Director of Public Prosecutions v Walsh
[2024] VCC 1011
•28 June 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR 23-01149
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEVEN WALSH |
---
JUDGE: | HIS HONOUR JUDGE JOHNS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 May 2024, 28 June 2024 | |
DATE OF SENTENCE: | 28 June 2024 | |
CASE MAY BE CITED AS: | DPP v Walsh | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1011 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW – Sentence
Catchwords: Aggravated burglary – Assault with intent to commit a sexual offence – False imprisonment – Sexual Assault – Common assault – Plea of guilty – Mental impairment – Schizoaffective disorder and substance use disorder
Legislation Cited: Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Sentence:Total effective sentence of three and a half years’ imprisonment with a non-parole period of 22 months.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr Z. Petric | Office of Public Prosecutions |
| For the Accused | Mr J. Lavery | Rolfe Criminal Law |
HIS HONOUR:
1 Steven Walsh, you have pleaded guilty before me to charges of aggravated burglary, assault with intent to commit a sexual offence and false imprisonment, sexual assault and common assault.
2 The maximum penalties for each of these offences reflects the seriousness with which the community and parliament view the offending. Aggravated burglary has a maximum of 25 years imprisonment. Assault with intent to commit sexual assault has a maximum of 15 years imprisonment, sexual assault 10 years imprisonment, false imprisonment 10 years imprisonment, common assault five years imprisonment.
Procedural History and Fitness to be Tried
3 You have a very limited criminal history. You pleaded guilty after a sentencing indication hearing. That hearing came about in unusual circumstances. You were before me for a fitness to plead hearing.
4 I had two expert reports before me at that hearing, a clinical neuropsychological report dated 13 October 2023 from Evelyn Chen. That report went into great detail about your past diagnoses and had access to background information and previous reports and discharge notices which set out your unfortunately long history of mental illness and treatments.
5 Dr Chen noted that active diagnoses in 2023 were schizoaffective disorder, mental and behavioural disorder due to multiple drug use and use of other psychoactive substances. Previous diagnoses and conditions have included schizoaffective disorder manic type, disturbance of activity and attention, schizoaffective disorder mixed type, acute and transient psychotic disorder, schizophrenia, mental and behavioural disorder due to drug use, hyperkinetic disorder, paranoid schizophrenia, undifferentiated schizophrenia mainly without psychotic symptoms and other non-organic psychosis.
6 Dr Chen tested you thoroughly from a neuropsychological point of view and assessed criteria under the Crimes (Mental Impairment and Fitness to be Tried) Act, the criteria for fitness to stand trial and concluded - and this is reading from the penultimate paragraph:
‘In my opinion, at the time of this assessment, as a consequence of his fluctuating attention, disordered thoughts, disorganised speech, impaired new learning, and verbal memory, he is unable to understand the nature of the trial, or follow the course of the trial, unable to understand the evidence which may be given in support of the prosecution, and unable to provide meaningful instructions to his legal practitioner.’
7 What followed from that was the prosecution then obtained a psychiatric assessment in relation to fitness from Dr Batten. I am referring to the report dated 29 January 2024, where again your history was set out in detail and Dr Batten formed the view, assessed against the criteria, that you are fit to be tried. I am referring to paragraphs [70] – [73] of that report which I won’t read out today.
8 I had also had access at that stage to the Forensicare discharge summary and the Bendigo Health summary, documents which I won’t refer to at length but also provided very helpful background into history of diagnoses, in particular the Bendigo health documents about your history of admissions into acute psychiatric in patient units in Victoria over the course of 2021 – 2023 and went into detail about your placement in 2023 under a Secure Treatment Order. That report also set out the diagnoses which mirror sufficiently what I have read out from Dr Chen.
9 The Forensicare Discharge Summary – Secondary Mental Health is also a useful document in arriving at the conclusion that whilst you are fit to be tried you are very unwell. It was set down for a fitness hearing however on that day there was consensus that you were fit. Submissions were made that you were fit and I accepted that position for reasons stated at the time. I have gone into that history to make the point that not withstanding that finding you were and still are very unwell.
10 There is no doubt that you were very unwell at the time of the commission of the offences before me, and that history supports that finding. You were unfit to be interviewed. You ended up being in Thomas Embling under a secure treatment order.
