Director of Public Prosecutions v Warnakulasuriye Fernando

[2018] VCC 2078

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01792

DIRECTOR OF PUBLIC PROSECUTIONS

v

AMITH WARNAKULASURIYE FERNANDO

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	7 December 2018
CASE MAY BE CITED AS:	DPP v Warnakulasuriye Fernando
MEDIUM NEUTRAL CITATION:	[2018] VCC 2078

REASONS FOR SENTENCE
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Subject:
Catchwords:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Martin
For the Accused	Ms J. Swiney

HER HONOUR: 

1Amith Warnakulasuriye Fernando, you have pleaded guilty before me to one charge of attempted robbery, one charge of aggravated burglary, one charge of threat to kill and one charge of intentionally causing injury.  You have also pleaded guilty to the summary charge of unlawful assault.

2The facts underlying your offending are as follows.  At about 1.45pm on 15 May 2017, you went to the Club Noble Hotel in Noble Park where you spent the afternoon drinking and playing poker machines.  At about 6pm, the complainant, Shirley Bradshaw, drove to the hotel, parking in the car park at which stage you were still inside.  She had seen you hanging around the building when she went in and she then returned to her car at about 6.15pm.

3Ms Bradshaw got in her car and locked the doors and you walked up to her car, stopping at the passenger side window.  You banged on the car window, demanding Ms Bradshaw give you money.  She refused, started her car and drove away and you returned into the hotel.  These actions underlie Charge 1 on the indictment, attempted robbery.

4You went back inside the hotel where you remained until about 7.30pm and then walked across the car park towards the Moodemere Scout Hall nearby.  A Cub Scout leader, Ms Jodie Skeels was alone in the hall cleaning up after an event that had been held earlier in the evening and while she was cleaning near the office area, she saw you standing in the building and halfway across the hall.  She walked out to meet you, asking whether she could help you and you rushed at her aggressively telling her to, "Get in there," while pushing her towards the office area.  At this time you were wearing rubber gloves.

5When she reached the office doorway, Ms Skeels dropped to the floor and you continued to push her and tried to pull her into the office area.  You used your foot to kick her once in the head and then grabbed hold of her jacket, pulling it over her head, at the same time threatening to kill her.  You grabbed Ms Skeels in a head lock, continuing to pull her jacket over her head, during which she bit your thumb and then you sat across her, producing a knife which you held to her face and throat.  Ms Skeels pushed your arm away but you used the knife to jab at her stomach and right arm, holding your other hand over her mouth to prevent her from screaming.

6Ms Skeels eventually got free and screamed once but you told her to shut up, covered her mouth again and continued to tell her to get in the office.  You asked Ms Skeels where the light switches were for the hall and when she refused to tell you, you stood up and kicked her to the head and face region.

7Ms Skeels managed to pick herself up from the floor and then went into the office area and locked the door behind her, sitting against the door.  She rang her husband on her mobile phone, asking that he call police and a few minutes later you left the building.  As a result of the assault, Ms Skeels received two lacerations on her right arm which required stitching as well as bruising to the ride side of her head and face.  Police found a knife near the office of the scout hall and pieces of blue latex gloves, whilst hotel CCTV footage shows you leaving the hotel and walking towards the scout hall.

8On 16 May 2017, police executed a search warrant at your home, where you were placed under arrest and you were identified by Ms Skeels via photo board.

9In your record of interview with police that day, you admitted wearing white bloodstained shoes which were found at your house, but otherwise said you had spent the afternoon at home drinking.  Your actions in relation to Ms Skeels underlie Charge 2 on the indictment, aggravated burglary, Charge 3, threat to kill, Charge 4, intentionally causing injury and the summary charge of unlawful assault.

10The maximum penalty for attempted robbery is ten years' imprisonment.  The maximum penalty for aggravated burglary is 25 years' imprisonment.  The maximum penalty for threatening to kill is ten years' imprisonment.  The maximum penalty for intentionally causing injury is ten years' imprisonment.  The maximum penalty for the summary charge of unlawful assault is three months' imprisonment.

