Director of Public Prosecutions v Ward
[2013] VCC 1389
•29 April 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00119
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BYRON HENRY WARD |
---
JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 29 April 2013 | |
CASE MAY BE CITED AS: | DPP v. Ward | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1389 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C. Foot | |
| For the Accused | Mr T. Marsh |
HER HONOUR:
1 Byron Henry Ward, you have pleaded guilty to one charge of armed robbery, two charges of theft, two charges of criminal damage, two charges of common assault, and you have also pleaded guilty to the summary charges of breaching a family violence intervention order, dangerous driving and failing to exchange names and addresses following an accident which were uplifted for hearing to this court pursuant to s.145 of the Criminal Procedure Act.
2 The facts underlying your offending are as follows:
3 On 20 September 2012 you began to act irrationally, sending text messages to associates which were out-of-character and caused them to worry about your emotional welfare. Two of these friends went to your house in Frankston that day and saw you pacing up and down in the middle of the road. You seemed highly disturbed and threatened to deliberately cause damage to your car if anyone tried to interfere with you. You then drove away to a paint store in Frankston, where you took four cans of spray paint from a shelf, put them on the counter and on being told the price, took a 15 centimetre knife from your trousers and menaced the store assistant, saying "Do you want this or do you want the money? Do not call police." You grabbed the bag of paint and left the shop, and these actions underlie Charge 1 on the indictment, armed robbery.
4 You then drove to a nearby Coles supermarket, where you took a fishing knife from the shelf, put it down your pants and left without paying. These actions comprise Charge 2, theft.
5
Two loss prevention officers approached you as you got in your car, told you what they had seen, and you said to them, "I've got a knife, I'll fucking stab you." They left and contacted police, and you drove to premises in Mount Eliza where you had previously lived until being evicted, throwing a brick through the bedroom window of the front unit. These actions underlie
Charge 3, criminal damage.
6 Your attendance at the premises also breached an intervention order made at the Frankston Magistrates' Court on 17 September 2012 prohibiting you from attending there because you had previously threatened to assault a unit occupant. This relates to the summary offence of contravening a family intervention order.
7 Fifteen minutes later you pulled up your car to a stationary position in the middle of the wrong side of the road of Nepean Highway, with motorists flashing their lights at you to prevent a head-on collision. You then accelerated your car but ended up across the intersection and continued south, eventually accelerating and ramming into the back of a car containing four people. You abused the vehicle occupants and rammed the car twice more, pushing it into the adjoining lane. These actions underlie the summary charge of driving in a manner dangerous. You then drove off, thus committing the offence of failing to give information after a motor vehicle accident.
8
You went to Bunnings warehouse in Frankston, where you took a pair of garden shears and a sledge hammer and tried to leave the store without paying. When staff tried to stop you, you yelled "If any of you call the cops, I'll come back and fucking stab you all" and left. These actions underlie
Charges 5 and 6, charges of common law assault relating to the threats made by you to each of two staff. Your actions in taking the items from Bunnings underlie Charge 4 on the indictment of theft.
9 You drove to the peninsula campus of Monash University to the rear car park, where you got out of the car with the sledge hammer, went up to the basketball stadium there, where games were being played with about 70 people in attendance, and struck three external laminated windows several times with the sledge hammer, causing the glass to shell and fragment inwards into the court where a junior game was underway. These actions underlie Charge 7, criminal damage, you having caused about $10,000 worth of damage to the windows. The sound of the blows to the windows sounded like gunshot, causing many people to flee and take cover.
10 You then drove your car to the Frankston foreshore car park, onto the boat ramp and into a creek, where the car sank in the creek bed about two feet below the waterline. You left the car in the water and were arrested a short time later. You conducted a "no comment" record of interview with police.
11 I now turn to your personal circumstances.
12 You are 26 years old, the eldest of three children. When you were in Grade 6 your mother left the family to live in Cairns, taking your sister. You told psychiatrist, Dr Shannon Reid, whose report dated 3 January 2013 was tendered on the plea, that this had a massive effect upon you, leaving you with a significant feeling of abandonment.
13 In secondary school you received detentions and suspension for fighting and truancy, leaving school after a term of your Year 11 studies and returning the next year. In that time, however, you began using cannabis and ecstasy and believed this interfered significantly in your ongoing study.
14 You then worked in concreting and labouring before becoming a restaurant kitchen-hand. You ultimately made a number of unsuccessful attempts to complete Year 11, which you said made you feel like a failure.