11 At the sentence indication hearing your mother was present in support, and later gave evidence when the matter proceeded to a plea. Mr Luke White was also present and he was the author of letters outlining supports available to you under the NDIS scheme which included very well supported housing opportunity, which together with other available supports such as Area Mental Health Service support and broader NDIS support that could help getting you to appointments and so on and so forth.
12 There was a plan on your release to be treated. The central issue in this case has been how best to treat your illness while still satisfying the other sentencing factors that I must. Before I get into further analysis of that I will refer to the facts underpinning the offences to which you have pleaded guilty.
Circumstances of Offending
13 Exhibit A was a detailed summary of those facts. I will not descend into the same detail. That document forms part of these Reasons for Sand I sentence you on those detailed facts. But in briefer terms, the charges relate to three separate incidents.
First incident – Charges 1-3
14 The first incident is the most grave and is a particularly grave series of offences. You attended at a property of a woman unknown to you who was there alone. You were trying the front door, knocking on the front door. She could see you through the peep hole. You were trying to open the door. It sounded to her like you were trying with a key.
15 She opened the door and said, 'What do you want?' You immediately gained entry to the house. Grabbed her by the face over her mouth and pushed her back into the house, throwing her on the floor and shut the door behind you. She was trying to scream but you pressed your palm into her face and over her mouth. A struggle occurred, the two of you on the floor.
16 You threw her phone away so she could not seek help. You forced her onto the bed, placed your body on top of her and placed your hand over her mouth. You were stating to her that you wanted her to be your mother, to kiss her and to ‘lick her pussy.’ You kissed her to the mouth and left cheek. She resisted but could not get you off her.
17 You removed her grey leggings. You repeated making those statements that I have set out. You also stated that you wanted to ‘fuck her’. You were removing your clothing during the assault. She was trying to placate you, pleading with you, saying, 'Whatever you want I'll give it to you but please do not hurt me'.
18 You were distracted. You kept her imprisoned, closing the door and preventing her from leaving the bedroom. She stated she needed water. You kept her in the room against her will. She did not know what to do. After a few minutes she was able to get out of the room and into the bathroom. You realised she was hiding. You were yelling, 'Where are you?' She managed to run out the front door and across the street and alerted a neighbour. It is a very serious incident. That incident occurred on the 22nd of November 2022.
Second incident – Charge 5
19 A couple of weeks later on the 6th of December 2022 you were at Sunshine Square in Sunshine North. You entered a store. You approached an employee in that store and stated that she owed you money. You committed a sexual assault on her a short time later – sorry, on a second complainant a short time later and she put her hand out to stop you. You grabbed her arm, rubbed her arm and hands, touched down her body and breasts.
Third incident – Charge 4
20 On the same day you attended at another address. This was at the Neighbourhood House. You were found outside the building of the Neighbourhood House, sleeping under a white hospital blanket, resting your head on a skateboard. You appeared dishevelled. You had your shoes next to you.
21 You were offered assistance with crisis accommodation and invited up to the community centre for coffee. You went upstairs to the community centre. You were in the public area. The Salvation Army was contacted. A team leader arrived and had a conversation with the complainant in this matter who had been the person helping you.
22 You were told by the complainant that you could not sleep on the couch. You apologised and said you would move out of the way. She went back to the office to print some information. Whilst she was in the office she could feel you in close proximity and noticed you were right behind her looking over her shoulder. She told you to leave the office and pointed outside.
23 You then grabbed her around the waist with both hands from behind. She was surprised and said you cannot touch me and walked out of the office. That is the common assault which was a frightening experience for her.
24 I received a victim impact statement from a victim of the sexual assault and I take those impacts into account. I was also advised by the prosecution of the impacts reported from the victim in relation to the aggravated burglary and associated offences which I also take into account.
Gravity of Offending
25 Objectively, these are very serious offences as I said, particularly the offence that occurred in the person's home and the extent to which you infringed her rights and her personal safety and personal integrity, objectively very serious.
26 Central to my sentence indication however and central to today's sentence is my satisfaction that you were mentally impaired to a significant degree at the time of the offending. Your mental impairment is connected to the offending. I am satisfied of that and this is not disputed by the prosecution. I refer to the outlines that have been filed in this matter.
27 There is no doubt your moral culpability for the offending was substantially reduced due to the connection between your mental impairment and your offending. Whilst this fact operates to moderate substantially general deterrence and denunciation, the issue of community protection is a significant concern unless the court has confidence your illness can be managed adequately in the community.