11The matter resolved to a plea on 22 March this year and you have remained in custody since your arrest.

12I now turn to your personal circumstances.  You are 32 years old and are the eldest of two children born to your parents in northern Sri Lanka.  You told psychologist Pamela Matthews, whose report dated 20 November 2018 was tendered on the plea, that your mother worked as a teacher and your father as an architect.  They were Singhalese but lived in an area where the Tamil war was raging.  When you were ten, your parents were both shot dead in front of you by members of the Tamil Liberation Front with you and your brother hiding inside the house, only coming out several hours later.

13Your mother, before she died, told you to take care of your brother who is about six years younger than you and who suffers from intellectual disability.  You told Ms Matthews that after seeing your parents’ deaths, you went back into the house, making a mess to seem as if it had already been scavenged and then took some money and your mother's jewellery and headed south with your brother, making it to Colombo.  You told Ms Matthews that the memories of that day "never go away" and that you continue to experience flashbacks of your parents' death.

14After arriving in Colombo, a taxi driver offered you food and then helped you find a family to stay with on the condition that you and your brother work for that family.  You were then provided with food and shelter but told Ms Matthews you were physically punished when you made mistakes and the two of you eventually ran off, sleeping on the streets.

15You reported several similar arrangements whereby most of the families were abusive towards you, both physically punishing you and your brother and, on occasion, depriving you of food.  You managed however to complete Year 9 schooling and reported doing well with your subjects.  You left school at age 17 to start working, although during the schooling year you worked as a housekeeper on an unpaid basis from about the ages of 11 or 12 to 17.

16You were offered paid work with a Sri Lankan political party, assisting with the election campaign - preparation and promotion such as putting up posters.  That party lost the election and you were then targeted by the victorious party, were issued with death threats and in 2009, made arrangements to flee to Australia by boat.

17You also told psychiatrist Dr Anne Brennan, whose report dated 13 November 2018 was tendered on the plea, that you had been offered to escape to New Zealand but without your brother, so you arranged for someone to take care of him on the promise that you would send back money to support him.

18The boat never made it as far as New Zealand and was picked up by the Australian Border Patrol.  You told Dr Brennan that of the 52 people on the boat, most were returned to Sri Lanka but you spent three to four months on Christmas Island and were then granted a visa.  You then settled in Dandenong North, living with five other people on temporary visas and are apparently now a permanent resident.

19On arrival in Australia you started working in a printing factory.  I was told that you did this by stopping a person who looked Sri Lankan on the streets of Dandenong and asking for work.  You also studied English extensively to gain fluency, you having very little of it prior to your arrival here.  You worked in the printing industry for three years and are now apparently a fluent speaker but have trouble with reading and writing.

20In about 2012, when you were at a party, you were hit over the head with a beer by an unknown person, became unconscious and sustained serious injuries to your face.  You were taken to hospital after being discovered lying comatose on the pavement by another party goer.  You continue to suffer serious scarring to your face and as a result of the attack lost 75 per cent of your vision in one eye.

21You discontinued work at the printing factory but re-trained and purchased equipment to start your own business as a floor sander.  Before this attack, you had rarely drunk alcohol but soon after it, and your release from hospital, you began drinking heavily.  You were then aged about 25 or 26.

22You told Dr Brennan that your alcohol use escalated to a daily consumption of part or a full slab of beer which you drank until you were drunk or blacked out, saying that it helped relieve your distress.  You said that you felt your head was exploding about an ex-girlfriend who had left you, about the scars on your face, your isolation and your worry about your brother.

23You told Ms Matthews that following the assault, you could not look at yourself in the mirror, were constantly in pain and became concerned people were looking at your scars and would think you were a bad person.

