Director of Public Prosecutions v Walsh

[2022] VCC 1755

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-01405

DIRECTOR OF PUBLIC PROSECUTIONS

v

JACK WALSH

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JUDGE:	Cahill
WHERE HELD:	Melbourne
DATE OF HEARING:	19 October 2022
DATE OF SENTENCE:	21 October 2022
CASE MAY BE CITED AS:	DPP v WALSH
MEDIUM NEUTRAL CITATION:	[2022] VCC 1755

REASONS FOR SENTENCE
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Subject:Causing injury recklessly – assault an emergency worker on duty – resisting custodial officer on duty

Catchwords:              Guilty plea – low – mid range offending – early plea – youthful offender

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic); Mental Health Act 2014 (Vic)

Cases Cited:DPP v Jarrod Doran [2021] VCC 1373; DPP v Ahmed El-Labadidi [2018] VCC 1031; Wyka & Gardiner v The Queen [2020] VSCA 104.

Sentence:                  204 days’ imprisonment – 18-month CCO

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr A. Norris	Office of Public Prosecutions
For the Accused	Ms S. Buckley	Chester Metcalfe & Co

HIS HONOUR:

1Jack Walsh, you have pleaded guilty to:

(a)   One charge of causing injury recklessly (Charge 1);

(b)   One charge of assault an emergency worker on duty (Charge 2); and

(c)   One charge of resisting custodial officer on duty (Charge 3).

2The maximum penalty for each of these offences is 5 years’ imprisonment.

3Because you caused injury to an emergency worker on duty Charge 1 is a Category 1 Offence. The statutory minimum non-parole period is 6 months’ imprisonment.

4You have also pleaded guilty to the summary charge of commit indictable offence whilst on bail (Summary Charge 5). The maximum penalty for this offence is 3 months’ imprisonment.

Circumstances of your offending

5The circumstances of your offending are described in the Summary of Prosecution Opening for Plea.[1] They are agreed facts.

[1] Exhibit A: Summary of Prosecution Opening for Plea dated 10 October 2022.

6At about 1:15 AM on 31 March 2022, you were interviewed by police at the Melbourne West Police Station. You were not charged with any offence and were to be released from your holding cell.

7Considering you identified as schizophrenic, were behaving erratically and had been released from hospital twice earlier that day, Acting Sergeant Christopher Dixon arranged for two police officers and two custody officers, with him, to escort you to the charge counter. The two custody officers were Jahanzeb Ata (‘Ata’) and Amandeep Kaur, (‘Kaur’).

8Ata opened the holding cell door, gave you your shoes and told you to go to the charge counter. You refused, saying that you wanted to stay in the holding cell.

9When he tried again a few minutes later, you put on your shoes and left the holding cell. You did not want to leave the police station; you wanted to sleep in the cell. You became agitated and tried to grab one of the police officer’s empty gun holders. Ata grabbed you and let you go.

10After arguing with Dixon, Ata, Kaur and another police officer held your arms, and told you to stay calm and behave. You were yelling.

11Dixon told the custody officers to release you, and tried to speak to you. Ata and Kaur released you and got you a cup of water.

12You were then escorted to the exit. Ata and Dixon were each holding one of your arms. When Dixon went to swipe his card at the security door, he lost his grip on your arm and you broke free. You punched Ata to his nose which started bleeding heavily. He broke his nose. He spent a night in hospital and did not return to work for almost a month (Charge 1 – Recklessly cause injury).

13You also punched Dixon, hitting both sides of his face. You struggled, ending up on top of Dixon and throwing punches at his arms and back. The right side of his face was tender, reddened and slightly swollen. He also suffered scratches to his elbows and an abrasion (Charge 2 – Assault an emergency worker on duty)

14Kaur and others intervened to restrain you. Kaur’s left ring finger was fractured when it hit a metal door during the struggle. She required surgery to fix it. (Charge 3 – Resisting custodial officer on duty).

15You suffered a cut to head, which was fixed with glue, when you were forced to the ground.

16You were assessed to be unfit for interview, charged and remanded in custody.

17On 5 August 2022, a committal case conference, you indicated your intention to plead guilty to the charges now on the indictment

Criminal record

18You have a number of prior convictions, mostly for dishonesty and drug offences.