Personal Circumstances
28 At you plea hearing I was told you are now 31 years of age and you were leading a very positive and productive life in the community prior to the onset of mental illness at around the age of 18. And I heard from your mother at the plea and I accept what your mother said about that trajectory. A very difficult circumstance for not just you but family members to deal with that unmanaged mental illness that you have been battling for many years now.
29 Your mother explained how troubling and traumatic the descent into mental illness and difficulties in your life was to observe as a parent. Your parents had helped you as much as they could over the years. They live in Charlton. You have two siblings, a brother who is married and lives in Bendigo and a sister who also lives in Bendigo who has two children.
30 You were industrious when you were younger and you completed Year 12 with good results. You worked jobs as a teenager but as I have said, around 18 things changed dramatically. There was drug related psychosis but it now seems clear there was underlying mental health issues described as schizoaffective disorder that had been difficult to manage from a therapeutic point of view.
31 Your family did their best to support you. They purchased homes for you over the years and you had a period of stability from 2020 up until May 2021. You were living with your mother up until May 2021. She told me that you were working at school doing cleaning jobs. Then you were not taking medication. You had a problem accepting your diagnosis. A problem with insight, a problem with accepting the need for medication. You started having hallucinations. Your mother described the drawings that you were doing were terrible.
32 Your mother also told me about your relationship with your daughter and that when you are well, when you are treated l that is a good relationship and your former partner and the mother of your 12 year old daughter are supportive of that continuing when you are well.
33 Your mother was very concerned when you became very unwell and it is in the reports and also told to me during the plea that there are reports of you having cut feet and being homeless, walking the streets without shoes. You were in a very dishevelled state when you were apprehended for this matter.
34 That history and the histories provided from the point of your arrest provide very strong support for my finding that your mental illness has a direct connection with the offending in this matter.
Impact of Mental Health
35 The experience of your mental illness and the difficulties in treating it also have an impact on your experience of custody and I am satisfied that custody is far harsher for you due to mental illness and its affects upon you, far harsher than it would be for someone not afflicted with illness of the type that you have.
36 I also heard during the plea from Mr White about the plan to provide stability for you upon release, which not always directly but really at its heart has to deal with managing your mental health with support services providing a stability around you with sufficient support so you can access your mental health services and that to some extent that management is supervised.
37 There is very useful and important supported housing that is available for you that provides a high level of support and I have mentioned the NDIS support and the Area Mental Health Service. Those three aspects are essentially the pillars of the wrap around support that is envisaged for you upon release.
38 I was concerned at the plea whether release upon a CCO would first of all satisfy the residual general deterrence and denunciation requirements and also provide sufficient support regarding your serious illness and therefore help ensure community protection.
39 I had concerns about insight into the offending and treatment, where you were up to with treatment of your mental illness whilst in custody, so I ordered a Forensicare report which we have received, dated 24 June 2024, the report authored by Dr Thimmareddy from Forensicare.
40 The report reveals that you are still quite unwell. It also reveals that you continue to be resistant to discussing the offending and Mr Davis made some submissions about that at the plea which I understand and accept that that in part is reflective of the circumstance that often presents itself in cases like this when someone offends when they are very unwell psychiatrically.
41 There are often difficulties in first discussing the matter and second, showing appropriate insight and empathy due to the fact that the offences were committed at the time of being very unwell. The report noted that you were resistant at several points.
42 I think we have lost Mr Walsh, have we? Does that mean – he dropped off the link. All right. We will just see if we can rejoin.
43 I might just have to stand down for a few minutes. We will need him here. I have probably only got about 10 minutes to go.
(Short adjournment.)
44 ACCUSED: That was a waste of time, sorry for wasting your time.
45 HIS HONOUR: That's all right. Now - - -
46 ACCUSED: Should have called back quicker but there was no – there was no hurry about yeah.
47
HIS HONOUR: Mr Wash, I will be about five more minutes. All right. Now, I was referring to the recent Forensicare report I got from Dr Thimmareddy, dated
24 June and again that has a helpful summary of a history at paragraph [25]:
'[R]ecords indicated that [you] had been known to mental health services in Victoria since 2011 when [you] were first admitted to a psychiatric hospital at Bendigo. Since then, [you] had been admitted to acute psychiatric inpatient units in Victoria, a total of 33 times. The most recent compulsory admission was under a Secure Treatment Order in February 2023 to Thomas Embling Hospital for approximately seven weeks'.