24It was around this time that you first came to the attention of police.  In March 2012, you were dealt with for drink driving offences for which you were placed on a Community Corrections Order which included treatment for alcohol dependency.  You breached this order by further offending, again involving drink driving, unlawful assault, threat to kill, discharge of a missile, charges for which you were placed on a further Community Corrections Order.  On 30 September 2015, you were again dealt with for a breach of Community Corrections Order for charges of driving whilst disqualified and refusing to undergo a breath test for which you received a total effective sentence of three months' imprisonment and were placed on a further Community Corrections Order until December 2016.

25On your release from prison, you continued your work as a floor sander but it appears clearly your drinking went on unabated.  On the day of the offending, you had a phone call from your brother in the morning, in which he pressured you for money which upset you, and as had become your habit, you began drinking first at home and then at the hotel in the afternoon.  That drinking continued on until you committed the offences before this court.

26Your counsel told me that you have a vague recollection of offending against the first victim but no recollection at all of the second bout of offending against Ms Skeels.

27You told Ms Matthews you originally went to the hotel to play the pokies to raise money to send to your brother, but you had already drunk to excess whilst at home and you then lost about $400 and kept drinking, essentially blacking out until arrested by police the following day.

28You told Ms Matthews that you are unable to let go of past memories, including those of your parents' death and the assault, and that you were suicidal when first taken to the MAP.  You saw a psychiatric nurse on occasion for the first six to seven months after your incarceration and were prescribed the antidepressant Avanza which you said helped you to sleep and with mood maintenance but did not have a significant effect on your anxiety.

29That medication appears to have been discontinued about three months before the time that Ms Matthews saw you and that you were in a considerably agitated state at that time.  At court on the plea hearing, you said you were again on antidepressant medication which was of assistance to you.

30You reported to Ms Matthews continuing difficulties with sleep which you said you suffered from since you were a child.

31You have undertaken various work whilst in custody, working as a kitchen hand at MAP, a baker at Karreenga and then a cleaner whilst at Barwon.  You were then transferred to Port Phillip, where you are now held in custody management, following bullying from other prisoners, reporting being spat at, pushed and slapped.  You told Ms Matthews that you felt lonely and isolated in custody, spent most of your time when not working in your cell, communicating mainly with prison officers.  You are preoccupied with thoughts of your brother whom you have been unable to contact since being taken into custody in May of last year, your mobile phone having been removed from you which contained the number to your brother's mobile phone which you paid for.

32At the time of interview with Ms Matthews, she described you as teary when discussing subjects such as your parents' death, the current court proceedings and being away from your brother, describing your mood as being very bad.  At times, you have expressed your distress by banging your head against a wall, crying and yelling and reported feeling like a lost person, saying you missed your brother and "just wanted to be with him."  You also reported ongoing flashbacks of gunshot sounds, expressed feelings of desperation, stating you just wanted to see your brother and die. 

33It is likely as a result of this offending that you will be deported but Ms Matthews noted that you are compliant with this, stating you were grateful for the experience of living in Australia but believed you are unlikely to lead a happy life here because of the current court matters.  You said that if you were given a long term of imprisonment, it could cause you to become suicidal and you would prefer to be Sri Lanka in order to be closer to your brother.

34Dr Brennan also noticed several management issues whilst in custody.  You were placed in management for an escape attempt where you tried to place a mattress against a wire fence in order to climb over it and she referred to a MAP referral letter, confirming suicidal ideation in prison in May 2017 and a history of head banging in times of stress.  She stated:

"When navigating the complexities of prison, he has poor resources available to him to assist him to cope and his time in custody appears characterised by distress, self-harm ideation and conflict leading to stricter regimes that are likely to compound his psychological distress."

35At the time Dr Brennan saw you, you were in the MRC in the Chartwell Management Unit in 23-hour lockdown.  At the last plea hearing, you told me you were back in mainstream prison, and working in a factory.

36Dr Brennan said that she found it difficult to determine on the one assessment that she had with you whether you suffered from a full diagnosis of Post-Traumatic Stress Disorder, although she noted,

"It can be said that his experiences of significant developmental trauma has impacted on his psychological state and ability to cope in adverse circumstances."