19Relevantly, you had no history of violence until 13 May 2021 when, at Heidelberg Magistrate’s Court, you were convicted of unlawful assault, amongst other offences, and sentenced to 120 days’ imprisonment with a 12 month Community Corrections Order (‘CCO’).

20You are subject to that CCO when you committed the index offending.

21You were also on two sets of bail for other charges (Summary Charge 5 – Commit indictable offence whilst on bail).

22One related to dishonesty offences alleged to have been committed on 21 January 2021 and the second related to dishonesty and drug possession offences alleged to have been committed on 18 March 2022.

Victim impact statements

23The three victims declined the opportunity to make a victim impact statement.

24Photos of their injuries were tendered.[2]

[2] Exhibit C: Photographs of the Three Victims.

25They show Mr Ata’s nose was scratched and bleeding; Acting Sergeant Dixon had redness to the side of his face and Ms Kaur’s finger had been sutured; I assume they were surgical sutures.

Personal circumstances

26You were born in November 1999.

27Your personal circumstances are set out in the psychological report of Gina Cidoni who assessed you on 21 June 2022[3].

[3] Exhibit 2

28Your parents separated when you were very young. When you were 4 years old, your father died of cancer. You have no real memory of him.

29You lived in Heidelberg with your mother until you were 6 years old when your mother formed a relationship with your stepfather and the three of you moved to South Morang.

30You lived with your mother and stepfather in South Morang until you were 15 years old. Your mother and stepfather have one child, your half-brother, who is 8 years old.

31When you were a teenager, you often fought with your stepfather. When you were 15 years old, after a fight with him, you left home and lived with your aunt and uncle in Brisbane.

32You started drinking alcohol and smoking cannabis. When your 17 year started using ice, GHB and heroin

33You were living with your grandmother in Melbourne. She moved to Queensland, when you were 18 years old, and you were homeless.

34You had lost contact with your mother who does not approve of your drug use.

35You slept rough for a period and then stayed in a refuge at Burwood for two months. When you left, you went from refuges and hotels to sleeping on the streets. You then moved to a share house in Heidelberg where you lived until you were 21. In late December 2021, you moved into a house in Collingwood through the H2H (Homeless to Homes) housing service.

36When you offended, you were using ice daily.

37You had attended a number of different schools in the various areas you lived. At school, you struggled academically and behaviourally. You were bullied, both verbally and physically, and tried to stand up for yourself. You were expelled for drug use and fighting.

38After you completed Year 10, you worked as a handyman for real estate companies. You did bricklaying on and off. He worked for Melbourne Masonry for a time and most recently, worked for a JP bricklaying from November 2021 until early March 2022.

Psychological opinions

39Ms Cidoni was limited in the intelligence testing she could administer. Nevertheless, your verbal reasoning abilities are low average range and your attention and concentration abilities are borderline range.

40Victorian public mental health database records show you have had seven psychiatric admissions between 2 January 2020 and 29 August 2021. You have been subject to involuntary treatment on eight occasions between 28 January 2020 and 6 July 2021.[4]

[4] Exhibit 3, Forensicare Mental Health Advice and Response Service Confidential Mental Health Summary dated 19 March 2022.

41You have diagnoses of schizophrenia, drug related mental and behavioural disorder, to social personality disorder and borderline personality disorder.[5]

[5] Ibid.

42Ms Cidoni assessed you as suffering severe levels of psychological distress.

43You reported a history of auditory and visual hallucinations. When were in custody in 2021 you a prescribed antipsychotic medication but said it didn’t help. During your recent incarceration you are prescribed same medication but the hallucinations, which include voices threatening to kidnap, rape and kill you, persist.

44To Ms Cidoni, you exhibited symptoms of anxiety and depression, paranoia and psychoticism.

45Dr Cidoni diagnosed you with:

(a)   Generalised Anxiety Disorder (GAD);

(b)   Stimulant Use Disorder (in enforced remission); and

(c)   Substance Induced Psychotic Disorder (in partial remission).[6]

[6] Exhibit 2: Report of Dr Gina Cidoni dated 21 June 2022, [76].

46In Dr Cidoni’s opinion:

(a)   Your drug use and associated psychosis affect your ability to think clearly and make calm reasoned decisions;[7] and

(b)   Prison “might intensify” your mental illness and “could progress its development to disorder level”.[8]

[7] Ibid, [77].

