time of the offending. The symptoms of your illness are likely to have impaired your ability to think rationally and calmly about your behaviour and to make appropriate judgments about your behaviour.
29.You have a history of being disinhibited and aggressive when unwell and this is likely to have made it difficult for you to control impulses at the time. I pause there to observe that your limited history does not reflect episodes of criminal offending in that context.
30.Ms Avis submitted that Limbs 1 to 4 of the Verdins[1] principles were enlivened due to the findings of Dr Zimmerman and further that hardship in custody, principally because of your vulnerability due a tendency to interpret behaviour of others in a paranoid manner and perhaps becoming aggressive at such times is a factor that could lead to additional difficulties in a custodial setting.
[1]R v Verdins [2007] 16 VR 269.
31.Ms Avis also relied on your remand experience during the COVID pandemic, your plea of guilty, and submissions were made in relation to a combination sentence focusing upon the time you have spent on remand, but further the ability under a community corrections order to address your mental health and polysubstance abuse issues.
32.The central issue of discussion on the plea was around what I have touched upon- the issue of your non-compliance with medication and limited insight in that regard, but also your experiences of disinhibited behaviour whilst unmedicated and whilst ingesting drugs in the past, as a matter that impacts on the availability of Verdins-type mitigation.
33.Ms Caruso on behalf of the Prosecution accepted that no doubt you were in a compromised state at the time of the offending and had a long psychiatric history, but stressed that it was important to have regard to the fact that you were non-compliant with medication. You had self-ceased your medication as soon as your previous Therapeutic Treatment Order was revoked.
34.It is also apparent that you were significantly drug affected at the time, Ms Caruso submitted. You had taken a significant quantity of drugs leading up to the offending and you had a history of drugs precipitating and aggravating psychotic episodes, according to the report of Dr Zimmerman.
35.Ms Caruso submitted quite rightly that it is difficult to disentangle the impact of drug use, psychosis and the particular circumstances at hand -referring to your conduct in obtaining a knife and making the threats that you did.
36.Ms Caruso referred to the case of Marks v The Queen [2019] VSCA 253, particularly paragraphs 59 to 69 as follows:
'The critical question in judging whether an offender's own actions prevent a mental condition from constituting a mitigating circumstance involves considering "what the probable consequences of the ingestion of the particular drug by the particular offender were, and whether the offender foresaw those consequences." The onus fell on the applicant to establish that his mental condition constituted a mitigating factor.'[2]
[2]Marks v The Queen [2019] VSCA 253, [62].
37.Further, Ms Caruso referred to Marks as authority for the proposition that I must consider the degree to which an offender such as you would be aware of the consequences of taking methylamphetamine, again referring to Marks:
'In the circumstances of this case the applicant's moral culpability should be regarded as reduced despite the fact that his psychosis was triggered by the consumption of an illicit drug.'[3]
[3] Ibid, [66].
38.The reasoning being in Marks that it was not known to the applicant in that case of the effect of methylamphetamine on his mental condition and the likely consequence of psychosis.
39.Ultimately, Ms Caruso submitted that general deterrence is a significant factor in this case, it is significant for offenders who ingest drugs and severely injure members of the public. She highlighted the serious life-threatening nature of the injury but conceded that it was open to the Court to moderate general deterrence to some degree having regard to your longstanding and enduring schizophrenia and that that factor also bears on the issue of specific deterrence.
40.I had you assessed for a Community Corrections Order and there was also a Forensicare Mental Health Advice and Response Service report provided which summarises some of the important aspects of your mental health history ,including; that you have had 13 inpatient admissions, the last being 25 November 2019 until 17 December 2019 with Bendigo Hospital. You have been subjected to compulsory assessment and treatment under the Mental Health Act numerous times, the last being a temporary treatment order in place from 27 November until 17 December 2019.
41.You have a diagnosis of mental behavioural disorders due to the use of cannabinoids, residual and late onset psychotic disorder, paranoid schizophrenia and induced delusional disorder. These matters were confirmed in the reports before me.
42.You have been on a fortnightly depot injection and you appear to have limited insight regarding your substance use and mental health needs. The community corrections assessment report noted that these matters of insight could be addressed pursuant to a Community Corrections Order.
43.In summary, the Mental Health Advice and Response Service report stated you have a diagnosis of schizophrenia complicated by polysubstance abuse. The Community Corrections Order assessment report noted your limited insight and minimal remorse and, as I have stated, indicated that these attitudes could be challenged and appropriately explored during supervision sessions on a Community Corrections Order.
44.You are assessed as high risk of general reoffending but otherwise suitable for a Community Corrections Order.
45.I have determined that your subjective culpability for this offending is moderated to some degree, not a significant degree, but to some degree, due to the role your schizophrenic-type illness has played in first, your trajectory from a young adult to the offender in this serious way, and more particularly in relation to the psychotic episode that underpins the offending. It is clear from the objective facts that your thinking and perception and interpretation of events was disturbed to a significant degree.
46.It is difficult to disentangle the role of drug ingestion, the circumstances that you were presented with and your mental illness, and I have considered the principles, such as they are, that arise from the case of Marks. Your limited history operates in your favour in relation to that balancing exercise. If you had a history of violence during periods of drug use whilst unmedicated, that balance would be markedly different in this case.
47.In particular, I consider that your unchallenged mental health issues and challenges and your polysubstance abuse issues which seems to be related, it is difficult to separate these issues in a case such as yours. They are factors which can be better addressed, in my view, on a Community Corrections Order rather than on a period of parole.
48.Whilst a head sentence with a non-parole period can address general deterrence, in particular I have determined that the factor of general deterrence slightly moderated together with other sentencing considerations, community denunciation and specific deterrence can be met in this case by a combination sentence.
49.I have taken into account in that analysis, not just your mental health history and its role in your offending but your plea of guilty and your experience of custody during the COVID pandemic.
Sentence
50.I sentence you, Mr Walker, as follows; you can remain seated.
51.On Charge 1, you are sentenced to a period of 18 months imprisonment together with a three-year Community Corrections Order.
52.On Charge 2, you are sentenced to a two-month period of imprisonment that is wholly concurrent with the sentence imposed on Charge 1.
53.For the related summary offences of committing an indictable offence whilst on bail, two weeks on Charge 6 and two weeks on Charge 7, both concurrent with each other and concurrent on the sentence the subject of the indictment.
54.I declare that you have served 495 days. Is it 495?
55.COUNSEL: Yes, Your Honour.
56.HIS HONOUR: 495 days as pre-sentence detention in relation to the gaol component of this sentence.
57.Pursuant to s6AAA, were it not for your pleas of guilty, I would have sentenced you to a total effective sentence of 4 and a half years imprisonment with a non-parole period of 2 and a half years.
58.I make the disposal order that is sought.
59.Are there any other orders that are required?
60.MS CARUSO: No, Your Honour.
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