37She also found you had an alcohol abuse disorder, although I note you have not abused alcohol whilst in custody.  She said this had led to, "multiple harm including legal sanctions."  Dr Brennan stated that it was,

"Worth noting that people with trauma related disorders are more vulnerable to substance abuse disorders."

38It was Ms Matthews' opinion that your history and your presentation were indicative of a Post-Traumatic Stress Disorder which likely developed following you witnessing the death of your parents when aged ten and which was exacerbated by the serious assault in 2012.

39In relation to the offending before this court, Ms Matthews stated,

"It is likely that alcohol served as a precipitating factor in Mr Warnakulasuriye Fernando's actions with him making admissions regarding poor impulse control when under the influence of alcohol.  Mr Warnakulasuriye Fernando understands that this does not excuse his behaviour but insists he has never acted in a similar manner previously."

40Ms Matthews continued,

"Due to Mr Warnakulasuriye Fernando's history of poor stress management and emotional regulation, it is likely that he was unable to contain his frustrations, potentially misinterpreting the victims as being hostile or aggressive towards him with his alcohol being a disinhibiting factor resulting in Mr Warnakulasuriye Fernando acting in an overtly aggressive manner."

41Ms Matthews conducted risk assessment testing based on a large number of factors and concluded that your risk of reoffending in a similar, violent manner was low, that is five per cent at five years, ten per cent at ten years and 12 per cent at 15 years.  You expressed remorse for your offending to both Ms Matthews and Dr Brennan, telling Ms Matthews that you understood the victims of your offending would have felt, "bad, scared," and expressed a desire to write a letter of apology to them.

42Ms Matthews stated,

"Due to his struggles with mental ill health and inability to contact his brother, Mr Warnakulasuriye Fernando is likely to find it more difficult to cope with long term imprisonment in comparison with his peers.  As he has expressed suicidal thoughts in relation to his imprisonment, Mr Warnakulasuriye Fernando would need to be provided with regular supervision and therapeutic support to minimise the risks of acting on such thoughts."

43Although Dr Brennan was unable to give a formal diagnosis of Post-Traumatic Stress Disorder due to having seen you on only on one occasion, I do accept Ms Matthews' diagnosis of you suffering from this condition, which I note in discussion at the plea hearing on 21 November 2018 was of course accepted by the prosecution.  There was also no disagreement from the prosecution with Ms Matthews' finding that you would experience greater difficulty in incarceration than your peers and indeed, it is my comment that your history in custody to date has clearly illustrated this.

44Further, I accept that the longstanding Post-Traumatic Stress Disorder you have suffered since you were a child was aggravated and to some extent enlivened by the serious assault on you in 2012, leading you to develop dependency on alcohol which you had never previously resorted to in any great degree and which had a direct bearing on your commission of the offences before this court.

45That is, I find there is some reduced moral culpability for this offending.  Again, a finding which I note was not resiled from by the prosecution, although it was submitted that diminution of that moral culpability was slight.

46I do note that although not relevant to the sentencing exercise before me you are currently facing a charge of rape, which alleged offending occurred before May 2017 and which matter is being contested.

47The effect of your offending upon Ms Skeels has been severe.  In her victim impact statement dated 10 August 2018, she detailed extreme and continuing emotional distress.  She described a continuing fear and inability to visit the scout hall where she still volunteers unless another adult is present and a loss of trust in people, stating, "I look at everyone with fear and panic, nowhere is safe."  She said she can no longer do anything fun, unless her husband, family or long-term friends are with her, stating, "Even everyday tasks like buying new pairs of shoes is difficult to do."  She says that when she walks from her house to her car she is on the alert.  Walking 200 metres from her office to her car makes her sweat.  She panics when opening a door, where no one is home, even if it is to go to the letterbox.  She avoids hanging out washing, feels like she needs to stay locked inside to feel safe and avoids simple tasks like going to the supermarket or having a coffee when out, stating "The only safe place is my home with the windows and doors locked.  I can't unlatch the screen door and relax in the summer.  The solid door must be locked and I know that even that is not safe."