[8] Ibid, [83].

47She recommends psychotherapy and skills training to help you control specific behaviours and thinking patterns, and drug treatment to help you remain abstinent.[9]

[9] Ibid, [84]

48She identified work and sport as protective factors.

49I accept her diagnoses, opinions and recommendations, which were not challenged.

50In jail, you have completed the “youth substance use” and “youth healthy lifestyle” programs.[10]

[10] Exhibit 4: Bundle of Participation Certificates.

51You have had no personal visits but have had seven calls with your grandmother and cousin and, significantly, you have reconnected with your mother with weekly calls.

52In June 2021, when you were homeless, Paul Campobasso, at Melbourne City Mission, helped you to find appropriate housing through the H2H program.

53He wrote,

I emphasise that the time of the incidents that led to Mr Walsh being on remand, Mr Walsh had been struggling considerably with his mental health. He had previously been receiving support by North Western Area Mental Health Service who referred him to Clarendon Clinic when he moved to Collingwood. Clarendon supported him for 3 ½ weeks from February  22 to March 18, when they exited him from their service.

I urge the court to recognise Mr Walsh’s young age and the state of his mental health at the time of the incidents that led him to being remanded. It’s also important for the court to recognise that as Mr Walsh has been in remand for over 6 months at this point, his support and accommodation are at high risk of ending.

Mr Walsh is already overdue to be exited from our program, due to his long stretch in remand, but I fought to keep him on my caseload, due to recognising his vulnerability and have been in regular contact with him at the prison.[11]

[11] Exhibit 5: Letter from Paul Campobasso of Melbourne City Mission dated 17 October 2022.

54While you have been in custody, Corrections have paid your rent but this has recently come to an end.

55According to Mr Campobasso, it appears, if you remain in custody you will ultimately come out of prison without accommodation or support.

Defence submissions

56Your counsel, Ms Buckley, told me, in comprehensive written[12] and oral submissions, for approximately two months prior to offending you would stop taking your antipsychotic medication and were experiencing frequent psychotic episodes. You were also consuming harmful quantities of methamphetamine, heroin and GHB. You would not sleep properly for two weeks and were experiencing auditory hallucinations.

[12] Exhibit 1: Outline of Plea Submissions dated 16 October 2022.

57On the day you offended, you were released from Royal Melbourne Hospital after a mental health assessment.[13]

[13] Mental Health Act 2014 (Vic), s 351.

58Around 9:00 PM, you were arrested at Southern Cross Station when you grabbed at a Protective Services Officer’s firearm stating you wanted to die.

59You were taken to Royal Melbourne Hospital, where you were assessed again. You were released again and police took you to Melbourne West Police Station where were put in a holding cell.

60Around 1:00 AM, police decided to release you. You did not want to leave the cell because it was safe and you were worried about being released on to streets with nowhere to go.

61You lashed out and assaulted two police, in an episode which lasted five to six seconds, when they escorted you out of the police building.

62Ms Buckley did not argue any special reason to depart from the mandated minimum sentence of 6 months imprisonment for charge 1.[14]

[14] Sentencing Act 1991 (Vic), s 10AA(4).

63She submitted yours is the low end example of that offence and the time have spent in custody, nearly 7 months, is sufficiently punitive for your crime.

64She submitted I should impose a CCO, tailored to address your mental health and drug problems, on the other charges.

65In mitigation of penalty, she relied on the following factors:

(a)   firstly, your early guilty plea;

(b)   secondly, your relative youth;

(c)   thirdly, your limited history of violence; and

(d)   fourthly, the additional hardship of prison during the COVID-19 pandemic.

66She submitted your mental health will make prison harder for you and you will likely deteriorate with further incarceration.

67She acknowledged your prospects of rehabilitation depend on you remaining drug-free.

68She submitted you require treatment for drug and mental health issues to reduce the risk of your reoffending.

69She also submitted Melbourne City Mission support, reconnection with your mother and a capacity for work are protective factors.

Prosecution submissions

70Mr Norris, who appeared for the prosecution, in commendably fair written[15] and oral submissions, submitted Charge 1 must attract a term of imprisonment of at least 6 months period and a term of imprisonment in combination with a CCO is within range for Charges 2 and 3.

[15] Exhibit B: Outline of Submissions on Plea dated 16 October 2022.