15 You experienced a significant depressed mood when you were 18, during which time you were smoking cannabis on a daily basis. When you were 22, you first experienced symptoms of psychosis. You had undergone reconstructive surgery on your jaw and came to believe it gave you a special ability to woo women.
16 You were living in a boarding house for about 18 months and came to believe people would try to break in, so you bolted the windows, which made the owner angry. You started to read graffiti you believed was written specifically for you, and believed that someone was imitating you in some way. You felt compelled to write graffiti back in response. You believed cars were following you and that you could not turn on the television or radio or read newspapers without believing the content related specifically to you. You developed the belief that Julia Gillard, Barack Obama and Mitt Romney knew about your circumstances. You felt anxious walking past people and avoided going to pubs and clubs.
17 About three or four years ago you began to see a psychiatrist to help you with depression but resisted suggestions that you should see a psychologist.
18 You were evicted from your boarding house a week before the offending and went to stay with your father. At this time you were working at a restaurant. One of the chefs drove you home from work and you came to believe there was some sort of transfer of information between this man and one of the other people living at the units who was also a chef. On your last day of work you wrote a series of derisive notes to co-workers on pieces of paper and attached them to a refrigerator but were unable to say why you did this. You became convinced that your neighbour and the chef from your workplace were teaming up to do things to you, such as rearranging objects in your bedroom and tampering with your food.
19 On the day of the offending you became troubled about material on the television, radio and newspaper and believed it referred to you and Mitt Romney, you forming the belief that your actions would affect his chances of becoming president which you wanted to advance because the two of you shared membership with the Church of Latter Day Saints.
20 You told Dr Reid that you "randomly decided to take action against the things that were happening in my life." He said you wanted the cans of spray paint to send a message back to people you thought were sending messages to you through graffiti but did not have enough money to pay, so got the kitchen knife from your home to effect the armed robbery.
21 You had formed the belief your car was regularly being broken into when you went to the gym at Monash University campus and so you smashed the windows at the basketball courts to express your power and sent a message to others to stop meddling with your car.
22 You thought you would get away with your actions because "everyone was united on my side." This you explained is a reason for taking the sledge hammer from Bunnings, and you said you took the secateurs to frighten others.
23 Following your arrest you were bailed to your father's home, where you spent three weeks, but were then admitted to a psychiatric ward in hospital and placed on Risperidone, which is an antipsychotic, which had the side-effect of making you feel extremely restless. You attempted suicide by handcuffing your arms and legs and jumping off the Frankston pier and were subsequently admitted to Frankston Hospital in the Acute Inpatient Unit for three or four weeks and your medication was changed to the depot antipsychotic flupenthixol decanoate. You also began antidepressants and therapy, which made you feel better, but on your release had difficulty coping with the side effects of the medication and after two weeks, tried to hang yourself and were readmitted to the Acute Psychiatry Unit.
24 You have no prior convictions, and it sounds as if you were going through enormous emotional and psychiatric distress around this time.
25 It was Dr Reid's view that you probably had schizophrenia as well as a major depressive disorder which contributed heavily towards your offending. It was his view, however, that you did engage in this offending with the clear knowledge that some of your actions were illegal and immoral, so that the frank defence of mental impairment was not open to you.
26 You were last discharged from involuntary treatment on 13 January this year and have since resided with your father, who is a nurse. You are currently on a community treatment order and are compliant with your medication. It was Dr Reid's view that you would cope extremely poorly with imprisonment, and indeed it is my view that a sentence of imprisonment would be completely inappropriate in your case.
27 Whilst the defence of mental impairment may not have been open to you on these charges, I am nevertheless satisfied that your psychiatric illness had a significant part to play in your commission of these offences, and indeed this offending was entirely out-of-character for you, normally a hardworking and law-abiding young man.
28 You are not, in my view, in the circumstances, an appropriate vehicle for general deterrence, and I find that the principles in R v. Verdins [2007] 16 V.R. 269 have absolute application in your case, such that your moral culpability for your actions is so significantly reduced that I feel I should best deal with you by way of a non-custodial disposition which is designed to assist you.
29 You have been assessed for placement on a Community Corrections Order and have been found suitable, and I propose to deal with you in that way.
30 I am fortified in this decision by a report dated 21 April 2013 from Dr Michael Lee, a consultant psychiatrist, who reported the circumstances surrounding your offending which are in line with those that I have outlined in my sentencing remarks, with his view that "he suffers from a schizophrenia paranoid type" and you currently appear, according to Dr Lee, to be entering a stage of significant remission, and it was his belief that your behaviours over the previous six months were a reflection of your mental illness at the time.