48 You had also been subject to multiple Community Treatment Orders. And again, the diagnosis – current diagnosis, schizoaffective disorder and substance abuse disorder based on those records.
49 There was concern from Dr Thimmareddy in examining you that you were resistant to discussing your medical record. And it was also noted that you had a disorganised thought process and expressed paranoia by asking if the interview was being telecast live and if it was being monitored using a computer program from China. You even doubted if the interview was being done by a human being. It was noted that you asked, 'Are you human?... Are you a computer? How do I know you exist? Are we live?... What is the program you were using from China?'
50 At [47] and [48] the Report sets out the difficulties with insight and difficulties in discussing insight. The dangers of relapse are also set out at paragraph [50]. At [51] Dr Thimmareddy wrote:
'During the assessment, Mr Walsh exhibited symptoms of active psychosis which included paranoid, persecutory and grandiose delusions, irritability, suspiciousness, and thought disorder consistent with the diagnosis of schizophrenia according to the [DSM-5]. His illness has been complicated by poor insight, mistrust of mental health services, substance use, and social instability including homelessness'.
51 The treatment you had been receiving with long acting antipsychotics is referred to by Dr Thimmareddy and Dr Thimmareddy also offered opinion at paragraph 54 in relation to the connection between mental illness and the offending which supports my finding.
52 At paragraph [55], Dr Thimmareddy noted:
'In the event of a custodial disposition, Mr Walsh should have ongoing monitoring of his mental health provided by prison mental health services. Following the assessment on 4 June 2024, I alerted his treating team that he appeared mentally unwell and required psychiatric review'.
53 At [57], Dr Thimmareddy noted, 'the high risk of psychotic relapse upon discontinuing medication and/or using substances'.
54 As I said, the report reveals that you are still quite unwell and that there are some problems with insight and some resistance. The report leads me amongst other things, to the conclusion that compliance with a CCO at this time would be problematic.
55 Notwithstanding the support available to you upon immediate release on a CCO, I have concluded the more appropriate sentence, given the disparate considerations I must synthesize is a head sentence and non-parole period.
56 I state in these reasons and of course all these reports will be provided to corrections that every effort needs to be made in your case to treat your psychiatric condition in custody at Thomas Embling if that is the best place and to support your release on parole from a therapeutic point of view. Because I have accepted what has been put on the plea that treatment of the illness will be better in the community.
57 But at this point of time for the reasons I have set out from a sentencing perspective there are reasons why I am imposing a head sentence with a non-parole period that would provide a lengthy opportunity on parole with the support of parole for you to be treated in the community and I sentence you as follows.
Sentence
58 Mr Walsh, on the sentence of aggravated burglary, Charge 1, you are sentenced to two and a half years imprisonment.
59 On the sentence of false imprisonment 18 months imprisonment.
60 On the offence of assault with intent to commit sexual offence three years imprisonment.
61 On the offence of common assault two months imprisonment.
62 On the offence of sexual assault four months imprisonment.
63 The base sentence is the sentence on Charge 3, assault with intent to commit a sexual offence.
64 Three months of the sentence imposed on Charge 1 will be served cumulatively on that base sentence and other offences.
65 On month of the sentence imposed on Charge 2 will be served cumulatively on the base sentence and other offences.
66 And two months of the sentence imposed on Charge 5 will be served cumulatively on base sentence and other sentences.
67 That makes a total effective sentence of three and a half years imprisonment.
68 I have set a non-parole period of 22 months.
69 I know at the sentencing indication I discussed an earlier non-parole period. As indicated at the plea the sentence indication attaches to the head sentence and for the reasons I have stated and in particular the Forensicare report I have received and the concerns that there needs to be more efforts put into your treatment whilst in custody, I have determined that the non-parole period should be 22 months.
70 Pre-sentence detention - I declare you have served 569 days of the sentence and I declare that as pre-sentence detention.
71 Pursuant to s6AAA were it not for your pleas of guilty I would have sentenced you to a total effective sentence of six years imprisonment with a non-parole period of four years.
72 Now, are there any other orders that were sought?
73 MR PETRIC: No ancillary orders, Your Honour.
74 HIS HONOUR: No. All right. Yes. We will adjourn the court.
- - -
2
0
0