71He conceded a total effective sentence involving your immediate release from custody onto a lengthy, therapeutic CCO would not be manifestly inadequate.

72He accepted your early guilty plea and relative youth are mitigating factors.

73He submitted Ms Cidoni’s opinions fall short of engaging limbs 5 and 6 of the Verdins principles.

74He also submitted, considering you threw punches at a custody officer, without warning, and then at a police officer, as you both went to the ground, in circumstances where they had been trying to calm you down, and, in course of restraining  of  you,  another custody officer was hurt, your offending is mid-range.

75He referred me to two sentences of this court as comparators[16]

[16] DPP v Jarrod Doran [2021] VCC 1373 (Judge Georgiou); DPP v Ahmed El-Labadidi [2018] VCC 1031 (Judge C Ryan).

Consideration

76The watchhouse CCTV film was played in court.[17]

[17] Exhibit D: Watchhouse Film.

77As you were being led to the police station exit you threw a flurry of punches, over a five to six second period firstly, at Mr Ata and then acting Sgt Dixon before you were quickly and forcibly restrained.

78It was unprovoked. Police and custody officers were doing their best to keep you and themselves safe.

79Three of them were injured. Fortunately, none suffered serious injuries.

80I accept you were trying to prevent your removal from the police station. I also accept you were mentally unwell.

81I assess the objective gravity if your offending of charge one to be low to mid-range.

82The objective gravity of your offending in relation to Charges 2 and 3 is less serious.

83Any assault on an emergency worker on duty is serious. Parliament’s intention is prison should be the norm.

84A term of imprisonment is the appropriate sentence on Charge 1.

85There are mitigating factors which moderate the sentence I shall impose.

86Firstly, you are entitled to a demonstrable sentencing discount for your early guilty play. It has high utilitarian value which is augmented by the Worboyes discount.

87Secondly, I take into account prison has been harder for all prisoners during the COVID-19 pandemic.[18]

[18] Wyka & Gardiner v The Queen [2020] VSCA 104, [161] (per Croucher AJA).

88Thirdly, I also take into account there is a risk your mental illness will deteriorate with further incarceration.

89Fourthly, your relative youth demands consideration of your rehabilitation. Your circumstances were chaotic when you offended. You were struggling with your mental health. Melbourne city Mission will help you with accommodation and community supports to help you manage your mental health. They are protective factors.

90Having regard to the totality principle, I am satisfied  a composite sentence  can achieve all sentencing purposes in your case .

91I have had you assessed for a community correction order.

92You told the assessing officer you are sorry for your actions. You said, before you offended, you had relapsed into substance abuse with flatmate and, after an argument with them, you were homeless.

93You are assessed as moderate risk of general reoffending and found suitable for CCO if your accommodation is confirmed.

94This morning, Mr Campobasso  confirmed your accommodation has been secured  under the Homelessness to Homes (H2H) program.

95The assessing officer reported, “(you) will need to engage fully and appropriately with all recommended programs in order to successfully complete the CCO and remain in the community”

96With that understanding, you have consented to the making of an order.

97The order I make will be intensive.

98I consider the time you have spent in remand custody is sufficiently punitive.

99Please stand Mr Walsh.

100But since I impose I must denounce your conduct, punish you, and deter you and others from committing crimes of the same or similar kind. I must also look to your rehabilitation.

101Considering the circumstances of your offending, your personal circumstances and antecedents and endeavouring to produce a sentence which reflects and provides the purposes of sentencing in a manner appropriate to you.

102On Charge 1, causing injury recklessly to an emergency worker on duty, you are sentenced to 204 days’ imprisonment.

103I declare you have served 204 days of your sentence by way of presentence detention

104On the charges of assaulting an emergency worker on duty (Charge 2), resisting a custodial officer on duty (Charge 3) and the summary charge of committing an indictable offence, recklessly cause injury, whilst on bail you are convicted and sentenced to a CCO which will commence today.

105The duration of the order is 18 months.

106In addition to the core conditions, I attach the following special conditions:

(a)   Supervision;

(b)   Drug and alcohol rehabilitation and treatment; and

(c)   Mental health rehabilitation and treatment.

107While there is some artificiality in the process, doing the best I can, I declare but for your plea of guilty I would have sentenced you to total effective sentence of 21 months’ imprisonment and fixed a minimum non-parole period of 12 months.