31 You remain on the community treatment order and Dr Lee's view is that your risk profile in regard to a risk to yourself or others is low. You are currently attending on both a psychiatrist and a psychologist, which is entirely appropriate in the circumstances. You remain living with your father and on a disability pension, but I note that you are anxious to return to work.
32 You are also a member of the Latter Day Saints Church and it appears that you receive support there, with ongoing counselling from a psychologist and member of the church.
33 In relation to all the charges, I place you on Community Corrections Orders, and I believe I can do that in relation to all of them; is that right?
34 MS FOOT: Yes.
35 HER HONOUR: The order will last for a period of 18 months. Now I cannot place you on such an order without your consent, Mr Ward, so I need to tell you what the conditions are that relate to this.
36 First, once you have been placed on the order, you must report to the nearest Community Corrections Office, details of which will be given to you, within two working days, that is, by Wednesday. Whilst on the order, you must not commit another offence while either inside or outside of Victoria; you must report to and receive visits from the Community Corrections Office; you must obey all lawful instructions of the Community Corrections Office; you may not leave Victoria without the permission of the Community Corrections Office; and you must report any change of address or employment within 48 hours of that change.
37 I also propose placing you on a special condition that you receive treatment and assessment for mental health difficulties, and I order that you perform 100 hours of unpaid community work.
38 Now in the circumstances, given the way in which you came to commit this offending, which, even though, as I have said, was not of such a calibre that you could rely on a mental impairment defence, came so close to it, and given your prior very good history, it is my view that notwithstanding the seriousness of the offending, I should make an order which carries with it no conviction.
39 So there will be no conviction, all right? Are you prepared to be placed on this order, Mr Ward?
40 PRISONER: Yes, Your Honour.
41
HER HONOUR: Thank you very much. We will just prepare the documentation. Come and sit behind your counsel in the first row there,
Mr Ward.
42 I am not prepared to grant a s.464ZF application. This is a young man who, but for his illness, would not have offended. It is completely out-of-character and the type of offending he engaged in was not one where that would have proved to be of any great use in detecting the offending, so I am not going to grant this at this stage. I want to give Mr Ward every opportunity he can to get on with his life and to leave this spree of offending which was very much related to his mental illness behind him, all right, with as little consequence on his future life as possible.
43
In relation to the orders for compensation, it does not seem to me that
Mr Ward is going to be in a position in the foreseeable future.
44 MR MARSH: Perhaps even before turning to the prospect of whether or not Mr Ward is in a position to make those reparations, I would argue respectfully, Your Honour, for very similar reasons to what Your Honour said in relation to the 464ZF order. This is offending and these are damages that have been caused entirely in the course of essentially what was highly disordered and delusional thinking.
45 HER HONOUR: Yes.
46 MR MARSH: It's not a situation where there was a considered view taken that smashing - you know, or a wanton destruction of property. This was somebody who was doing these actions - and I say this particularly, the smashing of the windows at the basketball courts - out of a belief that somehow bad events would stop happening to him. Although it's not - - -
47 HER HONOUR: Yes, I agree.
48 MR MARSH: It's not a usual consideration to take into account - - -
49 HER HONOUR: No.
50 MR MARSH: - - - but it's not - - -
51 HER HONOUR: I agree. Have you got anything to say, Madam Prosecutor?
52 MS FOOT: No, it's a matter for Your Honour.
53 HER HONOUR: Thank you. I am not going to make any compensation orders.
54 MS FOOT: There is, however, a mandatory licence disqualification in relation to the drive in a manner dangerous charge, mandatory minimum of six months, Your Honour.
55 HER HONOUR: Six months. Yes, very well. I am going to, in relation to the dangerous driving, order that all licences be cancelled and he be disqualified from obtaining a further order for a period of six months.
56 MS FOOT: If Your Honour pleases.
57 HER HONOUR: All right. Thank you very much. All right. I will just put on the top of it "no conviction." All right. Thank you. I will hand back those orders. Thank you very much, Madam Prosecutor. Here we go, we will give copies to you.
58 I wish you all the very best, Mr Ward.
59 Pursuant to s.6AAA, had you not pleaded guilty - (indistinct) have done an awful lot more actually, given the circumstances.
60 MR MARSH: The 6AAA declaration fails spectacularly in a small number of cases, and I just - - -
61 HER HONOUR: This is one of them. I would have placed you on a Community Corrections Order for three years. All right? Yes, it is exactly right, Mr Marsh, I agree with you. All right.
62 That is it for me. I am on long service leave for three months as of now, so we will adjourn the court sine die. I thank counsel very much for their assistance in this matter.
- - -
0
0
0