48She described constant exhaustion, sleeplessness and daily panic, saying "I should be able to live my life and yet I can't see myself ever being free enough to do this again."

49Can I make this comment, Mr Martin, I would be a grateful if a copy of my sentencing remarks could be forwarded to Ms Skeels.

50MR MARTIN:  Yes, Your Honour.

51HER HONOUR:  It would hopefully give her some idea of what laid behind the attack, what the situation was for Mr Warnakulasuriye Fernando and only in terms of taking away that feeling of this terrifying attack having come out of nowhere.

52MR MARTIN:  Yes, Your Honour.

53HER HONOUR:  Thank you. At the end of the day, this is a somewhat inadequate summary of the extremely distressing victim impact statement made by Ms Skeels but the court recognises that the terrifying attack you unleashed on her continues to wreak emotional havoc on her and that her quality of life continues to be severely diminished.

54At the end of the day, this is a most difficult sentencing exercise for the court.  You present before this court with a truly traumatic history and as a person who, even as a young boy, faced those difficulties with courage, it would seem, and determination.  Alone in this world from a young age, you cared for yourself and your brother, essentially working as unpaid servants with families who, although you were provided with food and shelter, mostly ill-treated you, physically punishing you and also, as I have noted, deprived you and your brother of food.

55Despite this, you survived but unfortunately took on paid employment which led to you having to flee your country as a refugee.  It appears you made gallant efforts to settle and work in Australia but were then cruelly assaulted and following this, disastrously became alcohol dependent and began offending.  Matters escalated to the violence perpetrated by you particularly towards Ms Skeels in May of last year.  Your time in custody has understandably been difficult and again traumatic.

56However, the offending, notwithstanding its origins, was violent dangerous and it has been conceded by your counsel that the only way a court deal with you is by way of a term of imprisonment to be immediately served. 

57In sentencing you, I take into account all those mitigatory factors which had been advanced on your behalf, as well as the issues of general deterrence and community protection to which I must have serious regard in formulate the appropriate response by this court.

58On the charge of attempted robbery, you are sentenced to four months' imprisonment.  On the charge of aggravated burglary, you are sentenced to 12 months' imprisonment.  On the charge of threat to kill, you are sentenced to ten months' imprisonment.  On the charge of intentionally causing injury, you are sentenced to two years' imprisonment.  On the charge of unlawful assault, you are sentenced to one month imprisonment.

59The base sentence will be the sentence imposed on Charge 4, which was two years.  I order that one month of the sentence imposed on Charge 1, five months of the sentence imposed on Charge 2, four months of the sentence imposed on Charge 3 be served cumulatively to the sentence imposed on Charge 1.  You are also sentenced to one month imprisonment for the charge of unlawful assault but that sentence will be served concurrently.  That gives a total effective sentence for two years and ten months and I order that you serve a minimum term of 18 months before becoming eligible for parole.

60What is his PSD?

61MR MARTIN:  570, Your Honour.

62HER HONOUR:  Pardon?

63MR MARTIN:  570.

64HER HONOUR:  That means he has already served the minimum term.  Actually, I am sorry, I will make that a two year minimum.  I am sorry, that is more appropriate.  And PSD is five?

65MS SWINEY:  It's 570, Your Honour.

66HER HONOUR:  I direct that 570 days of this sentence has already been served by way of pre-sentence detention.  Do you understand that?

67OFFENDER:  Um a little bit.

68HEH HONOUR:  A little bit?  Ms Swiney will come down and talk to you, all right.  I sentence you to two years and ten months' imprisonment and I order that you serve a minimum term of two years, all right.

69HER HONOUR:  Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a maximum term of five years' imprisonment and order that you serve a minimum term of three years.

70MS SWINEY:  As Your Honour pleases.

71HER HONOUR:  All right, thank you very much.

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